Introduction to the Grand Jury ACG 69354939 What

Introduction to the Grand Jury ACG 6935/4939

What in the world is a Grand Jury

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 5 th Amendment

Functions of a Grand Jury 1. Investigatory 2. Screening

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 < 20 Days Guilty Plea Probable Cause Hearing < 30 Days Dismissal Arrest

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)

5 th Amendment The Right Against Self-Incrimination

Does the Fifth Amendment Apply to …. . • • Testimony? Fingerprints? DNA? Hair Samples? Blood Samples? Handwriting? Perjury?

Rights & Procedures

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 5 th 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 5 th 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

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