Criminal Procedure 101

In recent weeks, a number of folks have called and asked me questions about the confusing world of criminal procedure. The most frequent areas of concern pertain to preliminary hearings, grand jury indictments, and post-arrest arrest warrants. The typical scenario goes something like this: A person is charged with a crime and goes to the first court hearing. He or she is handed a criminal complaint and told to come back for another court hearing, usually called a dispositional conference. If s/he decides not to plead guilty at the dispositional conference, s/he is told to come back in a couple weeks for a preliminary hearing. Weeks pass and shortly before the date of the preliminary hearing, the person is told that the preliminary hearing has been canceled. In its stead, and arraignment date has been set. At the arraignment, the person is served with an indictment and an arrest warrant. None of this is explained to the person and it scares the hell out of them. They don’t know why the preliminary hearing was canceled or why an arrest warrant has been issued. Here is an explanation that I hope will help answer the questions and allay some concerns: Most criminal defendants are charged by criminal complaint. A complaint is an allegation made by the prosecutor. It has not been reviewed or approved by any independent person or body. No evidence has been submitted in support of the allegation. You can think of a complaint as an informal charge. It is just an accusation with no substance behind it. Within 45 days of a defendant first appearing in court on a criminal complaint (or 15 days if the defendant is in jail), the complaint must be reviewed for probable cause. This means that someone or some thing must determine whether (a) it is probable that a crime was committed, and (b) it is probable that the defendant is the person who committed it. There are two ways that probable cause can be determined. The State can present its case to a judge. This occurs at a preliminary hearing (a/k/a “prelim”). At a prelim, the prosecutor puts on witnesses and the defendant (usually through his or her attorney) gets to cross-examine the witnesses. At the end of the hearing, the judge either dismisses the case or finds probable cause. If probable cause is found, the case is bound over for further action. When this happens, the complaint is converted into a document called an information. An information is a formal charging document. It has been endorsed by the judge. The prosecution can, however, prevent a preliminary hearing from happening by taking the matter to a grand jury before the date set for the prelim. A grand jury is a group of citizens that are selected in the same way as other jurors. However, their activities are done in secret. The defendant is not entitled to be present when a grand jury considers his or her case. Defendants are not even told that a grand jury has convened, and grand jury witnesses are sworn to secrecy. There is no judge in the room. Instead, the prosecutor presents witnesses to the grand jury, and the grand jury decides whether probable cause has been established. If a majority of the grand jurors find probable cause, then the complaint is converted into a document called an indictment. It is the same thing as an information. It just has a different title to show that it came through the grand jury process. Prosecutors often prefer grand juries to prelims because they can put forth less reliable evidence and the defendant does not get to cross-examine the witnesses. They are also quicker since no cross-examination occurs. However, proceeding by grand jury tends to clog up the system. Weak cases are not tested through cross-examination early on. An axiom of criminal law is that a grand jury will indict a ham sandwich, meaning that almost any evidence is sufficient to establish probable cause when no one gets to challenge it. At prelims, prosecutors may see how weak their cases are and agree to dismiss or reduce charges. Or, defendants may see how strong the prosecutions’ case is and agree to a plea bargain. In my experience, giving both sides an opportunity to get a preview of what a jury trial will look like makes everyone more reasonable in their expectations for a final result. Because an indictment is a formal charging document that is brought without the defendant’s participation, it is usually accompanied by an arrest warrant. In some situations, an indictment is brought in secret before the defendant is ever arrested. Thus, the arrest warrant authorizes law enforcement to pick up the defendant on the warrant and bring him to jail or court. However, often times the indictment is brought after the defendant has been arrested and already appeared in court a few times. This kind or arrest warrant is called a carryover warrant. It just carries over the previously set bond or bail conditions. However, this is usually not explained to defendants. They get served with the indictment and arrest warrant and think they are going to have to go back to jail or post a new bond. That is not the case, but the confusion is understandable. I provide you with this primer, as dry as it might be, because all to often the folks that are dragged into the criminal justice system are the people that are given the least amount of information about how it operates. This adds the stress of an already stressful situation. I hope this helps to clear up some of the confusion.