I have good news!
I doubt it.
I was going to ask you how federal grand juries work, but now I don't need to!
That is good news.
I'm just going to learn about them on Twitter!
wat
Newt Gingrich is posting some very informative stuff!
This is low. This is low, even for you.
So now you don't have to explain anything! You can just let people rely on what they read about grand juries on social media!
Damn you. Damn you to the depths of Hell.
Fine. What's your question?
Well, it's kind of a dumb question.
Believe me when I say I have thoroughly prepared myself for that eventuality.
ORIGINS
What is a grand jury, anyway?
That's actually not a dumb question at all.
A grand jury is a group of citizens brought together to determine whether to bring criminal charges against someone suspected of a crime. Here's how the Supreme Court described the grand jury and its origins in 1956:
The grand jury is an English institution, brought to this country by the early colonists and incorporated in the Constitution by the Founders. There is every reason to believe that our constitutional grand jury was intended to operate substantially like its English progenitor. The basic purpose of the English grand jury was to provide a fair method for instituting criminal proceedings against persons believed to have committed crimes. Grand jurors were selected from the body of the people, and their work was not hampered by rigid procedural or evidential rules. In fact, grand jurors could act on their own knowledge, and were free to make their presentments or indictments on such information as they deemed satisfactory. Despite its broad power to institute criminal proceedings, the grand jury grew in popular favor with the years. It acquired an independence in England free from control by the Crown or judges. Its adoption in our Constitution as the sole method for preferring charges in serious criminal cases shows the high place it held as an instrument of justice. And, in this country, as in England of old, the grand jury has convened as a body of laymen, free from technical rules, acting in secret, pledged to indict no one because of prejudice and to free no one because of special favor.
So the Constitution requires grand juries?
It requires federal grand juries. The Fifth Amendment says "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury . . . ." So, the Constitution requires that the federal government get an indictment from a federal grand jury before charging you with a federal felony.
What about states?
That's a long separate discussion. The Bill of Rights, by its terms, only limits the federal government. But early in the 20th Century courts decided that the Fourteenth Amendment made parts of the Bill of Rights applicable to the states through a process called "incorporation." The Fourteenth Amendment provides that states can't "deprive any person of life, liberty, or property, without due process of law," and courts gradually decided that various rights in the Bill of Rights (like the right to free speech or the right to remain silent) were "incorporated" in the notion of due process of law and thus made applicable against the states. But the right to indictment by grand jury has never been incorporated, and at this point is unlikely ever to be. So states can charge you with a felony without a grand jury indictment.
FORMATION
So how are federal grand juries formed? I saw a bunch of headlines that Special Counsel Robert Mueller had impaneled a federal grand jury to investigate President Trump.
Those headlines are almost certainly misleading.
Here's how it works. The Unites States' federal court system is divided into 94 districts. Some states have multiple districts — here in California there are four. Some states have only one, and the District of Columbia has some. Each district has its own United States District Court and its own United States Attorney. Each district has its own grand juries.
In the early days of America, courts convened federal grand juries when needed. But now each district has a grand jury operating all the time, and most district have multiple grand juries. Federal grand juries tend to meet anywhere from once a week to once a month, so in big districts you'll have at least one grand jury operating every day of the week.
There are some federal laws allowing new grand juries to be impaneled for special purposes. But it's extremely unlikely that's what Robert Mueller did. Rather, most likely he just started to use an existing federal grand jury in the District of Colombia, one that already existed and was formed to hear a variety of cases. That's what he previously did in Virginia.
SELECTION, TERM OF SERVICE, AND TRAINING OF GRAND JURORS
So how do you become a federal grand juror?
Federal courts select potential jurors from records of the voters in their federal judicial districts. Then the courts divide them into potential trial jurors and potential grand jurors.
The court then screens potential grand jurors to see if they are able to serve for the length of time required.
How long do federal grand jurors have to serve?
