California Attorney General Opinion 23-201

Syllabus

QUESTIONS: 1. Does the probable cause standard for a grand jury criminal indictment state a lesser standard of proof than preponderance of the evidence? 2. Must the word \shall\ as used in Penal Code section 939.8—which states that the grand jury \shall find an indictment\ upon a determination of probable cause—be construed and stated as \should\ when the statutory language is used to instruct a grand jury? CONCLUSIONS: 1. Yes. The probable cause standard for a grand jury criminal indictment, which requires the prosecution to present evidence that warrants a strong suspicion of guilt, states a lesser standard of proof than preponderance of the evidence, which requires proof that a particular fact is more likely than not to be true. 2. No. Penal Code section 939.8 requires a grand jury to return an indictment if the grand jury concludes that there is probable cause, and a grand jury may be instructed to that effect.