What is a (Secret) Grand Jury?

All Grand Juries are secret. Think of a Grand Jury as investigators. Its job is to listen to sworn testimony and review documents in secret to determine if a person should be charged with a crime.

Grand juries do not decide if a person is guilty or innocent. A Grand Jury simply decides if the evidence presented provides probable cause for a crime. If the Grand Jury decides that there is probable cause for a crime, it issues an indictment. An indictment is an actual piece of paper that states the charge and penalty if a person is convicted.

Who makes up a Grand Jury?

A Grand Jury is a random selection of people who are responsible for determining whether or not a person is indicted, or charged with a crime. They are tasked with determining only two things:

  • That the identity of the accused is correct
  • That there was probable cause for an arrest

Unlike a trial jury, the job of a Grand Jury is not to determine if a person is guilty or innocent. A Grand Jury meets before a trial takes place only to determine if the identity of the accused is correct and that there was probable cause to charge the person.

A Grand Jury typically consists of 23 people. They usually meet for between four and six months. Grand Jury proceedings are “ex parte” or secret. This means that they are closed off to the public. Even the accused person typically is not present. Grand Jurors are not allowed to discuss with the public the cases that they hear.

The Political Power of an Elected District Attorney

Prosecutors have a lot of power when they are presenting during Grand Jury proceedings. When a Grand Jury is in session, an elected or appointed prosecutor presents a one-sided version of the case. They can place whatever evidence they want before the Grand Jurors. There is no defense attorney in the room. Neither is the Defendant in the room. The elected district attorney has full power to put all the damaging evidence that they want against the person being charged. The district attorney does not have to consider any opposing justification or viewpoint challenging the truth of the evidence.

As a result, it is very easy to obtain an indictment. Given the low standards of establishing probable cause, Grand Juries very often chose to indict. This is why lawyers often joke that a Grand Jury could indict a ham sandwich.

If a prosecutor wanted to use a Grand Jury as a political weapon, it is very easy for them to do so. Moreover, even if the indictment is weak, most people simply fear the consequences of challenging even a weak criminal case and make a plea deal. In the end, that weak indictment becomes a win for the prosecutor, despite the person never challenging the evidence.

At the end of the presentation by these prosecutors, the Grand Jury makes a final decision on whether or not there is probable cause to charge a person with a crime. It takes at least 12 of 23 jurors for a decision to be made. If the Grand Jury issues a “true bill” that means that yes, the person will be indicted. When it issues a “no bill” this means that the Grand Jury has decided not to indict.|

What kinds of cases does a Grand Jury consider?

The Fifth Amendment to the US Constitution requires Grand Juries to consider all serious criminal cases. Cases that are “serious” are felonies under Superior Court jurisdiction. All courts have jurisdiction, or a range of areas of law that they are allowed to consider. Felonies are simply crimes that can be punished by state prison time.

Massachusetts Superior Court is the level of court above District Court. The difference between District Court and Superior Court is that Superior Court has jurisdiction over all state crimes, while district court can only hear certain cases. Why this is so has to do with sentencing. District courts can only sentence a person to a maximum of time in a house of correction. Superior Court can sentence someone to time in state prison. A case where both courts have jurisdiction is called concurrent jurisdiction.

Given the seriousness of crimes that Superior Courts deal with, the job of a Grand Jury is very important and can be life changing.

What are defenses to a Grand Jury indictment?

If a Grand Jury decides that there is probable cause for an indictment, the case moves forward to an arraignment. Though, this does not necessarily mean that the question of probable cause is settled. A judge can dismiss a case if they determine that there was no probable cause.

The best defense criminal lawyers turn to when their clients are indicted involves using something called Grand Jury Minutes. Grand Jury Minutes are transcripts of the prosecution’s presentation of the case to the Grand Jury. The defendant will receive a copy of these transcripts at their arraignment. These transcripts are “discoverable” which means the defense attorney is allowed to see them.

Your attorney will thoroughly review all of the Grand Jury Minutes to determine if the Grand Jury was correct in determining that a person should be formally charged with a crime. There are three ways to get an indictment dismissed at this stage, by proving:

  • Lack of probable cause
  • False evidence
  • Deceptive evidence

Proving any one of these is true is enough to have an indictment dismissed. Your defense attorney’s job is to show that there was simply no fair reason for the Grand Jury to indict.



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