Robbins: Revisiting how grand juries work
Having read my column last week, a reader wrote to me.
“Nice,” he said, “but I have a couple of questions.” He suggested, too, that he if had questions, might a Part 2 to answer them make sense?
Well … yup.
What he wanted to know was: How are jurors selected? How are they compensated for all of their time? Do jurors get to ask questions of witnesses? Do decisions have to be unanimous, and who calls for a vote?
Good questions all.
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I’ll throw in one more myself: What is the standard of proof that is required to refer a matter for indictment which, as I noted in the prior column, is known as a “true bill?”
Before we get there, though, a quick refresher. Grand juries can be state or federal. In the New York matter for which the ex-president was indicted earlier this week and in the ongoing Georgia probe, state grand juries are busily doing their work. In the Mar-a-Lago papers matter and the Jan. 6 investigations, federal grand jurors are slogging through the evidence. As I previously mentioned too, while size may matter in some instances, grand juries may vary from 12 to 23 depending on the jurisdiction, with federal grand juries being constituted of the larger number.
Not a political process
Grand jurors are selected the same way as “ordinary” or trial jurors. Despite what some journalists or political operatives might wish you to believe, the formation of a grand jury is most definitely not a political process. Instead, grand jurors are made up of ordinary citizens from all walks of life. They are unusually “invited” to serve from voter rolls.
Each jurisdiction is different in how grand jurors are compensated for their time.
In Colorado, if they are employed, they are paid $50 per day by their employer unless their employment agreement provides that they will be paid more.
Do jurors get to ask questions of the witnesses? Indeed. Usually, the order is: the prosecuting attorney, first; the grand jury foreman next; and then other grand jurors. The point here is, after all, to get at the truth.
Decisions do not have to be unanimous. Generally, what is necessary is a “quorum,” most times defined as a majority. In a federal grand jury of 23 members, 12 will get you to the call of the question.
Which leads to the question that I interposed: What standard of proof is required to return a true bill?
The difference in bills
A quick aside here might be useful. In civil trials, where most times what is at stake is money, or sometimes certain actions that a party is asking the court to take, the standard of proof is “a preponderance of the evidence,” which can be interpreted to be the equivalent of “more likely than not.” In criminal matters, where someone’s liberty is at stake, the bar is understandably higher: “beyond a reasonable doubt.” In other words, if there are lingering questions about who done it — reasonable ones anyway — the People should not take someone’s liberty.
To return a true bill, the jury must determine there is “probable cause.” Oy vey!
“Probable cause,” which derives from the Fourth Amendment means that a “reasonable basis” exists to believe that a crime has been committed.
When a true bill is returned, the accused is indicted and ultimately brought to trial, then the higher standard of “beyond a reasonable doubt” will apply in determining whether the party should be convicted.
No sitting or former president has ever before been indicted for a crime. If nothing else — and one can argue there is so much else — these are history-making times.
Buckle up! It promises to be a bumpy ride!
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.