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Grand Juries

A grand jury is a group of people that listens to evidence of crimes presented by prosecutors, then votes whether or not a person must stand trial for the crimes. A grand jury does not decide guilt or innocence and does not hear evidence from a person who is alleged to have committed a crime. If the grand jury decides that a crime has probably occurred, an indictment, formally charging a person, is issued.

Like a trial jury, a grand jury is chosen and sworn in by a judge. Generally, grand jurors do not meet or convene every day. A grand jury might convene once a week, every month or any other time frame, depending on its workload. Once seated, the grand jury picks a foreperson to preside over and control the proceedings.

The number of people serving on a grand jury is different in each state. Generally, grand juries are composed of more people than a trial jury and serve for up to 1 year. Because of the length of time involved, grand juries are largely made up of retirees and people with flexible work and home schedules.

Federal Grand Juries

Because the U.S. Constitution requires, in the Fifth Amendment, that "no person shall be held to answer for a capital, or otherwise infamous crime, unless on presentment of a Grand Jury…," grand juries are utilized where a federal crime has been committed. Federal grand juries consist of 16–23 members. Members of federal grand juries can serve up to 3 years. A federal grand jury is required to have both a foreperson and deputy foreperson to swear in witnesses that appear before it.

State Grand Juries

States use grand juries as well, but often have other ways to issue an indictment, such as a preliminary hearing before a judge who decides whether the evidence shows that a crime may have occurred. Most states require a grand jury to consist of anywhere from 12–23 members. State grand juries serve for a variety of terms varying from 1 month to more than a year. Some grand juries in large urban areas convene every day for several weeks.

Subpoena Power

Grand juries have the power to subpoena or require a witness to appear and testify. A subpoena is a formal document commanding a witness to appear before the grand jury on and at a certain date, time and place. A subpoena can also require the production of documents. Like courts, grand juries can issue subpoenas and freely use them to compel a witness to testify or to summon physical evidence, documents and records.

Can I be picked to serve on a grand jury, and what do I do to get excused from duty?

States use voter lists and drivers’ license databases to randomly choose members of a grand jury. Your chances of getting called for grand jury service are the same as serving on a jury in a trial. You are automatically excused for a variety of reasons including being over a certain age, illness or incapacity, or employment in a public safety position, such as a police officer. Additionally, the court may excuse you if you can show that serving will cause a hardship. Hardships include missing regular work or being unable to care for small children.

I have been chosen as a member of a grand jury. What should I expect when I arrive at the courthouse?

Every court has a different procedure, but you can generally expect to check in with a clerk who is assigned to receive potential jurors. You will be sent to a room where you will undergo some type of orientation regarding your schedule, duties and payment. Your role as a grand juror will be explained, and you will learn about the process of investigating crimes and returning indictments. The clerk, prosecutor or judge can conduct the orientation.

If you are serving on a federal grand jury, you will meet the U.S. Attorney for the federal district in which the court sits. The U.S. Attorney’s office employs many different lawyers who you will deal with in the course of your service.

TIP: The government publishes "The Handbook for Federal Grand Juries" that may or may not be given to you at the time of your orientation. If you do not receive one, ask the clerk or U.S. Attorney’s office. The Administrative Office of the U.S. Courts publishes the Handbook, and you should contact them directly if you are unable to get a copy in your district. You can also view a copy online at www.uscourts.gov/districtcourts.html.

As a member of a grand jury, what are my duties and responsibilities?

You are required to listen to the evidence presented to you by the prosecutor, discuss it and vote whether to issue an indictment charging a person with a crime. A grand juror has the right to ask questions of the witnesses. In federal court and most states, you can address your question to the witness directly.

You will frequently hear testimony from police officers and state and federal agents concerning crimes. You will examine reports and records made by those officers and agents that contain facts concerning the crimes. It is possible that you will hear evidence of dozens of similar crimes in a single day. Service on a grand jury is time-consuming. You will sit and listen to evidence, testimony and records being read by attorneys.

I think a grand jury may be investigating me. How can I get information concerning their investigation?

Grand juries meet in "secret." The evidence, testimony of witnesses and other matters that occur when a grand jury is convened are not disclosed to the public in order to protect ongoing investigations and the privacy of persons not yet charged with a crime. If you are under investigation by a federal grand jury, there is no duty to inform you. However, as a policy, federal prosecutors send someone who is the "target" of an investigation a notice informing the person of her rights and setting out the crime being investigated. Some states also utilize "target letters." If you receive a target letter, retain an attorney as soon as possible.

SIDEBAR: Prosecutors, judges and grand jury members cannot and will not provide you with any information concerning an investigation. Witnesses, however, are not under any such "gag order" and can provide information; but they are often cooperating with the grand jury and will not talk to you.

CAUTION: Under no circumstance should you ever contact a member of the grand jury. It is a crime under federal law to attempt to influence a grand jury member, including asking one of them whether you are being investigated.

