Originally Posted by D.E.S.K.Top668
In this story
about Michael Jackson, they mention that grand jury indictments are usually kept secret until the defendant is arraigned and it got me wondering. What are the other differences between the two and how is it determined which one they're going to use? Is it the defendants choice? Are grand juries only used in certain types of cases and if so, what type?
Thanks in advance - DESK
The quick, down and dirty answer is that the decision of whether to use a grand jury or a preliminary hearing is strictly up to the prosecution. The defendant has no choice in the matter. Most states require that the prosecution make a showing that there is probable cause for the charge before they can proceed to trial. This can be done either at a preliminary hearing or at grand jury (as an aside, some states allow for other ways for the state's to make their probable cause showing, such as by filing a written Trial Information).
In preliminary hearings, the probable cause determination is done by a judge. The prosecution calls a witness and presents testimony in an effort to convince the judge that there is probable cause for the charge. The preliminary hearing is adversarial in nature, so the defense counsel has the opportunity to cross examine the witness and to call witnesses of their own. In most cases, these run very quickly with the judge making a ruling as soon as the prosecution makes the showing or probable cause.
In grand jury, the probable cause determination is done by the grand jurors. It changes state to state, but generally, a majority of the grand jurors must be convinced that there exists probable cause. In Illinois, the Grand Jury is made up of at least 12, but not more than 16 people, and at least 9 of them must vote for the indictment. Unlike the preliminary hearing, this is a secret proceeding that is non-adversarial in nature. The prosecution runs the show, asking the questions, and there is no cross-examination. Nor is the prosecution required to show the grand jury any exculpatory evidence. After the presentation of the evidence, the jurors vote whether or not there is probable cause and, if there is, they issue an indictment.
Whether to use a grand jury of a preliminary hearing is really a matter of taste by the prosecution. I've done all three (preliminary hearings, grand juries, and trial informations), and I am more comfortable with grand juries. There are valid reasons to use one or the other in any case. In Michael Jackson's case, I would imagine they used the grand jury so they would not have to deal with cross examination, an open hearing, and a jaded judge. You'd have to ask the prosecutors themselves for the real reasons.