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What Happens at a Federal Grand Jury Proceeding?

Like much of our civil and criminal law in the United States, the foundation of the federal grand jury system was imported from England. The grand jury is mentioned in both the Magna Carta and the United States Constitution. It is important to distinguish the role and function of the grand jury, which is generally only involved before criminal charges are brought and Federal trial juries, also sometimes called "petit juries". Petit juries are empaneled to decide to resolve the criminal charges authorized by the grand jury. Another significant difference is the applicable burden of proof. A grand jury reviews evidence using the standard of "probable cause" whereas a Federal trial jury will review evidence using the much higher standard of "beyond a reasonable doubt." Rule 6 of the Federal Rules of Criminal Procedure address and define the applicable grand jury procedures.

What is the Task of the Federal Grand Jury?

The basic function of a grand jury is to determine if the principal being investigated from alleged criminal activity will be tried for their crime. In this way it might be said that a grand jury proceeding is akin to a preliminary examination in the Michigan State Court felony system. While probable cause is the standard used to review evidence at both a grand jury proceeding and a preliminary examination in the State court, there are significant differences as well, one of which is that a preliminary exam occurs after rather than before an individual has been charged with a crime.

A federal grand jury proceeding may be initiated one of the three ways, either by the federal prosecutor (AUSA), by the court that empaneled it, or from the grand jury members themselves. After listening to the evidence presented and applying the probable cause evidence standard, the grand jury's task is to decide whether the evidence supports the issuance of an indictment or "true bill," which is another name for a formal federal criminal charge. If an indictment is issued, the AUSA will then file the indictment with the appropriate Federal District Court, thereby setting into motion all the post-charge criminal procedures, beginning with the Federal arraignment.

Who Provides the Evidence to a Grand Jury?

The vast majority and often the only evidence considered by the federal grand jury will be brought to their attention by the government lawyers and investigators. While the grand jury may consider other evidence, they must consult with the government lawyer before engaging in their own investigation. This is partly necessary because the grand jurors do not have their own investigators or lawyers and must rely on the government to provide them.

In the usual federal grand jury proceeding, the AUSA will present to the jurors the evidence they believe supports their contention that a federal criminal law has been violated, and evidence as to what individual, entity, or organization, violated that law. The AUSA may also provide the grand jury with an outline of the case they will be presenting. In addition to the witnesses and evidence provided by the government, the grand jury may ask for additional witnesses or evidence. Most of the grand jury's time is spent listening to the testimony of witnesses and examining documents and other evidence to determine if probable cause thereby exists in support of the indictment requested by the AUSA.

Who Questions the Grand Jury Witnesses?

After a witness is called, he or she will be sworn by the grand jury foreperson. Usually, the questioning will begin with the AUSA. Once he or she has completed their questioning of the witness, the grand jury foreperson may ask questions, followed by the remaining grand jurors.

Regardless of who asks the questions, the same rules apply. Each question must relate only to criminal charge or case under investigation, and the questions must be both relevant and proper. If a dispute should arise as to the propriety of any proposed question, such dispute is usually resolved by the grand jury seeking input from the AUSA. In some cases, disputes will be resolved by obtaining a ruling from the court.

What is the Jurisdiction of the Federal Grand Jury?

A federal grand jury may only review evidence and issue indictments on those federal crimes allegedly committed within the district for which it has been impaneled. A federal grand jury can only investigate actual criminal activity, and its sole purpose is to determine whether there is enough probable cause to believe that the federal crime alleged has been committed.

Selection and Size of the Grand Jury

Like federal criminal jurors, grand jurors are selected at random with the hope that the entire panel will collectively represent a fair cross-section of community or district they serve. They are randomly selected from lists of registered or actual voters, other sources and utilizing other procedures to help assure that the grand jury does not favor certain segments of the community served.

Once the panel of potential grand jurors has been assembled, and any requests to be excluded have been considered, the presiding judge will direct the selection of 23 members of the panel to become the full grand jury. Note however, that according to Rule 6 of the Federal Rules of Criminal Procedure, a grand jury may have as few as 16 members.

After the appropriate number of jurors has been selected, the judge will appoint a foreperson and deputy foreperson, and the jurors are administered an oath. According to Rule 6 of the Federal Rules of Criminal Procedure, the foreperson has the power to "administer oaths and affirmations" for witnesses called before the grand jury. The foreperson will also sign the indictments. Finally, the jury is then "charged" meaning given directions or instructions by the judge as to how they are to do their jobs as grand jurors. The grand jury charge is much like the preliminary instructions a federal criminal jury would receive before they receive any evidence. These instructions are essentially a road map of how the grand jury proceedings will proceed, how evidence will be received by them, what standard they are to use to evaluate this evidence, and usually some admonitions as well, such as to keep the proceedings strictly confidential and not to conduct an independent investigation.

May the Person Being Investigated be Called as a Grand Jury Witness?

Yes, but this is not typically the case. If the person subject to the criminal investigation is called however, they cannot be forced to testify. This is because every person accused of a crime is entitled to a presumption of innocence, and they also enjoy a Fifth Amendment Privilege against self-incrimination. Therefore, any person being investigated may "plead the Fifth" if they are called to testify.

Grand Jury Deliberations and Voting

Grand jury deliberations are again much like federal criminal jury deliberations. The purpose of deliberations is for the jurors to collectively evaluate and "weigh" the evidence they have received, and to apply the legal standards they are provided to the evidence they have evaluated and accepted. Once all jurors have had an opportunity to "be heard" a vote is taken. Regardless of the size of the grand jury a quorum of at least 16 is required and must be present, and at least 12 jurors must agree.

Indictment and Return

As indicated above, and according to Rule 6 of the Federal Rules of Criminal Procedure, a grand jury may indict only if at least 12 jurors concur. The indictment itself must be returned by the foreperson to the magistrate judge in open court. If a complaint or information is pending against the defendant and 12 jurors do not agree, then the foreperson must notify the magistrate judge in writing that they cannot agree. The foreperson of the grand jury also keeps a record of the number of jurors concurring and this record is filed with the Clerk of the Court.

Are Grand Jury Proceedings Secret?

Yes. Again, according to Rule 6 of the Federal Rules of Criminal Procedure, all matters disclosed to a federal grand jury must be kept confidential. This secrecy requirement is also emphasized in the oath administered to the grand jury before they have received any evidence.

Is the Grand Jury Indictment Also Secret?

Not usually but it depends. According to Rule 6 of the Federal Rules of Criminal Procedure the magistrate judge who received the return of the indictment may direct that the indictment be kept secret until the defendant is in custody or has been released pending trial. The existence of a sealed indictment may not be disclosed except as necessary to issue or execute a warrant or summons. The most common reason an indictment would be sealed is where notice would allow the accused to flee the jurisdiction of the court or to otherwise allow the apprehension and arrest of the accused quickly and without notice. Another common reason is because there are co-defendants or co-conspirators. In these cases, the indictment may be sealed while the investigation into the other culpable parties continues in secret.

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