A felony prosecution in Mississippi really breaks down into two distinct phases, everything that happens before an indictment, and everything that happens after. In this video, Jackson criminal defense attorney Matt Eichelberger walks through the entire pre-indictment phase: what actually makes a crime a felony, the initial appearance and bond process, what a preliminary hearing is and why it matters, how cases can get resolved with the DA before an indictment ever happens, and how the grand jury process actually works, which is nothing like what you've seen on TV.
Transcript
Hi, my name is Matt Eichelberger, and I'm a criminal defense lawyer in Jackson, Mississippi. We service clients all over the state of Mississippi and Texas, primarily in criminal defense matters. There's another division of our firm that handles workers' compensation, and I also handle some select civil rights cases that arise out of the criminal justice system. I've been doing this for over 20 years now, and I want to talk with you about the two phases of a felony prosecution in Mississippi.
I'll be talking today primarily about the first stage, the pre-indictment phase. At this point, someone has usually already been arrested for a felony. What is a felony in Mississippi? All it really means is a crime punishable by more than one year of imprisonment in the state penitentiary, anywhere from one year to life. As long as the possible punishment is at least a year, we consider it a felony. That can range from possession of a Schedule II controlled substance all the way through capital murder. The key thing about a felony from a procedural standpoint is that there cannot be a conviction without either an indictment from the grand jury or what we call a bill of information, essentially an agreed-to indictment. That indictment is what divides a felony prosecution into its two phases, the issuance of the indictment by the grand jury is what separates pre-indictment from post-indictment.
So, somebody's already been arrested and facing a felony. A lot of times they're in custody, which means they're going to want bond, and quickly. At the initial appearance, that's supposed to happen within 48 hours, and really, it's supposed to happen as soon as possible, the Supreme Court has said so time and again. If that initial appearance happens timely, the person is entitled, in most cases, to a bond. Not just any bond, our rules say it has to be one high enough to make sure they come back to court, but low enough that they can actually post it and get back to work, school, family, and their attorney, without sitting in custody before trial. Remember, they're presumed innocent at that stage. There are some exceptions to bond eligibility, which is a topic for another video, but for now, understand that at the initial appearance, the judge will usually set a bond. After that, the person is returned to custody, hopefully bonds out, and either way, in or out of custody, they can request a preliminary hearing.
What is a preliminary hearing? It's exactly that, preliminary, and a hearing. It happens early, and you actually go in front of a court. The state has the burden of proof, but it's a lighter burden than at trial, probable cause. That's an easier standard to reach than beyond a reasonable doubt, but it's still a real standard, there has to be proof that a person probably committed the crime, not just that they maybe did. The state typically puts on minimal evidence, often just testimony from a detective or even an officer reading the detective's report, this isn't the trial. It comes down to the judge deciding whether probable cause exists. This stage is valuable for the defense too, we get to learn about the case, and sometimes we can convince the prosecutor or the judge there isn't probable cause, and get the case dismissed even at this early stage. I've seen that happen on cases as serious as murder. Under the rules, the preliminary hearing is supposed to happen within 14 days, and it's the only opportunity before indictment to have a law enforcement officer testify under oath, subject to cross-examination. Outside of that hearing, the defense isn't entitled to discovery at this stage, we can't compel the state to hand over information. That's part of why we try to get into a preliminary hearing as early as possible, sometimes it results in a lower bond or fewer release conditions too.
After the preliminary hearing, we typically use what we've learned to continue the conversation with the prosecution. Most of the time, a county or city prosecutor handles the preliminary hearing itself, not the assistant DA who will ultimately take the case to the grand jury or trial. So the DA's office often doesn't know all the details that came out at the prelim, but we do. At the end of a successful hearing, the judge finds probable cause and binds the case over to the grand jury. At that point, we can approach the DA directly, often before they've even received the full file, and present our side before they ever go to the grand jury. That can lead to a resolution before indictment altogether: pretrial intervention, where the case gets dismissed after the person stays out of trouble for a period, or an agreement on a bill of information, where both sides agree in advance to the language of the charge and the person enters an already-negotiated plea, sometimes even a non-adjudication.
Sometimes, though, the DA's office and the defense can't reach an agreement, and that's okay too. The case then goes to the grand jury. This isn't the dramatic 12-person jury box you see on television, it's a secret proceeding whose only job is to determine whether a person probably did what the prosecution alleges. If the grand jury agrees, they issue the indictment. The defense has no role in that proceeding, we don't get to present evidence or arguments there, only the DA's office presents witnesses, meaning they control the entire narrative. Sometimes that cuts the other way too: if the grand jury doesn't find probable cause, the case gets "no-billed," and that ends it, another way a case can be dismissed before indictment ever happens.
If the grand jury does find reason to believe the crime occurred, they issue the indictment, or "true bill," which is then served on the defendant. From there, the case moves into the post-indictment phase, starting with an arraignment date. That's a topic for another video. If you have any questions about any of this, feel free to reach out to us here at Eichelberger Law Firm, we're always glad to help.