THE GRAND JURYAS THENEW INQUISITION

This article was the basis for Mr.Tigar's luncheon address September21, 1971 during the 36th AnnualMeeting of the State Bar of Michigan.

By Michael Tigarand

Madeline R. Levy

THIS ARTICLE stems from our concernwith the democratic value of the Billof Rights. One theme of our writingand work has been that the constitu-tional guarantees of political freedomhave been undermined for two reasons:

First, the constitutionalization of pri-vate property has led to the creation ofaggregations of power not subject tocontrol by those who are victims ofpower's exercise. The Lockean theoryof private property, and its labor theoryof value, rests in part upon the viewthat "property" is a relation betweena person and a thing.

But when the "things" are means ofproduction, housing and places of publicaccommodation, ownership carries with itpower over people's lives. This power,endemic to capitalist social relations,undermines constitutional guarantees offreedom. This point is beyond the reachof this paper.'

Second, the system of "checks andbalances" is designed to assure thatabuses of power and of constitutionalprinciple are subject to constant correc-tion. The grand jury is an institution

1. See, however, Tigar, "Socialist Lawand Legal Institutions," in Law Againstthe People (Random House, 1971).

Michael Tigar is Professor of Law, University of Californiaat Los Angeles. He served as chief counsel for the"Seattle Eight" defendants and associate counsel for the"Chicago Seven." Madeline R. Levy, Mr. Tigar's associatein law practice and legal writing, is former director ofthe Draft and Military Project of the Emergency CivilLiberties Committee and the National Lawyers Guild.

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which by design is counterposed to thepower of the Executive and the Judiciaryfor the protection of citizens.

In fact, as we shall argue, it failsto perform this function. Such is thefate of many institutional guarantees ofliberty in the Constitution and Bill ofRights, in the face of the new repression.To borrow from de Jouvenel: In theirhaste to reach a certain result, the au-thors of repression forget or ignore deep-seated values about who is to decideand bow decisions are to be reached.We believe that this systematic over-throw of democratic guarantees cannotbe ended within the present system ofsocial relations.

GRAND JURY IMAGEPublic impressions of the grand jury

are myriad: "Mr. District Attorney" onTV; some knowledge of racism in grandand trial jury selection in the South;garbled newspaper versions of SisterJogues Egan's travail.

The grand jury's low visibility, atleast until recently, is explainable. Manystates have no provision for a grandjury at all. Some, like California, keepthe grand jury but use it principally asa body of middle and upper-class citi-zens-selected by the judges in eachcounty-who look into and write re-ports about county government. InCalifornia, fewer than ten percent offelony cases begin with a grand juryindictment.

The grand jury performs its historicfunction, sifting evidence to determinewhether a crime has been committed,in very few cases. Most district at-torneys send only controversial cases tothe grand jury-for example, cases in-volving alleged police misconduct, inwhich the D.A. can present a less-than-credible case for indictment; the grandjury can return "no bill" (fail to indict)and the decision has an air of impar-tiality nonetheless.

As any lawyer who frequents thecriminal courts knows, the D.A. can getan indictment almost at will, and thegrand jury's institutional disinterest canbe used to insulate him from critcismfor indicting or failing to indict.

In England, the country of its birth,the grand jury was abolished in 1933,save for very few cases. Reflecting thedisuse and near-abandonment of thegrand jury as an institution, teachersof criminal procedure in our law schoolshave paid little attention to it. Theleading criminal procedure case book,Paulsen and Kadish, barely mentionsthe grand jury and constitutional lawcase books treat the subject only withreference to, racial discrimination.

Yet in the federal courts, the grandjury has remained as, a sometimes som-nolent but always potentially powerfulinvestigative and law enforcement de-vice. In our history, the questions havebeen: "Investigation of what?" and"Whose law?"

The fifth amendment requires that allfederal felony prosecutions begin bygrand jury indictment. And the 1968and 19,70 crime bills give the grandjury a potentially great role in federalcriminal procedure.

These remarks concentrate on thefederal grand jury and on its expandinguse in suppressing dissent. By way ofprologue, we look first at the origin andoperation of the grand jury in the fed-eral system, and second at the recenthistory of repressive moves by govern-ment against dissent. What we say isrelevant also to those states, particularlyNew York, where the grand jury inthe hands of an ambitious district at-torney can wreak as much anguish asa federal grand jury on the loose underthe direction of one of Attorney Gen-eral Mitchell's "strike forces."

