What Is the Function of a Grand Jury in a Criminal Trial?

Grand juries work in secret. It actually is a crime to reveal what a grand jury is convened to consider. Naturally, operating under this kind of secrecy, it is no surprise that most people have no idea what the function of a grand jury actually is. Most people associated with a grand jury are prohibited by law from discussing what the grand jury is doing, and among the few who can talk about a grand jury—such as the prosecutor—most discuss the grand jury only in general terms if they mention the existence of the grand jury at all. So how is it that the grand jury exists in our criminal justice system, and what does it do?


The Grand Jury Is Supposed to Protect Your Rights

The grand jury in United States jurisprudence came to be under the Fifth Amendment to the Constitution, part of the Bill of Rights:


No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury . . .


As a part of the Bill of Rights, the establish of the grand jury was intended to serve as a protection for the rights of the accused, requiring that charges, before being brought to trial, first go through a filter of citizens who would decide whether there was enough merit to the charges to bring them to trial. Unfortunately, that isn’t how grand juries have turned out. In fact, a New York State Court of Appeals judge once was quoted as saying, “The district attorney could get the grand jury to indict a ham sandwich if he wanted to.”


Even with the “ham sandwich” standard in effect, convening a grand jury does not mean there will be criminal charges, or indictments, arising from the session of the grand jury. Federal cases require a panel of 16 to 23 members, although states differ. At least 12 grand jurors must agree before a grand jury can issue an indictment. Deciding on the appropriateness of charges is not the only role a grand jury serves, however. A prosecutor also can use a grand jury as an investigative panel, forcing witnesses to testify or to turn over documents. Declining to cooperate with a grand jury can result in contempt charges that could put you in jail until you agree to cooperate. Most people cooperate, which makes grand juries a powerful tool for making people talk.


The members of a grand jury are chosen using largely the same procedures as the selection of a trial jury. They are chosen from the same pool, which, depending upon the state, includes registered voters or licensed drivers. Federal grand juries can consist of any U.S. citizen living in the federal court’s district who is over the age of 18. Federal requirements also require proficiency in English, and no mental or physical conditions considered to be “disqualifying.” Also excluded are those who are facing felony charges that are punishable by sentences of more than one year of imprisonment and convicted felons who have not had their civil rights restored by the state of their residence.


What Standards Govern Grand Juries?

Not surprisingly, the official guidelines for grand juries do not mention ham sandwiches. In fact, the standards for grand juries are set by the Constitution, in the Fifth Amendment and the case law that interprets that amendment. Case law and the rules governing grand juries require that they issue an indictment only if they find that there is probable cause to do so. Probable cause means what it sounds like—that there is evidence to believe a crime was committed and that the person accused was the one who committed the crime.


In all felony cases, there must be a “probable cause determination” that a crime has been committed in order for a case to move forward to a trial or a plea. “Probable cause” means that there must be some evidence of each element of the offense. In the federal system, a grand jury is the body that makes the probable cause determination. In many states, like Missouri, the probable cause determination can be made either by a grand jury or at a preliminary hearing before a judge.


When there is an option for either a grand jury or preliminary hearing to determine probable cause, the prosecutor decides which one to use. For example, in the shooting death of Michael Brown by police officer Darren Wilson, the St. Louis County prosecuting attorney brought the evidence to a grand jury rather than choosing to present evidence to a judge through a preliminary hearing. In serious cases like murder, most prosecutors use the grand jury because it is usually quicker than a preliminary hearing.


Most people whose cases go to the grand jury have already been arrested. These include all of the cases in which the police arrested a person while he or she was committing a crime or shortly after the crime had been committed. Unfortunately, that standard is not the shield against wrongful accusations that it might sound like. Because prosecutors only are required evidence that the prosecutor deems necessary, exculpatory evidence—that which makes it appear the accused might not be guilty—is essentially never presented. The prosecutor presents evidence that favors the state’s case. Period.


Given only a cavalcade of evidence that makes it seem that the accused is guilty as sin, it is small wonder that grand juries seem willing to “indict a ham sandwich.” They can only act on what they know. Prosecutors don’t have to present a fair picture, and so they don’t. Failing to obtain an indictment is far more noteworthy than obtaining an indictment. Few prosecutors are willing to be noted for failing to clear the low bar of obtaining an indictment.


If a Grand Jury Has Indicted You in the Wheaton-DuPage County Area, Talk to the Criminal Attorneys of Martin & Kent, L.L.C.

An indictment by a grand jury is by no means a sign of guilt. But if a grand jury has indicted you, you need to consult with attorneys who can give you the best defense available. For a consultation in DuPage, Kane, or Cook County, contact us 24 hours a day at (630) 430-8622 or through our online contact form.



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