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THE GRAND JURY |
The primary function of the modern grand jury is to review the evidence presented by the prosecutor and determine whether there is probable cause to return an indictment.
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The original purpose of the grand jury was to act as a buffer between the king (and his prosecutors) and the citizens.
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Since the role of the grand jury is only to determine probable cause, there is no need for the jury to hear all the evidence, or even conflicting evidence. It is left to the good faith of the prosecutor to present conflicting evidence.
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The Fifth Amendment to the U.S. Constitution requires a grand jury indictment for federal criminal charges. Only about half the states now use grand juries.
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In most jurisdictions, grand jurors are drawn from the same pool of potential jurors as are any other jury panels, and in the same manner. The pool generally consists of names culled from various databases, such as national voter lists, motor vehicle license lists and public utilities lists.
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Unlike potential jurors in regular trials, grand jurors are not screened for biases or other improper factors.
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Rule 6(e) of the Federal Rules of Criminal Procedure provide that the prosecutor, grand jurors, and the grand jury stenographer are prohibited from disclosing what happened before the grand jury, unless ordered to do so in a judicial proceeding.
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In the federal courts, the witness is not sworn to secrecy, and may disclose whatever he or she wishes to whomever he or she wishes. The witness exemption was adopted in part because it was thought that requiring witness secrecy was unrealistic and unenforceable, and in part to allow the witness to rebut rumors concerning his or her testimony.
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A prosecutor can obtain a subpoena to compel anyone to testify before a grand jury, without showing probable cause and, in most jurisdictions, without even showing that the person subpoenaed is likely to have relevant information. In the federal system the prosecutor is not required to demonstrate any relevance.
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In the federal system, a client cannot have his or her lawyer present in the grand jury room, although witnesses may interrupt their testimony and leave the grand jury room to consult with their lawyer. A few states do allow a lawyer to accompany the witness; some allow the lawyer to advise his or her client, others merely allow the lawyer to observe the proceeding.
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A grant of immunity to a grand jury witness overcomes the witness's privilege against self-incrimination, and the witness is then required to testify. The prosecutor is prohibited from using that testimony or leads from it to bring charges against the witness.
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Many states grant the witness "transactional immunity," barring prosecution for a transaction discussed in the immunized testimony regardless of whether there are independent sources of evidence.
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A witness cannot refuse to appear before the grand jury without risking being held in contempt of the court that issued the subpoena to compel their testimony. A witness who refuses to testify without legal justification will be held in contempt of court, and is subject to incarceration for the remaining term of the grand jury.
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A witness who testifies falsely may be separately prosecuted for perjury.
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There is no judge in the grand jury room when testimony is being taken. Normal rules of evidence do not apply to a grand jury investigation, and a judge is generally only needed to rule on privilege issues or issues relating to contempt.