A Crash Course in the American Grand Jury System


Over the last several weeks, grand juries have featured very prominently in the social discourse throughout the nation. However, the common knowledge of the grand jury system is typically limited to the sole fact that a grand jury decides whether to indict a potential criminal defendant of crimes alleged by the government. While the grand jury system varies somewhat between the states, this is a primer – a Civics 101, if you will – to clear up some of the confusion surrounding the American grand jury system.

History of the Grand Jury System

The origin of the grand jury system has been traced to 12th century England, where it was created to produce revenue and counter ecclesiastical courts. Over the course of the ensuing five centuries, the grand jury eventually transformed into a citizen's safeguard against the monarchy, coming to stand between a prosecutor and the accused to ensure that the government was not pursuing charges for improper purposes. Being a protection against the monarchy, the grand jury came to be known as "the voice of the community" or "the people's panel" and was a prominent feature of colonial American law. Given the import of this protection to the Founding Fathers, it was written into the Constitution by the Fifth Amendment, which provides that "[n]o person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury …." Under the Fifth Amendment, criminal prosecution of any federal crime that would be punishable by more than one year imprisonment must be initiated by a grand jury's indictment.

All but two states have adopted a grand jury system. Roughly one-half of the states mimic the federal system in mandating that felony charges be brought by a grand jury. For the other half, a prosecutor has the option of seeking an indictment through a grand jury. Alternatively, the prosecutor may hold a preliminary hearing before a judge.

Differences between a Grand Jury and a Trial Jury

It is probably not much of an exaggeration to say that virtually every American is familiar with the concept and function of a trial jury, even if only through watching any of the seemingly endless number of popular legal dramas. Much like a trial jury, a grand jury is a group of individuals who have been selected and sworn in by a judge to serve a particular purpose in the legal system. In fact, grand jurors are usually chosen from the very same pool of citizens as are trial jurors. When used for purposes of pursuing criminal charges, the grand jury is to be comprised of individuals that represent a cross-section of the population, just as is sought for a trial jury.

While a trial jury will sit for only the duration of a criminal case, a grand jury is impaneled for a much longer period: a federal grand jury can sit for anywhere from 18-36 months, while state grand juries can sit for varying terms ranging from one month to one year. Typically, grand juries do not convene daily. Instead, grand juries often convene only once per week or a few times per month. Nevertheless, depending on the potential duration of the commitment, oftentimes grand jurors are retired people or others whose work or home schedules allow them to spend the time required to serve on a grand jury.

Unlike the determination that is made by a trial jury, the evaluation performed by a grand jury is not whether the accused committed the crime in question, but whether there is probable cause to bring charges. Additionally, unlike in a criminal trial on the merits, a prosecution is not required to prove the case "beyond a reasonable doubt," but typically must convince the grand jury only that a trial on the merits of the charges alleged is reasonable (although some jurisdictions require that the prosecution prove probable cause by a "preponderance of the evidence" [i.e., more likely than not] standard).

Differences between a Grand Jury Indictment and a Preliminary Hearing

Both a grand jury indictment and a preliminary hearing are initiated by the District Attorney, who presents the prosecutor's evidence to determine whether there is probable cause to bring criminal charges against the subject. The procedure for obtaining such determines varies dramatically between the two.

Procedure for a Grand Jury Indictment

First and foremost, a grand jury proceeding is unique in that it is conducted in complete secrecy. The only people present in the room during a grand jury proceeding are the jurors themselves, a prosecutor, and a court reporter, who is sworn to secrecy. There are no judges, clerks, or other court personnel present. Instead, the grand jury foreperson presides over the hearing, and another grand juror usually serves the roll of court clerk by calling witnesses, keeping track of evidence, and performing other duties. Any witnesses that are called to testify before the grand jury do so one at a time and are not entitled to have anyone else present, including an attorney. The witness may consult with legal counsel, but may only do so outside of the hearing room. The witness is questioned by the prosecutor and, in some jurisdictions, by the grand jurors themselves. However, because the prosecutor is the only attorney present, the witness is not cross-examined. The witness' testimony is given under oath, just as if given during trial.

Secrecy of the Grand Jury

Perhaps the single element most responsible for the mystery surrounding grand juries is its defining characteristic: secrecy. While detractors may decry that the grand jury's secrecy is fertile grand for impropriety, advocates of grand jury system may point to its secrecy as being a critical factor in its utility. The California Supreme Court has articulated many of the reasons that the grand jury system functions secretly:

(1) to prevent the escape of those whose indictment may be contemplated;

(2) to ensure the utmost freedom to the grand jury in its deliberations and to prevent persons subject to indictment or their friends from importuning the grand jurors;

(3) to prevent subornation of perjury or tampering with the witnesses who may testify before the grand jury and later appear at the trial of those indicted by it;

(4) to encourage free and untrammeled disclosures by persons who have information with respect to the commission of crime;

(5) to protect the innocent accused who is exonerated from disclosure of the fact that he has been under investigation and from the expense of standing trial where there was probably no guilt.

Evidence Available to a Grand Jury

When seeking an indictment, the prosecutor explains the law applicable to the proposed charges, seeks to persuade the grand jury that an indictment is appropriate, and works with the grand jury to gather evidence and obtain testimony. To facilitate this, the grand jury has the power to issue subpoenas, which allow the prosecution to compel witness testimony or the production of physical evidence to support charges against the accused. The evidence presented to a grand jury is not limited by rules of evidence, so hearsay and other normally inadmissible evidence is commonly allowed. As a result, many grand juries have broad power to see and hear wide range of evidence.

