The grand jury has a very important role in the criminal process at both the state and federal levels. It is however, a part of the criminal justice system in the United States that is often shrouded in mystery. If you are being investigated for a possible federal crime by a federal grand jury, it is critical to understand the grand jury process.
What Grand Juries Are
The most important thing to understand about a federal grand jury is that it is not charged with finding you innocent or guilty of a federal charge. Nor is it tasked with sentencing. Instead the purpose of the grand jury is to decide if federal charges should be brought against you – this is referred to as an indictment.
A grand jury is a group of ordinary citizens is a group of regular citizens that convenes on a regular basis to decide whether or not to issue indictments to those being investigated by the federal government. The grand jury can consist of up to 23 people, but there are often fewer. Technically, federal judges impanel the jury. However, as a practical matter, federal prosecutors control the process from beginning to end.
Unlike a criminal trial where the jury must make a unanimous decision, the federal grand jury is only required to vote in the majority to indict you. If a majority of the jury decides there is enough evidence, they will formally indict you, and the the prosecuting attorney will ask law enforcement for a warrant for your arrest.
A federal grand jury may sit for as long as 18 months. It can hear evidence one day per week, typically, but sometimes more often.
Grand Jury Proceedings
The grand jury is in theory an independent body, but grand jury proceedings are led by the prosecutor. The US Department of Justice will assign a US attorney to lead the sitting grand jury through the entire grand jury indictment process. The prosecutor who leads the grand jury has almost complete control over the evidence that the grand jury sees.
Note that the prosecution is not mandated to present all of its evidence in the grand jury hearing. Actually, the federal prosecutor may decline to present evidence that raises questions that the defendant did not commit the crime. The federal prosecutor does not have an obligation to provide proof to the grand jury that you are innocent.
The prosecuting attorney uses the grand jury to investigate as much as for the filing of criminal charges. This is done because a grand jury has several advantages over law enforcement investigations.
For example, a grand jury can subpoena witnesses and documents. If the prosecution wants to see business records or other types of financial records, he or she can get it through what is called a ‘subpoena duces tecum.’ This is a court order to provide records. Failure to obey a federal subpoena can get you a contempt of court charge.
Attempting to obtain these records through an act of law enforcement requires a complaint for a search warrant to be issued in front of a magistrate; this requires the presentation of probable cause. In a case where the police have not yet established probable cause, the prosecutor can use a grand jury to get the same evidence.
The prosecutor also can force a witness to testify in front of the grand jury. On the other hand, if law enforcement or FBI agents were to request an interview from a witness, the person has the option of not talking. But when a federal grand jury has produced a subpoena, the person has to appear or faces contempt of court.
Because the grand jury cannot convict anyone of a crime, the law is not as concerned with the technical rules of evidence as it is in an actual criminal trial. Documents and questions that would not be allowed under the Federal Rules of Evidence are routinely submitted for the grand jury to review and the group might even base its decision to indict on evidence that will not be allowed at a subsequent trial.
In most federal criminal cases, the prosecution can press charges against you only by indictment by a grand jury. However, there is an exception: For a possible misdemeanor offense, where the penalty is one year or less in prison, the US attorney on the case may file the charges against you directly without consulting with the grand jury. When this occurs, it is referred to as the charge being filed on an information. The information is a type of affidavit from the prosecuting attorney that asserts there is probable cause that you committed a federal offense.
However, most federal offenses are usually felonies. The criminal penalty for a felony at the federal level by definition is more than a year in prison. For all felony offense, the federal prosecutor has to get an indictment from the federal grand jury. In a few cases, the US attorney on the case may obtain a negotiated plea from the defendant. In this situation, you would waive indictment by the grand jury. Still, the Federal Rules of Criminal Procedure do require that the waiver occur in front of a federal judge.
Also know that unlike many other hearings and trials, federal grand jury proceedings are entirely secret. The only people who are aware of the proceedings of a grand jury are the prosecutors, the jurors, court reporters and the testifying witnesses.
Prosecutors, grand jurors and court reporters all are bound by rules of secrecy regarding what goes on in a grand jury meeting. The secrecy is due to several serious concerns. First and foremost, the proceedings are secret because the prosecution does not want at this time to notify possible targets of a grand jury investigation that they may face federal charges. If they were to learn of this, they could flee the country. Also, secrecy ensures to protect the reputation of parties that have not yet been criminally charged.
However, in high profile cases, subjects of the investigation may learn about it in any case. This is often the case in a case where details of the meetings are being reported in the media.
Witnesses who are subpoenaed are not usually bound by any rule of secrecy. Witnesses may relate the subject of the investigation and what they testified, if they choose to do so.