I received a subpoena requiring me to appear before a grand jury and testify. Do I have to go?

You may not have committed a crime, but could still find yourself involved with a grand jury if you have knowledge of certain facts concerning a criminal act. The subpoena often requires you to bring any documents you have that concern the investigation. If you do not appear on the date and time indicated in the subpoena with all requested documents, you may be held "in contempt of court" and either fined, jailed or both.

TIP: The grand jury subpoena has two boxes indicating whether you are being subpoenaed to testify as a witness or to provide documents, or both. If only the document box is checked, you or your lawyer should contact the prosecutor and find out exactly what documents he wants you to bring prior to appearing in front of the grand jury. Your goal is to cooperate and avoid any misunderstandings with the prosecutor and grand jurors.

I have been subpoenaed as a witness to testify before a grand jury. I may also be the subject of a grand jury investigation. Do I need to retain an attorney, although I have not been charged?

It is highly advisable to retain an attorney should you be called as a witness. Often a witness is put in a situation where what she says can incriminate her in the crime. If you are unable to afford an attorney in a federal case, one will be provided upon request. Some states also require that an attorney be appointed for indigent witnesses.

If you become aware of or are informed that you are the target of a grand jury investigation, you should retain an attorney. Federal courts, and some state courts, have adopted rules for furnishing lawyers if you cannot afford one.

You must contact the court and determine the process for having an attorney appointed if you cannot afford one. Payment of fees, the number of copies that are required to be filed, the existence of mandatory e-filing and other logistics involved in an application for the appointment of an attorney must be followed exactly.

TIP: Federal courts have Web sites setting out their rules and often have forms available for downloading. Contact the court clerk for information or check www.uscourts.gov/districtcourts.html to locate the Web site for your particular court.

Can I bring my attorney with me into the grand jury room?

No. In federal court, your attorney may not accompany you to testify before a grand jury. The attorney is generally outside the grand jury room for consultations. You must attend alone, but you are allowed to confer with your attorney at "reasonable" intervals upon your request. The prosecutor and your attorney determine the meaning of "reasonable." In some situations, a witness will consult with his attorney before answering every question.

Can I refuse to answer questions put to me before the grand jury?

Usually, you must answer the questions from the grand jury or you will be held in contempt, then fined, jailed or both. However, if your answer would provide evidence that you committed a crime, you can refuse to answer and invoke your Fifth Amendment privilege against self-incrimination.

If you have been given immunity from prosecution, you cannot invoke your Fifth Amendment privilege and may be forced to answer, since you have a promise from the prosecutor that what you say will not be used against you. "Taking the Fifth" is a complex matter with many legal ramifications, and you are advised to retain an attorney or ask the court to appoint one for you any time this situation arises.

SIDEBAR: Certain privileges, such as those applied to attorney-client, physician-patient, or husband-wife relationships, allow a witness to avoid answering questions regarding communications within the relationship. These are called evidentiary privileges, and the laws differ between state and federal courts as to which ones are recognized and available for a witness to claim or invoke during her testimony.

I am missing work to testify before the grand jury. Do I get any sort of payment or reimbursement to compensate me for my missed wages and expenses?

If you have testified before a federal grand jury, you will receive an attendance fee of $30. Federal law also requires that you be reimbursed for reasonable travel expenses. If you have driven yourself in your vehicle, you will get a mileage allowance. Incidental fees such as bridge, road and tunnel tolls and parking expenses are also reimbursed. If you are testifying before a state grand jury, most states pay an attendance fee and provide reimbursement for travel expenses. The clerk to whom you report will have information concerning special forms you may be required to fill out.

TIP: Keep copies of all receipts. They are required for reimbursement of your expenses.

I recently testified in front of a grand jury. My family is curious about my experience and the local newspaper has called. Can I talk about my testimony and other matters that occurred while I was in the grand jury room?

In federal court, a witness is not required to remain silent after giving his testimony, and can disclose the questions asked and other matters that went on in the grand jury room. Many states also do not prohibit witnesses from speaking about their experience. Before you do disclose any information to anyone, check with the prosecutor and confirm that you can talk publicly about your grand jury testimony.

CAUTION: It is not uncommon for a witness to enter into an agreement with the prosecutor concerning her own criminal actions in exchange for testimony. If you have made such an agreement, speaking out will be prohibited. Once you do so, you are no longer "cooperating" and could also be indicted.

My underage child has been a victim of a crime and is testifying before a grand jury. Can anyone accompany her into the grand jury room?

Yes. Children can and do testify before grand juries as victims or witnesses. Special protections of privacy and confidentiality for the child are mandated in federal courts and many state courts. Prosecutors and courts are strongly advised to appoint an attorney for the child. Unlike an adult, the child has the right to have her attorney present while she is in front of the grand jury. More information concerning children testifying in court and in front of a grand jury can be found at: www.childwelfare.gov/systemwide/courts/specialissues/iet.cfm#child_test.