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Grand Juries Part I: What is a Grand Jury?

In this blog series we discuss the roots of the grand jury system and its importance in criminal law in Colorado. In this post we talk about what a grand jury does and next time we will look at what protections an accused has with respect to grand jury investigations under Colorado law.

The Fifth Amendment to the United States Constitution provides in part that, “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury.” This constitutional provision applies only to the federal government, though many states use the grand jury system in some form or another. In Colorado, many high-profile crimes are brought before grand juries even though there is no such requirement. The grand jury, while foundational to our criminal justice system, is a mystery to most people.

The misconception about grand juries is that they are a strong check against frivolous prosecutions. While that was the intended purpose when the Fifth Amendment was ratified, the reality today is that prosecutors control grand juries, not the other way around. This begs the question: do grand juries protect the accused at all?
A grand jury consists of between 12 and 24 citizens who have been summoned by prosecutors to listen to evidence, authorize investigatory measures, and decide whether to indict a person. The process is closely guarded by prosecutors who have essentially free reign to present whatever information they want, in whatever form they want, with virtually no rules of evidence. The grand jury is conducted ex parte which means there is no defense counsel there to make objections or to present any mitigating information. There is no judge present, only the prosecutor, the witnesses, the court stenographer, and the grand jury members.

A grand jury typically begins with the prosecutor introducing herself to the grand jury and explaining the process and the purpose. They then describe the charges that they will present and will discuss the ongoing investigatory nature of the grand jury. Sometimes, the prosecutor begins with a few charges against a person or entity and asks the grand jury to approve and consider additional charges as the case progresses.

A person who is the target of a grand jury investigation may not know it exists until very late in the process. They may only find out when some of their associates are sent grand jury subpoenas to either produce documents or to give testimony.
The conclusion of a grand jury is typically that a person gets indicted. This means that at least a majority of the grand jurors agree that there is probable cause to arrest and charge a person with a crime. The jury signs the indictment making it a “true bill” and the judge for the jurisdiction where the grand jury was conducted then issues an arrest warrant for the accused.
At the federal level, review of the grand jury process is almost non-existent. There is no requirement that a judge review how the prosecutor conducted the grand jury, and judges rarely, if ever, find that a prosecutor abused their discretion in presenting evidence. Prosecutors don’t even need to present information that they know favors the defendant when making their case to the grand jury.
However, defense counsel may make motions to the court to challenge the grand jury process and the determination to indict a person. Experienced counsel can learn of an ongoing grand jury investigation and present mitigating facts to the prosecutors to guide the prosecutor away from indicting their client. In the next post we discuss how Colorado law is unique in the protections it affords people under grand jury investigation.

Disclaimer: The information in this blog is provided for general informational purposes only, and may not reflect the current law in your jurisdiction. No information contained in this blog should be construed as legal advice from The Eichner Law Firm or the individual author, nor is it intended to be a substitute for legal counsel on any subject matter. No reader of this blog should act or refrain from acting on the basis of any information included in, or accessible through, this blog without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from a lawyer licensed in the recipient’s state, country, or other appropriate licensing jurisdiction.