The Rule of Criminal Procedure newly enacted by the Pennsylvania Supreme Court permits the use of indicting grand juries instead of Preliminary Hearings. Before an individual accused of a crime was entitled to a preliminary hearing and the government could not use the indicting grand jury. If a prima facie case was established, the matter was bound over to an indicting grand jury, Indiciting grand jury which would then determine whether a Bill of Indictment should issue. In 1973, the Pennsylvania Constitution was amended to authorize the Courts of Common Pleas to provide for the initiation of criminal proceedings by information “filed in the manner provided by law.” Pa. Const. Art. I, § 10. In order to implement the amendment, the Act provided that “[n]o information shall be filed by the district attorney or the special attorney appointed by the Attorney General concerning alleged criminal violations where a preliminary hearing has not been held or properly waived except as prescribed in the rules of criminal procedure.” In short, the Pennsylvania Legislature explicitly divested the Courts of Common Pleas of the jurisdiction to provide for initiation of criminal proceedings via an indicting grand jury, and in so doing created a substantive, positive right of an accused to receive a preliminary hearing and to be free from indictment by an indicting grand jury.
However, despite this, the government can bring criminal cases via Indicting Grand Jury and not afford an accused the right to a Preliminary Hearing. In such cases, the Defense may try and dismiss the indictment by moving for dismissal of the indictment based on the lack of proper jurisdiction for proceeding to an indicting grand jury. This is done by arguing that the government couldn’t prove that witness intimidation was occurring or was likely to occur. Representing public officials before Grand Jury The defense may also file a habeas corpus and argue that the government didn’t meet its prima facie burden before the grand jury. Contact an experienced Chester County Criminal Lawyer if you are being investigated by an indicting grand jury.