Commonly federal grand jurors serve for anywhere from a year to 18 months, meeting anywhere from once a week to once a month. It's a lot of time, which is why the court screens out the people who can't do it.
Do the lawyers get to challenge grand jurors, like at trial?
No. There's no voir dire, so prosecutors and defense lawyers don't get to ask questions and excuse people who seem to have a bias.
How are the federal grand jurors trained?
The courts commonly provide handbooks and training materials for federal grand jurors, but often federal prosecutors hold training sessions to teach them their duties.
Wait a minute. Federal prosecutors, the advocates who are going to be asking the grand jurors to agree that they've established probable cause that a crime has been committed, get to train the grand jurors in what probable cause means?
Yup. Convenient, huh?
How many grand jurors on a grand jury?
23. And 16 need to show up for there to be a quorum allowing them to operate. It doesn't always happen.
DAY TO DAY OPERATION AND PROCEDURE
So what do federal grand jurors do all day?
Well, first you need to understand that by custom and practice, federal prosecutors divide grand juries up into two types: accusatory and investigatory.
The feds have a lot of common, uncomplicated, reactive criminal cases that don't involve lengthy investigations — things like bank robberies, straightforward drug crimes (like a guy caught with a kilo of cocaine, for example), immigration crimes, and so forth. Prosecutors present those cases to accusatory grand juries for indictment. When I was a federal prosecutor on grand jury duty, I might present between four and eight simple cases to an accusatory grand jury on its day of service for indictment.
Federal grand juries use investigatory grand juries to develop complex cases over long periods of time — to subpoena documents, to bring in witnesses to testify, and to seek indictment only after many months or years.
What does accusatory grand jury practice look like?
Quick and dirty.
Federal prosecutors walk into the accusatory grand jury with the indictment they're asking the grand jurors to approve. They read the indictment to the grand jury and may or may not tell them the elements of the charged crime — that is, the legal requirements defining the offense. Then they call a case agent — an FBI agent, for instance — as a witness and ask them to summarize the investigation and the evidence. You can present hearsay and double- and triple- and quadruple-hearsay to the grand jury. So, for instance, the federal prosecutor can ask the case agent to summarize reports he or she read that contained another agent's report of that other agent's interview of a witness. The prosecutor then asks for questions, and if there are none, leaves the room with the witness and the court reporter and waits outside for the grand jurors to vote on whether to indict. It's usually a very short wait. Once they're done, the foreperson signs the indictment, the defendant is charged with a federal crime, and you move on to the next case.
What are the grand jurors deciding?
They're supposed to decide whether the charges in the indictment are supported by probable cause — that is, enough evidence to make a reasonable person believe that the defendant committed the crime. 12 grand jurors have to vote to indict to return what's called a "true bill."
What about an investigatory grand jury? What does it do all day?
It does whatever the prosecutors want it to do.
Federal prosecutors use investigatory grand juries to build cases over a long period of time. Practically speaking the grand jury is typically not an active participant in this process until the very end when it votes to indict; it's more of a bystander. The federal prosecutors decide whom to investigate, what documents to subpoena, what witnesses to call, and what to ask them. They decide the pace and the focus. Federal prosecutors may share very little with an investigative grand jury about whom they want to indict, how they plan to get there, and why any particular witness has been called or how that witness fits into the scheme of the case. The federal prosecutor may have a meticulous strategy, but generally the grand jurors are not in on it. Effective prosecutors may give brief summaries of the nature of the investigation and how a particular witness fits into it, but it's not mandatory. Federal prosecutors subpoena documents with grand jury subpoenas, but they rarely review those documents with the grand jurors or explain them or their significance — they just periodically call a federal agent as a witness and say "Federal agent, did we subpoena documents on behalf of this grand jury? Did you receive documents? Will you keep custody of them on behalf of this grand jury? Thank you."
