The Grand Jury

According to the Fifth Amendment of the US Constitution, “no person shall have to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury.” In layman's terms, this means that you can't be accused of a serious criminal offense unless a grand jury decides there is enough preliminary evidence against you to file formal charges. All federal cases go through a grand jury indictment and approximately half of the states use a grand jury to indict serious criminal suspects.

The American Bar Association states the primary purpose of the grand jury is to review evidence presented by the prosecutor to determine if there is probable cause to charge the defendant with a crime. This does not require the grand jury to hear all of the evidence or any conflicting evidence, just enough to determine probable cause. Historically, the grand jury was used to provide an intermediary between the king and the public. Today, many argue that the role of the grand jury is to give the prosecution a stamp of approval to proceed with a criminal case.

In recent decades, enormous power has been given to the grand jury, particularly in federal cases. The grand jury's investigative powers are wide and sweeping. Many believe that power is unfairly given to the prosecutor during grand jury hearing.

The grand jury is completely different from a trial jury. The grand jury only determines if there is probable cause to charge a suspect, while a trial jury determines the guilt or innocence of a suspect who has plead “not guilty” to the formal charges against them. The grand jury is comprised of 23 citizens who are chosen from the same pool of potential jurors used for trial juries. They are chosen in much the same way as they are during trial jury selection, except for one important difference. Prospective jurors for the grand jury are not screened for biases or other factors.

During the grand jury hearing, the only side of the story that is presented is that of the prosecutor. The prosecutor can call witnesses and determine which witnesses will have immunity. The jurors may have an opportunity to ask questions at the end of a witness's testimony. The prosecutor can subpoena any witnesses s/he wishes, there are no restrictions on who can be called. People with marital, lawyer/client, or doctor/patient privileges or the privilege of refusing to self-incriminate may not be required to testify. Any person who does not appear at the grand jury hearing after being served with a subpoena risks being in contempt of court. The defendant is not able to testify at the grand jury hearing. There are no rules that protect the defendant by preventing witnesses from lying during grand jury investigations.

Grand jury hearings are not made public. The jurors, prosecutor, and grand jury stenographer are sworn to secrecy about the grand jury proceedings, though the witnesses are not. In some cases, the defendant may have a right to obtain a list of those who testified in the grand jury case and may also have access to their testimony. If you would like to learn more about the grand jury, please contact a qualified attorney who can determine the best way to protect your legal rights.