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.