Introduction to the Grand Jury

ACG 6935/4939

What in the world is a Grand Jury

A Grand Jury is…...

• Group of Ordinary Citizens• Consists of 16 to 23 people• Their purpose is review evidence of

suspected criminality and• to decide whether criminal charges are

warranted• Grand Jury Review required in the 5th

Amendment

Functions of a Grand Jury

1. Investigatory

2. Screening

Investigatory Function

• Gather evidence• Summon witnesses• Compelling

production of tangible evidence.

• Can initiate an investigation on mere suspicion that the law is being violated.

Screening Process

• An Independent Voice

• Reviews the Evidence

• Grand Jurors decide whether to return a “True Bill” or a “No True Bill”

• “True Bill” = indictment which is the formal charging of a crime.

Charging Instruments

Criminal Complaint

Indictment by a Grand Jury Information

Probable Cause Hearing

Guilty Plea

Dismissal

Arrest

< 20 Days

< 30 Days

Standards of Proof

• Probable Cause• Prima Facie• Preponderance of the

Evidence• Clear and Convincing

Evidence• Beyond a Reasonable

Doubt

Grand Jury Powers

• Subpoena Power

• Holds people in contempt of court if they don’t comply

• Testimony given under oath

• Subpoena is not issued pursuant to a level of judicial proof. (Exception: the subpoena is too sweeping to be considered reasonable)

Immunity

• Can gain the testimony of a witnesses who fear prosecution for their part in a crime.

• Transactional Immunity• Use/Derivative Use

Immunity (Kastigar v. US (S. Ct. 1972)

5th Amendment

The Right Against Self-Incrimination

Does the Fifth Amendment Apply to …..

• Testimony?• Fingerprints?• DNA?• Hair Samples?• Blood Samples?• Handwriting?• Perjury?

Rights & Procedures

Who Can Be Present in the Grand Jury Room?

• Prosecutor?• Judge?• Agents?• Defense Attorney?• Target of the

Investigation?• Stenographer?• Judge?

Prosecutor

• Asks questions of the witnesses

• Explains the elements of the offense

• In some jurisdictions, can offer his/her opinion on the sufficiency of the evidence

Witness

• Has to give truthful testimony

• Can plead 5th amendment right

• Questioned by prosecutor and grand jurors if they so choose

• Can use hearsay testimony

Defendant

• Can be subpoenaed to the Grand Jury

• Can assert 5th amendment right

• His lawyer can not be present in the grand jury room

• Can have attorney outside the room

Grand Jurors

• Listen to Testimony• Determine the validity of

the evidence• Can demand witnesses to

appear• Can Expand the

investigation• Can use personal

experiences to decide guilt or innocence

The Grand Jury is Secret

• Prevent interference by potential defendants

• Protect an innocent person’s reputation

• Encourage uninhibited disclosure

• freedom to consider the case without fear of public pressure or influence

• To prevent escape of potential defendants

Who is Bound by the Secrecy Requirement?

• Prosecutor?• Witnesses?• Agents?• Stenographer?• Grand Jurors?• Defendants?

Rule 6(e)

• Allows disclosure of grand jury evidence.

• Disclosure to further the investigation.

• Allow other members of the prosecutorial team to view the same evidence.

Challenges to Grand Jury Evidence

• Costello v. United States• Court ruled against Costello• The court characterized the grand jury as “a

body of laymen, free from technical rules”• Grand Juries are allowed to hear evidence

that would be inadmissible at trial.• GJ protects only the factual innocent from

having to stand trial

Challenges to Grand Jury Evidence (Cont.)

• United States v. Calandra

• Supreme Court refused to extend the exclusionary rule to the Grand Jury

• Allows illegally obtained evidence to be presented to the grand jury.

• Suppression issues prior to indictment

G rand Jury Process

G ran d Ju ry re tu rn s In d ic tm en t o r N o Tru e B ill

E vid en ce P resen ted to th e G ran d Ju ry

A g en t & P rosecu to r R eview E vid en ce

G ran d Ju ry is su es su b p oen as

In ves tig a tion b eg in s

Advantages/ Disadvantages of a Grand Jury

• Secrecy• Separation of Duties• Internal Controls• Independence• Review by Peers• Allows Free Expression• Lack of Legal Training

• Too much power for the prosecutor

• No chance for cross examination

• One sided• Evidence admitted that

can’t be used at trial• Lack of Legal Training