How do grand juries work? Their major role in criminal justice, and why prosecutors are using them to investigate efforts to overturn the 2020…
Grand juries play a major role in the U.S. criminal justice system. And theyre very much in the news these days.
A grand jury in Fulton County, Georgia, is looking into former President Donald Trumps efforts to overturn the 2020 presidential election results in that state. Among the latest witnesses to give testimony to the grand jury was Georgia Gov. Brian Kemp.
In Washington, D.C., the U.S. Justice Department is in the middle of an investigation into efforts to overturn the 2020 election, and it is questioning witnesses before a grand jury as well. Most recently, two top aides to former Vice President Mike Pence were questioned in that probe.
A grand jury does not mean that the investigation will lead to any formal criminal charges, which are known as indictments. There was a grand jury that issued subpoenas during the investigation into Hillary Clintons email server, for example, but no one was charged with any crimes.
In order to understand grand juries and their work, I offer the following explanation of how federal and state grand juries are used in the U.S.
The Fifth Amendment to the U.S. Constitution provides the legal basis for grand juries. In federal criminal cases, federal grand juries are made up of 16 to 23 members. They decide whether to indict someone who is being investigated, and at least 12 grand jurors need to agree to issue an indictment.
In addition to considering whether individuals may have committed a crime, a grand jury can also be used by a prosecutor as an investigative tool to compel witnesses to testify or turn over documents. Reports indicate that Special Counsel Robert Mueller used a grand jury for the latter when he investigated whether there was collusion between former President Donald Trumps election campaign and Russia to influence the 2016 election.
Grand jurors are usually chosen from the same jury pool as trial jurors. For a federal grand jury, all U.S. citizens over the age of 18 living in the federal district courts geographic jurisdiction are in the pool.
Court clerks first identify members of the grand jury pool from public records, including records of licensed drivers and registered voters.
Next, prospective grand jurors are screened, usually through questionnaires.
To be a member of a federal grand jury, a person has to be adequately proficient in English, have no disqualifying mental or physical condition, not be currently subject to felony charges punishable by imprisonment for more than one year and never have been convicted of a felony (unless civil rights have been legally restored). The court then randomly chooses candidates for the grand jury from this pool.
In all felony cases, there must be a probable cause determination that a crime has been committed in order for a case to move forward to a trial or a plea. Probable cause means that there must be some evidence of each element of the offense.
In the federal system, a grand jury is the body that makes the probable cause determination. In many states, like Missouri, the probable cause determination can be made either by a grand jury or at a preliminary hearing before a judge.
When there is an option for either a grand jury or preliminary hearing to determine probable cause, the prosecutor decides which one to use. For example, in the shooting death of Michael Brown by police officer Darren Wilson in 2014, the St. Louis County prosecuting attorney brought the evidence to a grand jury rather than choosing to present evidence to a judge through a preliminary hearing. In serious cases like murder, most prosecutors use the grand jury because it is usually quicker than a preliminary hearing.
Most people whose cases go to the grand jury have already been arrested. These include all of the cases in which a person is arrested while committing a crime or shortly after the crime has been committed.
In some cases, like Muellers Russia investigation, prosecutors do not have all the evidence they need to make a good case. In these investigations, a grand jury is used to help with the investigation. Once the grand jury is impaneled, the prosecutor has the ability to subpoena records and witnesses.
Subpoena power means the prosecutor can compel witnesses to turn over documents and to testify. If the prosecutor obtains sufficient evidence of a crime, the same grand jury has the power to indict whomever it believes has committed a crime.
The work of a grand jury is required by law to be done in secret, so the public has no right to know who is subpoenaed or what documents the grand jury is reviewing. Even though the grand jury work is secret, federal rules and a majority of states permit grand jury witnesses to discuss what occurred when they testified.
In some high-profile cases, witnesses subpoenaed to appear before the grand jury will talk to the press if they think it will be helpful to them. For example, when former President Bill Clinton testified before a grand jury during the investigation into Whitewater real estate investment and the affair with Monica Lewinsky, he went on national television and announced that he had testified.
