Two Ways to Meet Constitutional Requirement

The preliminary hearing is one of two ways to satisfy a U.S. Constitution requirement that an independent authority review felony charges brought by prosecutors to make sure that a crime has been committed and that probable cause exists to believe that the accused person committed it. The other method is a citizens’ grand jury.

A preliminary hearing is conducted much like a trial, with a Municipal Court judge presiding in a courtroom without a jury, a prosecutor calling witnesses to outline the case and defense attorneys cross-examining them. If a defendant believes that he has a chance of getting the charges dismissed, he may present witnesses in an “affirmative defense.”

The judge decides not guilt or innocence, but only whether the evidence establishes probable cause to believe that a crime was committed and that the defendant committed it. If so, he orders the defendant to stand trial in Superior Court.

The hearing can be closed to the public and news media at a defendant’s request only if he can prove a “substantial probability” that his right to a fair trial will be prejudiced by their presence.

In a grand jury hearing, prosecutors also call witnesses to outline the case, but a defendant cannot have an attorney present, cannot cross-examine the witnesses and cannot present a defense. The session, unlike the preliminary hearing, is conducted behind closed doors in the grand jury chambers. A majority vote of grand jurors is needed to indict the defendant.