The Grand Jury in the United States

Origins and Practice

empty jury box
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The grand jury system, an institution of English-speaking countries, was established in the US by the fifth amendment to the Constitution. It is a codified practice of Anglo-Saxon or Norman (depending upon your expert) common law. "The grand jury is supposed to function as a body of neighbors who aid the state in bringing criminals to justice while protecting the innocent from unjust accusation," according to Consumer Law.



All but two states and the District of Columbia use grand juries to indict, according to the University of Dayton law school; Connecticut and Pennsylvania have retained the investigating grand jury. A subset of these states, 23, require that grand jury indictments be used for specific crimes; Texas is in this subset.

What is a Grand Jury

A grand jury is a group of citizens, usually chosen from the same pool as trial jurors, that is sworn in by a court to hear a case. The grand jury is composed of not less than 12 and not more than 23 persons; and in the Federal courts, the number shall not be less than 16 nor more than 23.

Grand juries differ from trial juries (which consist of 12 jurors) in other significant ways:

  • Unlike trial juries, grand juries can indict with only a majority (not unanimous) vote.
  • Trial juries decide whether a defendent is guilty or not guilty of a crime. A grand jury listens to evidence and decides if someone should be charged with a crime. Thus the grand jury determines probable cause, not "guilt" or "innocence". According to the American Bar Association:
    • Since the role of the grand jury is only to determine probable cause, there is no need for the jury to hear all the evidence, or even conflicting evidence. It is left to the good faith of the prosecutor to present conflicting evidence.
  • Unlike trial juries, grand juries do not usually convene daily. Many federal grand juries sit only once a week or twice a month.

The Subpoena

Grand juries can use the power of the court to subpoena (command) evidence although they can also invite (not command) witnesses to testify.

Should you receive a subpoena but think you should not have to testify, or you think what the subpoena asks is "unreasonable or oppressive," you can file a motion to quash the subpeona.

If you simply refuse to do what the subpoena asks, you can be held in civil (not criminal) contempt. If you are held in civil contempt, you will be jailed until you agree to comply with the subpoena or until the grand jury's term ends, whichever comes first.

Witness Right to Counsel

In a jury trial, defendents have a right to counsel; the lawyer sits alongside the defendent in the courtroom. In a grand jury investigation:

  • In the federal system, a witness cannot have his or her lawyer present in the grand jury room, although witnesses may interrupt their testimony and leave the grand jury room to consult with their lawyer. A few states do allow a lawyer to accompany the witness; some allow the lawyer to advise his or her client, others merely allow the lawyer to observe the proceeding.
Secrecy
Grand jury investigations are shrouded in secrecy; violating that secrecy is considered criminal contempt and can also be considered obstructing justice. Those who are bound to secrecy include everyone but the witnesses: prosecutors, grand jurors, court reporters, and clerical personnel. Identities of grand jurors are kept secret.

In 1946, Supreme Court created created the Federal Rules of Criminal Procedure, which simplified common law and codified grand jury secrecy in Rule 6, subsections (d) and (e). The first provision limited who could be present in grand jury sessions; the second imposed a general rule of secrecy.

Grand jury proceedings are secret because:
  • Anyone being investigated cannot interfer with witnesses or otherwise tamper with the investigation.
  • Secrecy decreases the likelihood someone who is about to be indicted will escape before indictment.
  • Reluctant witnesses can speak more freely when their remarks will not be made public nor reach the target of an investigation.
  • Secrecy protects anyone who might be implicated, but who is not indicted.
Witnesses are not sworn to secrecy in Federal grand juries, which allows witnesses to refute rumors surrounding their appearance or testimony before a grand jury.

Length of the Grand Jury
A "regular" federal grand jury has a basic term of 18 months; a court can extend this term for another 6 months, bringing the total possible term to 24 months. A "special" federal grand juriy can be extend another 18 months, bringing the total possible term to 36 months. State grand jury terms vary widely, but from a month to 18 months, with a year being average.

Oath of the Foreman
The oath of the foreman is generally like this, reflecting its roots in history:
  • "You, as foreman of this inquest, for the body of the County of ____ , do swear, (or affirm) that you will diligently inquire, and true presentment make, of such articles, matters, and things as shall be given you in charge or otherwise come to your knowledge, touching the present service; the commonwealth's counsel, your fellows' and your own you shall keep secret; you shall present no one for envy, hatred or malice; neither shall you leave any one unpresented for fear, favor or affection, hope of reward or gain, but shall present all things truly as they come to your knowledge, according to the best of your understanding (so help you God.)"
    Returning An Indictment
    After the prosecutor presents evidence, jurors vote on the proposed charges (the indictment), which were drafted by the prosecutor. If a majority of the jury believes the evidence shows probable cause of a crime, the jury "returns" the indictment. This act initiates criminal proceedings.

    If a majority of the jury does not believe the evidence shows probable cause of a crime, that "no" vote is called "returning a bill of ignoramus" or "returning a no bill." No criminal proceedings follow this vote.

    However, this does not necessarily mean the end to an investigation. A person who is suspected of having committed a crime is not protected by the constitutional prohibition of " double jeopardy" in this instance, because the person has not yet been "put in jeopardy" (made to stand trial).

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