The Grand Jury in the Criminal Justice System
A lot has appeared in the media regarding grand juries, so we thought a summary of their role in the criminal justice system would be helpful. Both federal and Michigan law provide for grand juries, and although their function is similar there are important differences.
Under the Fifth Amendment to the United States Constitution, “[n]o person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury.” U.S. Const. amend. V. So, all federal felonies must be charged by way of grand jury indictment. A grand jury has the dual function of determining whether there is probable cause to believe that a crime has been committed and protecting citizens from unfounded criminal prosecution. Branzburg v. Hayes, 408 U.S. 665, 686-87 (1972).
A federal grand jury is a body of 16 to 23 people summoned by the local United States District Court and hears evidence regarding federal offenses allegedly committed within the venue of the district court. Fed. R. Crim. P. 6(a)(1). A grand jury term is 18 months, which may be extended an additional six months in the public interest. Fed. R. Crim. P. 6(g).
The grand jury meets in secret to hear evidence presented to it by the prosecution—attorneys for the United States Department of Justice, typically Assistant United States Attorneys. Testimony is taken by the government lawyer with only a court reporter, and sometimes an interpreter, and the jurors in the room with the witness. Fed. R. Crim. P. 6(d). Although the district court has administrative supervisory power over the grand jury, a judge does not preside over the actual proceedings. The rules of evidence do not apply, and the government is under no obligation to present exculpatory evidence. United States v. Williams, 504 U.S. 36 (1992). Defendants under investigation and their counsel have no right to appear, and witnesses who appear are not entitled to have counsel with them during their testimony.
The grand jury performs its function by hearing evidence brought before it by the government, and it has the power to subpoena people to testify and furnish physical evidence, subject to be held in contempt or charged with perjury. After hearing all the evidence, if 12 or more grand jurors agree that there is probable cause to believe that certain crimes have been committed, the grand jury returns an indictment—which is the criminal charge—that is filed with the court.
Although originally designed to be a buffer between the government and its citizenry, many today believe that grand juries are simply rubber stamps for the prosecution which have extraordinary powers that can easily be abused. An often-used phrase is that prosecutors can get a “grand jury to indict a ham sandwich.”
Although many constitutional rights that appear in the Bill of Rights are applicable to the states under the 14th amendment to the United States Constitution, the right to grand jury review and indictment is not one of them. Hurtado v. California, 110 U.S. 516 (1884). In fact, in Michigan there is no constitutional or statutory right to a grand jury, but the prosecution may choose to utilize one. Typically, though, the prosecution issues a criminal complaint based on sworn testimony of an officer alleging that a crime has been committed and also seeks a warrant for the person’s arrest. The person then appears in court and has the right to a preliminary examination, which is a public hearing to establish whether there is probable cause to support the allegations in the complaint.
If, however, the prosecution chooses, it may investigate the allegations with a grand jury. In Michigan, there are two types, citizen grand juries and multi-county grand juries, together with the so-called “one-man grand jury” which is similar—all of which are creatures of statute. The advantage of these mechanisms is that the prosecution may compel people who are otherwise reluctant to appear and answer questions and produce physical evidence subject to the contempt powers of the court. Their purpose is to determine whether there is probable cause to believe a crime has been committed.
Citizen grand jury. Citizen grand juries are drawn and summoned as directed by the court, and a grand juror’s term of service is six months unless extended an additional six months. MCL 767.7, 767.7a. Not more than 17 and not less than 13 persons serve, and the court appoints the foreperson. MCL 767.11, 767.12. Unlike the federal system, witnesses appearing before the grand jury have the right to counsel who may appear with the witness during testimony. MCL 767.19e. An indictment requires the concurrence of at least nine of the grand jurors. MCL 767.23. If charged by a citizen grand jury, the defendant is not entitled to a preliminary examination. People v. Glass, 464 Mich, 266; 627 NW2d 261 (2001).
Multicounty grand jury. The Court of Appeals may convene a multicounty grand jury upon petition from the prosecution establishing that the offenses to be investigated occurred within two or more counties. MCL 767.7d. The term of a multicounty grand jury must not exceed six months unless extended by an additional six months. MCL 767.7f.
“One-man grand jury.” Michigan law also provides for an additional, and unique, means of investigating crimes—a judicial inquiry, which is popularly known as a “one-man grand jury.” MCL 767.3, 767.4. It really is not a grand jury at all, as it is conducted before a single judge. First enacted in 1917, it grew out of a recommendation of the State Bar and can be traced back to when Detroit police courts were established with inquisitorial powers. The term, “one-man grand jury” was coined by the media and picked up by the courts as early as 1924. Seldom used today, it still remains an alternative method for investigating crimes. Upon petition by the prosecution, the local circuit court may appoint a judge to investigate whether probable cause exists to suspect a crime has been committed. Although the statute authorizes the judge to investigate, subpoena witnesses, and issue arrest warrants, the judge has no authority to charge anyone with a crime. That role is for the prosecution. People v. Peeler, 509 Mich 381; 984 NW2d 80 (20022). If charged following such an investigation, the defendant still enjoys the right to a preliminary examination, which is a public hearing at which the prosecution must establish probable cause. Id.
All grand jury statutes provide the investigative bodies with the ability to compel people to testify who then become subject to contempt for noncompliance and perjury for lying, tools the ordinary detective does not have.
Grand juries in whatever form are powerful investigative bodies with the ability to compel citizens to provide evidence under oath and subject to perjury—and act in secret in concert with the prosecution. For one being investigated the process is fraught with challenges. For example, simply trying to find out what is going on can lead to allegations of obstruction of justice. For one having to testify, there is always the fear of contempt and perjury. Whether a target of the investigation or a witness, it is always best to at least consult counsel. Call Willey & Chamberlain if you are a target or a witness.
The expression is said to have been coined by Sol Wachtler, the former chief judge of the New York Court of Appeals, its highest court, and later used by Tom Wolfe in his 1987 novel, Bonfire of the Vanities. Ironically, Judge Wachtler was later indicted himself by a grand jury, which led to his conviction for kidnaping threats in federal court in New Jersey.
Willey & Chamberlain takes pride in having taken the lead on this issue in the Peeler case Michigan Supreme Court to define more narrowly the role and power of the one-man grand juror.
In addition to grand juries, the prosecution also has the ability to issue investigative subpoenas to compel witnesses to appear and provide testimony or evidence. MCL 767A.1, et seq.