Grand Jury

Definition / Rule

The Fifth Amendment requires that “[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.” This requirement applies to serious federal criminal charges. The grand jury — a body of 16 to 23 citizens requiring a supermajority (12) to indict — serves a dual function: a shield protecting the innocent from unfounded prosecutions, and a sword providing investigative powers to uncover crime.

Key Features

1. Fifth Amendment requirement — applies to federal “infamous crimes” (felonies); not incorporated against the states (Hurtado v. California (1884))
2. One-sided proceedings — only the government presents evidence; defendants have no right to present a defense or cross-examine witnesses
3. Relaxed evidentiary standards — hearsay and other incompetent evidence are admissible (Costello v. United States)
4. No duty to present exculpatory evidence — the prosecutor need not disclose Brady material to the grand jury (United States v. Williams)
5. Secrecy — grand jury proceedings are secret; jurors, prosecutors, and witnesses are bound to secrecy under Fed. R. Crim. P. 6(e)
6. Broad investigative powers — grand jury may compel testimony and documents via subpoena; Fifth Amendment privilege against self-incrimination applies

Elements / Requirements for Valid Indictment

1. Properly constituted grand jury of 16-23 jurors
2. Quorum present (at least 16)
3. Concurrence of at least 12 jurors to indict
4. Indictment charges a cognizable federal offense
5. Indictment returned in open court

Key Cases

• Hurtado v. California (1884) — Grand jury requirement not incorporated; states may use preliminary hearings (informations) instead of grand jury indictments.
• Costello v. United States (1956) — Indictment based entirely on hearsay upheld; grand jury not bound by Federal Rules of Evidence.
• United States v. Williams (1992) — Prosecutor has no duty to present exculpatory evidence to grand jury; courts cannot dismiss an indictment based on failure to do so. Grand jury is an arm of the court, not the prosecution, but operates by its own rules.
• Branzburg v. Hayes (1972) — Reporters must appear before grand juries; First Amendment provides no journalist privilege against grand jury subpoenas.

Shield vs. Sword

Shield function: Grand jury is supposed to protect citizens against unfounded government prosecutions by requiring citizen review before trial. The grand jury can refuse to indict even if the government presents sufficient evidence (“runaway grand jury”).

Sword function: Grand jury has broad investigative powers — subpoenas for testimony and documents, ability to grant immunity in exchange for testimony, and access to matters the government could not otherwise compel disclosure of.

Reality: Critics argue the grand jury has largely lost its shield function; prosecutors dominate proceedings and grand juries routinely indict (“a grand jury would indict a ham sandwich” — attributed to Judge Sol Wachtler). Reform proposals include requiring Brady disclosure and allowing defense participation.

Policy

Democratic legitimacy: Grand jury interposes citizen judgment between the government and prosecution, preventing arbitrary or politically motivated charges.

Efficiency concern: Grand jury proceedings are time-consuming and expensive, leading states to use preliminary hearings instead.