Add to that the fact that an investigative grand jury may be hearing many different cases over their term. On a given day one prosecutor may take all of their time, but more commonly two or three or four prosecutors may be calling witnesses in different investigations. The grand jurors have notebooks, but they can't keep track of the cases in other ways, and practically speaking it would take a very unusual grand juror to keep track of all the different investigations and the flow of information and evidence and how it all fits together. I don't think I could do it, and I've been doing federal criminal law for 23 years.
(By the way, this is one of the few things that tends to disrupt the camaraderie of a U.S. Attorney's office — you have to sign up for grand jury time, and competition for the time can be fierce, and some prosecutors have bad habits like signing up for all the time for months just in case they have a witness they want to call, and so forth.)
Think of it, then, from the perspective of a federal grand jury on an investigatory grand jury. They don't have any training in federal criminal law. They don't know, until they're instructed at the time they're asked to approve an indictment, what the relevant federal criminal laws are or what the elements of those crimes are. Men and women in suits show up and call witnesses and ask those witnesses questions — often boring questions about dates and documents and such — but they have very little idea what the context is for those questions or how they connect with anything or how they build towards anything. Different men and women in different suits call witnesses and talk about documents from different cases, and it's all a blur.
Can't the grand jurors ask questions? Don't they?
They can and they do — at least occasionally. But if you're not trained in law, let alone federal criminal law, it's hard to know what to ask. The questions don't tend to be probing ones into the adequacy of probable cause. They tend to be general requests for reminders, idle curiosity, or odd tangents.
Some grand juries and some grand jurors develop reputations for being "active" — for asking a lot of questions. Then prosecutors tend to avoid those grand juries and take their cases to a different grand jury meeting another day. But in my experience, the "active" grand juries were never "active" in the sense of vigorously assuring that the government showed probable cause — they were "active" in the sense of a public meeting gadfly, asking lots of bizarre questions.
So what about when a federal prosecutor finally wants an indictment from an investigatory grand jury?
In the end it works much like an accusatory grand jury. The prosecutor drafts the indictment, reads it to the grand jury, perhaps reads them the criminal statutes or the elements of the crimes, and asks them to vote. They prosecutor may first ask an agent to summarize what they've already heard, or may discuss a summary himself or herself (though that's not evidence, since it isn't sworn.)
Bear in mind that at this point the investigatory grand jury is voting based on its memory of witnesses and evidence over the course of as much as 18 months. In fact, sometimes an investigation can last over the term of more than one grand jury — if it goes for more than 18 months, more than one investigatory grand jury may continue hearing it. In that case, sometimes the new grand jury is given the transcripts of the old grand jury proceedings and invited to read the transcripts as part of its probable cause determination. I'm sure they read it very thoroughly.
That sounds like the grand jury's probable cause determination is a sheer legal fiction.
In my opinion, at least in the case of investigatory grand juries, it often is. Now, some prosecutors will very responsibly outline all the past testimony and ask the agent to summarize it under oath and point the grand jury to relevant parts in the transcripts and diligently answer questions. But that sort of conduct is an outlier.
So why do federal prosecutors use investigatory grand juries at all? Why not just show up and ask to indict?
That goes to the strategy and tactics of grand jury practice. And that's for the next lawsplainer.
When?
When I damn well feel like it.
This week, though.
Last 5 posts by Ken White
- Popehat Goes To The Opera: Un ballo in maschera - August 19th, 2017
- Department of Justice Uses Search Warrant To Get Data On Visitors to Anti-Trump Site - August 14th, 2017
- America At The End of All Hypotheticals - August 14th, 2017
- Lawsplainer: Why John Oliver Is Anti-Diversity Now - August 11th, 2017
- Anatomy of a Scam, Chapter 15: The Wheels, They Grind - August 10th, 2017
Mr. White:
Thank you very much for posting this. It fills in a large number of blanks for me.
