# Stupid Law Q & Seeking a Legal Term... **URL:** \ **Category:** Factual Questions\ **Created:** [March 12, 2004, 3:30pm UTC](https://boards.straightdope.com/t/stupid-law-q-seeking-a-legal-term/233905 "2004-03-12T15:30:25Z")\ **Posts on this page:** 13\ **Page:** 1
**Author:** ![Jinx](https://avatars.discourse-cdn.com/v4/letter/j/c6cbf5/32.png) [@Jinx](https://boards.straightdope.com/u/Jinx)\ **Post date:** [March 12, 2004, 3:30pm UTC](https://boards.straightdope.com/t/stupid-law-q-seeking-a-legal-term/233905/1 "2004-03-12T15:30:25Z")
In a criminal case, what is the term for when the prosecution meets to decide if they have enough evidence against the accused to go to trial? (Or, is it simply called a hearing?) Also, is this done before the arraignment, I assume? Last, are arraignments only for crimes more serious than misdemeanors\*? \*Since traffic court is a misdemeanor of criminal law, I am assuming this is true…regarding all misdemeanor offenses, you would make your plea during the start of the actual trial? I am just asking for my own curiosity…never having been clear on these things and (thankfully) never having been in a position to _really_ HAVE to know! - Jinx ---
**Author:** ![Otto](https://avatars.discourse-cdn.com/v4/letter/o/bbe5ce/32.png) [@Otto](https://boards.straightdope.com/u/Otto)\ **Post date:** [March 12, 2004, 4:32pm UTC](https://boards.straightdope.com/t/stupid-law-q-seeking-a-legal-term/233905/2 "2004-03-12T16:32:09Z")
When the prosecution meets with whom? ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [March 12, 2004, 4:53pm UTC](https://boards.straightdope.com/t/stupid-law-q-seeking-a-legal-term/233905/3 "2004-03-12T16:53:34Z")
It sounds like your first question is referring to a _preliminary hearing_ – which is not precisely for the reason you cite, though that may enter into the proceedings. Preliminary hearings are used to consider motions that may affect the actual trial – such as suppression of evidence, inquiry into the mental state of the accused, etc. One such motion is to dismiss the case on the grounds of inadequate evidence to warrant a conviction. An _arraignment_ is the point at which you are formally charged with an offense, and at that point you are expected to enter a plea. (In most places, one may “stand mute” and the court directs a plea of not guilty to be entered.) It’s the indispensible first step of any actual criminal case – but in things like speeding offenses and disorderly conduct, it’s wrapped into what are essentially summary proceedings, moving directly from the charge to disposing of the case. In many states, traffic offenses are not considered crimes under the penal law, but rather petty offenses, disposed of under the criminal-law system but not as actual crimes. Felonies are a quite separate ball of wax. While you may be arraigned for a felony on complaint, arrest warrant, or whatever the jurisdiction’s criminal procedure code calls for, I believe it is unanimous throughout the U.S. that prior to being _tried_ for a felony, you must be _indicted_ by a grand jury reviewing the evidence and deciding that there’s enough evidence to warrant holding a trial. This is a “true bill” – if they feel that there are no grounds for indictment, they bring a “no bill.” While most grand juries tend to rubberstamp the opinions of the professionals – the cops and the D.A. – they do have the right to say, “There’s inadequate grounds to subject this guy to jeopardy of his freedom and having felonious status imposed on him.” ---
**Author:** ![Nonsuch](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/nonsuch/32/2922_2.png) [@Nonsuch](https://boards.straightdope.com/u/Nonsuch)\ **Post date:** [March 12, 2004, 5:03pm UTC](https://boards.straightdope.com/t/stupid-law-q-seeking-a-legal-term/233905/4 "2004-03-12T17:03:08Z")
I’m no lawyer, and I think criminal procedure varies from state to state. In Illinois (and I know this only from observing one case), criminals arrested are typically brought before a judge for a preliminary hearing, wherein the judge affirms there is enough evidence to support the arrest and that the prosecutors can then seek an indictment from a grand jury. In particularly strong cases (such as the one I observed), the preliminary hearing can be skipped and the case taken straight to the grand jury. ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [March 12, 2004, 5:03pm UTC](https://boards.straightdope.com/t/stupid-law-q-seeking-a-legal-term/233905/5 "2004-03-12T17:03:24Z")
