Since colonial times, America has embraced the custom of the grand jury in criminal law. This panel of 12 to 23 ordinary citizens reviews evidence, hears sworn testimony, and otherwise conducts an investigation into alleged criminal conduct, to determine whether criminal charges should be brought against the accused. This method of establishing “probable cause” to charge a person with a crime was embraced in the Fifth Amendment to the U.S. Constitution, as a means to protect citizens from inappropriate or baseless prosecution by the government. To explore this concept, consider the following grand jury definition.
Definition of Grand Jury
- A jury of 12 to 23 individuals assembled to evaluate accusations against a person or entity charged with a crime, for the purpose of determining whether a law has been violated, and whether there is probable cause to indict and prosecute the accused.
1250 Middle English jurie
What is a Grand Jury
England’s King Henry II effected major changes in the justice system of the time when he enacted the Assize of Clarendon Act of 1166, which took back control over the courts from the Catholic Church and local nobility. The Assize Act proclaimed that no person could be tried for a crime unless a certain number of other individuals appeared personally at court to accuse that person of the specified crime.
This body of important men, the “juré,” was sworn to duty in each shire, and given the authority to investigate accusations, identify suspects, and study and demand evidence and sworn testimony to determine whether the accused should stand trial. This marked a change in the common law legal system, and the grand jury was later recognized by King John in the Magna Carta of 1215.
Unfortunately, those accused of serious crimes in those early times were subjected to “trial by ordeal,” in which their guilt or innocence was established by subjecting them to a terrible ordeal which often threatened life or limb. For example, in the ordeal of boiling water, the accused was required to retrieve a stone from the bottom of a kettle of boiling water, which was wrist deep for a single offense, and up to elbow deep for three offenses. If the burns sustained were not seen to be healed after three days, the accused was found guilty and punished.
Fortunately, the grand jury system, and legal system in general, has evolved over the centuries since the times of trial by ordeal.
Grand Jury Selection Process
The list of prospective jurors, both for regular jury trials and for a grand jury, is made up of names from the registered voters and people holding a driver’s license within each judicial district. These potential jurors complete questionnaires to weed out those unsuitable for jury service, including convicted felons. Jurors are then called randomly from that list, through a grand jury summons, to grand jury service. Use of these lists helps ensure potential jurors include a broad cross-section of the community in regard to race, sex, religion, and political affiliation.
Jurors responding to the grand jury summons are randomly called and put through the voir dire selection process in which the attorneys for the case question prospective jurors about their backgrounds and cultural or legal biases that may affect their decisions in the case. While voir dire is called a “selection process,” it is more accurately thought of as a rejection process, as the attorneys and judge in the case have the opportunity to reject potential jurors who may be biased against their viewpoint. Voir dire often includes considering a grand juror’s availability, as grand jury members are generally called to serve several months, though they are only required to be in court a few days each month.
The Grand Jury Process
In theory, the grand jury process protects people from unjustifiable and unfair prosecution. In practice, the prosecutor responsible for presenting cases to the grand jury holds a great deal of sway. This lead to the widely used phrase that a prosecutor could get a grand jury to “indict a ham sandwich.”
Grand juries are chosen for both federal and state jurisdictions. A new federal grand jury is chosen three times each year, each serving a four-month term. Once selected to serve, each juror takes an oath to not be motivate by “hatred, malice or ill will,” in the execution of his or her duties. Federal Rules of Criminal Procedure require a federal grand jury to be composed of 16 to 23 jurists, and a minimum of 12 jury members must agree on an indictment. States have similar rules, though the number of jurists varies.
In order to encourage witnesses to testify freely, without fear of retaliation, all grand jury proceedings are secret, taking place in a closed room, led by the prosecutor with no judge. The accused has no right to present his case, and in many cases is not even made aware the hearing is taking place. It is against the law for any juror or witness to disclose any portion of grand jury proceedings, including their own testimony.
The Supreme Court has held that this secrecy in the grand jury process is necessary as, if the details of these proceedings were made public, many would-be witnesses might be hesitant to testify openly. Disclosure that the proceedings are being held would also create a risk that the accused would flee, or take action to influence jurors. Finally, secretive grand jury proceedings help ensure accused individuals and entities who are ultimately cleared of the charges are not subjected to public scorn.
It is permissible for the prosecutor leading a grand jury investigation to make a statement regarding the proceedings and outcome in certain circumstances. This is commonly done in cases that have been widely publicized.
