I have a feeling we’re going to be hearing a lot about grand juries in the coming months. Earlier this week, news broke that the U.S. Department of Justice brought former Vice President Mike Pence’s chief of staff before a federal grand jury in D.C. in connection with the, uh, unpleasantness surrounding the 2020 presidential election. Another grand jury with a similar purpose is working in Fulton, Georgia. There’s also a special state grand jury in New York that may decide to indict a certain former president who isn’t Jimmy Carter or George W. Bush or Bill Clinton or Barack Obama.
The Department of Justice is notoriously tight-lipped, and the grand jury process is secretive by design, so the best we can do right now is wait for leaks and try to read to the legal tea leaves. An understanding of what a grand jury is, what a grand jury does, and how grand juries differ from the “petit juries” that hear criminal trials is a good place to start. (Note: I’m only talking about grand juries in criminal cases, and only generally—different states have different laws, state courts are different from federal ones, and civil grand juries are another thing entirely.)
What is a grand jury, exactly?
A criminal grand jury is a panel of regular citizens gathered to decide whether the state has sufficient reason to charge a suspect with a felony. Grand juries are generally bigger than the juries that hear criminal cases—between 16 and 23 people in federal court, as opposed the usual 12—and they meet less frequently, maybe once a week or a few times a month. Grand jury proceedings generally go on longer, too: a federal grand jury might be empaneled for anywhere from 18 to 36 months.
How is a grand jury investigation different from a jury trial?
They’re both called “juries,” but a grand jury’s procedures and purpose are very different from those of the jury in a criminal trial.
Purpose: As I’m sure you know, the jury in a criminal case’s job is to determine whether a suspect is guilty of a crime beyond a reasonable doubt. A grand jury’s role is generally to determine whether there is probable cause for a prosecutor to bring charges against a suspect in the first place.
Secrecy: Criminal cases are open to the public. Grand jury trials are secret. The jurors, court reporter, witnesses, and prosecutor are usually the only people present. The public/press are not permitted to attend, so we generally only find out a grand jury has been convened when a witness or subject reveals it.
Lack of defense: In a grand jury trial, no defense case is presented. In some jurisdictions, prosecutors have an obligation to present certain kinds of exculpatory evidence (if it exists), but for the most part, it’s their show to run. That said, subjects of grand jury investigations are generally notified that the proceedings are taking place and have a right to testify. They cannot, however, stick around to see the evidence presented against them or answer to the charges in any way.
Defendant’s right to waive: A grand jury is required for all federal felony cases, but a defendant can waive the whole thing in favor of a pre-trial hearing where a judge determines whether probable cause exists. This rarely happens in white collar cases, though.
Informal: Since its purpose is investigative, members of a grand jury can ask questions of witnesses and request evidence.There’s no judge presiding and the prosecutor is supposed to work with the jury (they are not the boss of the jury). In practice, prosecutors often use grand juries to compel witness to testify and hand over documents.
Rules of evidence: The rules of evidence from “normal” court don’t apply to a grand jury, so evidence can often be presented that would be inadmissible in other circumstance. As a result, a grand jury may consider a broader range of evidence than the jury in a criminal case would ever see.
Burden of proof: Where the jury in a criminal case is supposed to only render a guilty verdict if a suspect is proven guilty beyond a reasonable doubt, a grand jury can hand down an indictment if there is merely reasonable cause to believe the suspect committed the crime of which they are accused. They only need a majority to reach that determination instead, of the unanimity usually required in a criminal case.
Conclusion: When a grand jury has considered the the evidence and heard the testimony, it returns either a “true bill” (i.e., “go ahead and prosecute”) or a “no bill,” which means the prosecutor has not met the standard of proof. Unlike the verdict in a criminal trial, a prosecutor can still pursue the charge against a suspect after a “no bill” decision—usually if more evidence is discovered—by convening a new grand jury and starting the process again.
Why do we have grand juries in the first place?
The grand jury system began in 12th century England as a protection against unfair prosecution from the monarchy. It gave citizens the right to say “wait a minute; you shouldn’t even be dragging this person into court at all.”
The requirement of a grand jury proceeding for major crimes is enumerated in the 5th amendment to the Constitution for basically the same reason: to protect citizens from malicious prosecution. In practice, though, the grand jury is seen by many as a prosecutor’s rubber stamp, or a dry run for the upcoming criminal trial.
Why grand juries will indict a ham sandwich
In a 1985 interview, former chief judge of New York State Sol Wachtler said that district attorneys have so much influence over grand juries that they will, “indict a ham sandwich.”
The phrase resonated for good reason: Approximately 95–99% of grand juries return indictments, although occasionally a grand jury returns a no-bill, as seems to have happened in a couple of recent, high-profile Department of Justice investigations—so don’t get your hopes up too high yet that you’ll see whoever is being investigated in D.C. and Georgia frog-marched out of their mansion and into a holding cell.