Legal Question in Criminal Law in California

Grand Jury Indictment. 550(b)(1)CA Penal code

The 5th Amendment specifically states that no person shall be held to answer for an infamous [felony] crime except upon indictment by a grand jury.

I know this means that a warrant cannot be issued unless a Grand Jury passes a "true bill" based upon probable cause. The "true bill" then goes to a magistrate for a signature and a warrant is issued.

However, I have learned that this is rarely done. Especially in my case. I found a document on the 'Lectric Law Library web site. It is a criminal procedure outline. In it I found this;

CRIMINAL PROCEDURE

I. CONSTITUTIONAL RESTRAINTS ON CRIMINAL PROCEDURE

A. Bill of Rights binding on states via 14th Am Due Process Clause

B. Exceptions:

5th Am Rt to Grand Jury Indictmt (state can use charge by info)

8th Am Rt to bail (own version in state Constn).

So, would someone please explain to me why the states are allowed this exception in our Bill Of Rights?

What can I do about this? Is there someway I can force the court to uphold my 5th Amendment Rights?

I return to court for a preliminary hearing on July 20. I plan on raising my "due process" rights and filing a "motion to dismiss" partly based on this argument.


Asked on 7/07/99, 2:36 am

1 Answer from Attorneys
Lyle Johnson Bedi and Johnson Attorneys at Law

Re: Grand Jury Indictment. 550(b)(1)CA Penal code

I have not researched the legal reasoning for allowing the state to use the alternative method of indicting an individual for a felony. The method most commonly used in California is for the district attorney or other prosecutor to file an information with the clerk of the court. This information informs the defendant(s) of the charges against them. A preliminary examination is then held. Which the prosecution must present evidence sufficient for a reasonable person to have a strong suspicion that a crime has been committed and that the defendant(s) committed it. This the same finding the would be made by a grand jury.

In California there is no preliminary examination if the indictment is by a grand jury. The defendant(s) are not present at a grand jury hearing and the defendant is not allowed to present any evidence. At a preliminary examination the defendant(s) must be present, they are allowed to question the witnesses, through their attorney, and may present excuilpatory evidence if they wish to do so. The preliminary examination allows the defendant(s) to confront witnesses. The preliminary examination was a great discovery tool until its scope was limited by one of the propositions. It still has value to the defendant(s) as they have the opportunity to see the witnesses against them.

You should discuss your case with an attorney immediately, and then determine if it is in your best intersts to challenge the validity of the charges against you.

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Answered on 7/15/99, 2:32 pm


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