SOME HISTORY OF GRAND JURIESThe grand jury emerged in the

twelfth century as an instrument ofroyal power. The Assize of Clarendonin 1166 provided that in each com-munity a body of the "most lawfulmen" should have the power and dutyto make "inquiry . . . whether in theirhundred or vill there be any man whois accused or believed to be a robber,murdered, thief or receiver of robbers,murderers or thieves since the King'saccession.

This body would make its accusation

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of crime and the accused would thenbe put on "trial," to consist of someordeal prescribed by law. The Assizedictated:

And he who shall be foundaccused or believed to be a robber,murderer, thief, or a receiver ofsuch since the King's accession shallbe taken and put to the ordeal ofwater and made to swear that hewas no robber, murderer, thief, orreceiver of such up to the value offive shillings, so far as he knows,since the King's accession. 2

The creation of the grand jury wasthe parallel in the field of criminal jus-tice to the Domesday Book, William theConqueror's record of the population,land and chattel holdings of everymanor. Domesday Book, and the inquisi-tions which collected information for it,provided the Crown with informationnecessary to exercise taxing jurisdictionover the whole realm.

The grand jury brought the royalpresence into the lucrative field of thecriminal law, where fines and forfeitureswould provide new additions to theroyal treasury. Persons accused underthe Assize of Clarendon were to bebrought before the King's officers orjustice, not before a manorial court.

This procedure after "presentment" ofan accused felon by an indicting juryunderwent rapid change in the nextcentury. Often the presenting jury wouldsimply be asked whether the accusedwas guilty. More usually, the indictingjury and two or three other similarbodies from other communities wouldsit together as a trial jury.

In the mid-13th century, the formal

2. It apparently did not help much if onecame through the ordeal in the properway, for the Assize also provided: "TheLord King also wishes that those whomake their law and clear themselvesshall nevertheless, forswear the King'sland if they are of bad renown andpublicly and evilly reputed by the testi-mony of many lawful men, and crossthe sea within eight days unless detainedby the weather, and with the first fa-vourable wind they shall cross the seaand never come back to England saveby the King's permission, and shall beoutlawed, and if they come back shallbe captured as outlaws."

separation of the indicting or "grand"jury and the trial or "petit" jury, oc-curred. From the many grand jurorsfrom many communities there would bepicked a trial jury of twelve.

Of course, the trial jury might includesome members of the same grand jurywhich returned the indictment-hardlyfair to the accused, one might say.But "if the indictors be not there it isnot good for the King," as one judge putit in 1341. In 1352, however, the separa-tion became complete and grand jurorscould thereafter be challenged off a petitjury.

The origins of the grand jury arethus in the royal search for prerogative.Of course, the possibility of initiation ofcriminal proceedings by other means stillremained after the Assize of Clarendon,and the precise role of the grand jurywas not settled until the 17th century,a period in which struggle and tumultled to great change in the English legalsystem. From this period, the AmericanBill of Rights derives most of its pro-visions on criminal procedure.

The practice in the Court of StarChamber of proceeding by "information"-a sworn statement by a public officialor private person that the defendant hadcommitted a crime-became a focus ofopposition. By the end of the century,it was settled that an informant could beused only in cases of misdemeanor andthat felonies could be tried only uponindictment of a grand jury.

"BULWARK OF LIBERTY"The grand jury-like the petit jury-

was regarded as a "bulwark of liberty,"a body which might interpose indepen-dent judgment between the State andthe individual. This function could notcredibly be termed "historic," given themotive behind the Assize of Clarendon,but in the rewriting of history whichcharacterized the 17th century legalreform, it seemed helpful to say thatthe grand jury should play a certainrole because it had "always" done so.

In this form the ideology of the grandjury came to this country in the FifthAmendment guarantee that "no personshall be held to answer for a capital or

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otherwise infamous crime except uponpresentment or indictment of a grandjury," a provision which found echo inmost state constitutions and statutes.

The grand jury's role in the federalcourts was not intended to create muchof a stir in criminal justice. The 1790Crimes Act defined few offenses andearly federal criminal trials were mostlyfor piracy, smuggling and offenses (orsometimes insurgencies), against therevenue.

