The term “grand jury” is well known but the details of what it entails are not. We have broken down the basics below to provide more insight into the grand jury process.
What is a grand jury and where did the idea originate?
A grand jury is a legal body that investigates criminal allegations and decides whether to bring formal charges. If the grand jury finds probable cause exists, then it will return a written statement of the charges called an “indictment.” Grand juries are composed of 16 – 23 individuals and cannot proceed with fewer than 16.
The term “grand jury” dates back to the Magna Carta in 1215. The first grand jury consisted of twelve men who were called to inquire into alleged crimes within the community, and they functioned more as witnesses than judges. In the years following, the grand jury evolved into the more modern-day version, including the secrecy of the proceedings and independence from the will of the government. When English colonists came to America, they brought many functions of their legal system with them, including the grand jury concept. The institution of the grand is included in the Bill of Rights, within the Fifth Amendment: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on presentment or indictment of a grand jury, …”
How is a grand jury selected?
Grand juries are drawn twice a year and serve as needed. A grand jury is drawn from a list composed of the names of persons selected at random from a fair cross-section of the statutorily qualified residents of the county. In Minnesota, the exception to this is St. Louis County, in which the grand jury list must be selected from residents of the three districts (Duluth, Hibbing, Virginia) of St. Louis County. When the offense is committed nearer to Virginia or Hibbing than to the county seat, the case must be submitted to the grand jury in Virginia or Hibbing.
Who requests a grand jury and when are they used?
A grand jury must be summoned whenever required by the public interest, or whenever requested by the county attorney.
Grand juries are typically used for serious crimes, characteristically felony level charges, or cases that result in life in prison if convicted. In Minnesota, first degree murder is the most common use of a grand jury. They can also be used for political reasons to determine whether to charge somebody, such as law enforcement when they are involved in a shooting or death while on duty. The secret nature of a grand jury allows the subject of the grand jury to be anonymous when making charging decisions.
There is also the thought that witnesses testify more freely and truthfully in the grand jury setting. This would be important in cases where law enforcement used an undercover officer, a cooperating defendant in another case, a witness that is concerned for their safety, or if there is a concern that a witness may lie or change their story in the future.
It also allows for the prosecution to provide and control the information given to the grand jury. The standard of probable cause is applied in grand juries, which is loosely defined as facts submitted showing a reasonable probability that a person committed a crime. The burden of proof of this standard is low. The State will meet their burden if they choose, by presenting the evidence needed to do so, or alternatively the State can make the political decision not to meet their burden by limiting evidence presented.
The cynical view of the consequences of the rules governing grand juries should also be examined. A prosecutor, if they choose to separate themselves from making a charging decision or being motivated by political reasons, may also use a grand jury to facilitate and accomplish the goal of not indicting and ultimately not charging an individual. The saying “a grand jury can indict a ham sandwich” is true. If the prosecutor chooses not to go forward, it can control the information that goes to the grand jury. The case will return with a “no bill” decision, commonly called a failure to indict, and the case will die. The prosecutor can then save face by pointing to the grand jury and their decision not to proceed with the charges.
Grand juries have been scrutinized over the years, especially when utilized in cases of officer-related deaths, which is typically the norm. However, in 2016, Hennepin County Attorney, Mike Freeman announced that they would be foregoing a grand jury for the case of Jamar Clark and said that Hennepin County would stop sending police-involved shooting cases to grand juries.
What happens after a grand jury is summoned?
After the jurors have been established, the court will appoint one of them to be the foreperson and a deputy foreperson (the individual that will act as presiding officer in the absence of the foreperson). The presiding judge will then advise the grand jury of their obligations and how to perform their duties. This is referred to as “the charge to the grand jury.” Following this, the prosecutor will present its evidence and testimony to the grand jury. The evidence presented must be based on evidence that would be admissible at trial, with a few exceptions. See Minn. R. Crim Proc. 18.05, subd. 1, 1-6.
The only individuals allowed to be present during the proceeding are the prosecutor, the witness under examination, the judge, the jurors, court reporter, qualified interpreters for witness or jurors (if applicable), designated peace officer for a specified witness, attorney for witness, and parents/guardians of witnesses (if under the age of 18). The defendant nor their attorney are allowed to be present during majority of the proceeding. The defendant can only participate if they choose to testify. The defendant’s fifth amendment right to remain silent and not self-incriminate remains in effect unless waived by the defendant.
There are a couple of significant differences between a typical trial and a grand jury proceeding. If the defendant chooses to testify, their attorney can be present but may not participate in the proceedings and can only advise and consult with the defendant during their testimony. Grand jurors also have the ability to question witnesses during the process.
Once the prosecutor has presented all evidence and testimony, the grand jury will deliberate. If they find that the evidence established probable cause to believe an offense has been committed and the defendant committed it, an indictment will be issued. An indictment may only be issued if at least 12 jurors agree.
If indicted, the defendant, may be taken into custody if they haven’t been already, and will proceed to trial. If an indictment is not issued, the charges filed against the defendant must be dismissed, and if in custody, the defendant must be released and freed from bail. The failure to issue an indictment or the dismissal of the charge does not prevent the case from being submitted again to a grand jury as many times as the court directs.
Is a grand jury public information?
While the grand jury proceeding is occurring, it is not public information, nor is the proceeding open to the public. Unless otherwise directed by the court, no person may disclose the finding of an indictment until the defendant is in custody or appears before the court, unless necessary for the issuance and execution of a summons or warrant. Disclosure may be made by the prosecutor by notice to the defendant or defense counsel.
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