Colorado is unique in how it deals with grand jury cases. The Sixth Amendment requirement (discussed in the previous post) that criminal cases begin with a grand jury indictment does not apply to the states. Colorado, like many other states, does not require criminal prosecutions to begin with a grand jury indictment at all. Rather, most cases are brought by prosecutors in the form of a complaint and information giving the prosecutor complete discretion about what charges to bring. Many complex cases in Colorado nonetheless begin with a grand jury indictment. This is because prosecutors point to the grand jury process and say that it protects against frivolous prosecutions. However, as we will see, the grand jury route may give the prosecutor more discretion to bring charges that arguably are not supported by probable cause.
If a qualifying felony criminal case is commenced by a complaint and information, the court will hold a preliminary hearing where the defense attorney may raise objections and call witnesses to dispute whether a given charge is supported by probable cause. This important safeguard allows criminal defendants to put on evidence to challenge the charges against them before even going to trial. It also gives defense attorneys the opportunity to cross examine the police officers at an early stage in the case allowing them to later impeach the officers if the case goes to trial. Cases brought by a grand jury indictment however don’t have this same protection.
Colorado Revised Statutes Section C.R.S. 16-5-204(4)(K) states that the district court must review whether an indictment is supported by probable cause. In its review however, the defense is not allowed to present any evidence, call any witnesses, or make any legal arguments. The judge merely looks at the transcripts from the grand jury and the indictment itself and decides whether each charge is supported by probable cause. This gives the defense no opportunity to put the officers under oath for later use at trial.
The grand jury system does have some safeguards though. The constitutional right against self-incrimination applies to testimony before a grand jury. A witness may invoke their Fifth Amendment rights and refuse to answer questions to the grand jury but must do so on a question by question basis. A witness may not assert a blanket Fifth Amendment right and refuse to testify to the grand jury.
Though the U.S. Constitution does not provide a right to counsel at the grand jury stage, Colorado law affords witnesses the right to an attorney to assist them when they testify. C.R.S. 16-5-204(d) provides a limited right to counsel for witnesses appearing before the grand jury. The attorney may sit with the witness and the witness may be advised by the attorney during the questioning, but at no time may the attorney address the grand jury, give testimony, or argue for their client.
Grand juries in Colorado, like everywhere in the U.S., are secretive. You may be investigated and indicted without the opportunity to hire an attorney, argue your case, or even know that a grand jury investigation against you exists. While this is daunting, experienced legal counsel can assist in preparing for testifying before a grand jury and avoiding indictments.