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What does a grand jury do?

        Historically, the grand jury--which was known as "the voice of the community" or "the people's panel"--was a way of injecting the common sense of the individuals who make up the community into government affairs.  Specifically, grand juries were used to bring the everyday person's perspective into two aspects of government:  investigating crime and/or community conditions and bringing charges against people who may have committed crimes.  They still do both these things.

Bringing charges

        In the federal system and in all but two of the states, grand juries are used to bring charges against persons who are believed to have committed crimes.  In the federal system and in some states, they HAVE to be used to bring charges for felonies, which are the more serious crimes that normally carry a prison term for those who are convicted.  In other states, they CAN be used to bring charges for felonies (or for other crimes), but don't have to be used.  If a prosecutor doesn't HAVE to use a grand jury and doesn't WANT to, he or she can bring charges on their own, using what is called an "information" as the charging document.  When a grand jury brings criminal charges, the charges are contained in a charging document that is called an "indictment."

3faq1.jpg (25342 bytes)        If a prosecutor wants a grand jury to charge someone, the prosecutor reserves time with the grand jury and then presents evidence to them.  In presenting the evidence, the prosecutor is trying to persuade the grand jurors that the people he or she wants to charge have committed certain crimes.  The evidence can be almost anything--testimony from witnesses (including police officers or federal agents), documents, video recordings, tape recordings, the results of scientific tests (like DNA tests), photographs, etc.  Here, you see a prosecutor presenting evidence to a grand jury (the gentleman is the prosecutor; the lady is the court reporter):


3faq2.jpg (30406 bytes) 

       The grand jurors listen to the evidence and decides if it establishes probable cause to believe the person the prosecutor wants to charge has committed the crime(s) the prosecutor claims.  Here, you seen grand jurors discussing evidence that has been presented to them:


      After they hear all the prosecutor's evidence, the jurors vote on a set of proposed charges--known as an "indictment"--which the prosecutor has drafted and gives to the grand jurors.  If the grand jurors decide the evidence creates probable cause to believe the persons named in an indictment committed the crimes it charges them with, they vote to "return" the indictment, i.e., to charge the person with those crimes. Voting to return charges is usually known as "returning a true bill."  If a grand jury votes to return a true bill, the indictment is valid and it initiates a criminal case against the people named as defendants in the indictment. A majority of the grand jurors must vote for an indictment in order to return a true bill.

        If a majority of the grand jurors don't think the prosecutor's evidence creates probable cause, they will vote not to return the indictment.  When a majority of grand jurors vote not to return an indictment, this is known alternatively as "returning a bill of ignoramus" or "returning a no bill."  If the grand jurors vote not to return an indictment, the indictment is not valid and no criminal case results. 

        But even if a grand jury votes not to indict, that isn't the end of things.  A grand jury's vote not to return an indictment is not a final judgment that triggers the constitutional protection against "double jeopardy."   To be protected against double jeopardy, a person has to have been "put into jeopardy" and then the proceeding in which "jeopardy attached" had to end without that person's being convicted.  The basic rule of thumb is that "jeopardy attaches" when the first witness is sworn in a bench trial (that is, a trial to the court, where there is no jury) or when the jury is sworn in if the case is to be tried by a jury.  This means, for example, that if a jury has been sworn in and heard the evidence in a criminal case and they vote to acquit the defendant, he or she cannot be re-tried on those charges.  That is precisely what happened to O.J. Simpson:  Because the jury in the criminal case acquitted him, he cannot be re-tried on any charges arising out of the death's of Nicole Brown Simpson or Ronald Goldman.   (The civil trial was not barred by double jeopardy because the double jeopardy provision only protects you from being repeatedly tried on the same CRIMINAL charges.) 


       Grand juries also investigate, either as part of bringing criminal charges or as a purely separate function.

       In the federal system, there are two kinds of grand juries:  "Regular grand juries" primarily decide whether to bring charges.   But a different kind of  grand jury--a "special grand jury"--is called into existence to investigate whether organized crime is occurring in the community in which it sits.  "Organized crime" is defined very broadly--it is not limited to the "Godfather"-style image of the Magia or La Cosa Nostra.   Instead, a special grand jury can investigate, for example, organized drug activity or organized corruption in government.  If a special federal grand jury investigates and establishes that organized crime is, or has been, occurring in the area, the grand jury can charge the individuals responsible for the organized crime and/or can issue a report describing what has been going on.  If the grand jury issues a report, it has to submit the report to the court that supervises the grand jury; the court then decides whether the report can be made public.

       Many states have "regular" (indicting) grand juries.  But a number of states also have grand juries that investigate organized crime, especially organized drug crime.  And some states let grand juries investigate any kind of crime--organized or otherwise. A few states follow the old, common law practice and let grand juries initiate their own investigations based on what the grand jurors know about what is going on in their community. At common law, grand juries could bring criminal charges in a special document--which was known as a "presentment"--when they acted on their own.  If they returned charges brought to them by a prosecutor, those charges were contained in an indictment.  If the grand jury acted without the prosecutor, they brought charges in a presentment.   Some states still let grand juries do this. Both the presentment and the indictment have the same legal effect--both initiate a criminal case.

        Since no law forbids their investigating on their own, federal grand juries could also do this, although they can't bring charges in a presentment.   In the 1970's, a federal court of appeals (the court just below the Supreme Court) held that charges cannot be brought except in an indictment signed by a prosecutor.   According to this court, if the prosecutor won't sign the charging document (which has to be an indictment), no case results.  That decision effectively stymies federal grand juries from bringing charges on their own.

        Even though they may (after all, it was only a court of appeals decision) not be able to bring charges on their own, federal grand juries can still investigate; there is no statute or decision that says they can't.  In practice, though,  federal grand juries don't initiate they own investigations --they depend on prosecutors who decide what they will investigate.  Part of the reason why federal grand juries don't bring their own investigations may be the complexity of many federal crimes.  Tax fraud and racketeering offenses, for example, can be very legally and factually complex, so it may not be possible for lay jurors to initiate these.

        A number of states follow common law practice and use grand juries to investigate things other than crime, such as conditions in the community.   At common law, grand juries administered county government, dealing with roads, bridges, and other community affairs.  With the rise of administrative agencies, this aspect of their responsibilities has fallen away for the most part.  (In California, however, grand juries continue to oversee the operation of county government; these "civil grand juries" investigate all aspects of county government, and often issue reports.)

        States do still use grand juries for some civil investigations.  Many states, for example, use grand juries to inspect local jails, to ensure they're being maintained properly. And some states use grand juries to monitor the conduct of various public affairs and the operation of various public agencies. 

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