Exculpatory Evidence

In many jurisdictions (excluding California), the prosecutor is not legally required to present exculpatory evidence (i.e., evidence suggesting that the accused is innocent) to the grand jury, and the Supreme Court of the United States has ruled that an indictment is not invalid solely because the prosecution failed to present substantial exculpatory evidence to the grand jury. In California, the grand jury may require the prosecutor to present exculpatory evidence when it has reason to believe that such evidence exists. However, the grand jury is not required to hear any evidence for the defendant and since grand jury proceedings are held in secret with no notice to a defendant, this has little practical value.

Grand Jury Voting on Proposed Charges

After the prosecution has presented the selected evidence, the grand jury votes to determine whether sufficient evidence has been presented for each of the proposed charges. While the number of votes required varies by jurisdiction, only a majority or supermajority – not a unanimous vote – is required. If the requisite number of grand jurors agrees that the evidence establishes probable cause, they vote to "return" the indictment. Upon the vote to return an indictment, the criminal case is initiated against the accused.

The Rate of Indictment

Based on the influence of the prosecutor, who (other than the court reporter) is the only non-juror present and who selects the evidence to present, various studies have suggested that the rate of indictment by a grand jury ranges from approximately 95% to approximately 99%.

But even if the grand jury does not vote in favor of an indictment, there still remains the possibility of criminal prosecution. In jurisdictions that do not require indictments for felonies, the prosecutor can still pursue charges through a preliminary hearing with a judge, and in all jurisdictions, the prosecutor can pursue misdemeanor charges through a preliminary hearing.

Procedure for a Preliminary Hearing

The procedure for a preliminary hearing stands in stark contrast. Preliminary hearings, like criminal trials, are held in open court and are presided over by a judge. The accused is present with counsel, and witnesses are subject to limited cross-examination. As with grand jury hearings, the rules of evidence are loosened, and the courts typically allow evidence that may otherwise be inadmissible at trial. After hearing the prosecution's evidence, a judge, who is more familiar with the law than a grand jury, determines whether or not a defendant should stand trial for the charges alleged by the prosecution.

Choosing a Grand Jury Over a Preliminary Hearing

There are reasons in which it is an appropriate or desirable alternative to a preliminary hearing. The California Grand Jury Association cites multiple surveys that have been taken of California district attorneys, who listed the following factors as influential in the decision to seek a grand jury indictment rather than using the preliminary hearing:

• High public interest in the case;

• The fact that a preliminary hearing would take more time than a grand jury hearing;

• The necessity for calling children or timid witnesses who would be subject to cross‑examination at a preliminary hearing;

• The ability to test a witness before a jury;

• Where the secrecy of the grand jury may allow defendants to be charged and taken into custody before they can pose potential danger to a witness' safety or flee from the jurisdiction;

• Where the identity of undercover agents needs to be protected;

• The existence of a weak or doubtful case which the district attorney wishes to test;

• The opportunity to involve the community in case screening; and

• Whether the case involves malfeasance in office.

California Grand Juries

For anyone familiar with California law in general, it should come as no surprise that California's grand jury system is a bit different than that in most other states. The grand jury system is required by the California State Constitution, which mandates that each county empanel a grand jury on an annual basis that is to be comprised of 11, 19, or 23 people, depending on the size of the county. However, unlike many other grand jury systems, most of the work performed by grand juries in California is not related to criminal indictments, but to serving a civil function as a "watchdog" over local governmental.

Civil Watchdog Function

California civil grand juries investigate governmental inefficiency, unfairness, wrongdoing, and any perceived violations of public laws and regulations within the county. Grand juries are authorized to examine all aspects of county and city government, and special districts to ensure that the government is serving the best interests of the county's citizens, with a focus on efficiency, effectiveness, and economy.

The grand jury reviews and responds to complaints brought by citizens with various allegations against public officials, including misconduct, mistreatment, or general inefficiencies. The grand jury then investigates these claims by meeting with city and county officials, visiting facilities, and conducting independent research. At the end of the one-year term, each grand jury must submit a report on its investigations, findings, and conclusions, including recommendations for improvements in procedures and processes.

California grand juries are also empowered to bring accusations against public officials for willful corrupt misconduct in office that can lead to trial and removal from public office.

Criminal Function

While California grand juries are authorized to hear criminal indictment matters, they are only infrequently asked to do so. Indeed, the primary focus of California grand juries is the "watchdog" role, and the vast majority of criminal cases in California are brought through preliminary hearings. As of 2012, all but 15 counties in the state had limited their grand juries' roles to investigating local government. In these counties, separate "criminal" or "special" grand juries were established to handle indictments.

Grand Juries in Santa Clarita County

Santa Clarita Civil Grand Jury

In Santa Clarita County, the "civil" grand jury is comprised of 23 members plus a number of alternates, all of whom are selected from a volunteer pool or from nominations by a Superior Court judge. The final jury is selected at random by a computer. The civil grand jury is sworn in each July to serve a 12-month term. Serving as a member of the civil grand jury is a full-time job – 5 days and approximately 30-40 hours per week.

Santa Clarita Criminal Grand Jury

Santa Clarita has established a separate "criminal" grand jury, which is also comprised of 23 members plus alternates. Unlike the civil grand jury, which is made up of volunteers, the criminal grand jury is selected at random from the same list of potential jurors used to impanel trial juries, with the goal of ensuring that a reasonable representative cross-section of the entire county is eligible for this service. The criminal grand jury is impaneled monthly and the term of service is typically 30 calendar days.

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