Grand Jury Investigation and Indictment

Grand juries, comprising sixteen to twenty-three citizens serving for extended periods of time, wield tremendous investigative power and determine whether a criminal accusation called an ‘‘indictment’’ is warranted because there exists probable cause to believe that an individual has engaged in criminal conduct. The grand jury, with its roots in ancient civilizations, came to the American colonies with the English common law. The right to grand jury indictment in serious federal criminal prosecutions later was enshrined in the Bill of Rights, in the Fifth Amendment. Although the Supreme Court declared in the 1884 case of Hurtado v. California, 110 U.S. 516 (1884), that the Constitution does not require states to use grand jury indictment to institute criminal proceedings, a number of states make grand jury indictment mandatory for serious crimes.

The grand jury has nearly boundless power of investigation. This investigative prerogative extends not only to testimony and documents, but also to physical evidence. There are two types of grand jury subpoenas: subpoenas duces tecum, which seek documents and other tangible items, and subpoenas ad testificandum, which seek testimony from specified witnesses before the grand jury at a certain date and time. Although subpoenas duces tecum generally command the evidence to be brought to the grand jury at a specified date and time, compliance with such a subpoena is often satisfied more informally, with materials delivered to the office of the prosecutor. The issuance of subpoenas is ostensibly the province of the grand jurors, although decisions regarding whether, when, and to whom to issue grand jury subpoenas typically are made solely by the prosecutor presenting evidence to the grand jury.

Constraints on the subpoena power are found in certain constitutional, statutory, and commonlaw privileges. One important constitutional privilege is the Fifth Amendment’s privilege against selfincrimination, which forbids compulsion of statements tending to incriminate the witness.Agrand jury witness asserting the privilege against self-incrimination may be compelled to testify once granted immunity. Failure to testify after a grant of immunity gives rise to contempt and possible incarceration. Although prosecutors may institute self-imposed constraints on subpoenaing members of the news media, the Supreme Court has not recognized a news-gathering privilege under the First Amendment. Indeed, in a number of high-profile grand jury investigations, reporters have been jailed after refusing to testify regarding sources.

In addition to constitutional privilege, certain common law evidentiary privileges, such as the marital privilege, shield against the grand jury subpoena power. Perhaps the most well-known common law privilege is the attorney–client privilege, which protects confidential communications made by the client to the attorney for the purpose of obtaining legal advice. The privilege is controlled by the client and may extend to communications with those who aid the attorney in the provision of legal advice, such as forensic accountants. The attorney–client privilege may be pierced and disclosure of such confidential communications may be compelled if the communications were made in furtherance of criminal or fraudulent activity.

Generally, there is no right to counsel for witnesses testifying before the grand jury, although witnesses are afforded ready access to counsel sitting outside the grand jury room. Grand jury witnesses, who testify under oath and on the record, typically are warned about the consequences of making untruthful statements before the grand jury, including possible prosecution for perjury or obstruction of justice. There is no double jeopardy bar to successive attempts to indict an individual, although prosecutors often follow self-imposed constraints.

Grand juries typically operate in secrecy. Federal grand juries, for instance, are subject to stringent rules that restrict prosecutors, law enforcement officials, court employees, and the grand jurors from disclosing matters that took place before the grand jury. Witnesses, however, may speak freely about their testimony. Even once indicted, defendants are not given access to grand jury transcripts unless such access is compelled by statute or constitutional mandate. Those government attorneys and members of law enforcement with access to grand jury materials, including testimony transcripts, documents, and physical objects, must take particular care when handling such materials and generally must obtain a court order to share the materials even with other government employees working on the case.

So strict are the secrecy rules that criminal government attorneys may not share grand jury materials with civil government attorneys investigating the same conduct unless a showing of particularized need prompts a court order. Grand jury secrecy has a number of rationales, including safety of witnesses, protection of grand juror identities, preserving the integrity and effectiveness of the criminal investigation, preventing flight of witnesses or putative defendants, and, most importantly, protection of the reputation of individuals who may be investigated but ultimately not indicted.

At an appropriate time, the prosecutor may ask the grand jury to return an indictment against a target of the investigation. Indictments serve a number of functions. First, the indictment provides the defendant with notice of the charges against him or her. The indictment also informs the court of the charges so that it may assess the legal sufficiency of the evidence and protect the defendant against successive prosecution in violation of the double jeopardy clause. Furthermore, the indictment demonstrates that a grand jury of the defendant’s peers screened the charges being brought and determined that there is probable cause to believe that criminal conduct occurred and that prosecution is warranted.

The grand jury has been described as a ‘‘shield,’’ in that it serves as protection for the criminal defendant against the power of the state, and as a ‘‘sword,’’ in that it is a potent investigatory tool used for the discovery of criminal wrongdoing. Grand juries performed both of these functions, from the colonies’ resistance to the Crown in the eighteenth century to the investigation of alleged corporate and political misconduct in the late twentieth and early twentyfirst centuries. Despite calls for reform and even abolition of grand juries by some who question their continued usefulness, grand juries continue to play the role of guardian of individual rights and effective instrument for the investigation of crime.

ROGER A. FAIRFAX, JR.

References and Further Reading

• Branzburg v. Hayes, 408 U.S. 665 (1972).
• Edwards, George J., Jr. The Grand Jury. New York: AMS Press, 1906.
• United States v. Williams, 504 U.S. 36 (1992).
• Younger, Richard D. The People’s Panel: The Grand Jury in the United States, 1634–1941. 1963.

Cases and Statutes Cited

• Hurtado v. California, 110 U.S. 516 (1884)