Grand Jury Indictment

The federal indictment process and the function of the federal grand jury process have received a great deal of media attention in 2023, primarily due to the Department of Justice’s criminal investigations into former President Trump’s alleged role in the capitol insurrection of January 6, 2021, and other crimes.

What This Article Covers

This article will cover the prosecutors initial criminal decision to bring the case to a grand jury and what a grand jury is, it’s role in the federal criminal justice system, and the types of evidence the Grand Jury can consider in the indictment process.

Initial Prosecutorial Determination

Is Evidence Sufficient to Obtain A Grand Jury Indictment?

At the federal level, it is customary for prosecutors to examine the facts and legal issues resulting from a criminal investigation and to determine whether to present the evidence to a grand jury for an indictment against the target(s).

Constitutional Role of Grand Jury

Unbiased Finding of Probable Cause To Indict

Under the U.S. Constitution, a finding of probable cause by a Federal Grand Jury must precede the formal charging of a felony within the federal criminal court system.

Summary of Grand Jury Process

Federal grand juries are usually made up of approximately 16-23 jurors. The grand jury hearing is conducted under a veil of secrecy; neither the witnesses who testify nor their counsel lawyers may attend the secretive proceedings. The jurors are bound to an oath of secrecy regarding all issues and matters shown to them during the hearing.

Grand Jury Makeup

Grand Juries sit in all federal jurisdictions and consist of between 16 and 23 citizens from the jurisdiction. Should the prosecutor convince 12 grand jury members that there is sufficient probable cause to indict, it will return an indictment against the investigative target. The term “indictment” refers to the document formally listing the charges against the accused.

Procedural Rules of a Grand Jury

The following are the basic procedural rules governing the grand jury process:

• Neither a judge nor a defense lawyer is present for the proceeding.
• Grand juries are used to investigate cases where there have not been arrests.
• The prosecutor calls and questions witnesses.
• The prosecutor submits evidence to be grand jury to consider.
• Grand juries can issue subpoenas and compel people to testify.
• The grand jury has subpoena power to produce documents and other forms of evidence.
• The grand jury only needs a simple majority to issue an indictment.
• Grand juries only apply to felonies.

Indictment Is Different from A Finding of Guilt

Difference Between a Regular Jury and Grand Jury

Unlike a public criminal jury trial, where the standard of proof to convict requires the prosecutor to prove each element of the crime against the defendant beyond a reasonable doubt, a grand jury meets in private and only examines the weight of the prosecution’s evidence against a person.

Grand Jury Does Not Determine Guilt or Innocence

Determination of Probable Cause

The role of the grand jury is not to determine the guilt or innocence of a person but rather whether the prosecution has sufficient evidence to support a criminal indictment against the target of the investigation.

In other words, whether there is sufficient probable cause to indict and send the case to an actual trial on the issue of the defendant’s guilt or innocence.

Prosecution Presents Their Side Only

The prosecutor’s presentation of the evidence to the grand jury occurs without the other side being present and without having to follow the formal rules of evidence. In most cases, there is usually neither a federal judge nor a magistrate to oversee a grand jury hearing.

Number of Grand Jurors Needed to Indict

After the prosecutors present their evidence to the grand jury, at least twelve jurors must agree for the grand jury to issue an indictment. A grand jury may choose not to charge the individual based on the evidence presented.

However, this rarely happens because the defense is precluded from attending the hearing or challenging the evidence presented. Therefore no challenges to the evidence were considered, including no cross-examination of the witnesses produced by the prosecution.

Types of Evidence Grand Juries Consider

Depending on the complexity of the criminal case, the hearing may be led by a team of prosecutors who present the evidence directly to the grand jury, which may include:

• An Outline of the Case
• An Outline of the Law
• Physical Evidence
• Law Enforcement Testimony
• Law Enforcement Reports
• Witness Testimony
• Documents
• Special Reports
• Photographs

Effect of Grand Jury Indictment

The return of an indictment means that federal prosecutors have presented their evidence against the suspect to a grand jury and that there was sufficient probable cause to believe the target(s) of the investigation committed the crime.

Once the grand jury has completed its work, the court officially seals all records and testimony received at the hearing.

State Court Indictments

State courts are not required to use a grand jury. Instead, state courts often use what is known as a preliminary hearing in place of assembling a grand jury to indict a suspect. Unlike the federal system certain states, such as California, currently preclude the use of hearsay under certain circumstances.

What is a Preliminary Hearing?

A preliminary hearing must be held soon after the arraignment date.

Unlike the federal grand jury system, the hearing is public, and the defense lawyer and his client may attend. The defense lawyer may ask questions of the witnesses. Still, the scope of the questioning is limited to a single issue – whether there is probable cause to indict the defendant and bind the case over for trial. The pretrial is presided over by a judge and it is the judge that determines whether to indict the defendant for trial.

What Happens At The Preliminary Hearing?

It is customary that the victim does not take the stand; instead, the police officer who took the report may take the stand and say what the victim would say if called to testify. Standard objections such as hearsay are suspended for purposes of the preliminary hearing.

At the preliminary hearing, the judge will determine whether sufficient evidence exists to believe that the crime was committed and whether there is sufficient probable cause to believe the defendant committed the crime.

The standard of proof necessary to deliver an indictment at a preliminary hearing is relatively low. It is very unusual to win outright at the preliminary hearing.

Instead, your criminal defense lawyer will use the preliminary hearing to discover the testimony of critical witnesses and determine inconsistencies and weaknesses in the prosecution’s case.

Conference Meeting Before the Preliminary Hearing

In some state courts, an informal conference between the prosecutor and defense counsel is set up before the preliminary hearing. The conference aims to provide the prosecutor and the criminal defense lawyer an opportunity to discuss the upcoming preliminary hearing and confer on the evidentiary status of the case. It also offers a chance to dispose of the case through a plea bargain before the court rules on the preliminary hearing.

The preliminary hearing is the first real opportunity for the defense attorney to gauge the strength of the state’s evidence against the defendant. Under most state laws, the criminal defense is allowed to ask questions which is relevant to the singular issue of probable cause.

Consult a Criminal Defense Lawyer

Should you have specific questions or require additional information about your specific legal rights and obligations, we strongly advise you to consult with a verified Criminal Defense Lawyer about your issues as soon as possible.