A grand jury is a group of citizens that reviews evidence presented by prosecutors to decide whether there is enough to charge someone with a crime. Unlike a trial jury, it does not decide guilt. Its job is to screen charges before they move forward, acting as a check on the government's power to accuse. In the federal system and in many states, serious felony charges begin with a grand jury indictment.
The Fifth Amendment and the Right to Indictment
The Fifth Amendment states 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. That right applies to federal prosecutions. The Supreme Court has held that the grand jury requirement does not apply to the states through the Fourteenth Amendment, so states may use grand juries, preliminary hearings, or direct filing by prosecutors, depending on their own constitutions and laws. This is one of the clearest examples of how federal and state criminal procedure diverge.
How a Federal Grand Jury Works
Federal grand juries are governed by Rule 6 of the Federal Rules of Criminal Procedure. A grand jury has 16 to 23 members, and 12 must agree to return an indictment. It sits for a set term, often months, and may hear many cases. The prosecutor presents evidence and questions witnesses. Jurors may ask questions through the prosecutor and may request additional evidence. The grand jury's work is secret, and its proceedings are not open to the public.
Key features include:
- The prosecutor runs the presentation; there is no judge in the room and no defense attorney cross-examining witnesses.
- Jurors hear only the government's side, which is why the process is often described as one-sided by design.
- Witnesses testify under oath and may be held in contempt if they refuse.
- The grand jury returns an indictment, known as a true bill, or declines to indict, known as a no bill.
Grand Jury Compared With a Trial Jury
| Feature | Grand jury | Trial (petit) jury |
|---|---|---|
| Role | Decides whether to charge | Decides guilt or innocence |
| Size | 16 to 23 in federal court | Usually 6 to 12 |
| Standard | Probable cause | Beyond a reasonable doubt |
| Who is present | Prosecutor and witnesses; no judge or defense counsel | Judge, both sides, and the public |
| Decision rule | 12 of 23 to indict in federal court | Typically unanimous, depending on the court |
| Secrecy | Proceedings are secret | Generally open to the public |
Secrecy and Its Limits
Grand jury secrecy protects witnesses, prevents flight by targets, and encourages candid testimony. The federal secrecy rule is set out in Rule 6(e). Courts may permit disclosure in limited circumstances, such as to another prosecutor, to a court in connection with a judicial proceeding, or when a witness needs the transcript to prepare. A person who is indicted will see the charges as the case proceeds.
Indictment or Information
When a grand jury charges a person, the document is an indictment. When a prosecutor charges without a grand jury, the document is usually called an information. Federal law requires an indictment for capital and infamous crimes, but allows an information when the defendant waives indictment or for certain misdemeanors. States decide for themselves when an indictment is required, and many use preliminary hearings for some cases instead.
Rights of a Grand Jury Witness
A person called to testify before a grand jury is a witness, not a defendant, at that stage. The witness may invoke the Fifth Amendment privilege against self-incrimination, may have counsel outside the room to advise them, and may not be forced to testify if the privilege applies. A witness who is also a target of the investigation faces special risks, and courts have recognized limits on the use of certain testimony. Anyone subpoenaed to a grand jury should talk to a lawyer before appearing.
The Grand Jury as a Check on Prosecution
The grand jury was designed to stand between the government and the accused, requiring a group of ordinary citizens to agree before a serious charge could proceed. In practice, the prosecutor controls what the jury sees, and indictments are common, so critics argue the screening function is weaker than the theory suggests. Supporters respond that the grand jury still reviews the evidence, can ask questions, and can decline to indict when the proof is thin.
State Practice and Reform
State use of grand juries varies widely. Some states rely on them for all felonies, others require them only in specific circumstances, and still others allow prosecutors to proceed by information after a preliminary hearing. A preliminary hearing is an open court proceeding where a judge decides whether probable cause exists and the defense can cross-examine witnesses, which is a different balance than the secret grand jury process. Some states have debated changes to grand jury secrecy and procedures, so the current rules should always be checked.
Where to Learn More
The Fifth Amendment and Rule 6 of the Federal Rules of Criminal Procedure are available at law.cornell.edu and govinfo.gov. The U.S. Courts website at uscourts.gov publishes an explanation of how federal grand juries work. Because state rules differ, check the criminal procedure rules and statutes of the state where the case is pending.
This guide is general legal information, not legal advice. Grand jury practice varies between federal and state systems and by jurisdiction, so consult a licensed attorney for advice about a specific matter.