Hopes that the grand jury could func-tion independent of the Executive wereproven false by 1798, when the Adamsgovernment began its war on dissidents.A word on how a grand jury works willshow how the abuses under Adamsevolved: A grand jury modernly consistsof twenty-three persons, usually untrainedin the law, with the power to issue sub-poenas under seal of the court. Whilethe grand jurors may question witnesses,and do to some extent, this function isusually usurped by a United States At-torney or other government lawyer. Thislawyer also advises the jurors on the lawand draws up indictments to be votedupon.

The grand jury meets in secret andits proceedings may not be disclosed byjurors or government counsel. When agrand jury is sworn, it receives generalinstructions as to its duties from a UnitedStates district judge. If a grand jury isspecially summoned to consider someparticular event, it may receive a moreprecise "charge."

Under the Alien and Sedition Actsof Adams' administration, the control ofthe grand jury which inheres in its struc-ture was effectively exercised. Chargedin a rambling, tendentious and inac-curate manner by the likes of ChiefJustice Chase,8 and acting under thedirection of Adams-appointed piosecu-tors, grand juries readily indicted Re-publicans for seditious activity.

This ability of a party in powerto turn the criminal process to its politi-

3. Until after the Civil War, SupremeCourt Justices presided over trials "oncircuit," sitting in the circuit courts,equivalent to our Federal district courtsof today.

cal ends has been the subject of carefulstudy by later governments. The in-creasing professionalization of the federalprosecutorial establishment, the expan-sion of federal criminal jurisdiction, andthe devising of new means to compeltestimony gave the grand jury a fearsomepotential power. The 1968 and 1970crime bills, ostensibly directed at organ-ized crime, seek to exploit this potential.

SOME RECENT REPRESSIONThe principle devices of the McCar-

thyite (Joe, not Gene) terror were theextravagant accusation, the publicity-studded investigation, and the threatof contempt for refusal to answer ques-tions. These tactics were pursued inthe years after World War II as akind of domestic political prop to aninternational cold war.

The notoriety which surrounded thetargets of accusation and the recipientsof subpoena was calculated to chilldissent: The public papers of McCarthy,the Committee on Un-American Ac-tivities, and the various state carboncopies of these, attest that this was so.

The threat of a jail term for failure toappear and answer questions was, as theearly experience of the Hollywood Tenand the later cases of Carl Braden andFrank Wilkinson show, a not inconsider-able adjunct to the power of subpoena.

But the power of McCarthyismwaned (though its spores have foundfertile ground and trace deep roots yet).The discredit of McCarthy himself wasno doubt a factor. Contempt citations,too, proved a cumbersome and uncer-tain threat. First, the committee andthe house concerned had to certify thecontempt. Then, a grand jury had toindict and a trial jury convict.4

The Supreme Court began, too, towhittle away at the compulsory processavailable to congressional committees,

4. Although contempt of Congress was onlya misdemeanor, the provisions of 2U.S.C. §§ 192 et seq. (and predecessorstatutes) provided since the 1860's thata grand jury indictment is necessary.Of course, each house of the Congressretains the power to punish contemptsummarily by summoning the offenderto the bar of the house.

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to redefine the contempt power nar-rowly and to provide some proceduraldecencies for witnesses.

The availability of the privilegeagainst self-incrimination was upheldin the Emspak and Quinn cases, theWatkins case placed restrictions on thescope of the committee inquiry; pro-cedural guarantees in contempt caseswere strengthened in Russell and Seeger;the first amendment was upheld inSweezy and Gibson. Even the affirm-ances by a closely-divided Court inBarenblatt, Braden and Wilkinson sig-nalled that the inquisitors' most extrava-gant claims would not likely be sus-tained.

With the growing strength of theyouth and peace movements in the early1960's, the committees lost the powerto inspire fear. The HCUA efforts toinvestigate the SDS and the Youth In-ternational Party were pathetic andlargely unproductive; the Senate InternalSecurity Subcommittee's attempted in-quiries of German SDS leader KarlDietrich-Wolff were rather a joke.

THE CONSPIRACY PROSECUTIONIn 1968, the government received a

weapon, the conspiracy prosecution,used earlier against other movementsfor social change. Such prosecutionssought to indict the leaders of a move-ment and eventually jail them whileburdening the defense with staggeringcosts, scaring away potential supportersand imposing a regime of silence on theleft. The Spock case, directed at militantantiwar dissent, followed the patternuntil the conviction was reversed in1969.

