What Is a Grand Jury?

by Murtaza Khwaja

Have you ever wondered how a grand jury works?

Well, look no further.

Grand juries originated in the English common law system and were employed in several common law jurisdictions. However, currently, the United States is virtually the only country in the world that retains the use of grand juries.

As many of you probably already know, the 5th Amendment establishes the role of the grand jury in criminal law. The 5th Amendment states that “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury…” Which pretty much just means that a person suspected of a federal crime cannot be tried until a grand jury has determined that there is enough reason to charge the person.

All fifty states also have provisions for grand juries but only half actually use them, while twenty two of those states require the use of grand juries. Instead of grand juries, some jurisdictions prefer to use preliminary hearings before a trial judge, which are adversarial in nature, to determine whether there is evidence establishing probable cause.

But how do grand juries actually work?

Grand juries are made up of anywhere from a minimum of 16 to a maximum of 23 people, and at least 12 members must concur in an indictment if — any only if — the probable cause standard as espoused by the prosecutor has been met.

Federal courts use a grand jury that consists of 23 citizens but can operate with a quorum of 16. States use a grand jury consisting of as few as five but no more than 23 members. Grand juries are chosen from lists of qualified state residents of legal age, who have not been convicted of a crime, and who are not biased against the subject of the investigation.

Grand jury proceedings are secret and held in strict confidence. There is no judge present and it is the prosecutor’s responsibility to explain the law to the jury and work with them to gather evidence and hear testimony. The prosecutor prepares a bill of indictment (a list explaining the case and possible charges) and presents evidence to the grand jury.  The grand jury then reviews the adequacy of evidence presented by the prosecutor and then decides whether to indict the accused. The general rules of evidence are not controlling, and a grand jury has broad discretion to hear, compel, and see whatever evidence they would like. Even if a grand jury chooses not to indict, a prosecutor may still use their discretion to bring the defendant to trial if the prosecutor believe the state has a strong enough case. The defendant generally has no right to present his case or any evidence to dispute the prosecutor’s charges.

However, Georgia serves as a one of few exceptions to the rule. In Georgia, certain state officials, including police officers, are allowed to be present in cases where they are the accused and offer testimony that by law cannot be challenged by the prosecutor. For more information on this exception and the effects it has on grand jury proceedings, check out this article recently published in the AJC.

Hopefully, this blog post helped broaden your understanding of grand juries and how they work. For any more questions you may have check out these links below which includes all the information from this post and much more.



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