Posted by Perry de Marco, Sr. on 23 December 2014

Recent cases have brought the Grand Jury process into national focus. What is the Grand Jury? What is it’s purpose and how does it function? The term Grand distinguishes the Grand Jury from a petit jury which is the typical jury of twelve jurors that decide criminal cases. A Grand Jury is a prosecutorial tool. A means by which prosecutors both State and Federal can conduct criminal investigations and ultimately obtain indictments or recommendations for indictments against persons under investigation. The Grand Jury comes about by way of a motion by the prosecutor to a Judge in the particular district requesting that the Grand Jury be empaneled. The numbers of grand jurors required differ in each jurisdiction but usually may number approximately 40 jurors. The jurors are sworn to faithfully perform their duties and to secrecy. As with a regular jury, a foreman is chosen, sometimes a secretary and all proceedings are recorded stenographically. The only persons permitted in the Grand Jury room are the jurors, stenographer, prosecutor, and the witnesses summoned to appear and give testimony. All Grand Juries have supervising judges who administer the proceedings and swear in the witnesses but unlike a criminal trial the Judge is not present inside the Grand Jury during the proceedings. In Pennsylvania a witness or Defendant may bring his attorney with him into the grand jury room but the attorney cannot participate in the proceedings. He can however confer with his client. In the Federal system the attorney is not allowed in to the Grand Jury room but the witness is permitted to leave the room to confer with his or her attorney outside of the Grand Jury room. Any witness who has a Fifth Amendment privilege may assert it before the Grand Jury and refuse to testify. Prosecutors can attempt to overcome this by offering the witness immunity, a subject for another discussion. The Prosecutor conducts and controlls the proceedings before the Grand Jury. He or she can utilize the Grand Jury to subpoena witnesses, documents and any and all manner of physical evidence. Failure to comply with a Grand Jury subpoena will result in a contempt charge and possible imprisonment. All of the Grand Jury proceedings are conducted in secret. There is no defense attorney there to confront the evidence or cross-examine the witnesses. The prosecutor however can and does cross-examine witness especially if he believes that they are testifying falsely. Grand Jury proceedings can last for many months prior to a the issuance of a presentment or indictment or a vote not to indict. All of the Grand Jury deliberations, like regular or petit jury deliberations are conducted in secret with only the grand jurors present. Rules on disclosure of the testimony of witnesses before the Grand Jury differ in each jurisdiction but in many cases a defendant is not entitled to obtain the Grand Jury Testimony of a witness who appears against him at trial until that witness has completed his direct testimony at the criminal trial and the defense is ready to cross-examine. A Grand Jury vote only determines whether there is probable cause to assert criminal charges. Unlike a trial jury, they do not have to determine if the evidence is sufficient to prove beyond a reasonable doubt that a crime has been committed. 

Needless to say, Defense lawyers have a disdain for the secrecy surrounding the Grand Jury process. As an alternative, in Pennsylvania and it most jurisdictions, we have a Preliminary Hearing process which effectively serves the same purpose as a Grand Jury. That is to determine whether there is probable cause to believe that there is sufficient evidence to determine if the Defendant should stand trial on the charges. The difference is that a Preliminary Hearing is a proceeding open to the public, where a Judge presides, and the Defense attorney is permitted to confront the evidence and to cross-examine the witnesses against his or her client. This process gives the public the ability to see whether the ultimate decision to send a case to trial or not makes sense. So why is a secret proceeding necessary? The major reason offered by prosecutors is for the protection of the witnesses. There is no question that in some cases this is a serious issue but certainly not in all the cases wherein a Grand Jury is utilized. The truth is that the Grand Jury procedure is effectively controlled by the prosecutor and the honest consensus of opinion is that ultimately the grand jurors vote to indict in accordance with the arguments made to them by the prosecutors who are uninhibited by the presence of a Judge or defense lawyers.
Interestingly, in two recent cases in Missouri and New York, state Grand Juries voted not to indict. Criminal Defense lawyers rarely see such decisions in our daily practice. These decisions have been widely criticized. The problem is that since everything is done in secret it’s difficult if not impossible, to assess the validity of the decisions without personally examining every word of testimony and every piece of physical evidence which was presented before those grand juries. Anger and frustration are totally understandable reactions to those grand jury decisions but unless all of the evidence is analyzed carefully it’s impossible to ascertain whether the decisions were legally sound.
There has been a national cry that the process be changed. But what is the change? My opinion, which I know I share with the vast majority of my Criminal Defense colleagues, would be to do away with the Grand Jury process completely except where there is a compelling showing of danger to witnesses. If the Missouri and New York cases were presented publically via Preliminary Hearings at least we would all be able to assert a rational basis to support our opinions as to whether a Judge’s decision was correct or incorrect. Secret proceedings that dramatically effect a person’s life are antithetical to our American system of Jurisprudence but unfortunately, in spite of all the protest, we should not expect that the Grand Jury procedure will be eliminated in favor of a more open and public process.