The secrecy of a grand jury presents some dangers. The defendant does not know the evidence being considered, does not have a right to be present, and cannot question the evidence early in the criminal justice process.
As a result of the secrecy, the grand jury can also end up being a tool of the prosecution, and the prosecutor can choose to withhold evidence that is favorable to the accused. That is why a former chief judge of the New York Court of Appeals, the highest court in New York, famously said that a prosecutor could get a grand jury to indict a ham sandwich.
These types of dangers are always present during any grand jury, and getting a grand jury to issue an indictment may be easy. But in high-profile cases, like the Russia connection to the Trump presidency and possibly the current investigation into Trumps efforts to overturn the election results in Georgia, proving wrongdoing beyond a reasonable doubt through a trial or a negotiated guilty plea usually proves much more difficult.
This is an updated version of a story originally published on Aug. 7, 2017.
The rest is here:
How do grand juries work? Their major role in criminal justice, and why prosecutors are using them to investigate efforts to overturn the 2020...
- Do presidential pardons remove the Fifth Amendment rights of recipients? - National Constitution Center - January 26th, 2025 [January 26th, 2025]
- Biden preemptively pardons Fauci, creating Fifth Amendment trouble for him - MSN - January 22nd, 2025 [January 22nd, 2025]
- Biden preemptively pardons Fauci, creating Fifth Amendment trouble for him - Washington Examiner - January 22nd, 2025 [January 22nd, 2025]
- Ex-IU doctor Brad Bomba Sr. invoked Fifth Amendment 45 times in deposition over alleged abuse - Yahoo! Voices - December 18th, 2024 [December 18th, 2024]
- President Muizzu ratifies the fifth amendment to the Criminal Procedure Act - The Edition - December 18th, 2024 [December 18th, 2024]
- Doctor accused of abusing Indiana University athletes repeatedly invokes Fifth Amendment in deposition - NBC News - December 16th, 2024 [December 16th, 2024]
- Ex-IU doctor Brad Bomba Sr. invoked Fifth Amendment 45 times in deposition over alleged abuse - The Herald-Times - December 16th, 2024 [December 16th, 2024]
- The Constitution: The Twenty-Fifth Amendment - Houston Public Media - November 28th, 2024 [November 28th, 2024]
- Karen Read accused of weaponizing Fifth Amendment by seeking to delay civil trial - CBS Boston - October 31st, 2024 [October 31st, 2024]
- Mother and grandmother of Willacy County murder victim invoke Fifth Amendment during trial - KRGV - August 20th, 2024 [August 20th, 2024]
- This Is What the Twenty-fifth Amendment Was Designed For - The New Yorker - July 4th, 2024 [July 4th, 2024]
- Young Thug trial: State witness held in contempt, taken into custody - The Atlanta Journal Constitution - June 12th, 2024 [June 12th, 2024]
- That's Not How Pleading The Fifth Works - Above the Law - June 12th, 2024 [June 12th, 2024]
- Why was Lil Woody arrested? Rapper invokes Fifth Amendment against self-incrimination to avoid testifying in Young ... - Sportskeeda - June 12th, 2024 [June 12th, 2024]
- New Ad Taunts Trump: 'Take the Stand, Donald, or Admit You're a Coward' - The New York Times - May 18th, 2024 [May 18th, 2024]
- How Democrats In Arizona Are Damaging The Fifth Amendment - The Daily Wire - May 1st, 2024 [May 1st, 2024]
- Social Media Platforms Have Property Rights Too - Reason - April 16th, 2024 [April 16th, 2024]
- Utah high court rules suspects don't have to provide police with phone passcodes - The Record from Recorded Future News - December 21st, 2023 [December 21st, 2023]
- Utah Supreme Court says accused don't have to share cellphone passwords with police - Salt Lake Tribune - December 21st, 2023 [December 21st, 2023]
