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A Grand Jury is…...
• Group of Ordinary Citizens• Consists of 16 to 23 people• Their purpose is review evidence of
suspected criminality and• to decide whether criminal charges are
warranted• Grand Jury Review required in the 5th
Amendment
Investigatory Function
• Gather evidence• Summon witnesses• Compelling
production of tangible evidence.
• Can initiate an investigation on mere suspicion that the law is being violated.
Screening Process
• An Independent Voice
• Reviews the Evidence
• Grand Jurors decide whether to return a “True Bill” or a “No True Bill”
• “True Bill” = indictment which is the formal charging of a crime.
Charging Instruments
Criminal Complaint
Indictment by a Grand Jury Information
Probable Cause Hearing
Guilty Plea
Dismissal
Arrest
< 20 Days
< 30 Days
Standards of Proof
• Probable Cause• Prima Facie• Preponderance of the
Evidence• Clear and Convincing
Evidence• Beyond a Reasonable
Doubt
Grand Jury Powers
• Subpoena Power
• Holds people in contempt of court if they don’t comply
• Testimony given under oath
• Subpoena is not issued pursuant to a level of judicial proof. (Exception: the subpoena is too sweeping to be considered reasonable)
Immunity
• Can gain the testimony of a witnesses who fear prosecution for their part in a crime.
• Transactional Immunity• Use/Derivative Use
Immunity (Kastigar v. US (S. Ct. 1972)
Does the Fifth Amendment Apply to …..
• Testimony?• Fingerprints?• DNA?• Hair Samples?• Blood Samples?• Handwriting?• Perjury?
Who Can Be Present in the Grand Jury Room?
• Prosecutor?• Judge?• Agents?• Defense Attorney?• Target of the
Investigation?• Stenographer?• Judge?
Prosecutor
• Asks questions of the witnesses
• Explains the elements of the offense
• In some jurisdictions, can offer his/her opinion on the sufficiency of the evidence
Witness
• Has to give truthful testimony
• Can plead 5th amendment right
• Questioned by prosecutor and grand jurors if they so choose
• Can use hearsay testimony
Defendant
• Can be subpoenaed to the Grand Jury
• Can assert 5th amendment right
• His lawyer can not be present in the grand jury room
• Can have attorney outside the room
Grand Jurors
• Listen to Testimony• Determine the validity of
the evidence• Can demand witnesses to
appear• Can Expand the
investigation• Can use personal
experiences to decide guilt or innocence
The Grand Jury is Secret
• Prevent interference by potential defendants
• Protect an innocent person’s reputation
• Encourage uninhibited disclosure
• freedom to consider the case without fear of public pressure or influence
• To prevent escape of potential defendants
Who is Bound by the Secrecy Requirement?
• Prosecutor?• Witnesses?• Agents?• Stenographer?• Grand Jurors?• Defendants?
Rule 6(e)
• Allows disclosure of grand jury evidence.
• Disclosure to further the investigation.
• Allow other members of the prosecutorial team to view the same evidence.
Challenges to Grand Jury Evidence
• Costello v. United States• Court ruled against Costello• The court characterized the grand jury as “a
body of laymen, free from technical rules”• Grand Juries are allowed to hear evidence
that would be inadmissible at trial.• GJ protects only the factual innocent from
having to stand trial
Challenges to Grand Jury Evidence (Cont.)
• United States v. Calandra
• Supreme Court refused to extend the exclusionary rule to the Grand Jury
• Allows illegally obtained evidence to be presented to the grand jury.
• Suppression issues prior to indictment
G rand Jury Process
G ran d Ju ry re tu rn s In d ic tm en t o r N o Tru e B ill
E vid en ce P resen ted to th e G ran d Ju ry
A g en t & P rosecu to r R eview E vid en ce
G ran d Ju ry is su es su b p oen as
In ves tig a tion b eg in s
Advantages/ Disadvantages of a Grand Jury
• Secrecy• Separation of Duties• Internal Controls• Independence• Review by Peers• Allows Free Expression• Lack of Legal Training
• Too much power for the prosecutor
• No chance for cross examination
• One sided• Evidence admitted that
can’t be used at trial• Lack of Legal Training