05 April 2022

Grand Jury 101

             Current events have pushed the grand jury system into the news. I’d like to use my column space today to talk about grand juries. They rarely get more than a passing reference in television or literature. Let us give them their due.

            Grand juries are a group of citizens empowered by law to investigate potential criminal conduct and to determine whether criminal charges should be brought. In this dual capacity, they serve as both a “sword and a shield” for the criminal justice system. In many states, grand juries often have more members than trial juries. Numerical superiority gives them the name “grand” jury. “Petit” juries hear trials. Grand juries usually sit for a term of court. (Three months here) although the term may be extended by the district judge who impaneled the court. (In Texas, that extension may be up to ninety days.)

            In my jurisdiction, we compose grand juries of twelve citizens. That is the same number as a felony petit jury. Nine must vote to indict a case. If only eleven grand jurors show up on a particular day, it still requires nine votes to indict.

            You’ll notice some hedging. The Fifth Amendment to the U.S. Constitution requires grand jury involvement in federal cases. It is not mandatory for states. About half of the states do not require a grand jury indictment to initiate a prosecution. Because they are creations of state law, the rules governing them vary from state to state.

            In Texas, a grand jury indictment is not required. A defendant may waive his right to a grand jury indictment just as he/she can waive most constitutional rights. That only happens, however, in cases where the defendant intends to plead guilty. No Texas felony case any reader has heard of went forward without a grand jury indictment. Other states employ different procedures. Some use preliminary hearings the way we use the grand jury, an early test of the evidence to guarantee that it is sufficient to put the defendant to the rigors of the criminal justice system.

            The grand jury’s creation dates to the early days of English law. When judges rode the circuit, in each shire, a body of townsfolk was sworn to report to the sheriff crimes which had occurred since the last circuit court. During the era when the prosecution of criminal cases was an individual citizen’s responsibility, the grand jury helped to screen malicious or ill-conceived prosecutions.

            Although this last paragraph sounds like a pure history lesson, it has relevance. Texas law requires grand juries to inquire into offenses of which they “have knowledge or which they shall be informed by the attorney representing the State, or any other credible person.” In a local case, the district attorney declined to accept a charge involving a spousal homicide. The victim’s family hired a private attorney who appeared before the grand jury and presented his case. He acted in the capacity of “any other credible person.” The grand jury indicted the husband for murder.  

            Grand juries vote and act in secret. Neither witnesses nor jurors may talk about what happens in front of the grand jury. It is an autonomous entity that is not fully part of the judicial branch of government. The court empaneling it has some control over its actions. (As mentioned, that court must approve extending its term.) The court does not decide what a grand jury does. Grand juries are, by history and statute, vested with independence and inquisitorial authority. They are also not an arm of the executive. The district attorney may bring most of the cases and use the subpoena powers of the grand jury to call witnesses and to secure evidence, but the prosecutors are removed from the room when the grand jury votes. Although prosecutors usually bring the charges, they do not control the indictment. 

            The chestnut around the courthouse is that the district attorney could get a ham sandwich indicted. During some grand jury terms, that seems true. In other terms, it is not. The prosecutor brings the charges. As such, they generally set the agenda. They have broad discretion about who gets charged with what. They are usually the primary source of information about what the law is regarding a particular issue. Although grand jurors may ask the impaneling court, that rarely happens. The prosecutors have undeniable influence over the indictment process. In my jurisdiction, defense attorneys may only appear before the grand jury with the permission of the prosecutor. (In my experience, the district attorney rarely prevented the defense attorney from showing cards in the grand jury.)

            Grand jurors, however, bring their life experiences into those secret panels. In some terms, the district attorney has found a grand jury unwilling to charge minor drug offenses. They’ve brought biases in favor and against sexual assault victims and family violence offenses.

            Grand juries can subpoena witnesses and obtain evidence. The grand jury, therefore, is a useful government tool for locking down a witness’s testimony, particularly someone who did not avail themselves to the police. Since grand juries cannot gather evidence after a case has been indicted, the prosecutors must frontload their investigation of a case if they want to use the powers of the grand jury.

            Witnesses who chose not to talk or to make themselves unavailable are subject to being brought before the judge empaneling the grand jury. If they still decline to testify, they may be committed to jail until they agree to talk or until the grand jury loses jurisdiction when the term ends. Remember, terms here last three months unless extended.

            If the grand jury votes to formally charge a defendant with a crime, the document that issues is a true bill of indictment. Should they decline to charge, we say that the defendant has been no billed. No bill of indictment was issued in connection with that case. Jeopardy does not attach with a no bill but the practice here and in every other jurisdiction I’ve encountered is not to forum shop. The district attorney will not re-present the case unless new evidence is developed to believe that the original no bill would be decided differently. The advent of DNA testing resulted in a re-evaluation of previously not-indicted sexual assault cases.

            Grand juries get passing mention in literature and the news. The inner workings are a mystery to many. I hope this brief explanation leaves you better prepared as a reader, writer, and news analyst.

Until next time.


  1. Mark, I've often wondered how many times a reluctant to testify witness (who opted for jail rather than testify) could be called up to testify in front of a new grand jury panel? The threat was sometimes used, but I never saw it put into practice.

    1. I’ll nitpick the language a bit, RT. A grand jury investigates during its term. The term may be extended if the work is deemed incomplete. Prosecutors generally don’t empanel a new grand jury to continue an earlier investigation. So a witness wouldn’t typically be hauled in front of a new grand jury. Whenever the question jailing a reluctant witness arises, I’m reminded of Susan McDougal who refused to testify before the grand jury investigating allegations against Bill Clinton related to Whitewater. She served the full 18 months on contempt. I don’t recall how many times she came before that grand jury.

  2. Good question, RT - and I'd like to know as well.

  3. I used to transcribe federal grand jury years ago before I got into the medical side of transcription. I really can't say too much about it, but I remember that one witness took notes during his testimony & the prosecutor marked the notes as an exhibit.


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