By Zachary J. Thornley

A very prominent figure was recently indicted. What does that mean? To know the answer, we have to understand the process.

It starts with alleged criminal conduct. Law enforcement gets involved and investigates. If law enforcement believes the evidence is sufficient for an arrest, then they may submit charges to a prosecuting agency. Some prosecutors may just pursue charges as submitted by law enforcement, but diligent agencies will review law enforcement’s work. Law enforcement agents are often not attorneys and depending on their submissions for charging is an error, as they do make mistakes. Once an attorney reviews the police reports and evidence then they may reduce charges, leave them the same or add charges.

The next step is for the prosecuting agency to file a complaint. The complaint is usually very succinct. It will contain the statute alleged to have been violated along with a brief statement of facts specific to the alleged crime committed. The filing of the complaint starts the formal court proceedings and gives the court power to summon the now defendant into court. To this point there may have been probable cause for an arrest that may have already happened but there is not probable cause for the charges to proceed through the court system.

A finding of probable cause is required for each charge for charges to proceed through the court system. Prosecuting agencies have a couple options in their quest to get a probable cause determination. They can either hold a preliminary hearing or they can take the allegations to a grand jury. A preliminary hearing is much like a mini trial in that it happens in a courtroom, a prosecutor presents evidence and witnesses, and the defense has a chance to cross-examine the witnesses. Ultimately in a preliminary hearing, a judge decides whether probable cause exists.

In the preliminary hearing a judge should be making a determination as to whether all of the elements of particular crime are present. It can be confusing here, because the judge is not determining whether a person is guilty or not but rather whether the facts are sufficient such that a jury could possibly find a defendant guilty at a subsequent trial.

Here’s an example that may be silly but relays the point.
The crime of selling marijuana has multiple elements that may vary depending upon jurisdiction. For our example we’ll use Arizona.

The elements include 1) knowing, 2) possession, 3) for sale, 4) marijuana.

All four elements must be present for a person to be found guilty. Therefore, in a preliminary hearing a judge should be making a bare bones determination that those elements are present.

If during the preliminary hearing it is determined that person knew they had marijuana for sale but in fact it turns out they had a bag of pencil shavings, then three elements are there but the fourth is missing. In that instance, a judge should not find probable cause. This was a blatant and maybe silly example, but you get the point. This setting is not for a determination of guilt. Simply a judicial determination that it is possible for jurors to later find the person guilty.

Prosecutors have another option to get a determination of probable cause. They can choose to take the allegations to a grand jury. The grand jury process is different because probable cause is decided by the grand jurors in a private setting. The defendant has no right to be present and many times the process is done without the defendant knowing. The only folks allowed in the room are the prosecutor, a case agent from the law enforcement investigating agency, a court reporter, and sometimes witnesses to testify in addition to the case agent. The process can be ripe for abuse. Only one side of the story is presented.

Abuse of the process in Arizona led to a landmark case, Trebus v. Davis In & For Cnty. of Pima (1997), in which the Arizona Supreme Court created case law that demanded that if a defendant submits clearly exculpatory information or evidence prior to the prosecutor’s presentation to the Grand Jury then the prosecutor must relay that information to the jurors. If the jurors find that probable cause exists, then the grand jury foreperson signs a “true bill.” Arizona defines indictment as, “[A] written statement charging the defendant with the commission of a public offense, endorsed as a “true bill,” signed by the grand jury foreperson and presented to the court by a grand jury.

If probable cause is found from the preliminary hearing or the grand jury process, then the case proceeds through the justice system.

Zachary J. Thornley is a trial attorney licensed in the state of Arizona. To learn more, visit The information contained herein does not constitute legal advice and in no way creates an attorney-client relationship. Contact an experienced attorney in your area for advice on your specific situation.