What is a Grand Jury?
Although many criminal cases begin with the arrest report filed by a police officer, the case can begin with an indictment by a grand jury. Defendants typically indicted by a grand jury are those who have been charged with a felony.
How the Process Begins
When a person is arrested for a criminal offense, bail is usually posted by the accused or a friend or relative. If the amount is more than the defendant can afford, a bail bondsman will be contacted. The bondsman generally charges 10% of the amount of the bond that has been set to secure the release of the defendant. Once the defendant has been released from custody, he or she can return home to await a court appearance.
After being released on bond, the defendant will have to appear before a judge for a preliminary hearing. Preliminary hearings are used by the court to determine if there is sufficient evidence for an indictment. The accused will appear before a judge who will decide if there is “probable cause” for a trial. Probable cause can also be used by the prosecutor to decide to charge someone with a crime.
When a defendant pleads not guilty, the judge will listen to the prosecutor who will present evidence against the defendant. He or she will also listen to the defendant’s attorney who will argue that the prosecution does not have sufficient evidence for the charges being brought.
The Grand Jury
A regular or special grand jury is usually from six to twelve people who decide whether to indict someone after the prosecution refers the case to them. A federal grand jury can consist of sixteen to twenty-three people. The people are chosen randomly by the same process that trial jurors are selected. The grand jury hears evidence and testimony to decide if there is probable cause for an indictment.
Grand juries meet in private. There are no lawyers present for the defendant if he or she is called on to testify or for witnesses. The privacy allows witnesses to provide information without retribution from the accused. Additionally, keeping the information private protects the reputation of the defendant if he or she is not indicted.
The case presented by the prosecution is called a “bill”. The prosecution presents the least amount of evidence required for an indictment. This is because in certain states the defendant can request a copy of the proceedings if the grand jury indicts. By keeping the evidence to a minimum, the defendant is not privy to everything the prosecutor knows about the case.
Many times the evidence, documents, and witnesses presented to the grand jury are subpoenaed. Using the evidence and testimony, the grand jury decides if there is probable cause for an indictment. Grand juries can also consider evidence that would not be admissible at a trial. The witnesses are sworn in prior to testifying. Usually, the accused is not called upon to testify before the grand jury because he or she will cite their Fifth Amendment rights against incriminating themselves.
The Grand Jury’s Decision
The decision to indict does not have to be unanimous. The decision must be agreed upon by either two-thirds of the members of three-fourths of the members. This number is called a supermajority. If an indictment is returned, the bill is called a “true bill”. If they do not indict, it is called a “no bill”. However, the prosecution has discretion on filing criminal charges against the defendant even when the grand jury does not indict. If the grand jury does not indict, depending on the laws of each state, the prosecution can also bring more evidence to the grand jury or ask for another grand jury.
Only on rare occasions does the prosecution decide not to pursue charges against someone after a grand jury indictment. Sometimes the prosecution will be undecided as to whether criminal charges should be filed and rely on the grand jury to make the decision.