Grand Jury Subpoena
The grand jury subpoena is used as a means of obtaining evidence in a grand jury or court case. In a grand jury matter, subpoenas are requested by the prosecutor, issued by the court, and served (delivered) in person by a police officer or marshal. Two different types of subpoenas are used to request different types of evidence:
- Subpoena ad Testifacandum – Commonly referred to as a subpoena for appearance, this type of subpoena is a court order for the person named in the document to appear in person to testify before the grand jury (or in other court or pre-trial proceedings).
- Subpoena Duces Tecum – This type of subpoena is a court order to produce specific types of evidence, and generally specifies such items as documents, audio or visual recordings, photographs, test results, and other records. The Subpoena Duces Tecum may specify that the holder of such evidence appear personally with the requested evidence, or may specify a manner and date on which to simply supply the evidence.
Possible Responses to a Grand Jury Subpoena
While there are several possible ways to respond to a subpoena, simply complying is the easiest and safest way to deal with it. Submitting a written response attempting to persuade the court that signed the subpoena that the required testimony or evidence is not really needed is another possibility, though not often won. Subpoenaed witnesses may submit such a written response to the court claiming privilege, such as doctor-patient or attorney-client privilege of confidentiality.
Simply refusing or failing to appear or comply with a grand jury subpoena is another option, though may come at the cost of being held in contempt of court. Witnesses or custodians of requested records may be sentenced to stay in jail until they comply with the subpoena, or until the grand jury session closes, whichever happens first. As grand juries typically serve terms of four months or longer, this could be a costly gambit.
Grand Jury Indictment
After a grand jury hears all testimony and reviews all evidence presented in a case, the jury members meet in private to decide whether there was enough evidence, or “probable cause,” to issue an “indictment.” A grand jury indictment is the formal written document charging a person or entity with one or more crimes. The accused, having been indicted, is then referred to as a “defendant.” Unlike the unanimous jury vote required to convict a defendant of a crime, a grand jury need only meet a supermajority vote of two-thirds or three-fourths to indict.
In the event a grand jury votes not to indict, the prosecutor on the matter may still choose to take the case to a trial judge in an attempt to prove there is enough evidence to take the case to trial. This is a more lengthy road to prosecution, however, as a defendant that has received a grand jury indictment usually gets to trial more quickly.
Famous Cases Involving the Grand Jury
Cases involving a wide variety of accusations of criminal misconduct are brought before both state and federal grand juries every year. Because of secrecy rules in grand jury proceedings, only a handful of these cases are laid out before the public by the media.
Ferguson Missouri Officer Involved Shooting Death of Michael Brown
On August 9, 2014, Michael Brown, an African American teenager, stole some cigarillos from a convenience store, and was seen by police officer Darren Wilson just a few minutes later. When Officer Wilson confronted the teen, a fight ensued, ultimately ending when the officer shot and killed Brown. Community outrage ensued as the members of a primarily African American community protested the shooting death of an African American teen at the hands of a while police officer.
The case was quickly brought before the grand jury to determine whether Officer Wilson should be criminally charged with the shooting and death of the teen. After a three-month long investigation that included review of the physical evidence, autopsy report, medical records, photos, and witness statements, the grand jury acquitted Officer Wilson, choosing not to issue an indictment.
When Grand Jury Indictment is Necessary
According to the Fifth Amendment of the U.S. Constitution, any criminal prosecution in a federal court must be brought by indictment, except in misdemeanor cases, petty offenses, and criminal contempt. State judicial systems are not required, according to the Fourteenth Amendment, to use the indictment process in criminal prosecution. Some states do, some don’t. In states that do not use the indictment process, or only use it in certain cases, the case begins when the prosecutor files a “criminal complaint” with the court.
In both federal and state cases, the defendant has the right to waive the right to be indicted. This frequently happens when the defendant does not want to wait in jail until the grand jury decides whether or not to indict. Waiver is also common when defendants make a “plea bargain” with the prosecution.
Related Legal Terms and Issues
- Custodian of Records – the person responsible for maintaining physical custody of records, documents, and other physical evidence in the ordinary course of business. This may include financial records, service records, and patient charts.
- Special Grand Jury – a Special Grand Jury may be called to investigate matters involving organized crime, such as governmental corruption or organized drug activity.
- Probable Cause – the amount and quality of evidence and information required to search or arrest someone, or to charge them with a crime.