GENEVA – As court dockets bulge, debate has been reignited here over whether the grand jury system is outmoded and should be abolished

Grand juries of 16 people are assembled, in the same way other juries are, every Tuesday here. Prosecutors present what they believe is the basis for charging someone with a crime. The jury considers the material and decides whether to indict individuals.

The defense has no opportunity to speak at the grand jury level because the jury’s only job is to determine whether there is probable cause to believe a crime has occurred.

In nearly all cases, the jury decides to indict.

The other method of establishing probable cause – a necessary element in a criminal proceeding – is through a preliminary hearing in which a judge hears evidence after a charge is filed. He then makes the same type of determination as the grand jury makes.

The difference between the two procedures is that in a preliminary hearing, a defense attorney is allowed to ask questions of a witness and obtain testimony under oath.

Some defense attorneys say that while some buffer to establish the basis for a charge is necessary, the grand jury is more a prosecutor’s tool, and its abolition should be considered. The General Assembly would have to act to eliminate grand juries, which are used in all counties.

Kane County State’s Attorney Gary Johnson, the county’s chief prosecutor, disagrees. He notes that, in addition to being a prosecution tool, the system offers protection of witnesses, such as undercover drug agents, whose testimony before grand juries is more secretive than in open court in preliminary hearing.

Aurora attorney David Camic, who specializes in criminal law, said he likes grand juries because “it is necessary to have someone other than the state establish probable cause. And it’s safer for the state to indict because they can keep their sources confidential and can be almost certain of receiving a true bill.”

Juries that decide to indict return a so-called true bill.

Another criticism of the current system is that “it allows the state two bites of the apple,” according to criminal court Judge Melvin Dunn, who didn’t express an opinion on whether grand juries should be abolished.

“It’s used kind of clumsily. If the state takes a case to preliminary hearing and no probable cause is found, it can take the same case to the grand jury and get an indictment,” Dunn said.

“That is true”, said Johnson, “but some of those cases have produced convictions”.

The grand jury is one step in the process and it is both legitimate and constitutional,” he said.

Since grand juries almost always indict, debate persists over whether they have outlived their usefulness.

But if all cases had to be taken to a preliminary hearing, the state would lose some prosecution power against criminals, Johnson argues.

“The grand jury also conducts investigations and has subpoena power,” Johnson said. “We don’t use them routinely for that purpose, but in ongoing investigations they serve a valuable function.”

Johnson estimates that only 20 percent of all criminal cases are taken to a grand jury.

Elgin defense attorney Van Richards said he has mixed feelings about grand juries and the virtual certainty of indictments.

“The grand jury was thought to be an independent bulwark between an over-zealous prosecutor and the rights of citizens,” he said. “Unfortunately, that is not the case anymore. It’s a rubber stamp that’s not really independent. At some stage probable cause must be shown and that’s not really hard to do.”

Richards said that grand juries sometimes are used to dispose of high-profile but marginal cases that the state does not really want to prosecute. Prosecutors can say they took a case to a grand jury but failed.

“They use it to take themselves off the hook,”he said.

While Johnson acknowledged that could happen, he said it is not done in Kane County.