- High court must uphold constitutional taking clause to protect ... - The Midwest Center for Investigative Reporting - November 9th, 2023 [November 9th, 2023]
- Jump Crypto chief pled Fifth over alleged backroom Do Kwon deal - Protos - November 9th, 2023 [November 9th, 2023]
- Donald Trump civil trial in Manhattan: Maybe he's not trying to win ... - Slate - November 9th, 2023 [November 9th, 2023]
- Commission weighs whether to discipline Illinois judge who ... - St. Louis Post-Dispatch - November 9th, 2023 [November 9th, 2023]
- Smith Sentenced To Probation In Break-In At Sheriff's Residence - wkdzradio.com - November 9th, 2023 [November 9th, 2023]
- SCOTUS accepts 43 cases this term; 20 scheduled for argument so ... - Ballotpedia News - November 9th, 2023 [November 9th, 2023]
- Movie Review - Anatomy of a Fall | The-m-report | wboc.com - WBOC TV 16 - November 9th, 2023 [November 9th, 2023]
- Another Result Before It Happens: The Trump Civil Case In New York - Above the Law - November 9th, 2023 [November 9th, 2023]
- The inherent American rights involved during and after an arrest - FOX 29 - June 15th, 2023 [June 15th, 2023]
- She was killed walking home. Two men are now on trial for her ... - CBS 6 News Richmond WTVR - June 15th, 2023 [June 15th, 2023]
- Are Abortion Bans Takings? - Reason - June 15th, 2023 [June 15th, 2023]
- Ex-San Francisco Official Offers Alibi for One of Series of Bear-Spray ... - The San Francisco Standard - June 15th, 2023 [June 15th, 2023]
- Road project threatens preserved farmland | News | dailycourier.com - Front Page - June 15th, 2023 [June 15th, 2023]
- Teacher, accused of seven felonies, pleads his case to Grand Island ... - Grand Island Independent - June 15th, 2023 [June 15th, 2023]
- "That is a crime of cinema": After Saving Vin Diesel's Career With an ... - FandomWire - June 15th, 2023 [June 15th, 2023]
- There Is No 'Moving On' From Corruption, by Laura Hollis - Creators Syndicate - June 15th, 2023 [June 15th, 2023]
- Left-wing Democrats Running Roughshod Over Constitutional ... - The New York Sun - June 15th, 2023 [June 15th, 2023]
- Tether SEC Action? USDT Selling Floods Liquidity Pools in Wake of ... - CCN.com - June 15th, 2023 [June 15th, 2023]
- Essential Education: Professor, attorney discuss importance of ... - LA Downtown News Online - June 4th, 2023 [June 4th, 2023]
- Inside The Murder Of Kristin Smart And How Her Killer Was Caught - All That's Interesting - June 4th, 2023 [June 4th, 2023]
- Louisiana's Sabine River Authority Not Entitled To Sovereign Immunity - The Energy Law Blog - May 27th, 2023 [May 27th, 2023]
- Ken Paxton Impeached on 20 Charges Including Bribery ... - The Texan - May 27th, 2023 [May 27th, 2023]
- Don Carmignani Recounts Brutal Beating From Witness Stand - The San Francisco Standard - May 27th, 2023 [May 27th, 2023]
- Simply losing it: Bitter fight brews over federal judges forced retirement effort - Yahoo! Voices - May 27th, 2023 [May 27th, 2023]
- Trump Organization finishes last in brand reputation survey for second straight year - The Hill - May 27th, 2023 [May 27th, 2023]
- Jekyll Island Authority board names new director | Local News ... - Brunswick News - May 27th, 2023 [May 27th, 2023]
- They held down a Black teen who tried to shoplift. He died from ... - Wisconsin Examiner - May 27th, 2023 [May 27th, 2023]
- Police officer charged with obstruction for allegedly leaking information to Proud Boys leader - WAPT Jackson - May 20th, 2023 [May 20th, 2023]
- Deputies ordered to answer questions about knowledge of gangs in LA County Sheriffs Department - Daily Breeze - May 20th, 2023 [May 20th, 2023]
- The 1950s Hollywood Blacklist Was an Assault on Free Expression - Jacobin magazine - May 20th, 2023 [May 20th, 2023]