[QUOTE=Polycarp] I believe it is unanimous throughout the U.S. that prior to being _tried_ for a felony, you must be _indicted_ by a grand jury reviewing the evidence and deciding that there’s enough evidence to warrant holding a trial. [\QUOTE] Nope. [4. This provision applies only in federal courts and is not applicable to the States, either as an element of due process or as a direct command of the Fourteenth Amendment. Hurtado v. California, 110 U.S. 516 (1884); Palko v. Connecticut, 302 U.S. 319, 323 (1937); Alexander v. Louisiana, 405 U.S. 625, 633 (1972).](http://www.eco.freedom.org/ac92/ac92pg1276.shtml) In many states, felony cases are started by a complaint or information, which is signed by the prosecuting attorney. Polycarp is dead on with the rest of the post, though. ---
**Author:** ![Jinx](https://avatars.discourse-cdn.com/v4/letter/j/c6cbf5/32.png) [@Jinx](https://boards.straightdope.com/u/Jinx)\ **Post date:** [March 12, 2004, 5:16pm UTC](https://boards.straightdope.com/t/stupid-law-q-seeking-a-legal-term/233905/6 "2004-03-12T17:16:45Z")
Thanks, all. That clarifies the matter. No further questions, your honor! 😉 - Jinx ---
**Author:** ![Acsenray](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/acsenray/32/4519_2.png) [@Acsenray](https://boards.straightdope.com/u/Acsenray)\ **Post date:** [March 12, 2004, 5:52pm UTC](https://boards.straightdope.com/t/stupid-law-q-seeking-a-legal-term/233905/7 "2004-03-12T17:52:33Z")
In many states, criminal charges may be brought merely with the submission of a _bill of information_ by the county prosecutor (or district attorney). ---
**Author:** ![Kalashnikov](https://avatars.discourse-cdn.com/v4/letter/k/2bfe46/32.png) [@Kalashnikov](https://boards.straightdope.com/u/Kalashnikov)\ **Post date:** [March 12, 2004, 9:20pm UTC](https://boards.straightdope.com/t/stupid-law-q-seeking-a-legal-term/233905/8 "2004-03-12T21:20:18Z")
> [@Jinx](#): > > In a criminal case, what is the term for when the prosecution meets to decide if they have enough evidence against the accused to go to trial? (Or, is it simply called a hearing?) Also, is this done before the arraignment, I assume? Last, are arraignments only for crimes more serious than misdemeanors\*? > > \*Since traffic court is a misdemeanor of criminal law, I am assuming this is true…regarding all misdemeanor offenses, you would make your plea during the start of the actual trial? In New Hampshire that hearing is called a probable cause hearing or PC hearing. Things such as the question of the defendent’s competency or a request for bail reduction can also be brought up. It’s done after the arraignment - the arraignment has to happen pretty soon after the arrest, but the PC hearing can be much later. ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [March 12, 2004, 11:08pm UTC](https://boards.straightdope.com/t/stupid-law-q-seeking-a-legal-term/233905/9 "2004-03-12T23:08:28Z")
[QUOTE=Gfactor] > [@Polycarp](#): > > I believe it is unanimous throughout the U.S. that prior to being _tried_ for a felony, you must be _indicted_ by a grand jury reviewing the evidence and deciding that there’s enough evidence to warrant holding a trial. [\QUOTE] > > Nope. > > [4. This provision applies only in federal courts and is not > applicable to the States, either as an element of due process or as a > direct command of the Fourteenth Amendment. Hurtado v. California, 110 > U.S. 516 (1884); Palko v. Connecticut, 302 U.S. 319, 323 (1937); > Alexander v. Louisiana, 405 U.S. 625, 633 (1972).](http://www.eco.freedom.org/ac92/ac92pg1276.shtml) In many states, felony cases are started by a complaint or information, which is signed by the prosecuting attorney. > > Polycarp is dead on with the rest of the post, though. No dispute with what you found, **Gfactor** – what I was trying to do was to summarize 53 distinct criminal procedure standards into one attemptedly-intelligent and clear sentence. While no Constitutional mandate applies, I believe that all 49 “common law” states require that prior to someone standing trial for and **being convicted of** a felony – as opposed to being arrested, being arraigned, entering a guilty plea, plea bargaining, or any other element of a felony case – they must first be indicted by a grand jury. Whether this is also the case in Louisiana and Puerto Rico, I don’t know – but I suspect so from hazy memories of past reading involving cases in their justice systems. And thanks for the compliment. 🙂 ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [March 13, 2004, 11:10pm UTC](https://boards.straightdope.com/t/stupid-law-q-seeking-a-legal-term/233905/10 "2004-03-13T23:10:06Z")
