Grand Jury and Indictment

A closed proceeding in which citizens decide whether there is enough evidence to charge someone - not whether they are guilty.

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What it means

A grand jury is a body of citizens that decides whether a prosecution may be brought. It is not the jury that decides a case. It hears the prosecution's evidence, in private, and votes on whether the standard for charging has been met; if it has, it returns an indictment, the formal document setting out the charges.

Almost everything about the proceeding differs from a trial, and the differences are the reason indictment rates are high. The defense is generally not present and does not cross-examine. There is no judge in the room presiding over the presentation. The standard is probable cause, not proof beyond a reasonable doubt. The rules of evidence largely do not apply, so material that could never be put before a trial jury may be heard. And the proceeding is secret, with disclosure of what happened restricted by rule.

Being called before a grand jury does not mean a person is a suspect. Witnesses are routinely subpoenaed to give evidence or produce documents, and a witness retains the privilege against self-incrimination and may decline to answer questions on that basis. A witness is normally not permitted to have a lawyer beside them in the room - the usual practice is that they may leave to consult one - which makes advice before attending, rather than during, the useful step.

Grand juries are not universal in the United States. The federal system requires an indictment for serious offenses, but the Supreme Court has never applied that requirement to the states, and states are divided: some require indictment for felonies, and many permit prosecutors to charge instead by information, with a judge testing the evidence at a preliminary hearing. Which route applies determines whether there is any early public hearing on the evidence at all.

Where this comes from

When people hire a lawyer for this

A grand jury subpoena is a reason to speak to a lawyer before the return date, whoever the recipient is: the distinction between a witness, a subject and a target is one the prosecutor draws and does not always announce, and it is the first thing to establish. A subpoena for documents raises separate questions about scope and about privileged material, and complying by handing over everything asked for is not always the correct response. Anyone who has been told they are a target is in a different position from a witness and should not attend to "clear things up" without advice - grand jury testimony is given under oath and stands for the life of the case.

Worried about the cost? A lawyer can be hired for one part of a case only (limited-scope representation), may be paid from what a claim recovers (contingency fee), or may be free through a pro bono program or legal aid; a court can also waive its own filing fees.

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Related terms

Other entries in the same area of law, each written from the same primary sources.

• ArraignmentThe first court appearance in a criminal case, where the charges are read and a plea is entered.
• Bail and Pretrial ReleaseThe decision about whether someone stays in custody while their case is pending - which is about appearance and safety, not about guilt.
• Bench Warrant and Failure to AppearThe arrest warrant a judge issues from the bench when a defendant misses a court date or violates a court order - what it authorizes, the separate failure-to-appear charge and bond forfeiture that often follow, and how a person clears one by surrendering on their own terms rather than being picked up.
• Criminal RestitutionThe order, entered at sentencing, requiring a defendant to repay the victim's losses caused by the offense - what losses it covers, how it differs from a fine and from a civil judgment, the payment schedule and enforcement, and why it survives bankruptcy and the end of the sentence.
• Double JeopardyThe constitutional bar on being tried twice for the same offense after an acquittal or conviction, or punished twice for it - when jeopardy attaches, what counts as the "same offense", the mistrial and appeal exceptions, and why a state and the federal government may each prosecute the same act.
• Expungement and Record SealingCourt processes that erase or restrict access to a criminal record, available only in defined circumstances that vary by state.
• Felony and MisdemeanorThe basic division of criminal offenses by seriousness - which drives the procedure, the possible sentence, and the consequences that outlast it.
• Miranda RightsThe warning police must give before questioning someone in custody - and the reason a missing warning suppresses a statement rather than ending a case.
• Motion to Suppress (Exclusionary Rule)The pretrial request to keep evidence out of a criminal trial because it was obtained in violation of the Constitution - an unlawful search, an involuntary or un-warned confession, a suggestive identification - the hearing it triggers, the "fruit of the poisonous tree" rule, and the exceptions that let evidence in anyway.
• Plea BargainAn agreement resolving a criminal case by guilty plea, usually in exchange for reduced charges or a sentencing concession.
• Preliminary HearingAn early court hearing at which a judge decides whether there is enough evidence for a case to proceed - the defense's first real look at it.
• Pretrial Diversion and Deferred AdjudicationThe programs that let an eligible defendant avoid a conviction by completing conditions - treatment, classes, community service, restitution - after which the charge is dismissed; the difference between diversion before a plea and deferred adjudication after one, and what each does to the record.
• Probable CauseThe level of justification the Fourth Amendment requires before police may arrest someone or search a place - more than a hunch, and less than proof.
• Probation and Parole ViolationWhat happens when someone under supervision is said to have broken its conditions - a proceeding with fewer protections than the trial that preceded it.
• Right to a Speedy TrialThe constitutional guarantee that a criminal case be brought to trial without unreasonable delay, and the statutes in the federal system and most states that put a clock on it - what starts the clock, what stops it, why a defendant's own motions extend it, and the remedy of dismissal when it runs out.
• Right to Counsel and the Public DefenderThe Sixth Amendment right to a lawyer in a criminal case, including one paid for by the state if the defendant cannot afford one.
• Search WarrantA judge's written authorization to search a specified place for specified things - and the exceptions that let police search without one are broad.
• Self-Defense and JustificationThe defense that a use of force was lawful because it was necessary to protect oneself or another from imminent unlawful force - the reasonableness and proportionality requirements, the duty-to-retreat and stand-your-ground split among the states, the castle doctrine, and who bears the burden once the defense is raised.
• Sentencing and EnhancementsHow a criminal sentence is decided after a plea or verdict - the statutory range, the guidelines or presumptive scheme the jurisdiction uses, the enhancements for prior convictions, weapons, victims and quantities that raise it, the presentence report, and the constitutional rule that any fact raising the maximum must be found by a jury.

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