Grand Jury Subpoena
A federal grand jury has very broad powers to subpoena witnesses, so regular citizens can be drawn into a grand jury investigation. Some people may receive a letter stating that you are a witness, subject or target of an investigation. The letter may also have a subpoena that mandates you to testify. Or, you may receive a subpoena that asks for documents. In a few cases, federal agents may even raid your home or where you work.
If you have been subpoenaed by a grand jury, you should take it very seriously. If you do not fully comply with a grand jury subpoena, you can be fined and even jailed. Anyone who receives a federal grand jury subpoena should seek the counsel of an experienced federal investigations attorney.
Testifying Before a Grand Jury
You can be called to testify before a grand jury either as the subject of the investigation or as a witness. If you are called to testify before a grand jury, the first thing you might notice is that your attorney will not be present in the room to assist you. You will not be allowed to have an attorney present to object to any questions that might be irrelevant. Instead, your attorney will have to stay outside in the hallway. You will be allowed to leave the grand jury room and ask questions of your attorney. You can normally do so as often as you like unless you are only doing so to disrupt the process.
The federal prosecutor will be present and will be the person asking you questions while you are testifying before the grand jury. It is very important that you pay attention to every question that you are asked. You do not have to answer any questions if a truthful answer might have the tendency to incriminate you. It would be a good idea to ask to leave the grand jury room and speak to your attorney if you think you should refuse to answer such a question.
You do need to be careful to answer any other questions truthfully. When you testify before the grand jury you are put under oath and can be charged with perjury if you are not honest. This can get a little tricky as you can even be prosecuted for contradicting yourself. One of the favorite tricks of federal prosecutors is to ask the same question at different times to see if a suspect will give a different answer the second or third time.
You might even be asked to appear before the grand jury on several different occasions for this very reason. If that happens, make sure that you review your answers from your prior testimony so that you answer the same questions in the same way every time that you testify.
If you are called to testify before the grand jury, you still can typically exercise your 5th amendment rights against self incrimination and decline to speak. In this case, the federal prosecutor may provide you with immunity in exchange for your testimony. The police cannot make any promises of immunity. In this way, a grand jury hearing has advantages over a regular law enforcement investigation.
At times, you might be asked to bring documents before the grand jury. If you are the custodian of business records for a corporation, for example, you might be asked to bring corporate records before the grand jury. The prosecutor will ask you questions about what the documents contain and how they are maintained. Again, you need to answer truthfully. You will also want to review the documents with your attorney before appearing before the grand jury so that you are not surprised by their contents.
If you are the subject of a federal investigation, federal law requires that you be formally indicted for most felony charges.
To indict you, the US attorney will offer evidence regarding your case to the federal grand jury in the federal district where the crime allegedly happened.
The grand jury is essentially working for the prosecution, so it is normally only looking at evidence offered by the prosecution. But the grand jury also may call other witnesses and gather any other evidence they want to decide whether or not a trial is warranted.
While the grand jury is technically independent of the prosecutor, in reality grand juries indict almost everyone that a prosecutor asks them to indict. If you are a target of a grand jury investigation, you should assume that you will be indicted on criminal charges. With that in mind, your goal in appearing before the grand jury should be to not say anything that could hurt you later and to get your side of the story on the record.
To accomplish that goal it is extremely important that you retain an attorney who has experience with federal criminal law. The attorney knows what questions that you are likely to be asked during the grand jury investigation and can help you to prepare for them. That will make it less likely that you will say something that might hurt you later during a criminal trial.
Information in a Federal Indictment
According to the sixth amendment, you have a constitutional right to be informed of the cause and nature of the accusation against you. Thus, the indictment must have enough information in it for you to understand the nature and cause of the crime being charged.
The Federal Rules of Criminal Procedure also state that the indictment has to be concise, plain and definite in clear writing. It also must allege facts that if they are true, must be a federal crime.
Federal Indictment Challenges
As noted above, grand jury proceedings are secret. Thus you may be unaware of pending charges until the indictment is handed down. This means that by the time you know about the indictment, the federal prosecution has spent extensive time and resources building a case against you. For that reason, you will want to hire an experienced federal charges defense attorney as soon as possible. Federal prosecutors have tremendous financial and personnel resources, and anyone indicted under a federal charge is facing a very serious legal situation.
A good criminal defense attorney may be able to challenge a federal indictment. The most common challenge is to simply show at trial that the charges are untrue. But it is also possible to challenge the indictment prior to trial.
Some ways that the federal indictment can be factually challenged include:
- Not providing enough detail regarding the basis and nature of the charges
- Failing to provide a true violation of law
- Failing to plead all elements of the crime
- Alleged a crime that occurred after the statute of limitations expired
- Bringing a case in the improper venue