The Grand Jury Process
When a grand jury is impaneled to investigate criminal activity, one member of the grand jury is selected as a foreman. The foreman is responsible for presiding over the grand jury. A quorum is necessary for the grand jury to proceed. Nine grand jurors is the minimum for a quorum when there are 12 grand jurors. If the grand jury acts without a quorum, the proceedings are void. Any indictment that is issued by the grand jury without a quorum is subject to being dismissed or quashed.
A prosecutor or a district attorney informs the grand jury of an offense. No judge is present during the proceedings. The prosecutor remains in the grand jury room while testimony is being taken. Only the prosecutor or the grand jurors may examine witnesses. The prosecutor must leave the grand jury room when the grand jurors are discussing the testimony or are voting on whether to indict an accused person. If unauthorized persons are present during the deliberations of the grand jurors, the indictment is subject to being dismissed or quashed.
Grand jurors may consider evidence that would not be admissible at a trial. They may consider tips, rumors, and hearsay. They may also consider evidence that has previously been suppressed or ruled inadmissible by a trial judge. Neither the sufficiency of the evidence nor the grand jurors’ mental processes may be reviewed by a court. The only requirement is that the proceedings be kept secret.
A grand jury has the right to subpoena witnesses and to require the production of documents. The grand jury may subpoena a person who is accused of a crime. However, the accused must be given warnings with regard to his or her testimony, must have the opportunity to retain counsel, and must have the opportunity to consult with his or her counsel prior to testifying. The accused does not have a right to have his or her attorney present while he or she is testifying. The accused only has a right to have his or her attorney outside the grand jury room and to leave the grand jury room in order to consult with the attorney.
The Accused’s Rights
An accused does not have a right to appear before a grand jury. The accused does not have the right to have his or her attorney appear before the grand jury. The accused does not have the right to present witnesses or to cross-examine witnesses. The accused does not have a right to present evidence that would exonerate him or her. A prosecutor is not required to present evidence that would exonerate the accused.
If an accused is subpoenaed as a witness before a grand jury, the accused only has a right to refuse to testify in accordance with the privilege against self-incrimination under the Fifth Amendment of the United States Constitution. Any testimony that is given by the accused may be used against the accused at a trial, unless the grand jury has granted the accused immunity against prosecution.
Although a grand jury’s proceedings are secret, the proceedings are required to be recorded by a court reporter or a stenographer. If an accused is indicted by the grand jury and is brought to trial, the accused’s attorney may obtain transcripts of a witness’s testimony before the grand jury if the witness is scheduled to testify on behalf of the prosecution.
After a grand jury has heard all the testimony, the grand jury votes on whether to issue an indictment. A prosecutor usually prepares the indictment and presents it to the grand jury’s foreman for his or her signature. The prosecutor then endorses the indictment by listing the names of witnesses upon whose testimony the indictment was found. The prosecutor cannot compel the grand jury to issue the indictment or prevent the grand jury from refusing to issue the indictment.
If a grand jury chooses not to issue an indictment against an accused, the grand jury returns a “no-bill” or a “no true bill.” However, a prosecutor is entitled to bring the matter to the grand jury at a later date. The same grand jury is also entitled to return an indictment at a later date.