Criminal Proceedings - pg. 2

(Based on Maricopa County, Arizona)

Preliminary Hearing

A preliminary hearing is a proceeding to determine if probable cause exists to believe a crime has been committed and the defendant committed it. This hearing is held before the justice of the peace of the precinct in which the crime occurred. Less evidence, and therefore fewer witnesses, is needed than at trial. A victim or witness may be subpoenaed for the hearing or the prosecutor may rely on a police officer to testify to the victim's statement, as reliable hearsay is allowable, but in most cases the victim will be asked to testify.

All testimony is recorded by a court reporter. Once the State has presented its evidence, the Justice of the Peace must either find that probable cause exists or dismiss the charges for lack of probable cause. If probable cause is found, the defendant may be allowed to put on an offer of proof to show that probable cause does not exist, but this usually occurs only if the Justice of the Peace feels the defendant's evidence would rebut the finding of probable cause.

If probable cause is found, the defendant is bound over (held to answer) to Superior Court and an arraignment date is set.

The defendant may waive a preliminary hearing, thereby effectively transferring the case into Superior Court. The defendant may also waive his preliminary hearing and plead guilty (waiver with a plea) at his arraignment. This plea may be to the charge or to a lesser offense; the agreement is worked out with a deputy county attorney, the defendant, and counsel.

After the defendant is held to answer, the County Attorney files an information, in the same basic form as a complaint, in Superior Court. At this time the case is given a CR (criminal) number, which is the way the case will be identified in Superior Court. An indictment is also given a CR number when it is filed.

The preliminary hearing can be a difficult part of the criminal process for a victim or witness. The defense attorney may use the hearing as a way of "sizing up" the victim or developing inconsistent statements. A jury is not present, so attorneys may be more zealous in their questioning of a witness.

Grand Jury

A Grand Jury is another type of probable cause hearing, but neither the defendant nor the attorney is present. It is most often used in cases where the victim has been physically assaulted by the defendant, complicated cases, cases involving undercover operations, or cases in which the crimes were committed in several precincts.

Grand Jury proceedings are secret. The Grand Jury is made up of 16 jurors who are selected to serve on a panel for approximately three months. Each Grand Jury panel meets twice a week for an all day session. A Deputy County Attorney presents evidence to the Grand Jurors through the testimony of witnesses (reliable hearsay is allowed). Usually only the investigating police officer testifies, although sometimes a physician or other expert may be subpoenaed to testify about a complicated subject matter. The Grand Jury may request the prosecutor to present further evidence or witnesses, and jurors may question each witness who testifies. A defendant may request to address the Grand Jury, but the Grand Jury may refuse to hear from the defendant. After the presentation of evidence, the Grand Jury deliberates in secret. A minimum of nine members must agree that probable cause exists to believe a crime has been committed and the defendant committed it. If the Jury finds probable cause exists, it instructs the prosecutor to prepare an indictment listing the charges the Grand Jury feels are appropriate.

The Grand Jury may also decide if a summons or warrant should be issued.

Grand Jury proceedings are brief, as no cross-examination takes place. This proceeding, since it is secret, allows the State to charge a person with a crime without the person's knowledge prior to the indictment being issued. It is a crime to divulge the happenings and decisions of a Grand Jury.

While Grand Jury proceedings are useful, there are drawbacks. If a victim or witness testifies at the Preliminary Hearing, that testimony may be used at trial if the victim or witness is unavailable. Yet, if a statement by the victim or witness is testified to by the police officer in the Grand Jury, no sworn testimony will exist to use at trial if the victim or witness becomes unavailable.


This is a brief hearing held in front of a court commissioner at which the indictment or information is read to the defendant; the defendant than pleads guilty or not guilty. If the plea is not guilty, the case is assigned to a judge and a trial date is set. Conditions of release, including bond, may be reviewed at this time. If the defendant pleads guilty, a sentencing date is set. Victims and witnesses do not need to be present for an arraignment.

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