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!
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.
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.
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 I damn well feel like it.
This week, though.
Last 5 posts by Ken White
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