Stages of Your Felony Case: Preliminary Hearing and Grand Jury Indictment

If you are charged with a felony offense,  your case has four stages:

  • Initial Charges & Preliminary Hearing
  • Grand Jury Indictment
  • Pretrial & Trial Phase
  • Disposition or Sentencing Phase

This page focuses on the Preliminary Hearing and Grand Jury Indictment Stage. This information is not intended to replace the advice of a qualified defense lawyer.

Initial Charges and Preliminary Hearing

When you’re charged with a felony offense you will usually be arrested and charged with the felony before you are formally indicted.

For most people this means at least one night in jail and an initial appearance before a judge. At this initial appearance, the Judge will listen to the allegations against you and set a bond (bail) and a preliminary hearing date.

The bond is the amount you must pay to the court or a bondsman for your release. Sometimes the court releases you on your signed promise to return to court. This is called a Recognizance Bond.

Also at your initial appearance, the court will schedule date for your preliminary hearing.

A preliminary hearing is a hearing in a felony criminal case.  It takes place after you are charged, but before the formal indictment.

The purpose of the hearing is for the Judge to determine whether there is sufficient evidence (probable cause) to justify your continued detention or bond while your case is presented to a grand jury.

The preliminary hearing is also known as a probable cause hearing.

At this hearing, the prosecutor can call witnesses and present evidence. Similar to a trial, government witnesses at a preliminary hearing are subject to cross-examination (questioning by the defense attorney).

Defense counsel may, but rarely does, call witnesses.

Following the hearing, the court may take one of four actions:

  • (1) Hold the person to appear in the Common Pleas Court pending a Grand Jury Indictment on the originally filed charge;
  • (2) Find probable cause to hold the person to appear in the Common Pleas Court pending a Grand Jury Indictment on another charge supported by the evidence;
  • (3) Find that there is probable cause to support a misdemeanor charge and hold the person to appear before the misdemeanor court (or similar court);
  • (4) Order the person discharged from the custody of the Court. 1

If the court finds that there is no probable cause, the proceedings against the Defendant will be discharged. However, the burden of proof for probable cause at a preliminary hearing is far less than proof beyond reasonable doubt to prove a person guilt a trial. This means most courts will generally find probable cause rather than discharging the case.

Grand Jury Indictment

A Grand Jury Indictment is a document the government uses to charge you with one or more criminal (usually felony) offenses. Each offense named in the indictment is called a count.

Each count is listed in numerically: For example, Count 1: Drug Trafficking, Count 2:  Drug Trafficking, Count 3: Aggravated Drug Trafficking…

In Ohio, Grand Jury Indictments are required if you are charged with a felony, but not for a misdemeanor offense.

In federal felony cases, the government must also present your case to a federal grand jury.

In some cases the government will give you the option to waive the  grand jury indictment. In that case the government will charge you with a document called a bill of information.

For strategic reasons, your attorney might advise you to accept a bill of information instead of an indictment as part of predetermined plea bargain or to speed the ultimate resolution of your case.

In Ohio, a grand jury includes at least 15 jurors selected from a pool of eligible citizens much like ordinary jury pools.

A federal grand jury is selected in a similar fashion, however the jury itself includes at least 16 (up to 23) jurors.

Grand Jury Indictments are generally secret proceedings.

If you are investigated by a grand jury you do not have the right to have an attorney represent you at the proceeding or even to be present (except to give voluntary testimony if you receive a subpoena).

The purpose of a grand jury proceeding is for the government prosecutor to present evidence before the grand jury. The Grand Jury must determine if there is enough evidence (probable cause) to formally charge (indict) you with a felony criminal offense.