The Chicago Eight conspiracy caseillustrates the point more vividly: Agrand jury was convened, charged inhighly inflammatory terms by JudgeCampbell, dominated first by MayorDaley's own Tom Foran and then, afterNixon's inauguration, by Foran and aJerris Leonard emissary, and subjected toa highly biased version of Chicago,August 1968. But the trial, though itcost the defense enormous sums andtook many fine movement workers outof action for the duration, didn't scaremany people.

The Seattle Eight conspiracy trial,directed at a local movement ratherthan a national event, saw the govern-ment unable to keep its case afloat pastthe 11th trial day.

Clearly, the justice Department underMitchell needed new weapons whichwould more certainly silence irrespon-sible dissent and put movement leadersin jail. Spiro Agnew's attacks were justthe thing for P.T.A. Sunday suppers butthey didn't frighten enough hard-coredissenters.

In 1969 and 1970, the Justice Depart-ment gave serious study to this problem.The Supreme Court in January 1970 lentrenewed urgency to it by holding thatSelective Service local boards could notbe vehicles to punish dissent, rejectingAttorney General Mitchell's anguishedplea that local boards had to have suchpower because the criminal process andits safeguards were too expensive anduncertain.

In the Department, the Internal Se-curity Division received new attention.Long a haven for lawyers of little talentand less imagination, the Division wasgiven a new chief, Robert Mardian, ahealthy budget addition and a new breedof lawyer. Internal Security strike forcesbegan to appear in major investigationsof radical activity.

These strike forces, led by special as-sistant attorneys general empowered bylaw to seek the summoning of, and con-duct proceedings before, federal grandjuries anywhere in the nation, moved in-to Vermont, New York, Seattle, Los An-geles, Detroit, San Francisco, Tucson,Harrisburg, Brooklyn and numerous otherjurisdictions.

TYPICAL PATTERNThe typical pattern began to appear:

FBI agents would visit a number of acti-vists, asking probing questions and im-plying or saying that a grand jury sub-poena would soon follow if there wereno ready answers. A grand jury wouldbe convened under authority of the 1970Crime bill, which permits a grand juryinquiry into organized crime, sedition orriot-connected offenses, to sit for threeyears. Then the subpoenas would issue.

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Consider the case of a grand jury inTucson, convened under the direction ofGuy Goodwin, the best-known of theanti-left strike force lawyers. The subjectof investigation was assertedly a plot totransport explosives in interstate com-merce.

Because of the conspiracy law, thatmedieval creature in modern dress, per-mits a prosecution to be brought any-where an "overt act" was committed infurtherance of the conspiracy, Tucsonwas chosen as the site for the grandjury though almost all the witnesses wereto be summoned from Los Angeles, fivehundred miles away.

The grand jury promptly put out anumber of subpoenas and one materialwitness warrant for Los Angeles move-ment leaders. One center of the allegedplot was, so the government believed, aman named Robert Gottlieb. Witnesseswere asked, "Do vou know Robert Gott-lieb?" and then, "Relate every conversa-tion you had with Gottlieb in 1970."

The sweep of the inquiry could not havebeen broader. The Justice Departmentlawyers, with Goodwin at the lead, want-ed to know the structure, organization,membership and operation of an entiregrouping of movement activists in Ven-ice, California. Prying into associations,beliefs, speeches and conversations clear-ly protected by affirmative constitutionalguarantees, the inquisitors gave noticethat government was marshaling its forceto shatter the political and personal pri-vacy of those who were, or knew, acti-vists in seeking social change.

At the drama's end, five young peoplewho had resisted the imprecations totestify were in jail for indefinite terms,and a quiet and watchful bush had re-placed politics as usual in West Los An-geles.

The drama was replayed elsewhere: ANew York Times reporter may yet go tojail in San Francisco for refusal by si-lence to shatter the political privacy ofhis sources; the F.B.I. defrauded a dis-trict judge and secured Leslie Bacon'sremoval to Seattle and her incarcerationthere; and there have been a dozenmore such instances across the nation.

It was remarkably like the good oldcongressional witch-hunt, but with thenew and scarifying power of summarycontempt: A witness before a grand jurywho refuses to testify when ordered todo so may be committed to jail sum-marily for up to three years, or until sheor he answers the questions posed.