I have another stupid question that I hope you'll address when you damn well feel like it, and not a moment before:
Is there a legal limit to the number of times a prosecutor can present a case to the grand jury seeking indictment? I know of cases where the prosecutor has presented cases to two different grand juries and received an indictment the second time. But if grand jury #1 and grand jury #2 don't return indictments, can the prosecutor go to grand jury #3, grand jury #4, and so on until they either get their indictment, or the statute of limitations runs out?
(I would expect that, practically, after grand jury #2, someone would say "You want to present that loser to a THIRD grand jury? Do you have rocks in your head?" I would also expect that a prosecutor would have little incentive to keep presenting a case where the grand jury failed to indict barring substantial new evidence. But I can also imagine a case where some crazed Captain Ahab of a prosecutor keeps presenting the same case over and over again to different grand juries, hoping that one day they'll be able to harpoon his white whale.)
Sounds like grand juries are ripe for nullification. Could a grand juror get into legal trouble for engaging in nullification?
I have a question, could a rogue grand jury indict anyone for anything, even if they weren't asked and/or it makes no sense? Like, say, when asked to indict some guy for possessing a kilo of coke, might they instead return a true bill for racketeering against the prosecutor (surprise motherfucker)? Or for treason against Ken? Or for threatening the President against the President?
This explanation must be incomplete. I didn't see *anything* about a ham sandwich.
@Jordan
You'd need at least a quarter of the jurors to decide to do that. I imagine it's not common.
Doesn't really serve a purpose either if they can just go to another grand jury instead.
@Jordan
I served on a county grand jury (primarily but not completely in accusatory mode), and based on that experience, it would be incredibly hard to pursue jury nullification in a grand jury. The issue is that, of the 16-23 people in the room, the prosecutor only needs 12 votes to indict. To successfully "nullify" an indictment you'd need to convince 5-12 people. One person with reservations would have to be persuasive on a Henry Fonda level. Even on a couple of the cases where we did have significant questions, it was almost always easier to kick the can down the road to the trial jury.
Our prosecutors did tell us that they have never and would never take a case from one grand jury to another (unless there were actual corruption involved). I have no way of adjudicating the truth value of that claim – but see above, most of the indictments were either open-and-shut or close enough to kick to trial, so there weren't many test cases.
Doh! Thanks, Cactus and Joe. I should have read more closely.
Interesting read. We should form investigative grand jury into workings of investigative grand juries.
It might well vary by jurisdiction. In NY, you can't bring it to a second grand jury w/o judicial approval, if the first one rejected (No True Bill) charges. But AFAIK, as long as the court approves it, you can do it three, four, or thirty-four times.
Thank you, that helps
So this hints at how you might answer these related "ham-sandwich"-related questions, but I'm going to ask them anyway:
1. How often do grand juries fail to indict when the prosecutor wants them to indict?
2. Are grand juries offered a plausible range of possible charges, and if so, do they really make appropriate choices between them?
3. Do grand juries ever indict on charges outside the range of those requested by the prosecutor? If so, is the prosecutor obligated to pursue them?
4. To sum it up, could a prosecutor get an indictment of a (sentient) ham sandwich?
From a non legal person, this is amazing amount of information packed into an accessable read. Thank you! Ken, you could be the decentsecurity.com of law in my book!
@Dan
I have no idea, but that sounds like the premise of a wonderful farce. Hypothetically, they could even indict fictional characters for nonexistent crimes.
The most recent data I could quickly find was from 2014. It says that the federal government considered approximately 170,000 cases for prosecution. 14 of them resulted in no true bills.
I have heard some people rail against the grand jury as the oppressive tool of the prosecution and others praise it as a bulwark against oppression by otherwise unaccountable prosecutors. As a largely civil practitioner (I mean the type of cases I handle, not my personality) who has talked to people who have served on grand juries (and now I know why I'll never get on one), I suspect that it is neither. The impression I get it that it does neither any real good nor any particular harm, that if it did not already exist we wouldn't invent it, but that there's not much point in getting rid of it, either. Sort of like the modern British monarchy. I'd appreciate your thoughts in the follow-up post.
