Federal Grand Jury Process: What to Expect.

A federal grand jury is tasked with investigating suspected violations of federal criminal law. As a general rule, an offense punishable by more than one year must be prosecuted by indictment unless the defendant waives indictment; criminal contempt is an exception. When deciding whether to return an indictment, a federal grand jury is concerned with determining whether there is probable cause to proceed with charges. This is a far lower standard than the “beyond a reasonable doubt” standard required to prove a defendant’s guilt at a criminal trial. Federal grand juries determine whether charges should proceed; they do not determine whether a defendant is guilty. If the grand jury returns an indictment, a defendant then has a trial where a petit jury of 12 people (or fewer in certain cases) will listen to the prosecution’s and defense’s arguments and try to determine whether the defendant is guilty beyond a reasonable doubt. Typically, a federal grand jury will only investigate crimes committed within its district. However, there are exceptions such as when:

• the commission of a crime outside the district had an effect on the district;
• it was the site of a crime related to a crime committed elsewhere; or
• it is the site of a crime or the location of the defendant. While a trial is a public proceeding led by a judge, a grand jury proceeding is secret and led by a prosecutor. There is no judge present, and the grand jury can be used to investigate the commission of federal crimes or seek criminal contempt of court for matters such as refusal to comply with an order. While some companies and individuals will not have their reputations harmed when going through the grand jury stage, they will face the potential for bad press in the event they face a trial. Unlike a trial, there is no set timeline for a federal grand jury proceeding. The duration of an investigation depends on the scope of the probe, the amount of evidence that must be reviewed, and the level of cooperation.

How does the prosecutor-led process reach an indictment?

Rule 6 of the Federal Rules of Criminal Procedure states that the grand jury will consist of 16 to 23 members. At least 16 grand jurors must be present for a quorum to be reached, and at least 12 grand jurors must concur in order for a grand jury to return an indictment. When a grand jury returns a “true bill,” this means the grand jury determined there was probable cause to return an indictment against a defendant, and the defendant will face criminal charges.

Federal prosecutors ordinarily maintain control of the grand jury proceeding, which includes determining the evidence and the witnesses that are presented to the grand jury. This is how the prosecutor-led process reaches its conclusion. Federal grand jurors can request to hear additional witnesses or to see additional evidence; however, they cannot insist that this occur.

Similar to a trial, there is a prosecutor and a jury (though it is a grand jury instead of a petit jury) present during grand jury proceedings. However, unlike a trial, the grand jury proceeding typically does not include:

• A judge;
• The defendant; or
• Defense counsel.

It is this unique structure that allows the federal grand jury process to be secret and allows federal prosecutors to present their evidence without the possibility of direct cross-examination from a defense attorney.

Does the Grand Jury Need to be Unanimous to Return a True Bill?

Under Rule 6 of the Federal Rules of Criminal Procedure, the grand jury does not need to be unanimous. Rule 6 specifies that for a grand jury to return an indictment, “at least 12 grand jurors must concur.” Federal grand jury votes are held in secret and do not have to be unanimous. The only times that a jury must be unanimous is in a trial.

The grand jury can find no probable cause in its investigation. If it decides not to return a “true bill,” it is called a “no bill,” and this does not necessarily mean the investigation terminates. However, the grand jury can also decide to continue to investigate further.

If the grand jury returns a “true bill,” then it returns an indictment, and the individual or entity will face criminal charges. To avoid indictment, it is important to get involved at the grand jury stage, not wait until after the indictment is returned.

Who may be called before a federal grand jury, and what rights apply?

