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Functions and Powers of the Grand Jury

April 18, 2020

The Function of the Grand Jury. The job of a federal grand jury is to decide whether probable cause exists to conclude that a person or entity (referred to as “target” or “subject”) committed a federal offense. A grand jury proceeding can result in either indictment against a defendant or a “no-bill.” In case of a “no-bill,” the person will not be further prosecuted. Costello v. United States, 350 U.S. 359, 362 (1956).

Defining Terminology. The terms “targets” and “subjects” are defined by the Criminal Resource Manual of the Department of Justice as follows: A “target” of a federal investigation “is a person as to whom the prosecutor or the grand jury has substantial evidence linking him or her to the commission of a crime and who, in the judgment of the prosecutor, is a putative defendant.” A “subject” of a federal investigation “is a person whose conduct is within the scope of the grand jury’s investigation.” USAM 9-11.151. If the target of an investigation is a company rather than an individual, then the law does not classify officers and employees of that company as targets themselves, even if it was the officer or employee’s conduct that lead to or contributed to the alleged commission of the crime.

The Composition of a Grand Jury. Federal Criminal Procedure Rule 6(a) states that: “When the public interest so requires, the court must order that one or more grand juries be summoned.” A Grand jury is customarily impanelled in open court unless there exist some exceptional circumstances. Federal law requires that a grand jury shall consist of at least sixteen but no more than twenty-three grand jurors. The selection process for Grand jurors is random and is supposed to be picked out of a fair cross-section of the community in the district where the court convenes. The qualifications for grand jury service are that a grand juror must:

Be a citizen of the United States,
Be at eighteen years old or older,
Be proficient in the English language,
Not have a mental or physical infirmity
Not be a felon or be facing felony charges.

Grand jurors usually serve for a maximum of eighteen months. Service normally obligates you to attend a meeting once or twice a month with fellow grand jurors at the location where the grand jury convenes. This is usually at the District Court or the local United States Attorney’s Office.

The Role of The Prosecutor. Prosecutors are authorized to attend and conduct the grand jury proceeding, 28 U.S.C. Sect 542 & 547 and Rule 6(d) Federal Rules of Criminal Procedure. A prosecutor’s role is to serve as the grand jury’s legal advisor, to inform the panelists about the applicable law in a given case and to present evidence for the jurors’ to consider. Usually, the evidence presented at grand jury is either individual testimony or documents. Whatever the case may be, the evidence presented to the grand jury is supposed to be completely factual. Argument and supposition are impermissible at grand jury and it is inappropriate for any government witness or attorney to make attempts to influence the grand jury process using such tactics. In addition, a prosecutor has an overarching obligation to abide by the law and must never mislead the jurors using evidence that the prosecutor reasonably believes was procured using illegal means and thus is not admissible. One exception to the standard admissibility rules is that hearsay evidence is generally admissible before a Grand Jury as long as it is presented as hearsay and not as first hand knowledge. United States v. Calandra, 414 U.S. 338 (1974). Prosecutors are required to disclose evidence to the Grand Jury that has the potential to directly negate the guilt of a subject of the investigation. USAM 9-11.223.

Voluntary Testimony. The majority of people who testify in front of a grand jury do so because they received a subpoena. The government usually does not force a target to testify in front of the grand jury. That said, targets of investigations, on occasion, request the opportunity to testify at a grand jury proceeding. Although the prosecutor is not mandated to allow such testimony, it is common practice to allow such witnesses to testify. In these cases, the testifying targets waive their right against self-incrimination and they consent to a full examination under oath. The target is informed that the Grand Jury is investigating whether or not a violation of federal law occurred, that they have a right to refuse to answer if answering the question truthfully may incriminate the target, that anything that will be said may be used in the Grand Jury and subsequent proceedings, and that a target has a right to consult with his or her attorney (“Advice of Rights”). The attorney for a testifying witness is not permitted to attend the grand jury proceeding. Commonly, they wait outside the grand jury room. The witness’ attorney will be permitted to speak with their client in the event that the witness requests to consult with his or her attorney during questioning. Consultation with the attorney is then permitted and the witness steps outside of the Grand Jury room to consult. This consultation is permissible and the request and subsequent exercise of it does not adversely affect the witness.

The Subpoena. Subpoenas for grand jury proceedings are regulated by Rule 17 of the Federal Rules of Criminal Procedure. The function of a federal grand jury subpoena is to procure evidence for presentation to a grand jury that may demonstrate that a suspect did indeed commit a federal crime. The power of the grand jury to issue subpoenas is extensive. In theory, a grand jury subpoena can be sent out to any person and/or entity and demand both testimony and the production of anything. Generally, the only safeguard against a grand jury subpoena is the Constitution, the common-law or statutory privilege. Constitutional issues may arise when subpoenas are broader than they should be. Subpoenas must be reasonable in scope in order to meet the Fourth Amendment requirements. Such privileges as the marital privilege and the attorney-client privilege of confidentiality are respected in the grand jury process and are not overridden simply for the sake of a subpoena that is issued by the government.

Future Proceedings. The government cannot uthe se subpoena power of the grand jury to further the investigation of a case after indictment. Nonetheless, it is a common occurrence for additional court matters to arise from a shared set of facts from an indicted matter. When this happens, the grand jury can convene to examine facts that could give rise to an additional, separate criminal charge. If it turns out, for example, that more defendants exist or that the person who was indicted actually committed more crimes than originally known, the grand jury may return. In re Grand Jury Proceedings, 586 F.2d 724 (9th Cir. 1978).

Even if the grand jury ultimately issues the indictment, it is important to keep in mind that the grand jury is not the panel that decides guilt or innocence. The sole purpose of the grand jury is to determine whether probable cause for the commission of a federal crime exists. United States v. Calandra, 414 U.S. 338, 343 (1974).

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