Should "and the District of Columbia has some" be "and the District of Columbia has none"?
I guess my question would be, if by some chance one of your readers ends up on a grand jury, what should they be doing to be '"active" in the sense of vigorously assuring that the government showed probable cause'?
I've heard of something called a "runaway grand jury". What is that?
The District of Columbia has one.
@CJColucci:
I would say the one harm in having useless grand juries is the inordinate amount of citizen time they waste for a measly $40/day.
A Grand Jury is to a Prosecutor as a Board of Directors is to a CEO. The former are technically in charge but in reality the latter controls by spoon feeding information to the former.
@Dwight Brown: If prosecutors can just keep trying again as many times as they like, then there's no point in having grand juries.
@Dan: I've wondered about that myself for a while. Prosecutions by private parties used to be common in the UK, and thus ought to have leaked into our system through common law (and if they didn't we ought to legalize the practice). But presumably a private person prosecuting a crime would also have to go to the grand jury for an indictment first, or is that a pipe dream in the first place?
@jdgalt
Private entities don't get to prosecute people because any entity with the legal power to prosecute would de facto be a government.
If you are interested in one angry grand jury, check our the history of the Rocky Flats Nuclear Weapons Facility grand jury and the report that it wasn't allowed to issue. In spite of multiple criminal indictments, no one was ever prosecuted.
Darn you, Ken!
I hate cliffhangers :)
In Texas it seems prosecutors can take their cases to as many grand juries as they feel like. Ronnie Earle, District Attorney for Travis County, managed to get Tom DeLay indicted on his third attempt. (He got a conviction at trial, but it was overturned on appeal, and that decision was sustained on further appeal.)
This is clearly not true, since private prosecutions used to be completely normal in the UK, and yet nobody ever accused it of being an anarchy.
@Seth, a runaway grand jury is one that ignores the prosecutor's instructions, either by refusing to indict people he asks it to, or by indicting people he didn't ask it to.
Noscitur a sociis says one year at the federal level it was 14 out of 170,000, or as close to zero as makes no difference. But in NY it's more common. A friend of mine used to be a prosecutor and told me of one case where it happened to him; he was astonished when I told him I agreed with the grand jury and I wouldn't have indicted for that charge on those facts either.
I concur with Todd, clearly a paragraph was lost because there is not a single mention of a ham sandwich. I'm eagerly awaiting the remainder of the article that has mysteriously disappeared.
jdgalt:
The UK's RSPCA (Royal Society for Prevention of Cruelty to Animals) has the ability to conduct private prosecutions. There was talk about removing that power, after some complaints about abuses, but in February the UK government decided to let them retain the power.
http://www.telegraph.co.uk/news/2017/02/07/rspca-will-keep-powers-prosecute-animal-abusers-government-rules/
Suppose that I was on a grand jury and, on my own, issued a subpoena to someone involved on a case before me.
1) Would that subpoena have any legal weight?
2) Would I have broken any laws by doing do?
3) Would it get me kicked off the grand jury?
@jdgalt, Milhouse, and Paradigm Spider: private prosecution did come over to the US with the common law but has largely been eliminated (completely in Federal court and in most states, I believe). Where it hasn't been eliminated, it's heavily restricted. See, for example, the 1980s Virginia case of Cantrell v. Commonwealth.
The 1985 Cantrell v. Commonwealth, specifically, not the 1988 one.
I used to only hear about private prosecutions when conducted by crackpots, crackpot politicians, or when someone suggested a bill that would allow conservative asshats to prosecute unfair laws with bigoted intents that prosecutors were refusing to enforce unfairly.
Yeah, I used to live in a pretty effed-up state.
The U.K. has a much stronger tradition of delegating government authority to less and less democratic institutions, especially quangos. No thank you!
