Grand Jury: In white-collar criminal cases, the grand jury plays a significant role. Its major responsibilities are to investigate and safeguard citizens from unjustified criminal charges.
A grand jury can subpoena documents and witnesses as part of its investigation. A prosecutor, for example, may ask a grand jury to issue subpoenas for specific documents or to compel someone to testify under oath. However, just because a grand jury issued subpoenas does not mean that criminal charges will be filed.
A grand jury’s charging function is to determine if there is sufficient evidence to establish probable cause that a crime has been committed and to charge a person or organization with that offense. A grand jury does not decide whether or not someone is guilty or innocent.
All federal offenses need a grand jury indictment. A defendant can, however, forego his or her right to a grand jury indictment and have the probable cause determination made by a judge during a hearing. This is uncommon in white-collar situations.
Grand jury hearings, unlike a trial, are not available to the public and are held in a private meeting chamber that resembles a classroom. In a federal grand jury room, the witness is not permitted to have a lawyer present.
Only government attorneys, the witness under examination, translators, and stenographers are permitted to be present. A federal grand jury usually meets once a week, or less frequently, for an 18-month period. It must have a minimum of 16 and a maximum of 23 members.
While the grand jury’s job is to analyze the evidence objectively and fairly decide probable cause, the prosecutor actually presents the evidence and oversees the process.
“Any competent prosecutor will agree he can prosecute anyone at any moment for practically anything before any grand jury,” remarked the late U.S. Supreme Court Justice William O. Douglas. Sol Wachtler, a former judge on the New York Court of Appeals, famously quipped that a prosecutor might convince a grand jury to “indict a ham sandwich.”
American Grand Jury System
Grand juries have become quite prominent in the social conversation around the country over the last few weeks. However, most people’s understanding of the grand jury system is restricted to the fact that it decides whether or not to indict a possible criminal defendant for crimes allegedly committed by the government.
While the grand jury system differs by state, this is a primer — a Civics 101, if you will – designed to dispel some of the myths about the American grand jury system.
Read More Why Is Route 66 Is Celebrated By Google?
How does Procedure Work?
To begin with, a grand jury hearing is unique in that it is held in perfect secrecy. During a grand jury hearing, the only persons in the room are the jurors, a prosecutor, and a court reporter who is sworn to confidentiality.
Judges, clerks, and other court officials are not present. Instead, the hearing is presided over by the grand jury foreperson, while another grand juror normally serves as a court clerk, summoning witnesses, keeping account of evidence, and doing other tasks.
Any witnesses called to testify before the grand jury do so one at a time and do not have the right to be accompanied by anybody else, including an attorney. The witness has the right to consult with legal counsel, but only outside the hearing room.
The prosecutor and, in some jurisdictions, the grand jurors themselves question the witness. The witness is not cross-examined because the prosecutor is the sole attorney present. The witness testifies under oath, precisely as if he or she were testifying in court.
Grand Jury Confidentiality
The distinguishing attribute of grand juries, secrecy, is perhaps the single factor most responsible for the mystery surrounding them. While critics may argue that the grand jury’s secret is fertile ground for corruption, supporters of the system may argue that its secrecy is a key aspect of its effectiveness.
Many of the reasons why the grand jury system operates in secret have been explained by the California Supreme Court:
(1) to prevent people who may face indictment from fleeing the country.
(2) to provide the grand jury with complete independence in its deliberations and to prohibit indictees or their friends from pressuring grand jurors.
(3) to avoid perjury or tampering with witnesses who may testify before a grand jury and later testify at the trial of those indicted by it.
(4) to encourage those having information about criminal activity to disclose it freely and without fear of retaliation.
(5) to shield the innocent accused who has been exonerated from learning that he was under investigation and from the expense of a trial in which he was likely not guilty.
A Grand Jury’s Access to Evidence
When pursuing an indictment, the prosecutor explains the law that applies to the proposed charges, works with the grand jury to gather evidence and elicit testimony, and tries to persuade the grand jury that an indictment is warranted.
The grand jury has the authority to issue subpoenas, which allow the prosecution to force witness testimony or the production of physical evidence in support of the allegations against the accused.
Because the evidence given to a grand jury is not bound by the rules of evidence, hearsay and other typically inadmissible evidence are frequently permitted. As a result, many grand juries have extensive authority to examine and hear a wide range of evidence.
Proposed Charges are Being Voted on By The Grand Jury
The grand jury votes to evaluate whether the prosecution has provided sufficient evidence for each of the proposed changes after the prosecution has presented the evidence.
While the number of votes required varies by jurisdiction, just a majority or supermajority is required — not a unanimous vote. If a majority of grand jurors agree that the evidence supports the probable cause, the indictment is “returned.” The criminal case against the accused begins after the voting to return an indictment.
The Indictment Rate
Various studies have suggested that the rate of indictment by a grand jury ranges from around 95 percent to approximately 99 percent, based on the influence of the prosecutor, who is the only non-juror present (aside from the court reporter) and who selects the evidence to present.
However, even if the grand jury does not vote in favor of an indictment, criminal charges may still be pursued. The prosecution can still pursue charges through a preliminary hearing with a judge in jurisdictions that do not require indictments for crimes, and the prosecutor can seek misdemeanor charges through a preliminary hearing in all jurisdictions.