If you've been charged with a felony in Mississippi, you're probably overwhelmed by the complexity of the criminal justice system. The process can seem like a maze of hearings, procedures, and legal jargon that makes little sense to someone who's never been through it before. To help you navigate this challenging time, I want to break down what I see as the two distinct phases of a felony prosecution in Mississippi.
These aren't official legal terms you'll find in the Mississippi Rules of Criminal Procedure; they're concepts I've developed over more than 20 years of practicing criminal defense law to help my clients understand what they're facing. Think of them as the roadmap for your case.
What Makes a Crime a Felony in Mississippi?
Before we dive into the phases, let's establish what we're talking about. In Mississippi, a felony is simply any crime punishable by more than one year imprisonment in the state penitentiary. That can mean anything from one year to life in prison. The range of crimes that fall under this definition is enormous: everything from simple possession of a controlled substance all the way up to capital murder.
The key procedural requirement for any felony is that there cannot be a conviction without either an indictment from the grand jury or what we call a Bill of Information (which is essentially a waiver of the indictment requirement). This constitutional protection is what creates the natural division between the two phases of felony prosecution.
Phase One: The Pre-Indictment Stage
The Initial Appearance and Bond
The first phase begins when someone has already been arrested for a felony. More often than not, they're sitting in custody when this phase starts, which means getting bond becomes the immediate priority.
The initial appearance is supposed to happen within 48 hours of arrest, though the law actually says it should happen "as soon as possible." If this appearance happens in a timely manner, the defendant is entitled to bond in most cases. And here's something important: our rules don't just say any bond will do. The bond must be high enough to ensure the person shows up for court and won't flee, but low enough that they can actually post it and return to work, school, or family life.
There are exceptions where someone isn't entitled to bond at all, but we'll save that discussion for another time.
The Preliminary Hearing: Your First Real Opportunity
After the initial appearance, the defendant can request a preliminary hearing. This is exactly what it sounds like: it's a hearing, and it's preliminary, meaning it happens at an early stage of the case.
At the preliminary hearing, the state has a burden of proof, but it's much lower than what they'll need at trial. They only have to prove probable cause, which is the same standard used when the judge issued the arrest warrant, when the officer made the arrest, and when any search warrants were signed.
The state usually meets this burden through testimony, typically from the detective working the case. Sometimes they'll just send in another law enforcement officer to read from the detective's report. Since they only need to hit that low bar of probable cause, you might wonder what the point is if probable cause has already been determined multiple times.
Here's the thing: up until this stage, nobody has argued that there wasn't probable cause. It's been prosecutors and law enforcement telling judges there is probable cause. The preliminary hearing is our first chance to get in there and potentially show the judge that probable cause doesn't actually exist.
The Other Two Goals at the Preliminary Hearing
Even if we can't convince the judge there's no probable cause, there are two other important things we can accomplish at a preliminary hearing:
First, we learn about the case. This is the only time under Mississippi's rules that we're going to get sworn testimony from a law enforcement officer about the case before an indictment comes down (and usually before trial or a motion to suppress). It locks people into their testimony and gives the defense a peek into what's happening. Otherwise, under the Mississippi Rules of Criminal Procedure, we're not entitled to much information from the state at these early stages.
Second, we can potentially get bond conditions modified. If the person is still in custody, we might be able to get the judge to reduce bond to something they can actually make. If they're already out, maybe there are conditions on their bond that we can have lifted.
Negotiations with the District Attorney
After the preliminary hearing, we're armed with information that we can use in conversations with the prosecution. Here's something important to understand: you usually won't have an assistant district attorney prosecuting the preliminary hearing. It's typically a county attorney or city prosecutor handling things at this stage. This means the person prosecuting the prelim isn't the same prosecutor who will handle the case at the grand jury and at trial.
We gather our information at the preliminary hearing, then turn around and talk to the DA about it, because it's the district attorney's office that will be handling everything after the preliminary hearing is over.
At the end of a preliminary hearing when the judge finds probable cause, you'll hear something like: "I find there to be probable cause and bind this case over to await action of the next [fill in the blank county] grand jury."
Early Resolution Opportunities
If the DA has the file from the investigating law enforcement agency, we can sometimes resolve cases during this pre-indictment phase without ever going to the grand jury. This might happen through:
- The DA agreeing not to prosecute the case
- Entry into a pretrial intervention program
- An agreement to a Bill of Information on a lesser included offense or even the original charge, but with an agreement to start something like probation or non-adjudicated probation
What this does is give the defendant some certainty about what their future looks like, rather than facing the uncertainty of a grand jury and potential trial.
When Negotiations Don't Work: The Grand jury
If the DA isn't willing to meet us where we think the case should be resolved, we face the prospect of going to the grand jury. But here's the thing: we don't get to go to the grand jury. The grand jury isn't like the jury you see on TV shows like Law & Order. That's a petit jury, which is the trial jury. The grand jury is an investigative body that exists solely to decide whether there's probable cause (again, that same standard) and determine whether a person probably committed the crime they're charged with. They're not saying the person did it, just that there should be a trial.
The grand jury proceeding is secret. By law, the defendant and their lawyer cannot be involved. Only the prosecution goes in with a witness from law enforcement who tells them what they think happened. The grand jury then decides whether to issue an indictment.
When Phase One Ends
Once that indictment comes down, that's it for the pre-indictment phase. The indictment kicks off the second phase of a felony prosecution, which is (naturally) the post-indictment phase.
In the post-indictment phase, a whole different set of protocols and rules come into play. That's where you have trial, serious plea bargain negotiations, motions to suppress evidence, and where you find out who your judge is going to be. But that's a discussion for another post.
The Bottom Line
Understanding these two phases can help you make sense of what's happening in your case and what to expect next. The pre-indictment phase is often your best opportunity to resolve a case favorably or at least gather crucial information for what's to come. It's also when having experienced legal representation becomes critical, because the opportunities available in this phase won't come around again.
If you're facing felony charges in Mississippi, don't wait to get help. The pre-indictment phase moves quickly, and the decisions made during this time can have a significant impact on the rest of your case.