> [@Polycarp](#): > > No dispute with what you found, **Gfactor** – what I was trying to do was to summarize 53 distinct criminal procedure standards into one attemptedly-intelligent and clear sentence. While no Constitutional mandate applies, I believe that all 49 “common law” states require that prior to someone standing trial for and **being convicted of** a felony – as opposed to being arrested, being arraigned, entering a guilty plea, plea bargaining, or any other element of a felony case – they must first be indicted by a grand jury. Whether this is also the case in Louisiana and Puerto Rico, I don’t know – but I suspect so from hazy memories of past reading involving cases in their justice systems. > > And thanks for the compliment. 🙂 Not the case here in Michigan. ---
**Author:** ![askeptic](https://avatars.discourse-cdn.com/v4/letter/a/eb9ed0/32.png) [@askeptic](https://boards.straightdope.com/u/askeptic)\ **Post date:** [March 13, 2004, 11:32pm UTC](https://boards.straightdope.com/t/stupid-law-q-seeking-a-legal-term/233905/11 "2004-03-13T23:32:02Z")
Not the case here in California either. ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [March 14, 2004, 5:07am UTC](https://boards.straightdope.com/t/stupid-law-q-seeking-a-legal-term/233905/12 "2004-03-14T05:07:11Z")
The rule in Michigan. Michigan Court Rules, Rule 6.112 Rule 6.112 The Information or Indictment (A) Informations and Indictments; Similar Treatment. Except as otherwise provided in these rules or elsewhere, the law and rules that apply to informations and prosecutions on informations apply to indictments and prosecutions on indictments. (B) Use of Information or Indictment. A prosecution must be based on an information or an indictment. Unless the defendant is a fugitive from justice, the prosecutor may not file an information until the defendant has had or waives a preliminary examination. An indictment may be returned and filed before a defendant’s preliminary examination. When this occurs, the indictment may substitute for the complaint and commence judicial proceedings. © Time of Filing Information or Indictment. The prosecutor must file the information on or before the date set for the arraignment. (D) Information; Nature and Contents; Attachments. The information must set forth the substance of the accusation against the defendant and the name, statutory citation, and penalty of the offense allegedly committed. If applicable, the information must also set forth the notice required by MCL 767.45, and the defendant’s Michigan driver’s license number. To the extent possible, the information should specify the time and place of the alleged offense. Allegations relating to conduct, the method of committing the offense, mental state, and the consequences of conduct may be stated in the alternative. A list must be attached to the information of all witnesses known to the prosecutor who might be called at trial and all res gestae witnesses known to the prosecutor or investigating law enforcement officers. A prosecutor must sign the information. (E) Bill of Particulars. The court, on motion, may order the prosecutor to provide the defendant a bill of particulars describing the essential facts of the alleged offense. (F) Notice of Intent to Seek Enhanced Sentence. A notice of intent to seek an enhanced sentence pursuant to MCL 769.13 must list the prior convictions that may be relied upon for purposes of sentence enhancement. The notice must be filed within 21 days after the defendant is arraigned or has waived arraignment on the information charging the underlying felony, or before trial begins, if the defendant is tried within the 21-day period. (G) Harmless Error. Absent a timely objection and a showing of prejudice, a court may not dismiss an information or reverse a conviction because of an untimely filing or because of an incorrectly cited statute or a variance between the information and proof regarding time, place, the manner in which the offense was committed, or other factual detail relating to the alleged offense. This provision does not apply to the untimely filing of a notice of intent to seek an enhanced sentence. (H) Amendment of Information. The court before, during, or after trial may permit the prosecutor to amend the information unless the proposed amendment would unfairly surprise or prejudice the defendant. On motion, the court must strike unnecessary allegations from the information. (Current as of 3/01/2004) ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [March 14, 2004, 5:11am UTC](https://boards.straightdope.com/t/stupid-law-q-seeking-a-legal-term/233905/13 "2004-03-14T05:11:00Z")
