Question 1: Grand Jury Review and Preliminary Hearings
According to Gaines and Miller (2016), the major difference between a grand jury review and preliminary hearings is that during the former, the prosecution presents its case before a selected jury in the absence of the defendant with the aim of determining the existence of a probable cause based on the available evidence. On the other hand, during the latter, there is no jury but instead it resembles a main trial in which the prosecution is required to demonstrate the existence of probable cause before a judge. Further, whereas grand jury preview is a mandatory procedure before trial, the preliminary hearing is not a mandatory requirement before a trial can take place. Moreover, while a preliminary hearing is an adversarial process, the grand jury preview is accusatorial since it is done in the absence of the defendant or ex parte.
Additionally, grand jury reviews and preliminary hearings differ in that the latter is requested by the defendant or their attorney while the former is normally called upon by the office of the district attorney or a federal judge depending on the jurisdictional issues involved. Furthermore, while grand jury review are conducted mostly for serious cases such as homicide and aggravated robbery, preliminary hearings are conducted for less serious offences or felonies such as simple theft. Grand jury reviews are also more often conducted to investigate serious crimes against the state such as treason while preliminary hearings are a foretaste or forerunner of the main trial hearings in which both sides of the case are required to comply with certain procedures and rules before full trial. Finally, according to Siegel & Worrall (2015), while the powers of a grand jury include charging and investigation, the powers of a judge during preliminary hearing are restricted to obtaining information and preparing parties to main trial (p. 199).
Question 2: Principal Tests of Entrapment
The main tests of entrapment as mans of ascertaining inducement by law enforcement officers to a suspect to commit crime as a defense include the subjective test and the objective test (Sherman, 2009). Under the subjective or predisposition test, the court looks at the state of mind and individual characteristics of the defendant. That is, the question to be asked is whether, from the defendant’s perspective e or view, he would have committed the crime in question without the law enforcement or government agent’s inducement? It also involves determining the suspect’s predisposition or propensity to commit crime independent of the entrapment action by the law enforcement officials or government agents. Here, the defendant, to succeed with this defense, must prove on the preponderance of evidence, that he was positively induced to commit the crime, and that had it not been for such an inducement, he or she would not have committed the crime.
In other words, did the law enforcement officers afford them an opportunity to commit crime? An example would be where a suspect is induced to buy a stolen piece of jewelry from a jeweler’s shop and then charging them with possession of stolen property. On the other hand, the objective test involves a scrutiny of the level of the government agents’ or law enforcement officers’ involvement in the defendant’s criminal action and the court asks whether, from the point of view of a reasonable third party or person, a crime or criminal behavior would exist without the behavior or actions by the law enforcement officers. In this case, the defendant’s state of mind, motivations and actions at the material time is immaterial or irrelevant in determining criminal responsibility. The test involves ascertaining whether the conduct of the police fell below the normal standards expected for proper utilization of their powers. Moreover, according to Acker and Malatesta (2014), the objective test involves asking whether the police officer’s conduct towards the accused was of a nature as to cause a normally law abiding citizen to commit the offence in question. An example is where the police drop some money in front of a teenager and arrest the teenager on picking it, charging them with theft.
James R. Acker & JoAnne M. Malatesta, Introduction to law and criminal justice 75 (2014).
Larry K. Gaines & Roger L. Miller, Criminal justice in action 120 (7th ed.2016).
James Sherman, "A person otherwise innocent": Policing entrapment in preventative, undercover -counterterrorism investigations, 11 Const. L.J. 5, 1475-1478 (2009).
Larry J. Siegel & John L. Worral, Essentials of criminal justice 64 (2015).