In the United States, the prosecutor must show that he has enough evidence – “probable cause” – to believe that the crimes alleged have been committed and reasonable grounds to believe that the person or persons accused did commit the crimes. The prosecution must clear this hurdle before it can proceed to trial. If the prosecution can not even meet this burden of proof, then the matter will not proceed to trial – although nothing prevents the prosecution from trying again to clear this hurdle.
In the United States has two systems to address the “probable cause” issue. The first system is the “probable cause” hearing. This is a hearing in open court before a judge where the prosecution puts on some of its evidence in order to show the judge that enough evidence exists to accuse the defendant of a crime.
A probable cause hearing is an open court hearing, where the defendant’s attorney has the opportunity to question any witnesses that the prosecution calls. A defense attorney could also call defense witnesses, although this is never advisable for strategic reasons.
The second system is the grand jury system. A grand jury is a group of between 12 and 18 citizens called for a period of time – months – to meet periodically, usually in a room at the defense attorney’s offices. The grand jury is sworn, has a foreman who nominally runs the proceedings. Grand jurors are permitted to questions any witnesses put on by the prosecutor.
The chief difference between a probable cause hearing and a grand jury is that a grand jury proceeding is secret, and the defense is not permitted to attend. As a consequence, the defendant will not know what has happened at a grand jury session, except that the defendant was either indicted or not indicted. An “indictment” is merely an accusation, nothing more.
North Carolina has a dual system. By statute, every defendant accused of a felony has a right to a “probable cause” hearing by Chapter 15A Article 30 of the N.C.G.S. In Wake County, the District Attorney holds such hearings in room 4D of the Wake County Court House.
I should note that probable cause hearings are almost never held. Why not? Because the prosecution would much rather have a grand jury deliberate in secret over evidence secretly presented rather than permit an open presentation of this evidence which the defense attorney would be able to hear. A grand jury is described at Chapter 15A Article 31 of the N.C.G.S.
In North Carolina, all criminal cases start in District Court. In Wake County, felonies will be scheduled for a probable cause hearing in 4D. However, at the time of the 4D hearing, the prosecution will tell the judge that it is not ready to proceed and request a continuance. This continuance is always granted by the judge, which gives the Wake County District Attorney roughly another 30 days to hold another probable cause hearing.
However, before the 30 days are up, the Wake County District Attorney may convene a grand jury and request an indictment. Consequently, the defendant may be indicted, in which case the case will now be in Superior Court, and the original District Court case will be dismissed before the probable cause hearing occurs.
When the grand jury returns an indictment, it is called a “True Bill.” If the grand jury refuses to indict, the charges have been “no true billed.” I’ve seen one case in recent memory “no true billed,” but the District Attorney went back a second time to the Grand Jury which “true billed” the case.
So, as you can see, it is very, very rare for a grand jury not to indict.