Do You Get a Preliminary Hearing If Indicted?

No, you do not get a preliminary hearing if you were indicted by a grand jury. The case of State v. Green, 920 P.2d 414 (Kan. 1996) clarifies this legal issue.

Key Points from State v. Green:

1. Indictment vs. Preliminary Hearing:

   • A preliminary hearing is meant to determine whether there is probable cause to believe a crime has been committed and whether the defendant committed it. However, if a grand jury indictment is handed down, it replaces the need for a preliminary hearing. An indictment by a grand jury already establishes that there is sufficient probable cause for the case to proceed to trial, so a preliminary hearing is no longer necessary.

2. Purpose of a Preliminary Hearing:

   • The preliminary hearing is not a constitutional right but a statutory right. It gives a defendant the opportunity to challenge the probable cause for detaining them. However, once a grand jury indicts a person, the question of probable cause has already been addressed by the grand jury, making a preliminary hearing redundant.

3. Timing of Indictment:

   • In State v. Green, the court explained that it does not matter whether the grand jury indictment is handed down before or after the defendant is charged with the crime. The timing of the indictment is not grounds for reversal of the charges. In this case, Green argued that he did not receive a preliminary hearing within the statutory ten-day period and that he never had one at all. However, since he was indicted by a grand jury, the need for a preliminary hearing was eliminated.

4. Statutory Right:

   • The court also pointed out that the Kansas statute requiring a preliminary hearing within ten days after a defendant’s first appearance is not mandatory, but rather directory. This means that failure to hold a preliminary hearing within this timeframe does not automatically require the charges to be dismissed. Once a grand jury has issued an indictment, the statutory right to a preliminary hearing no longer applies.

5. Green's Appeal:

   • Green's appeal was based on several alleged errors, including the fact that he did not receive a preliminary hearing. However, the Kansas Supreme Court ruled that the indictment by the grand jury was sufficient to proceed with the trial, and Green’s lack of a preliminary hearing was not grounds for reversing his conviction. The court reaffirmed that once a grand jury indictment is issued, a preliminary hearing becomes unnecessary.

Conclusion:

In State v. Green, the Kansas Supreme Court made it clear that when a defendant is indicted by a grand jury, the preliminary hearing becomes unnecessary. The indictment itself serves as the formal finding of probable cause, eliminating the statutory right to a preliminary hearing. Therefore, if you have been indicted, you do not have the right to a preliminary hearing, as the purpose of the preliminary hearing is fulfilled by the grand jury process.