Robbins: Grand juries and how they work
If you’ve been following the news and, in particular, the Stormy Daniels matter and whether the ex-president will be indicted in New York, you have no doubt come across — perhaps ad nauseum — the term “grand jury.”
Yet few of us, other than attorneys, really know what a grand jury is, and what discreet and special function a grand jury serves.
So allow me to explain.
Grand juries are, in essence, investigative bodies. There are both federal grand juries which, understandably, deal with alleged federal crimes, and state grand juries which deal exclusively with matters of state concerns and jurisdiction. The office of a grand jury, whether state or federal, is the investigation into possible wrongdoing by the accused.
The key word here is “possible.” Grand jury investigations are not trials. No conviction may directly result from a grand jury’s deliberations. Rather, the grand jury conducts a thorough inquiry into the possible wrongdoing by an individual which, if found to be substantive, may result in a criminal indictment against the accused which, in turn, will likely lead to a trial on the merits of the indictment.
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An “indictment,” by the way, is an accusation, in writing, from the grand jury to the court, charging that the person named has performed some act, or has been guilty of some omission, which, by law, is a punishable public offense. The indictment, then, is a formal written accusation issued by the grand jury against a party charged with a crime.
An indictment is also referred to as a “true bill,” as opposed to a “no bill,” in which instance the grand jury has failed to find substantiation for the allegations and, accordingly, has determined not to indict. Thus, an indictment is a “charge” against a person accused of wrongdoing which must be proved beyond a reasonable doubt at a subsequent trial before the person may be convicted.
The grand jury may be thought of as part of a process. It is convened to ferret out information that, if found to be true, results in an indictment. The indicted person is then charged with a crime and subsequently tried. At trial, the charges must then be proved to be true in order for the person to be convicted of the crime or crimes alleged against him or her.
It is key to note that a grand jury’s indictment is not proof of any kind that the alleged offense has been committed. It is simply a statement that, after investigation, sufficient grounds have been established in the grand jury’s mind to subject the person to trial for the alleged offense. At trial, the jury may not consider the indictment as evidence against the accused.
An indictment is different than an “information.” An information is an accusation exhibited against a person for an alleged criminal offense that is brought by a public official, such as a district attorney, under oath, instead of being brought by the grand jury. An information, like an indictment, is a written accusation but is made by a public prosecutor (on behalf of “the people”), without the intervention of a grand jury. Both processes, that of an indictment by the grand jury, and an information by the public prosecutor, are permissible.
In most states an information may be used in place of a grand jury to bring a person to trial, the grand jury being reserved for complex or unusual situations which may be amenable to the often more thorough-going investigation that a grand jury may bring to bear. A good example of employing a grand jury to exhaustively investigate an unusual or complex matter was the JonBenét Ramsey murder investigation in Boulder which stalemated the Boulder prosecutors for more than a year before the grand jury was convened. The current matter in New York, being both highly unusual (no president or ex-president has ever before been indicted), and highly charged is the kind of thing reserved for special process and consideration.
A grand jury is called a “grand” jury because it is comprised of a greater number of jurors than the ordinary trial jury or “petit” jury (“petit” being the French word for small). It is a body of ordinary citizens, the number of whom varies from state to state, whose duty consists of determining whether probable cause exists that a crime has been committed.
As intimated before, the grand jury does not determine innocence or guilt; it is an “accusatory” body only. By custom, the members of a grand usually serve for a fixed term (often one year) and are summoned by the sheriff to each session of the criminal courts. A federal grand jury, empaneled before any district court, consists of not less than 16, nor more than 23 persons. State grand juries often vary between 12 and 23 persons.
Evidence before the grand jury is presented by a public prosecutor who is not subject to the same rules of evidence which would be incumbent upon him or her at trial. Since the grand jury may only accuse and not find guilt, the prosecutor has substantially more latitude to “go after” the accused, and far fewer protections are afforded the accused.
By tradition (if not always scrupulously followed), the proceedings of the grand jury are strictly confidential and the grand jurors are sworn to an oath of absolute secrecy. In some states, such as Colorado, disclosure of the proceedings of the grand jury is contemptible conduct and is, accordingly, punishable by the court. Similarly, even an attempt by the press to reach a grand juror about the matters under grand jury consideration is punishable by contempt processing against the person seeking out the juror.
What’s more, the oath of secrecy persists forever; the grand juror may not ever disclose the matters under deliberation. The hope and design of such absolute secrecy are that in insuring secrecy, others who may later come before this or any other grand jury will speak candidly about the matters to which they may have knowledge.
Grand juries are an expression of democracy on the front lines and their employment and discretion help ensure that justice will be fairly and impartially served. While at the moment of this writing, it is uncertain what the New York grand jury will determine, what is certain is that the outcome will follow long and thoughtful consideration by an impartial body of ordinary people who have been called upon to perform a critical task of citizenship, one that helps preserve the ideas and the functioning of a vital democracy.
Rohn K. Robbins is an attorney licensed before the Bars of Colorado and California who practices Of Counsel in the Vail Valley with the law firm of Caplan & Earnest, LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody, and divorce, and civil litigation. Robbins may be reached at 970-926-4461 or at his email address at Rrobbins@CELaw.com. His novels, “How to Raise a Shark (an apocryphal tale),” “The Stone Minder’s Daughter,” and “Why I Walk so Slow” are currently available at fine booksellers.