and here is Hawaii: > [@](#): > > Rule 7. THE INDICTMENT, COMPLAINT AND ORAL CHARGE. > > (a) Use of Indictment, Complaint or Oral Charge. The charge against a defendant is an indictment, a complaint or an oral charge filed in court. A felony shall be prosecuted by an indictment or a complaint. Any other offense may be prosecuted by an indictment, a complaint, or an oral charge. > > (b) When Felony May be Prosecuted by Complaint. A felony may be prosecuted by a complaint under any of the following three conditions: > > (1) if with respect to that felony the district judge has found probable cause at a preliminary hearing and has committed the defendant to answer in the circuit court pursuant to Rule 5© of these rules; > > (2) if, pursuant to Rule 5©(2) of these rules, the defendant has waived in open court his right to a preliminary hearing; or > > (3) if, pursuant to Rule 7© of these rules, the defendant has waived in open court his right to an indictment. > > © Waiver of Indictment. The defendant may in open court waive indictment, provided that the court shall accept such waiver only after the defendant has signed a written statement acknowledging: > > (i) He is aware that he has a constitutional right to require the State to establish probable cause before the State can begin formal felony prosecution in circuit court; > > (ii) That in order to establish probable cause the State must offer sufficient evidence to “lead a person of ordinary caution or prudence to believe and conscientiously entertain a strong suspicion” that the defendant has committed the felony charged or an included felony; > > (iii) That if a grand jury concludes that the State has established probable cause and if the grand jury returns an indictment, a defendant then has the right to obtain written transcripts of the grand jury proceeding, and these transcripts might help the defendant in preparing for trial; > > (iv) By waiving indictment, the defendant is giving up his right to a probable cause determination and is also giving up his right to obtain written transcripts of the grand jury proceeding. > > (d) Nature and Contents. The charge shall be a plain, concise and definite written statement of the essential facts constituting the offense charged; provided that an oral charge need not be in writing. An indictment shall be signed by the prosecutor and the foreman of the grand jury. A complaint shall be signed by the prosecutor, or it shall be sworn to or affirmed in writing before the prosecutor by the complaining witness and be signed by the prosecutor, except that a complaint alleging a traffic offense may be sworn to or affirmed by a police officer before another police officer as provided by law and need not be signed by the prosecutor. The charge need not contain a formal conclusion or any other matter not necessary to such statement. Allegations made in one count may be incorporated by reference in another count. It may be alleged in a single count that the means by which the defendant committed the offense are unknown or that he committed it by one or more specified means. The charge shall state for each count the official or customary citation of the statute, rule, regulation or other provision of law which the defendant is alleged therein to have violated. Formal defects, including error in the citation or its omission, shall not be ground for dismissal of the charge or for reversal of a conviction if the defect did not mislead the defendant to his prejudice. (This rule has been amended by an Order filed November 17, 2000, effective January 1, 2001. Click here for Amendment) > > (e) Surplusage. The court on motion of the defendant may strike surplusage from the charge. > > (f) Amendment. The court may permit a charge other than an indictment to be amended at any time before verdict or finding if no additional or different offense is charged and if substantial rights of the defendant are not prejudiced. > > (g) Bill of Particulars. The court may direct the filing of a bill of particulars. A motion for a bill of particulars may be made before arraignment or within 10 days after arraignment or at such other later time as the court may permit. A bill of particulars may be amended at any time subject to such conditions as justice requires. > > (h) Court in Which Charge Filed. > > (1) An indictment shall be filed in the circuit court. > > (2) A complaint may be filed in either the district or circuit court; provided that a complaint shall not be filed initially in the circuit court when it charges: > > (i) a felony, and none of the three conditions set forth in Rule 7(b) of these rules has yet occurred, or > > (ii) only an offense or offenses other than a felony. > > (3) An oral charge shall be filed initially in the district court. > > (Amended February 28, 1983, effective February 28, 1983; further amended July 20, 1983, effective July 20, 1983.) So, it seems there is a right to a preliinary exam before a complaint or information is filed\*\* or \*\* or to be indicted by a grand jury.