DO I GET A PRELIMINARY HEARING IF I WAS INDICTED?

Sometimes the black letter law passed by the legislature is unclear. The legislature can’t anticipate every possible fact scenario when they pass a law, so it lay to the courts to interpret the law and give guidance to what it means. This interpretation is called case law. When the court decides a certain meeting to the law it essentially answers a legal question. Lawyers and other courts then can rely on that ruling when they have a similar issue in their case. The following case answers the question above.

State v. Green, 920 P.2d 414 (Kan. 1996).

This case answers the following question:

Do I get a preliminary hearing if I was indicted?

The issue in this case is whether one gets a preliminary hearing if he/she was indicted. Preliminary examination provides means for testing whether there is probable cause that crime has been committed and whether defendant committed crime and is not necessary once jury indictment has been handed down; it does not matter whether grand jury indictment is handed down before or after defendant is charged with crime–that indictment came after and not before the arrest and charge is not grounds for reversal.

In this case, several inmates were implicated in a disturbance that took place at the Lansing Correctional Facility. One officer was killed, and another officer was severely beaten. Several inmates have already been tried and convicted. Green, who is an inmate at the Lansing Correctional Facility, was charged with and convicted of murder in the first degree and aggravated battery on a law enforcement officer. Green appealed the conviction, raising numerous errors, including lack of a preliminary hearing, denied right to speedy trial, error in allowing gang membership evidence, improper impaneling of the grand jury, the sufficiency of evidence, the admissibility of evidence, and including an aiding and abetting instruction to the jury. Green argues that the convictions must be reversed because he was not given a proper preliminary hearing. He argues that he was not given a preliminary hearing within ten days after his first appearance, and that he was never given a preliminary hearing at all. Green does acknowledge that he was indicted by a grand jury. Green argues that he is entitled to a new trial given the errors he raised.

Preliminary examination provides means for testing whether there is probable cause that crime has been committed and whether defendant committed crime and is not necessary once jury indictment has been handed down; it does not matter whether grand jury indictment is handed down before or after defendant is charged with crime–that indictment came after and not before the arrest and charge is not grounds for reversal. The purpose of a preliminary hearing is to afford the person arrested an opportunity to challenge any probable cause for continuing to detain him or her. This is not a constitutional right – it is not included in due process rights. Rather, the right to a preliminary hearing is purely statutory. The statute setting a ten-day period for the holding of a preliminary hearing is not mandatory, but rather directory. Green concedes that he was indicted by a grand jury, but he argues that he was entitled to his statutory right to a preliminary hearing anyways. The Supreme Court of Kansas has rejected that argument before.

The Supreme Court of Kansas affirmed the decision below. The court held that there was no reversible error made in the conviction of Green. A preliminary right is not a constitutional right, but rather it is a statutory right. Therefore, it did not matter that Green did not receive a preliminary hearing. Once a grand jury indictment has been handed down, a preliminary hearing becomes unnecessary.