What a Grand Jury Does

Grand juries are one of the good intentions paving the road to our current legal system. Unlike a trial jury, which decides whether a suspect is guilty, a grand jury merely decides whether there’s probable cause to prosecute a suspect on felony charges. The goal was to create a filter to catch unjustified felony cases and stop them at an early stage, so that the suspect wouldn’t be wrongfully prosecuted (and have to spend unnecessary time in jail and unnecessary money on lawyers).1  But it all went very wrong.

Grand juries are generally composed of six to twenty-three members, depending on the jurisdiction. In the federal system and in most states, grand jurors serve for eighteen months and judge many different cases (but they usually meet just once a week or even once a month). At a grand jury hearing, the only official is the prosecutor—there’s no judge and no defense attorney. The jurors sit there listening to witnesses and reviewing exhibits in a prospective or pending felony case, and then vote on whom to prosecute.2 Once the grand jury decides there’s probable cause, the prosecutor can issue an indictment, a document specifying the felony charge(s) against a particular defendant.

The prosecutor selects all the witnesses and other materials, and then presents them to the grand jury. Defense attorneys aren’t even allowed in same room as the grand jury, let alone permitted to put on defense witnesses, question the prosecution witnesses, or make any statements to the jurors. So grand juries nearly always just “rubber stamp” the cases brought before them. For example, in fiscal year 2000, federal grand juries voted to indict a total of 59,472 suspects3 and chose not to indict 29 suspects4—only one out of every two thousand suspects was left un-indicted. An additional factor in grand juries’ unwholesome compliance with prosecutorial plans is the frequent lack of diversity among the jurors. Occasionally—but not often enough—this is brought to light by a case challenging the constitutionality of a grand jury that doesn’t reflect the demographics of its county or federal district.5

Some people who are called as witnesses at grand jury hearings, are prosecuted afterward. If you’re ordered to appear before a grand jury, immediately seek the advice of an attorney who has experience in grand jury matters. Unfortunately, as a grand jury witness, you’re not entitled to a court-appointed attorney, even if you’re low-income. Nonetheless, it’s really important to get a lawyer: you don’t want to gamble when the stakes are this high and the game is rigged.

1.  Grand juries are mandated by the Fifth Amendment to the U.S. Constitution, which also includes protection against self-incrimination, the right to due process, and other eroded liberties.

2.  There are "special grand juries" that actively investigate crime or corruption, but these are rarely instituted, compared to regular grand juries.

3.  Sourcebook of criminal justice statistics Online, "Grand jury and grand juror utilization in U.S. District Courts," Table 1.94, http://www.albany.edu/sourcebook/pdf/t1942010.pdf (accessed September 6, 2015).

4.  Bureau of Justice Statistics, U.S. Department of Justice, Compendium of Federal Justice Statistics, 2000, "Basis for declination of prosecution by U.S. Attorneys," Table 2.4, 30, http://www.bjs.gov/content/pub/pdf/cfjs00.pdf (accessed September 6, 2015).

5.  Racially biased grand juries are sufficiently frequent and widespread that in 1977, the U.S. Supreme Court set forth specific grounds for determining whether a grand jury has been improperly composed (Castaneda v. Partida, 430 U.S. 482 (1977)). 

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