- Will There Finally be Some Development on the Land Condemned ... - Reason - May 8th, 2023 [May 8th, 2023]
- Justice Scalia's Unpublished Dissent in Kelo v. City of New London - Reason - May 8th, 2023 [May 8th, 2023]
- Jurors to continue deliberations in trial for Woodson man accused of ... - Northwest Arkansas Democrat-Gazette - May 8th, 2023 [May 8th, 2023]
- The Red Scare Led to One of the Greatest Westerns of All Time - Collider - May 8th, 2023 [May 8th, 2023]
- The Ghost of Ayn Rand as a Climate Activist? - InDepthNH.org - May 8th, 2023 [May 8th, 2023]
- Florida oversight board sues Walt Disney Company in ongoing legal ... - JURIST - May 8th, 2023 [May 8th, 2023]
- Suspended gynecologist accused of getting aroused during vaginal deliveries faces massive lawsuit from dozens of women - Law & Crime - May 8th, 2023 [May 8th, 2023]
- Suffolk grand jury could bring criminal charges against CPS workers in Thomas Valva child-abuse case - Newsday - May 8th, 2023 [May 8th, 2023]
- Trump will answer questions in New York fraud lawsuit, lawyer says - Daily Herald - April 13th, 2023 [April 13th, 2023]
- Why the Founding Fathers passed the Fourth Amendment to the ... - Tennessean - April 13th, 2023 [April 13th, 2023]
- Appeals court rejects Peter Navarro's bid to retain hundreds of ... - POLITICO - April 13th, 2023 [April 13th, 2023]
- In Proud Boys Jan. 6 Sedition Trial, FBI Informants Abound - The New York Times - March 28th, 2023 [March 28th, 2023]
- Supreme Court Should Take and Reverse Fifth Circuit Decision that ... - Reason - March 28th, 2023 [March 28th, 2023]
- Court Action Underscores Peril for Trump in Documents Investigation - The New York Times - March 28th, 2023 [March 28th, 2023]
- CINCINNATI FINANCIAL CORP : Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant,... - March 28th, 2023 [March 28th, 2023]
- Hartselle police: Chiropractor ingested lead to allay suspicion - Yahoo! Voices - March 28th, 2023 [March 28th, 2023]
- Georgia judge orders Fulton County DA to respond to Trumps motion seeking to quash grand jury report - Yahoo News - March 28th, 2023 [March 28th, 2023]
- Missing Franklin woman's children await answers on 2-year ... - WDJT - March 28th, 2023 [March 28th, 2023]
- Congressional oversight of the Trump International Hotel, civil rights ... - SCOTUSblog - March 28th, 2023 [March 28th, 2023]
- Rajya Sabha adjourned for the day over opposition protest - The Economic Times - March 28th, 2023 [March 28th, 2023]
- Why Civil Asset Forfeitures Need To End And Soon Could - Forbes - March 28th, 2023 [March 28th, 2023]
- The Dangerous Journey of John Eastman - Washington Monthly - March 28th, 2023 [March 28th, 2023]
- The Speaker Gets to do What he Wants to do,' Michael Madigan is Heard Saying at Secretly Recorded Leadership Meeting - NBC Chicago - March 28th, 2023 [March 28th, 2023]
- Letter to the editor: Rent control is government intrusion - Press Herald - March 28th, 2023 [March 28th, 2023]
- 1 year after FreeFall tragedy: Where the criminal investigation stands - WESH 2 Orlando - March 28th, 2023 [March 28th, 2023]
- Lange Refuses to Stop Demolition of Strizheus House, But Says City ... - Dakota Free Press - March 28th, 2023 [March 28th, 2023]
- Form 10-K Evolve Transition Infras For: Dec 31 - StreetInsider.com - March 28th, 2023 [March 28th, 2023]
- 11 exonerated men sue city detective Reynald Guevara - CBS News - March 28th, 2023 [March 28th, 2023]
- California man charged with felony cocaine possession at airport - Idaho Mountain Express and Guide - March 28th, 2023 [March 28th, 2023]
- Alex Murdaugh and whether to testify in your own defense - ABA Journal - March 28th, 2023 [March 28th, 2023]
- B.C. 'pump and dump' defendants' assets can be frozen by SEC - Vancouver Is Awesome - March 28th, 2023 [March 28th, 2023]