Grand Jury v. Preliminary Hearing: What’s the Difference?

scalesRecently, you may have heard the terms “grand jury” and “preliminary hearing,” in the news and crime television shows. What do they mean and what is the difference between the two?

In Nevada, in order for the prosecution to take a defendant to trial they have to establish probable cause that a crime was committed and the defendant was the person who committed the crime. The prosecution does this by taking its case either to the grand jury or to a preliminary hearing. Nevada law gives a prosecutor the power to decide which of the two to pick from.

Grand Jury

In general, a Nevada grand jury is composed of 17 jurors who listen to the evidence presented by the prosecutor. There is no judge that presides over the hearing, which is kept secret. Additionally, the defendant and his attorney are also not present to cross examine any witness or otherwise challenge the evidence presented by the prosecutor. If at least 12 of the 17 grand jurors agree that the prosecutor has presented probable cause, the defendant is “indicted” and the case can proceed forward to trial. Because the jury set up is so favorable to the prosecution, it is commonly joked that a prosecutor can get a grand jury to “indict a ham sandwich.” Chapter 172 of the Nevada Revised Statutes details the law on grand juries.

Preliminary Hearing

On the other hand, a preliminary hearing takes place in a public courtroom and before a judge. The defendant is present, as well as the defendant’s lawyer, who can cross-examine the prosecution’s witnesses, challenge any other evidence presented, and can call witnesses on the defendant’s behalf. The judge decides if the prosecution has presented sufficient evidence to meet the probable cause standard. If so, an “information” is filed in district court and the case can proceed forward to trial. Chapter 171 of the Nevada Revised Statutes details the law on preliminary hearings.

Time to End the Grand Jury Process

Originally, the grand jury was created to act as a check against the power of the government to bring charges against its own citizens. The United States Supreme Court once explained that the original purpose of the grand jury was “to provide a shield against arbitrary or oppressive action, by insuring that serious criminal accusations will be brought only upon the considered judgment of a representative body of citizens acting under oath and under judicial instruction and guidance.” United States v. Mandujano, 425 U.S. 564, 571 (1976).

Unfortunately, this is no longer the case. In modern times, the grand jury is basically a rubber stamp for the prosecution’s case. Consequently, it is time that Nevada end the grand jury process and make the preliminary hearing the only option a prosecutor has to take a case to trial.

This excellent article provides more details in support of the argument why the grand jury process should be ended:

If you have been charged with a crime, or believe you are being investigated for one, please call the Nobles & Yanez Law Firm to discuss your case privately with an experienced attorney.