A powerful investigative tool for criminal prosecutors
How grand juries work
Historically, grand juries were supposed to stand between the sovereign and the citizen by screening cases and rejecting those unfit for prosecution. However, they have evolved into a powerful investigative tool for prosecutors.
Grand jurors are selected from the same pool as regular jurors, but defense attorneys do not play any role in challenging or selecting the jurors. Typically, the grand jury consists of 16 to 23 members who sit for 18 months, but only for a few days each month.
This means that the grand jury was not impaneled to deal with your case. The grand jury hears evidence in any number of investigations underway at the same time. Neither probable cause nor reasonable suspicion is required to initiate a grand jury investigation; it is free to investigate the flimsiest of rumors and suspicions.
Grand juries are not impartial bodies. They hear only the evidence the prosecutor chooses to present, much of it hearsay in the form of interviews summarized by law enforcement agents. The jurors receive their instructions in the law from the prosecutor, and spend their recesses bantering with agents and prosecutors and their staff. Grand juries rarely review documents subpoenaed to them. Instead, the prosecutor reads an extremely brief description of what was subpoenaed and what was received.
Prosecutors often remind the grand jury that it is not to determine guilt or innocence, only whether there is probable cause to vote an indictment. Grand jurors learn that their days will go quickly and easily if they ask few probing questions and vote to indict whenever requested to do so. It is not uncommon to see grand jurors dozing or reading during testimony.
The grand jury is not there to be charmed or persuaded. Your objective is to avoid testifying. If you must testify, then your goal is to get in and out as quickly as possible while saying as little as possible in a business-like fashion.
Grand jury proceedings are secret
Only the grand jurors, a court reporter, the prosecutor and the witness may be present during the grand jury’s proceedings.
Some jurisdictions permit witnesses to have their lawyer present; others consign the attorney to a post outside the grand jury room and permit the witness to leave and consult with the lawyer.
Everyone in the grand jury room except the witness is legally bound to keep its proceedings secret.
Still, leaks occur, and in many courthouses, the grand jury room is situated so that the media and representatives of the investigation’s targets can stake out the grand jury room, observe who enters, and try to question outside the grand jury room those who appear to be witnesses.
However, the defense will never see the transcripts of the document returns, prosecutor’s legal instructions, descriptions of the evidence, or the prosecutor’s colloquies with the grand jurors.
Alternative functions of grand juries
Grand juries operate in two different ways, depending on the jurisdiction and type of case:
- The Charging Grand Jury.
- The Investigating Grand Jury.
A charging grand jury operates when the defendant already has been arrested on a preliminary charging document, like a complaint, and the time is short before he must have a preliminary hearing or be released. The grand jury does little investigation and acts mainly to:
- Hear some brief testimony, usually hearsay from the arresting officer.
- Rubber-stamp the prosecutor’s charging decision.
- Deprive you of your statutory right to a preliminary hearing.
Investigating grand juries handle more complex matters and follow a more circuitous course. Such an investigation usually starts with subpoenas for documents. Over the next several months, the prosecutor will:
- First, call minor witnesses, or present their testimony through agents.
- Then proceed to immunized witnesses and cooperators.
- Circle back to determine if previously uncooperative witnesses are willing to testify truthfully now.
- Finish with an agent who summarizes the investigation and covers details that had been missed.
In complex matters this process takes months or even years. The expiration of the grand jury’s term does not end the investigation. Prosecutors can either extend the grand jury’s term for several months or summarize the testimony for a new grand jury.
When it comes time to make a charging decision, the prosecutor will summarize the testimony and the important documents. Before the grand jury votes, the prosecutor briefly describes the legal elements of the charges and how the evidence satisfies each element. Then the prosecutor will ask the grand jury if they have any questions and leave for them an indictment that he has drafted.
The grand jury has no role in drafting the indictment. It merely votes up or down on the version presented by the prosecutor. A majority of those present suffices to return an indictment, and the defense never learns what the vote was.