Prosecutors can initiate a criminal case against someone by using a grand jury in the federal and state systems. A grand jury is a panel of citizens called for service, just like a trial jury. Unlike trial juries that decide issues of guilt, grand juries determine whether enough evidence exists to charge someone with a crime in the first place. When they do, the grand jury issues an indictment, which states the charges against a defendant.

Federal prosecutors must use grand juries to bring felony charges against a defendant. While states are not required to use grand juries, many do in murder, capital, or other felony cases. A grand jury is one way a prosecutor can initiate a case against a defendant. Prosecutors can typically choose between using a grand jury or filing a criminal complaint.

What Is a Grand Jury?

A Grand Jury is a group of jurors, usually 12 to 23, sworn under oath, that listen to the evidence and determine if probable cause exists to indict the accused with a crime. A judge selects the Grand Jury from nominations or the regular jury pool.

Depending on the jurisdiction, the Grand Jury sits for a month, several months, or a year. Grand jury proceedings and deliberations are secret.

How Does a Grand Jury Differ from a Preliminary Hearing?

All states have provisions in their laws that allow for grand juries, but roughly half of the states don’t use them. Courts use preliminary hearings before criminal trials. As with grand juries, preliminary hearings are meant to determine whether there is enough evidence or probable cause to indict a criminal suspect.

A preliminary hearing is usually open to the public and involves lawyers on both sides with a judge. Grand juries are not open to the public. Grand juries only involve the jurors and the prosecutor. Sometimes, a preliminary hearing precedes a grand jury. One of the biggest differences between grand juries and preliminary hearings is the requirement that a defendant requests a preliminary hearing, although the court may decline the request.

Functions of the Grand Jury

The Grand Jury has two main functions:

  • To determine whether there is probable cause that the defendant committed a crime. If the
  • Grand Jury finds probable cause that the accused committed the crime charged, then the
  • Grand Jury issues an indictment.
  • To inquire into public wrongdoing by state or local government officials, whether the acts are criminal or are just reckless or incompetent.

The Grand Jury carries out its function by:

  • Investigating
  • Viewing evidence and hearing testimony from witnesses
  • Issuing indictments when probable cause exists
  • Making recommendations regarding any public wrongdoing

What Happens at a Grand Jury Hearing?

The prosecutor presents evidence and witnesses to the Grand Jury to establish probable cause that the accused committed the crime charged. The Grand Jury may request further evidence from the prosecuting attorney, subpoena evidence or witnesses, and question each witness who testifies. The accused has no right to be present or testify to the grand jury. No cross-examination occurs.

If the Grand Jury finds probable cause exists, they issue an indictment, and the case proceeds toward trial. If the Grand Jury finds no probable cause exists, no indictment is issued, and the charges are dismissed.

Is There a Grand Jury Hearing for All Criminal Cases?

No. Most jurisdictions hold a Grand Jury hearing only when a felony is charged. Many jurisdictions hold a preliminary hearing instead of having the Grand Jury hearing to determine whether probable cause exists and whether the accused should stand trial, thus making the Grand Jury’s role in criminal cases relatively minor.

Why Have Grand Juries?

Part of a grand jury’s duty is to check the prosecution and protect defendants from malicious or unfounded prosecutions. Grand jurors have the right to question witnesses and investigate allegations. The influence of a prosecutor usually dominates the proceedings, and grand juries frequently indict based on the prosecution’s evidence.

Some prosecutors pursue an indictment from a grand jury rather than filing a criminal complaint because, unlike other criminal proceedings, grand jury proceedings are secret and one-sided. When a prosecutor files a criminal complaint, rather than going through the grand jury process, the prosecutor must convince a judge that they have enough evidence to convict the accused in a public hearing. The defense can cross-examine the witnesses during this preliminary hearing and see the prosecution’s evidence.

This proceeding gives the defense a chance to understand the prosecution’s case and prepare a strong defense for trial. The secrecy of grand jury proceedings gives prosecutors an advantage at trial by allowing the prosecutor the chance to test their witnesses and evidence before a jury without revealing their arguments or evidence to the defense.

What is a Special Grand Jury?

The United States provides for the formation of special grand juries. A regular grand jury primarily decides whether to bring charges, but special grand juries are called into existence to investigate organized crime in the community.

Organized crime could include organized drug activity or organized corruption in government. Every judicial district with more than four million inhabitants must impanel a special grand jury when requested by the Justice Department.

What Are the Criticisms of Grand Juries?

A persistent criticism of grand juries is that jurors are not a representative sample of the community and are not qualified for jury service. Critics say grand jurors do not possess the ability to ask pertinent questions or understand local government and due process. Grand jurors are not screened for bias or other improper factors. Potential grand jurors are rarely read any instruction on the law, as this is not a requirement. Grand jurors only judge on what the prosecutor produced. The prosecutor drafts the charges and decides which witnesses to call.

The prosecutor is also not obliged to present evidence in favor of the defendant. Individuals subject to grand jury proceedings do not have a Sixth Amendment right to counsel in the grand jury room, nor do they have a Sixth Amendment right to confront and cross-examine witnesses. Individuals in grand jury proceedings can be charged with holding the court in contempt if they refuse to appear before a jury, punishable by incarceration for the remaining term of the grand jury.

The Grand Jury’s Decision and Prosecutor Discretion

Grand juries do not need a unanimous decision from all members to indict a defendant, but it does need a ⅔ or ¾ agreement depending on the jurisdiction. Even though a grand jury may not choose to indict, a prosecutor may still bring the defendant to trial if they think they have a strong enough case. Grand jury proceedings are often a valuable test run for prosecutors in making the decision to bring the case to trial.

The trial will likely begin faster if a grand jury chooses to indict. Without a grand jury indictment, the prosecutor has to demonstrate to the trial judge that there is enough evidence for continuing with the case. With a grand jury indictment, a prosecutor can proceed directly to trial.

Seeking Legal Help

If you are accused of a felony, you should immediately speak to a criminal lawyer to learn more about your rights, defenses, and the complicated legal system. Your attorney can provide you with advice and guidance regarding your case.