The prosecution of a criminal case begins with an arrest, or even before the arrest, with a charging document, known as a “complaint” or an “information.” Upon receiving certain information, probable cause, that a crime has been committed, the district attorney’s office files the charging document with the court as a public record. The charging document gives the court the authority or jurisdiction to hear the case. The court then orders an arrest if the defendant has not yet been taken into custody.
In misdemeanor cases, the charging document is always called an “information.” In felony cases, the charging document starts out as an "information," but it must be reviewed and formalized into an “indictment” before the case can proceed to trial as a felony. The purpose of the review process is to double-check that probable cause actually exists.
Examining TrialOne way in which the case is reviewed for probable cause is in the felony court with an “examining trial.” An examining trial is a “mini-trial” where the court hears only enough evidence from both sides to establish whether or not there is probable cause to believe that the defendant committed a felony act. Examining trials are sometimes favorable for the defendant because it is an opportunity to subpoena witnesses and discover details of witness testimony before a final trial.
Grand JuryThe prosecution usually bypasses the need for an examining trial by presenting the probable cause to a grand jury. A grand jury is a selected group of twelve regular citizens who meet to decide whether or not there is probable cause. An assistant district attorney presents the outline of the case, then leaves the room, giving the grand jury the complete case file. The grand jury then votes in secret. Once the grand jury indicts the defendant, there is no need to hold an examining trial.
Witnesses may or may not be subpoenaed to appear before the grand jury. If the defendant is subpoenaed to appear, he or she must meet with the grand jury alone; their attorney is not allowed to accompany them. The defendant can always refuse to testify before a grand jury if the question asked is one that, if answered, may tend to convict them of a crime. In that situation, it is important to first consult a skilled defense attorney.
If the grand jury does not believe there is sufficient evidence, they issue a “no-bill,” and the case is dismissed. If the case is no-billed, the defendant has a better chance of getting all information about their arrest expunged or removed from public records.
If the grand jury believes there is probable cause to proceed with felony charges, they issue a “true bill,” which results in a felony “indictment” being filed with the court. The felony indictment is not a finding of guilt or innocence. The indictment merely allows the case to go forward as a felony charge. Although more difficult, it is still possible to get a felony case dismissed after indictment.