Federal grand juries have broad subpoena authority. They can request records, testimony, and physical evidence. Individuals who receive subpoenas will need to ensure compliance. At Spodek Law Group, we work with subpoenas to ensure that they are complied with, while protecting our clients’ and our clients’ company’s rights. When testifying before a federal grand jury, witnesses are required to testify under oath. This oath is administered by the grand jury’s foreperson. Unlike at trial, a subpoenaed witness cannot have defense counsel present during the grand jury proceeding. Instead, the witness may consult with defense counsel outside of the grand jury room. When responding to a federal grand jury subpoena, witnesses have the right to invoke the Fifth Amendment privilege against self-incrimination. This privilege allows witnesses to refuse to answer questions that may lead to self-incrimination. It is important that federal grand jury witnesses work with experienced defense counsel to determine if and when it is appropriate to assert this constitutional privilege. While federal grand jury witnesses generally have the right to assert their Fifth Amendment privilege, this privilege only protects individuals. Organizations cannot assert the Fifth Amendment privilege to avoid answering questions or to avoid complying with grand jury subpoenas for testimony and records. If a corporation is facing a grand jury subpoena, its defense counsel will need to ensure compliance while doing so as to maintain the company’s rights. A witness who improperly fails to comply with a federal grand jury subpoena can face contempt proceedings. Rule 6(e) of the Federal Rules of Criminal Procedure provides for secrecy surrounding federal grand jury proceedings and matters. This includes grand jury subpoenas and witness testimony. In all cases, the Rule 6(e) obligations apply to:

• Prosecutors;
• Grand jurors;
• Court reporters; and
• Other personnel who are privy to the details of a federal grand jury proceeding. Unlike prosecutors and grand jurors, grand jury witnesses are generally not bound by the secrecy provisions of Rule 6(e) and may voluntarily disclose information regarding their testimony and the grand jury subpoena process. However, disclosure of grand jury evidence and documents may be restricted by Rule 6(e), a court order, or other applicable law, depending on the circumstances.

When can a federal grand-jury investigation end, and what follows the vote?

What happens after a federal grand jury returns a “true bill”?

When a federal grand jury returns a “true bill,” the federal prosecutors then have an indictment. Often, prosecutors will request that the indictment be sealed until the defendants are arrested or released. This is generally done so that the defendants can’t flee, obstruct, destroy evidence, or interfere with any continuing investigations.

An indictment is a formal accusation against a person or company. It initiates criminal proceedings that could lead to a guilty verdict at trial.

What happens if the federal grand jury returns a “no bill”?

A “no bill” is the opposite of a “true bill.” When returning a “no bill,” it means that the grand jury does not believe there is probable cause to return an indictment on the evidence presented to them at that time.

If the federal grand jury returns a “no bill,” it does not end the case. It simply means no indictment at that time. Prosecutors may, with the responsible United States Attorney’s approval, present the same matter to a grand jury more than once. Prosecutors will regularly request the grand jury to return a “true bill” on top of the initial presentation.

Are Federal Grand Jury Indictments Definite?

No. Federal grand jury indictments are just the beginning of the federal criminal process, and they have never been definitive. However, for many people, the indictment is the most difficult part of facing federal charges. Here are two reasons why:

• The grand jury has found probable cause to charge, but it has not determined that the defendant is guilty or that prosecutors have evidence sufficient to prove guilt beyond a reasonable doubt.
• It is an adverse finding that can lead to significant negative press.

What Percentage of Federal Grand Jury Indictments Fail?

The provided sources do not indicate the national percentage of federal grand jury indictments that later fail to result in a conviction. There are too many variables involved to accurately calculate the percentage of federal grand jury indictments that end without a conviction. These variables include, but are not limited to, the quality of the indictment, the experience of the defense counsel, the individual case’s unique circumstances, and the strength of the government’s evidence. If you have been indicted by a federal grand jury, it is critical to preserve your rights and defenses before the case goes to trial.

Speak With a Federal Defense Lawyer

If you are dealing with any part of what this article describes, the next step is a conversation with a lawyer who handles these cases. Spodek Law Group is a second generation criminal defense firm practicing since 1976, representing clients nationwide from offices in New York, Brooklyn, Queens and Los Angeles. Call 888 348 8028 to speak with our team.