For example, a prosecutor may request a grand jury to issue subpoenas for certain documents or to force a person to appear to testify under oath. Even when a grand jury issues subpoenas, though, that does not necessarily mean that criminal charges will be brought.
In its charging capacity, a grand jury makes the initial determination about whether there is enough evidence to constitute probable cause that a crime has been committed and to charge a person or organization with that crime. A grand jury does not determine guilt or innocence. A grand jury indictment is required for all federal felonies. However, a defendant can waive the right to a grand jury indictment and have a judge make the probable cause determination at a hearing.
The witness' testimony is given under oath, just as if given during trial. 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:. 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. In many jurisdictions excluding California , the prosecutor is not legally required to present exculpatory evidence i. 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.
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. 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.
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.
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:.
For anyone familiar with California law in general, it should come as no surprise that California's grand jury system is a bit different than that in most other states. The grand jury system is required by the California State Constitution, which mandates that each county empanel a grand jury on an annual basis that is to be comprised of 11, 19, or 23 people, depending on the size of the county.
However, unlike many other grand jury systems, most of the work performed by grand juries in California is not related to criminal indictments, but to serving a civil function as a "watchdog" over local governmental. California civil grand juries investigate governmental inefficiency, unfairness, wrongdoing, and any perceived violations of public laws and regulations within the county.
Grand juries are authorized to examine all aspects of county and city government, and special districts to ensure that the government is serving the best interests of the county's citizens, with a focus on efficiency, effectiveness, and economy.
The grand jury reviews and responds to complaints brought by citizens with various allegations against public officials, including misconduct, mistreatment, or general inefficiencies. A grand jury 12 to 23 people is a body that investigates criminal conduct. Federal, state and county prosecutors utilize grand juries to decide whether probable cause exists to support criminal charges.
A regular jury decides the facts. The judge presiding over the trial decides the law. A petit jury decides:. How is the grand jury chosen, and how does the grand jury process function?
Grand jurors are chosen from the same group of people as trial jurors. When you receive notice for jury service you could be called for either one. The judge will ask very few questions, unlike when selecting a petit jury, when the judge and lawyers ask many questions.
Grand jurors will only be excused "for cause," meaning they cannot be fair and impartial. Of course jurors, in general, are often excused for logistical reasons scheduling, etc. Grand jurors are expected to serve anywhere from a month to a year on average. In most cases it's a few months. Grand juries hear cases from prosecutors all day long, and all different types of criminal cases.
Usually the cases are felonies. The grand jury physically sits in a college lecture type of room in the same building as the prosecutor's office. There is no judge present, just court officers and grand jury clerks. This is done often over the course of a day, a week or longer. In most cases the accused has an opportunity -- not required by law, unlike a jury trial -- to testify, but is only questioned by the prosecutor.
The defense attorney cannot question.
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