(As for those 14 No True Bills in a year, how many of them do you think the prosecutor actually wanted an indictment for? I'll bet you it was less than 14, but they had to be seen to be making the attempt.)
Eduard Van Haalen has a series on the history of grand juries, mostly about in the US:
https://glibertarians.com/2017/07/the-states-and-grand-juries-part-one-the-case-of-an-enraged-husband-leads-a-couple-of-former-pro-slavers-to-quarrel-over-the-meaning-of-the-constitution/
This must be the first time anyone has ever accused one of Ken's Lawsplainers of not having enough ham.
I understand that local grand juries officially have the power to investigate anything they want, regardless of what prosecutors think. I also understand that one of their original functions was to conduct sua sponte investigations of crime by public officials. I further understand that the people running the system do everything they can to hide those facts from them, and totally freak out and try everything they possibly can to obstruct it when that fails.
Is that correct, and are things similar with Federal grand juries?
@Paradigm Spider
If that were true, the power of Citizens' Arrest wouldn't exist either, & yet it does; no matter how rarely it's used.
@Trent
Like you, I am waiting with bated breath to learn about the legal intricacies of these infamous ham sandwich prosecutions. I'm also particularly keen to find out how their subpœnas are served, & whether mustard is involved.
It's usually a very short wait. Once they're done, the foreperson signs the indictment,
It seems like there's another possible outcome you've omitted from this description. Never at all?
I believe that a Grand Jury issues subpoenas by vote, not by the act of any single member.
@Richard
I don't know if you got enough love for that comment, so have a +1 from me
Very informative post. I'd like to add some commentary to hopefully add a little bit of perspective:
@Noscitur a sociis
The most recent data I could quickly find was from 2014. It says that the federal government considered approximately 170,000 cases for prosecution. 14 of them resulted in no true bills.
These numbers should be considered in light of the following facts:
1) The standard for indictment is Probable Cause, a much much lower standard of proof than the Beyond Reasonable Doubt needed to convict.
2) Federal prosecutors generally don't like moving forward on a case that is even remotely shaky, so they generally bring a decent case.
@CJColucci
Well said. While the FGJ system may be somewhat archaic, if we got rid of it, not much would likely change, as some other system would be used to conduct investigation.
@JDGalt
Private Prosecution may sound good in theory, but in practice would likely be a disaster. I suspect there is reason it has fallen out of favor.
@Nop
If that were true, the power of Citizens' Arrest wouldn't exist either, & yet it does; no matter how rarely it's used.
While Citizen's Arrest does exist, I imagine if you check your local laws, such arrests are likely restricted to situations of immediacy- such as when you are a direct witness to a criminal act of violence (or another obvious felony) in your presence. For example; under Texas Law: Title 1, CHAPTER 14. ARREST WITHOUT WARRANT Art. 14.01. OFFENSE WITHIN VIEW. (a) A peace officer or any other person, may, without a warrant, arrest an offender when the offense is committed in his presence or within his view, if the offense is one classed as a felony or as an offense against the public peace. (emphasis mine)
Thanks, Kfix!
It's nice to feel like my sense of humour is appreciated.
As that comment's a fairly typical representation, it might come as no surprise that such appreciation isn't exactly something that people are rushing to provide (especially as it might encourage me).
Hi Ken –
Might you be able to add a few words about the judge's role in grand jury hearings? As far as I can tell, they're sitting there presiding, but the prosecutors are running the whole show. Does the judge have any input or direction in the hearing at all? Is there any notable differences between state and federal judges' roles over these proceedings? Can U.S. Magistrate Judges preside over grand juries?
Best,
Andrew
Please, could you add one sentence at the start (for the extra-stupid readers like me) that explains the difference between a grand jury and a trial jury. Something like "A grand jury decides if somebody will be tried for a crime, much like the attorney generals office in a police drama".
Aside from that, thanks for a great explanation. I love how you always mix current practice with just enough textbook information so we layfolk can understand the context see how it fits together.