Pima County Preliminary Hearings and Grand Jury Indictments Felony Criminal Procedure
Last time we spoke about felony arrests, jail bookings, and initial court appearances, in Pima County. We left off with the initial appearance judge presenting you or your loved one with a piece of paper that orders them to attend a “preliminary hearing” or “PH,” about ten days hence. Today we are going to focus on those preliminary hearings and explain why they almost never happen in Pima County.
What is a Preliminary Hearing
A preliminary hearing is the ostensible first stop in the system of supposed checks and balances embedded in the concept of criminal prosecution and justice. The thinking is—when a person is charged with a serious crime—any felony—the criminal justice system isn’t going to simply take the word of the police officer[s] doing the arrest (in misdemeanors that’s the case). Because felonies are so serious there should be at the least, a brief hearing after release before a “neutral and detached” magistrate, to kind of check the work of the police officer—to independently review in summary fashion the initial evidence gathered.
The magistrate or justice of the peace assigned convenes a one or two hour hearing where she hears evidence , and ultimately makes a threshold determination as to whether there is even enough evidence to “bind over” the individual for trial.
The defense attorney at the preliminary hearing is allowed to cross examine any witnesses. And this is an advantage for defense attorneys the prosecutors are acutely aware of.
Even so, in the vast majority of these cases the preliminary hearing judge upholds the arrest and charge. A win at that juncture is cherished.
But as a matter of practice, these hearings seldom if ever happen in Pima County. A day or two before the scheduled preliminary hearing, the prosecutor end runs the process and goes before a grand jury
Remember that we spoke a few moments ago about the criminal justice system has some checks and balances embedded to protect the rights of the feloniously accused?
A grand jury is another, albeit optional, stop in the process. Prosecutors don’t do both a preliminary hearing and a grand jury presentation, they do either a preliminary hearing or grand jury presentation. And although your judge at the initial appearance, gave you paperwork ordering you to go to a preliminary hearing, that date more than likely gets canceled at the behest of the prosecutor.
In other words it’s a fielder’s choice for the prosecutor: Preliminary Hearing or Grand Jury. And in Pima County prosecutors almost always choose the latter, and in a minute you’ll see why.
The Nature of the Grand Jury Presentation
A grand jury is a group of 10-16 persons in a special secret room, and never see you and you never see them. The grand jurors sit not at a jury box but at rows of desks or tables like students in a class room. They convene regularly for several hours at a time, and in Pima County almost always hear many, sometimes dozens of cases in a single session.
It might surprise you to know that in Pima County a felony grand jury presentation for a simple felony can take as little as five minutes. Sometimes less.
But the most important single thing to understand is that the grand jury presentation is not only quick but is also ex parte. This means that neither the defendant nor his attorney are not normally allowed to attend.
Rather, it’s simply the prosecutor, his witness (it’s almost always a single police officer witness in most Pima County grand juries), the court reporter, and the ten to sixteen grand jurors in a room. And the proceedings are secret.
While the prosecutor has a duty to present to the grand jury , “clearly exculpatory evidence” and not present substantially misleading or false evidence, grand juries presentations almost always result in the grand jury voting almost immediately to indict the defendant on all of the presented charges.
Request to Testify or a Crimmins Letter
But there’s a few things you can do to present your version. First, occasionally, a defense attorney requests in formal writing to the prosecutor that his client, the defendant and grand jury target, be allowed to physically appear and testify at a grand jury. Unless such a request is made, it does not happen, and is the rare exception not the rule
Second, the defense attorney sometimes smartly requests that certain evidence which he believes would be exculpatory or otherwise dissuade a grand jury from indicting, be presented at a grand jury. This request happens again by formal letter to the prosecutor, and should name with as much specificity as possible, the clearly exculpatory or otherwise favorable evidence that the defendant believes should be presented in a fair proceeding.
But it may surprise you to know, that in a surprising number of felony cases, often those involving samples of blood breath or urine to be analyzed for alcohol or drugs, the prosecutor rather than proceeding to a grand jury, or preliminary hearing, with move to dismiss your case pending laboratory results a day or two before the preliminary hearing.
It’s a nice moment, but it can be misleading.
This doesn’t mean the case is going away forever. Sometimes, depending upon the kind of lab work to be completed, and depending upon backlog, the prosecutor may not present to a grand jury for four, six, eight months or more. But my point is they almost always come back.
So what do you do?
This is generally a good time—that stretch of time between dismissal and recharging, while they wait for lab results—this is a good time to be proactive–to work to ameliorate your exposure—take those drug or alcohol classes, compensate victims, and have your attorney try to negotiate a pre-indictment plea if possible.
- The prosecutor has a choice of going preliminary hearing or going grand jury.
- In Pima County they almost always go grand jury.
- Your attorney can write a letter before the grand jury asking that certain evidence be presented
- Sometimes cases are dismissed before the grand jury or preliminary hearing for “further investigation” usually lab work for drugs or alcohol
- During the time between dismissal and recharging your attorney can try to negotiate with the prosecutor to avoid indictment.
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About Michael Harwin
Michael’s skill and experience have been recognized repeatedly. He holds an A-V 5/5 preeminent rating by Martindale Hubbell. He has been named one of the top lawyers in Arizona by Southwest Superlawyers, and one of the best lawyers in Tucson by Tucson Lifestyle Magazine. He also has been named one of the best lawyers in the United States by BestofUS.com , and given the highest rating possible by AVVO, 10/10 Superb. Amazon Books