JAILING IMMEDIATEThe jailing is not a "next year" thing,

to happen after lengthy appeals. It maybe and often is imposed on the spot,within minutes after the refusal. Therecalcitrant witness is taken before aUnited States district judge and againordered to answer. Upon refusal, incar-ceration begins immediately.

Let us examine this new weaponagainst dissent in more detail, by not-ing some aspects of trial by grand jury:

First, there is trial in secret, and byinquiry. The grand jury sits in secret, apractice begun to protect the innocent.But the modern-dress version makesthe secrecy strikingly reminiscent of theoath ex officio procedure which for atime threatened to engulf and stillthe first stirrings of the adversary sys-tem, the presumption of innocence andthe right of public trial.

The evils which were disowned in thecreation of the right to a fair trial arein fact quite at home in the grand juryroom: There is no right to notice of thescope and nature of crimes being in-vestigated; there is no confrontation ofthe witnesses 5 who have led the trailof the investigation to the witness's door-step; and collaterally, there is no possi-bility, much less a right, to cross-exam-ine those witnesses.

Second, there! is the ordeal of exam-ination without counsel, which even the

5. 18 U.S.C.A. § 2518 (10) (a) providesfor suppression of illegally obtainedwiretap evidence ". . . in any trial,hearing, or any proceeding in or beforeany . . . authority of the United States

.The issue of whether or notthis section is applicable to grand jurywitnesses will be before the UnitedStates Supreme Court in U.S. v. Egan,cert. pending, (No. 71-263), Gelbardand Parnas v. U.S., cert. pending, (No.71-110), and U.S. v. Evans, cert. pend-ing, (No. 71-256). See discussion below.

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Congressional committees never soughtto impose. In the grand jury room, coun-sel is not permitted. True, the witnessmay ask the government lawyer to beexcused and go out to the anteroom toconsult counsel, but the atmosphere isheavily weighted in favor of the govern-ment. There is no judge or other sup-posedly impartial official present-onlythe grand jurors and government coun-sel.

Third, there is trial by the ordeal ofdistance. A federal conspiracy prosecu-tion may be brought, as noted before, inany judicial district in which the overtact in furtherance of the conspiracy wascommitted. However, if the prosecutor'svenue choice is too disadvantageous tothe defense, the court can order achange of venue "for the convenience ofparties and witnesses and in the interestof justice."

There is no such corrective availablefor a venue choice in the site of a grandjury investigation. So in Tucson, the wit-nesses from Los Angeles were requiredto bring their counsel with them and toface their summary contempt hearingsand jail terms at a great distance fromhome. At one time, the Tucson wit-nesses were serving sentences in ruralArizona jails scattered all over the state.

LIMITS ON BAIL AND APPEAL

Fourth, there are limitations on theright to bail and to appeal. A defendantcharged with crime, even a serious of-fense, can usually-in the federal courts-secure prompt release on bail pendingtrial. A grand jury witness found sum-marily in contempt for refusal to answercan expect serious and often insurmount-able difficulty in obtaining release pend-ing appellate review.

And the review available, under the1970 crime bill, is truncated, providingin many cases no opportunity even tohave the record of proceedings belowtransmitted to the appellate court.

Fifth, the new grand jury dispenseswith the privilege against self-incrimina-tion. By the consistent course of federaldecision, a witness may decline to pro-vide any information which may form a

link in a chain of evidence incriminatoryto him or her.

When government casts wide its con-spiracy net, and the inquisition beginsinto friendships and associations, almostany question is potentially productive ofincriminatory testimony. To underminethe privilege against self-incrimination,the 1970 crime bill greatly expands thescope of the so-called "immunity" pro-vision of the United States Code.

Immunity laws have been recognizedin American law since the late 19th cen-tury. In their "old form," they providethat a witness could be granted immu-nity from prosecution about all subjectsof her or his testimony. Thus, even ifthe testimony were incriminatory, thewitness could not be prosecuted andthus has, in theory, no need for a priv-ilege against self-incrimination.

Immunity may thus be used when Ahas information that will incriminate notonly her or him, but also B, whom theauthorities really want to prosecute.Some deeper objections to this techniqueare discussed below.

