A Federal Grand Jury is an integral part of almost any federal criminal case. Grand jury testimony often becomes a key issue in a federal criminal trial. But what is a Grand Jury exactly? How is it different than any other jury? How is the federal system different than in the Florida criminal justice system? What are your rights when it comes to a Grand Jury?
What is a Federal Grand Jury?
A Federal Grand Jury is a group of citizens that come together to determine whether there is probable cause to issue an indictment in federal court. An indictment is the charging document that lays out the crime or crimes that a person is being charged with. A Grand Jury must have between 16-23 people. The Grand Jury will generally meet over the course of several months and will sit for many cases. The court will appoint one foreperson to serve as a type of chairperson who organizes and leads the discussions.
What happens in a Grand Jury?
A prosecutor, the United States Assistant State Attorney, will typically make an opening statement to the grand jury laying out the evidence against the person for which they are seeking the indictment. The Assistant United States Attorney will then call witnesses to testify. In many cases, only the case agent will be called. Hearsay is admissible in the grand jury, so the case agent will usually testify about what his or her investigation revealed, including telling the grand jurors about physical evidence that was collected, statements made by witnesses and the defendant, and any other information the prosecutor believes is important. The Assistant United States Attorney will lay out a bare bones case in the Grand Jury because he or she only needs to establish probable cause and does not need to prove the case beyond a reasonable doubt. The Grand Jurors can ask questions of the witnesses. After the prosecutor has finished presenting the case, he or she will leave the room and the Grand Jury will discuss the evidence in secret and either sign the Indictment or refuse to sign the Indictment.
Who is entitled to be present in a Grand Jury proceeding?
Only the Grand Jurors, the Assistant United States Attorneys, a court reporter, an interpreter (if necessary) and the witness is entitled to be in the grand jury room. The person that is being charged is not entitled to appear. That person’s criminal defense attorney is also not entitled to appear. There also is no judge in the Grand Jury proceeding. This is a closed, secret meeting and is completely one sided for the prosecution. Hence, the old adage, “you can indict a ham sandwich.”
Why do we need a Grand Jury?
The Grand Jury’s job is to determine whether there is probable cause for a criminal charge. If the Grand Jury determines that there is probable cause, it will issue an Indictment and the case will proceed to court. It doesn’t mean the person has been found guilty. It simply means that there is enough evidence (probable cause) to proceed with the prosecution. If the Grand Jury decides that there is no probable cause, no Indictment would be issued and the defendant would not be arrested. This puts the initial decision on whether to bring charges against a citizen on the shoulders of other citizens, as opposed to a judge or a prosecutor. If a defendant agrees to waive his or her right to an Indictment, a prosecutor can simply sign an “Information” instead of taking the case before a Grand Jury for an “Indictment.” A prosecutor does not have to notify a person that he or she is being indicted, either. The defendant may first learn that he or she is being indicted at the time of arrest. However, the United States Attorneys Office will often send a letter to the subject of an Indictment, called a “target letter,” informing them that they are going to be indicted.
How is a Federal Grand Jury different than a Florida Grand Jury?
In Florida, Grand Juries are typically only used to indict a person on First Degree Murder charges. A Florida prosecutor is only required to take a First Degree Murder charge before a Grand Jury. For any other charge, the prosecutor can simply sign an “Information,” without the need to establish probable cause before a Grand Jury. In federal court, a prosecutor must obtain an Indictment for all felonies, unless waived by the defendant.
What are my rights if I have been subpoenaed to testify before a Grand Jury?
An Assistant United States Attorney has the power to subpoena witnesses to testify before a Grand Jury. If you are subpoenaed, you must appear. Whether you have to answer questions is another issue. You have a Fifth Amendment right to remain silent and to not incriminate yourself. However, this right is not absolute. For example, if you are given immunity for the statements you make, you may not have the right to assert your Fifth Amendment right. If you are not incriminating yourself, you may not be able to invoke your constitutional rights. There may also be privileges that you can invoke, including communications between you and your spouse, accountant, lawyer, etc. If you have been subpoenaed to testify before a Grand Jury and you are concerned that you may make a statement that is incriminating or if you have questions about your rights, call an experienced criminal defense attorney to discuss your rights and responsibilities.
Jeremy Lasnetski, managing partner at Shorstein, Lasnetski, & Gihon is a Florida Bar Board Certified Criminal Trial Lawyer and has been practicing criminal law in Jacksonville for over16 years. Mr. Lasnetski received his Bachelor of Arts degree with honors from the University of Florida in 1997 and went on to obtain a law degree and an M.B.A. from the University of Florida in 2001.
After graduation, Mr. Lasnetski accepted a position as a prosecutor at the State Attorney’s Office in Jacksonville. During the next 6 1/2 years as a prosecutor, Mr. Lasnetski tried more than 50 criminal trials, including more than 40 felony trials. He was promoted in 2007 to Division Chief of the Repeat Offender Unit. Mr. Lasnetski was also a full time member of the Homicide Prosecution Team. In 2008, Mr. Lasnetski formed the Law Office of Shorstein & Lasnetski and began defending citizens in criminal court. He represents clients in both State and Federal criminal courts.