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 5th 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 Probable Cause Hearing Guilty Plea Dismissal Arrest < 20 Days < 30 Days
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)
5th Amendment The Right Against Self-Incrimination
Does the Fifth Amendment Apply to ….. Testimony? Fingerprints? DNA? Hair Samples? Blood Samples? Handwriting? Perjury?
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 5th 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 5th 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