The 1970 crime bill, however, pro-vides not for complete immunity, butfor a partial or "use" immunity. If Aincriminates herself or himself, the gov-ernment may not use the incriminatorytestimony itself at a later trial of A, butthere is no provision that, having dis-covered the misdeed the governmentmay not seek to prosecute it by gather-ing other evidence.

This undermining of the privilegeagainst self-incrimination has been heldunconstitutional by the Court of Appealsfor the 7th Circuit and by U.S. DistrictJudge Constance Baker Motley of NewYork.

FREEDOM OF ASSOCIATIONLet us consider this problem in the

broader context of a sixth objection: Thegrand jury inquisition destroys associa-tional freedom by an assault upon polit-ical privacy.

To begin, the grand jury's organgrinder, the government lawyer, has ac-cess to wiretap and other electronic sur-veillance material which can be used as

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a basis for questioning and intimidatingwitnesses.'

This is not the occasion to dwell uponthe wholesale grant of indiscriminatewiretap authority in the 1968 crime bill,nor upon the President's announced in-tention to exceed even the powers grant-ed in the act when "subversives" are tobe tapped. These issues are in the Su-preme Court this term. The technologyof privacy-invasion, and the public senseof its unbridled use, makes the grandjury on the loose doubly chilling.

Another aspect of privacy-invasionarises from indiscriminate poking andprying into associational freedom. In anactive political organization, meetings,friendships, discussions and interchangeof ideas are the means by which busi-ness is done.

Assume that one member is subpoe-naed to testify. That member can in-voke the privilege against self-incrimina-tion as to his or her own activities, butnot with respect to the activities, wordsor beliefs of others. To the real worrythat in a student radical organizationthere is a paid FBI informer, is addedthe certainty that any member may,against his or her will, be made an in-former in the secrecy of the grand juryroom.

Seventh, the grand jury only pretext-ually inquires into a specific crime orcrimes. More often it is convened tosurveil a group or groups whom theAttorney General suspects, seeking somepretext for making a formal charge. Of-ten, the indictments that do result arefor offenses peripheral to the purportedpurpose of the grand jury, or are soludicrously unsupported as to be posthoc apologies for having begun the in-vestigation in the first place.

The grand jury's work is not, underMitchell, to make charges to be tried,openly and fairly. The grand jury is de-signed to do what witch-hunting con-gressional committees were designed todo: Probe, expose, and punish the exer-cise of political freedom by its imme-

6. This issue is in the Supreme Court thisterm in Egan, Evans, and Gelbard-Par-nas, cited above.

diate targets and chill dissent among allbut the hardiest of the onlookers.

NEW DIMENSIONEighth, the grand jury has taken on

a new dimension, uncontemplated byits creators and in defiance of its tradi-tional role: It has become an evidence-gathering body once an indictment hasbeen returned. Grand juries have con-tinued in session long after voting in-dictments, in an attempt to, give govern-ment lawyers compulsory process forobtaining criminal discovery explicitlyforbidden them by the Federal Rules ofCriminal Procedure.

Federal Rule 15 gives only defend-ants the right to take depositions toperpetuate testimony, and Federal Rule16(c) severely limits the right of gov-ernment lawyers to discovery. The re-mainder of Federal Rule 16 limits thedefendant's right to discovery. Thus, theuse of the grand jury's power of sub-poena is a clear evasion of the law.

The grand jury's power to affect pol-itical freedom and to undermine consti-tutional guarantees of fairness must becurbed. In the legal arena, new tacticsagainst repressive use of grand juriesare being devised and tested. It is alsoimportant to begin creating an informedand concerned body of public opinionwhich will consider the conduct ofgrand juries as carefully and criticallyas the conduct of Congressional witch-hunts was studied in the Fifties-andmore so.

Many responsible law enforcement of-ficials believe that the grand jury couldbe abolished in favor of a universal"preliminary hearing" method of insti-stuting criminal charges. Such a systemwould at least be public and wouldpermit participation by defense coun-sel. Such hearings are conducted inmany criminal cases in the federal sys-tem under the Federal Rules of Crim-inal Procedure, 7 and are the alterna-tive means to bringing criminal chargesin systems, such as California's, whichmake indictment by grand jury optional.

(Continued on Page 717)

7. The D.C. Circuit cases of Blue v. U.S.and Ross v. Sirica show that the pre-liminary hearing can be meaningfui.

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