I received papers in the mail saying I’ve been indicted by a Grand Jury after I won my case at a Preliminary Hearing. This must be a mistake, right?


Anyone who tells you that you can ignore those papers in the mail is either lying or doesn’t know what they are talking about. Anyone who also says that this is nothing to worry about because of the Double Jeopardy Clause is also either lying or doesn’t know what they are talking about. If you get such papers in the mail, you need a competent criminal defense lawyer immediately.

If you’re in Cook County, chances are that the mailing you received gives you a next court date in Room 101 at the main Criminal Courthouse at 26th and California in Chicago.

This courtroom is the Presiding Judge’s Courtroom. It is here that cases are assigned to specific trial judges. One learns, out of dozens of Cook County Criminal Court judges, which judge will preside over the defendant’s case.

This space has previously covered the Preliminary Hearing process:

This space has also covered the Grand Jury process:

Some people seem to believe that the Preliminary Hearing process is the trial…… and that if there’s a finding of “No Probable Cause” at the Preliminary Hearing, that this prevents further charging because of the Double Jeopardy Clause as stated in the Fifth Amendment of our United States Constitution.

This is not the case. If there’s a finding of no probable cause at the preliminary hearing, then the case is dismissed. That much is true, but this can be temporary. The finding does not mean that you are found “not guilty.” The Double Jeopardy clause does not apply because a preliminary hearing is not a trial verdict. Double jeopardy applies to trial verdicts or guilty pleas. Not preliminary hearings.

To understand this fully, it’s important to understand why this Preliminary Hearing/Grand Jury process exists in the first place. Here’s an example I often give to clients and their families to make sure they understand the process. Consider this circumstance:

Suppose two people are at the felony trial courthouse. where juries take place. Suppose one, in front of law enforcement and plenty of witnesses, assaults the other.

Would one expect law enforcement to arrest the person accused of the assault? Of course.

Would one expect law enforcement to start talking to the witnesses, get their accounts and contact information? Sure.

But what if an officer said…… “Wait a second. We’re in a courthouse! Let’s take this man before a trial judge right now. The prosecutor can write up a charge. We can have the defendant have a lawyer and we will bring jurors over to select right now! We’ll give the defendant one of the speediest trials in Illinois history!”

As attractive as this might sound at first blush, it’s not legal. It’s not legal because before a prosecutor can proceed with a felony charge, that charge must go through an approval process spelled out in Illinois law. The man can’t be tried so quickly bypassing this approval process.

To get felony charges approved so that one must stand trial (or plead guilty) for a felony in the State of Illinois, the prosecutors must do one of two things: either put the defendant in front of a judge for a preliminary hearing or put the case before a Grand Jury. It’s the prosecutor’s choice under Illinois law.
In a preliminary hearing, a judge hears from witnesses that the State puts on publicly, one at a time. The defense lawyer gets to cross-examine those witnesses. At the end of the hearing, the judge will either say “Finding of probable cause” or “Finding of no probable cause”. If there’s a finding of probable cause, then the prosecutors are authorized to draft up felony charges. In Cook County, it means that the matter will be transferred out of the preliminary hearing courtroom to the Presiding Judge of the Criminal Courts. There, the Presiding Judge will decide, out of all the felony judges in Cook County, which one that defendant draws and then the defendant and his lawyer go to that room. At that courtroom, the defendant’s counsel will receive a copy of the charges and have his/her client enter a plea of “Not Guilty” to the charges. This will be defense counsel’s first opportunity to file a Motion for Discovery to ask for things like a witness list, police reports, witness statements, laboratory reports, and perhaps a lot of other items. It is there in front of that judge where pre-trial motions will occur as well as an eventual trial or plea of guilty.
The other method for the State is to appear in front of a Grand Jury. In contrast to a Preliminary Hearing proceeding, the Defendant has no right to be there, has no right to have his/her lawyer there, has no right to present witnesses or any evidence to demonstrate his/her innocence. By law, Grand Jury proceedings are also secret, so one doesn’t even know when they meet.
The only ones present in front of the Grand Jury are 1. the Grand Jurors, 2. the prosecutor, 3. the court reporter, and 4. the witnesses the prosecutor calls, one at a time. The rules of evidence preventing unreliable evidence from being heard do not apply at the Grand Jury. When all is said and done, the Grand Jurors are left alone to deliberate. They will either vote to approve charges with a vote of “True Bill” or not with a vote of “No Bill.” (Means the same as “probable cause” or “no probable cause.”
In the end, when the Grand Jury votes out felony charges, the process is the same. In Cook, the case will go to the Presiding Judge for assignment to a felony courtroom. All the defense is entitled to is a copy of the transcript of what was said in front of the Grand Jury.
If there’s a finding of “No probable cause”, that does not bar the State from going to the Grand Jury and getting charges approved through a True Bill of Indictment. They still can go to the Grand Jury. One thing that prosecutors must do is inform the Grand Jury that there was a prior finding of No Probable Cause at a Preliminary Hearing.

This process, as unfair as it sounds, is perfectly legal and must be taken most seriously. The Law Office of William Wolf has extensive amounts of experience handling cases where a Grand Jury Indictment was rendered after a Finding of No Probable Cause. If you or a loved one is facing this situation, an experienced criminal defense lawyer is a must. 

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