Grand juries investigate crimes and decide whether there is enough evidence to bring charges against (i.e. indict) a defendant for a particular crime. This is different than the role of a trial jury that determines if a defendant is guilty. The right to a grand jury proceeding for serious crimes is protected by the Fifth Amendment. Indictment is also required by law in federal felony cases. The grand jury process is meant to safeguard the rights of the accused, but unfortunately, defendants have very limited rights in these proceedings.
The court summons a grand jury of 16 to 23 people to begin the process. However, the government’s attorney controls the proceedings, working with the jurors to investigate the matter at issue. While grand juries have broad investigative powers and can issue subpoenas to obtain evidence and compel witnesses to testify, the government attorney handling the case advises grand jurors as to what witnesses and evidence should be subpoenaed.
Jurors only hear evidence presented by the government, but they may ask that additional witnesses be called if they believe it’s necessary. The attorney for the government questions witnesses, but members of the grand jury may also ask questions.
Importantly, the government attorney has discretion over which witnesses and evidence to present to the grand jury. They have no duty to present exculpatory evidence that is beneficial to the defendant.
Once all evidence has been presented, the grand jury decides whether there is probable cause to believe that a crime was committed and that a specific person(s) committed it. Jurors vote on whether to indict. At least 16 jurors must be present for the vote and 12 must vote for indictment. If they find probable cause, they will return an indictment, and the defendant will be brought to trial. No one but the jurors (and interpreters) may be present during deliberations.
Grand jury proceedings are secret. Only the jurors, interpreters, attorneys for the government, the witness being questioned, and court reporters may be present when in session. No one may disclose the matter occurring before the grand jury with a few limited exceptions.
Those being investigated (or their attorneys) have few rights in a grand jury proceeding. They are not allowed to attend the grand jury proceeding, submit or challenge evidence, or present or cross-examine witnesses. Further, the government does not have to disclose exculpatory information as noted above. As a result, the grand jury is mostly a rubber stamp of the government’s case.
The accused can invoke the Fifth Amendment if subpoenaed to testify and challenge the grand jury on the ground that it was not lawfully drawn, summoned, or selected. Individual jurors can also be challenged on the grounds that a juror is not legally qualified. If a subpoena was issued, the accused can seek to quash it on various grounds.
Grand juries aren’t fair proceedings. While your attorney cannot be present at the proceeding, it’s important to have legal representation if you know you are being investigated. There are significant dangers in trying to handle it alone or waiting until you are arrested.
If you are facing an investigation, contact us for a consultation to learn how we can help.