Prosecutor: Nuts, bolts of criminal process


I’ll never forget the day I was offered a position in a prosecutor’s office. I’d studied so hard for the interview and had been on pins and needles to find out if I’d been chosen. When I got the call, I was so excited, and simultaneously, so nervous. I hadn’t even been out of law school a year, but I was ready to dig in. Already though, I’d been thrown a curve ball. The position I’d interviewed for was a job within the Wood County Prosecutor’s Office, Juvenile Division. The position I was offered, however, was to work with the felony trial staff. Wow! I was elated. The offer was a professional milestone, a moment I’ll never forget, and I couldn’t wait to get in the office. What came next, though, is another moment I’ll never forget, albeit for completely different reasons.

Burned in my memory forever is the look on my new boss’s face when he asked me if I knew what a preliminary hearing was or a grand jury. Boy did I wish I knew, but I didn’t. I just shook my head no. My new boss was clearly shocked, and maybe feeling a bit snookered that his new hire had no idea of the criminal process.

Well, that was a long time ago, and things certainly have changed. One thing, however, that has never changed is the importance of that moment. Back then, I surely would have preferred to know the answer, but because I didn’t, it gave me an opportunity to do a better job with every person and every case I’ve ever handled.

Even today, I remind myself when meeting with victims, witnesses, or law enforcement officers fresh from the academy, that people really don’t know about the nuts and bolts of the criminal process. I make it a point to slow down, to make sure we are on the same page so that those involved have a comfort level with the process, and a solid base of understanding in order to proceed.

To those not directly involved with the criminal justice process, it can be even murkier. We see stories in the media and wonder why. Why is something being handled one way when it seems so clear it should be handled another way? We see television shows and movies that blur the reality of what happens with a modified version for entertainment. So it’s completely understandable that people feel confused, or even angry at some of the stories in the media today.

I’d like to take away some of that confusion and talk a little about the criminal process. Let’s start with two overarching ideas on which to build our foundation of understanding.

First, the criminal process is complex. Cases will always be as unique as the crimes, people, and details involved. A short video clip or article rarely offers enough information for the average person to get a full understanding of what occurred, let alone what is happening behind the scenes and why it is happening. Second, it takes time. What may seem like an easy answer may not translate to a fast answer. Even if the outcome is what a person thought should happen, the road to get there is long, and it should be. Taking things slowly ensures all details are examined. There’s less room for error, and less chance of a verdict being overturned. So while it may seem perplexing as to why a case is being handled a certain way, rest assured, there is a process in place.

What is the process? Let’s start with law enforcement. They receive a criminal complaint or respond to a 911 call. Sometimes, based on the immediate facts, law enforcement will make an arrest at the scene. An example may be a shoplifter who was caught red-handed with stolen merchandise. Other times, however, law enforcement may need to do additional investigation before charging a suspect. Officers need only probable cause (more likely than not) that a suspect committed a crime in order to arrest or charge them. Once that happens, the case is brought to our office if it’s felony (and to the city prosecutor’s office if it’s a misdemeanor).

Our piece of the puzzle starts with an immediate deadline. If someone is arrested, we have 10 days to present the charges to the grand jury for consideration. (We will come back to the grand jury process in a minute, but generally speaking, a grand jury is made up of local citizens who listen to the facts of each case and decide if formal charges (an indictment) should be filed.) If we do not present to the grand jury, we must dismiss the charges. Important to note: charges may be presented at a later date, but 10 days is the deadline when someone has been arrested and formally charged. If we want to extend the 10-day deadline, but keep the charges “on the books,” we must have an evidentiary hearing, also called a preliminary hearing. I know. It’s already getting a little involved, but stay with me. Each part of the process is important.

Remember when I said each case is unique? Well, depending on the facts, violent crimes for example, are reviewed quicker. In the interest of victim and community safety, if there is sufficient evidence, cases alleging violent crimes will be presented to the grand jury sooner than later.

You may be wondering if there are instances when we need more information? The answer is absolutely yes. That’s where the time factor comes into play. If a case is not complete, or maybe we are waiting for lab results, etc., the case will be reviewed at a slower pace. It will eventually be set for grand jury presentation as long as there is sufficient evidence.

It must be said that not every case brought to us is prosecuted. We do exercise our discretion as prosecutors and consider factors like the victim’s desires and the likelihood of a conviction. First and foremost though, if there isn’t enough evidence, we do not present the case to the grand jury. That said, many of the cases we review do proceed to grand jury presentation, so let’s talk about that process.

In my office, a number of assistant prosecutors review cases for potential indictment. The responsibility to present to the grand jury, however, falls largely on the shoulders of one prosecutor. This assistant prosecutor reviews, prepares, and presents anywhere from 10-25 cases each week. We already know that the grand jury is comprised of Delaware County citizens. These citizens listen to each case and vote whether or not to indict. Nine grand jurors are required to vote on each case. Seven are required to vote “yes” in order for an indictment to be filed. Similar to an officer’s legal standard to arrest, a grand jury’s legal standard to return an indictment is also probable cause.

The grand jury is a powerful body in our justice system. They are empowered by criminal statute to issue subpoenas and request additional evidence if they want. The grand jury can choose to meet as many times as they feel necessary and hear from as many witnesses as they want. They can even subpoena witnesses themselves in order to hear additional testimony. The grand jury ultimately decides if there is probable cause to indict (formally charge) a suspect. I’ve presented a lot of grand jury cases over the years. In a majority of the cases, the grand jury doesn’t request additional information or issue subpoenas, but they know they can.

Unlike a petit jury (the jurors listening to a courtroom trial), grand jury proceedings are not open to the public. This is to protect the process, and the alleged suspect, who if not indicted, would have a right to privacy. This confidential process is why many people have questions about the grand jury, but it’s really not that complicated. A prosecutor presents the case with usually one or two witnesses, and grand jurors can ask any legally appropriate questions they want. Sometimes we even invite suspects to testify. After the case has been presented, everyone steps out of the room except for the nine grand jurors who are deliberating. If the vote is to move forward, an indictment is filed and the formal criminal process begins.

As with most things in the practice of law, I remain in awe that our Founding Fathers had the foresight and astuteness to include the grand jury process in our Constitution. Right in the Fifth Amendment it states,“No one will be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of the grand jury.”

The Fifth Amendment has certainly stood up to the test of time. As I look back at my own timeline, I think of my start, to the eager law school graduate who still had a lot to learn (and continues to learn every day). My passion has come full circle. I am proud to serve as your Delaware County prosecutor, and I’m thankful to have been surrounded by supportive people who helped me grow. I recognize firsthand that the world of law is complex, and I never want that to be an obstacle for anyone I serve.

I welcome questions from the public, and you can email me any time at [email protected].

By Melissa A. Schiffel

Contributing columnist

Melissa A. Schiffel is Delaware County prosecutor.

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