Introduction to the Grand Jury ACG 6935/4939

What in the world is a Grand Jury

A Grand Jury is…... Group of Ordinary Citizens Consists of 16 to 23 people Their purpose is review evidence of suspected criminality and to decide whether criminal charges are warranted Grand Jury Review required in the 5th Amendment

Functions of a Grand Jury 1. Investigatory 2. Screening

Investigatory Function Gather evidence Summon witnesses Compelling production of tangible evidence. Can initiate an investigation on mere suspicion that the law is being violated.

Screening Process An Independent Voice Reviews the Evidence Grand Jurors decide whether to return a “True Bill” or a “No True Bill” “True Bill” = indictment which is the formal charging of a crime.

Charging Instruments Criminal Complaint Indictment by a Grand Jury Information Probable Cause Hearing Guilty Plea Dismissal Arrest < 20 Days < 30 Days

Standards of Proof Probable Cause Prima Facie Preponderance of the Evidence Clear and Convincing Evidence Beyond a Reasonable Doubt

Grand Jury Powers Subpoena Power Holds people in contempt of court if they don’t comply Testimony given under oath Subpoena is not issued pursuant to a level of judicial proof. (Exception: the subpoena is too sweeping to be considered reasonable)

Immunity Can gain the testimony of a witnesses who fear prosecution for their part in a crime. Transactional Immunity Use/Derivative Use Immunity (Kastigar v. US (S. Ct. 1972)

5th Amendment The Right Against Self-Incrimination

Does the Fifth Amendment Apply to ….. Testimony? Fingerprints? DNA? Hair Samples? Blood Samples? Handwriting? Perjury?

Rights & Procedures

Who Can Be Present in the Grand Jury Room? Prosecutor? Judge? Agents? Defense Attorney? Target of the Investigation? Stenographer? Judge?

Prosecutor Asks questions of the witnesses Explains the elements of the offense In some jurisdictions, can offer his/her opinion on the sufficiency of the evidence

Witness Has to give truthful testimony Can plead 5th amendment right Questioned by prosecutor and grand jurors if they so choose Can use hearsay testimony

Defendant Can be subpoenaed to the Grand Jury Can assert 5th amendment right His lawyer can not be present in the grand jury room Can have attorney outside the room

Grand Jurors Listen to Testimony Determine the validity of the evidence Can demand witnesses to appear Can Expand the investigation Can use personal experiences to decide guilt or innocence

The Grand Jury is Secret Prevent interference by potential defendants Protect an innocent person’s reputation Encourage uninhibited disclosure freedom to consider the case without fear of public pressure or influence To prevent escape of potential defendants

Who is Bound by the Secrecy Requirement? Prosecutor? Witnesses? Agents? Stenographer? Grand Jurors? Defendants?

Rule 6(e) Allows disclosure of grand jury evidence. Disclosure to further the investigation. Allow other members of the prosecutorial team to view the same evidence.

Challenges to Grand Jury Evidence Costello v. United States Court ruled against Costello The court characterized the grand jury as “a body of laymen, free from technical rules” Grand Juries are allowed to hear evidence that would be inadmissible at trial. GJ protects only the factual innocent from having to stand trial

Challenges to Grand Jury Evidence (Cont.) United States v. Calandra Supreme Court refused to extend the exclusionary rule to the Grand Jury Allows illegally obtained evidence to be presented to the grand jury. Suppression issues prior to indictment

Advantages/ Disadvantages of a Grand Jury Secrecy Separation of Duties Internal Controls Independence Review by Peers Allows Free Expression Lack of Legal Training Too much power for the prosecutor No chance for cross examination One sided Evidence admitted that can’t be used at trial Lack of Legal Training