Brad Miller > Blog > Uncategorized > UNDERSTANDING CRIMINAL COURT PART 2


In order to charge a person with a crime, there must be a determination of probable cause.  Probable cause means that the evidence against the defendant is more likely true than not.  The initial determination of probable cause is found by a magistrate judge.  But like most things in the law, there is a check against potential abuse through either a grand jury or a preliminary hearing.


A grand jury is a group of individuals selected from the community to hear cases.  Arizona law according to Rule 12.6 requires that at least 9 grand jurors concur in a finding of probable cause.  If at least 9 grand jurors concur, then the Court must prepare a notice of a supervening indictment.

What does this mean?  A grand jury is a secret hearing, where the prosecutor presents evidence.  You will have no idea what information was presented, if it was fair, or who testified until your attorney requests a transcript of the proceeding.  Once your attorney receives the transcript, the grand jury can be challenged in accordance with Rule 12.9.

The main way a grand jury can be challenged is if there is a violation of a substantial procedural right.  Rule 12.9(a).  A substantial procedural right normally is if the evidence was not presented objectively, or if the prosecutor does not present a valid defense to the particular charges.  The best way to know if either of these circumstances exist in your case is to call an attorney who has presented at grand juries or understands the possible defenses in your particular case.


If a defendant is charged in a complaint with a felony, then under Rule 5.1 the defendant has a right to a preliminary hearing within 10 days if in custody, and 20 days if not in custody.  A preliminary hearing is essentially a short trial, except that hearsay is allowed.  So more often then not, the prosecutor calls just a single witness to testify about the events.  The investigating officer is allowed to testify as to what people told him/her.

The advantage of a preliminary hearing for you is that the investigating officer has to testify under oath and your attorney has an opportunity to cross-examine him/her.  This means that your attorney can get information related to the case at an early stage of the case.


The arraignment is the hearing that is often depicted on television.  It is where the defendant stands with his attorney in front of a judge and either pleads guilty or not guilty.  It is often a very short hearing, but it is extremely important.  It is important because often the prosecutor offers a plea agreement prior to this hearing that must be accepted at the arraignment.  It is the prosecutor’s policy in Maricopa County that any plea offered after arraignment will be harsher.  In other words, for the Maricopa County Attorney’s Office, they offer their best plea prior to the arraignment.


What is a plea agreement?  This term is often thrown out but it is not often explained.  A plea agreement is a contract between the defendant and the State.

The State is under no obligation to offer a plea agreement.  And the State cannot be forced by either the defense counsel or the judge to force a plea agreement.  Even so, pleas are still negotiations between the State and the defendant.  This means that just because the State offers a particular plea, doesn’t mean that the defendant cannot counter or negotiate the terms of the plea.

In certain cases the State may offer a defendant a better plea agreement if there is a factual error, legal error, or the defendant is willing to offer reliable, usable information to the State.

These circumstances occur more often then most think.  This is where a good, analytical attorney can really assist you.  Make sure to hire an attorney who has tried enough cases to a jury to understand what the issues are to the people who will be deciding your fate.

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