WHAT IS A GRAND JURY?
Mitch Jackson, Esq.
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Grand juries are the talk of the town this week, as recent reports reveal their involvement in the ongoing investigation of Donald Trump and his allies. With so much at stake, it's no wonder that the role of grand juries in our legal system is under the microscope.
In the Georgia case, the grand jury, over the course of seven months, listened to the testimony of 75 witnesses, including former New York mayor and attorney Rudy Giuliani and U.S. Sen. Lindsey Graham of South Carolina. Testimony was also obtained from Georgia officials including Secretary of State Brad Raffensperger and Gov. Brian Kemp.
So, what exactly is a grand jury, and how does it fit into the larger picture of criminal justice? Let's take a closer look.
We’ve had clients and reporters reaching out for commentary. During our conversations, it’s become obvious that most people, and even a few friends who are lawyers, are not familiar with what a grand jury actually is or the what the process entails.
To help get everyone on the same page, we put together the following summary of what a grand jury is, what it does, and a few other interesting facts about the process. Please note that each state is different and federal grand juries have different rules and procedures than state grand juries. I share a few of those differences below.
With the above in mind, here’s a general overview of grand juries that covers most of the general rules and procedures.
What is a Grand Jury?
The grand jury is a group of citizens that are convened to determine whether there is sufficient evidence to bring criminal charges against a person or entity. Grand jury proceedings are generally conducted in secret. The purpose of this secrecy is to protect the integrity of the grand jury investigation, to ensure the safety of witnesses, and to prevent interference with ongoing investigations.
Grand jury proceedings are also closed to the public, and the identity of the jurors is generally kept confidential. Witnesses who testify before a grand jury are also typically sworn to secrecy and prohibited from discussing their testimony with others.
In some cases, however, information about grand jury proceedings may be made public, such as if the grand jury issues an indictment or if a witness chooses to speak publicly about their testimony. Additionally, some jurisdictions may allow limited disclosure of grand jury proceedings to certain individuals, such as prosecutors or defense attorneys, for the purpose of preparing for a trial.
If the grand jury decides that there is enough evidence to charge someone with a crime, it will issue an indictment. An indictment is a formal accusation that charges an individual with a crime, and it is usually the first step in the criminal justice process.
Once an indictment is issued, the case moves to the trial phase. The accused individual is arraigned and given the opportunity to plead guilty or not guilty. If they plead not guilty, the case proceeds to trial, where the prosecution must present evidence to convince a judge or jury beyond a reasonable doubt that the defendant committed the crime.
It's important to note that a grand jury's decision to issue an indictment is not a finding of guilt, but rather a determination that there is enough evidence to warrant a trial. The defendant is presumed innocent until proven guilty beyond a reasonable doubt at trial. If the prosecution fails to meet this burden, the defendant will be acquitted and the case will be closed.
In the United States, prosecutors have broad discretion in deciding whether to seek an indictment from a grand jury. They may choose to present a case to a grand jury for indictment, or they may decide to file charges directly with a court without going through the grand jury process.
Why Choose a Grand Jury?
There are several reasons why a prosecutor might choose to use a grand jury to seek an indictment rather than filing charges directly with a court.
First, a grand jury can provide an additional layer of impartiality and transparency to the decision to bring criminal charges. A grand jury is made up of a group of citizens who have been selected from the community, and they are tasked with independently evaluating the evidence and determining whether there is probable cause to believe that a crime has been committed. This process can help ensure that the decision to bring charges is not subject to undue influence or bias.
Second, the grand jury process can be a useful investigative tool for prosecutors. Grand juries have broad subpoena powers, which can be used to compel the production of documents and testimony from witnesses. This can be particularly helpful in complex cases where there may be a large volume of evidence or where the evidence may be difficult to obtain through other means.
Finally, the grand jury process can help build public confidence in the criminal justice system. Because grand jury proceedings are conducted in secret, the public may be more likely to view the decision to bring charges as fair and impartial. Additionally, the grand jury process provides an opportunity for citizens to participate in the criminal justice process and to ensure that the government is being held accountable. Ultimately, the decision to use a grand jury or to file charges directly with a court will depend on the specific circumstances of each case.
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Several Downsides to a Grand Jury
There are several potential downsides to the use of a grand jury in the criminal justice system.
First, grand juries operate in secret, which means that the accused individual and their attorney do not have the opportunity to present evidence or argue against the charges before the grand jury. This can be seen as a violation of due process, since the accused does not have the opportunity to confront their accusers or challenge the evidence before the grand jury.
Second, the grand jury process can be susceptible to abuse by prosecutors. Because grand jury proceedings are conducted in secret, prosecutors may be able to present one-sided or misleading evidence to the grand jury without fear of challenge from the defense. Additionally, because grand juries operate with a lower standard of proof than a trial (probable cause rather than proof beyond a reasonable doubt), prosecutors may be more likely to seek indictments for weak cases or cases that would be unlikely to succeed at trial.
Third, the use of grand juries can be expensive and time-consuming. Grand jury proceedings can last for months or even years, and the costs associated with empaneling and running a grand jury can be significant.
Finally, the grand jury process can undermine public confidence in the criminal justice system. Because grand jury proceedings are conducted in secret, members of the public may view the process as unfair or opaque. Additionally, because the accused does not have the opportunity to present evidence or challenge the charges before the grand jury, some may view the process as undemocratic or unjust.
Differences Between State and Federal Grand Juries
Federal grand juries are used to investigate potential violations of federal law, while state grand juries are used to investigate potential violations of state law. This means that federal grand juries are convened by the U.S. Department of Justice and investigate cases that fall under federal jurisdiction, while state grand juries are convened by state prosecutors and investigate cases that fall under state jurisdiction.
Federal grand juries are also typically larger than state grand juries. Federal grand juries are made up of 16 to 23 jurors, while state grand juries can have as few as 5 or as many as 23 jurors, depending on the state.
State grand juries typically have a term of 6 to 12 months. Federal grand juries have a term of up to 18 months and operate under slightly different rules than state grand juries. For example, federal grand juries can issue subpoenas for documents or testimony from witnesses located in other states, while state grand juries are generally limited to issuing subpoenas within their own state.
When it comes to secrecy, federal grand juries are required to operate in secrecy, while state grand juries may or may not be required to operate in secrecy depending on the laws of the state. The secrecy of federal grand jury proceedings is mandated by federal law and is designed to protect the integrity of the investigation and the privacy of the individuals involved.
OK, I hope this helps everyone!
Please reach out with any questions or comments.
Mitch Jackson, Esq.
2013 California Litigation Lawyer of the Year
2009 Orange County Trial Lawyer of the Year