Interpretation and Scope of the Grand Jury Clause

The Fifth Amendment guarantees every person charged with a federal crime the right to be indicted by a grand jury. A grand jury is a group of citizens summoned to criminal court by a law enforcement official to decide whether it is appropriate to indict someone suspected of a crime. Although the right to a grand jury is mandated at the federal level by the U.S. Constitution, about one-third of the state constitutions also require indictment by grand jury for more serious violations of state laws.

Federal grand juries may consist of between 16 and 23 citizens chosen from lists of qualified state residents of legal age, who have not been convicted of a crime, and are not biased against the subject of the investigation. Grand jury proceedings begin with the prosecutor’s presenting a bill of indictment, which is a list explaining the case and possible charges. The prosecutor then presents evidence to the grand jurors in the form of exhibits, written documents, and oral testimony by witnesses.

Grand jurors are given wide latitude to inquire about the criminal charges and may compel the production of documents and records and subpoena witnesses, including the suspect under investigation. They may also question witnesses to satisfy themselves that the evidence is credible and reliable. Unlike at trial, hearsay evidence is admissible before grand juries. But like at trial, witnesses who refuse to answer questions may be held in contempt and incarcerated until they provide answers, unless the question requires disclosure of information that might tend to incriminate the witness. The Fifth Amendment’s privilege against self-incrimination may be successfully asserted during grand jury proceedings.

Grand juries are accusatory bodies, and prosecutors have no obligation to present exculpatory evidence or testimony that impeaches their witnesses. Nor do suspects enjoy an absolute right to appear before a grand jury to present their case. Suspects may appear before a grand jury with permission of the prosecutor or upon order by subpoena. Despite the prosecutor’s partisan role as the government official in charge of obtaining an indictment against the accused, the prosecutor may not compromise the grand jury’s function of standing between the accused and a hasty, malicious, oppressive, or corrupt prosecution (see Wood v. Georgia, 370 U.S. 375 [1962]). Prosecutors, for example, are prohibited from presenting false information to a grand jury, and convictions stemming from an indictment based on false information are overturned on appeal. Prosecutors are also prohibited from pressuring grand jurors to “rubber stamp” an indictment (see United States v. Sigma Intern., Inc., 244 F.3d 841 [11th Cir. 2001]).

If a majority of grand jury members agree that there is sufficient reason to charge the suspect with a crime, they return an indictment carrying the words, “true bill.” But if a majority of grand jurors determine that there is insufficient evidence to go forward with prosecution, they return an indictment carrying the words, “no bill.”


Inside Interpretation and Scope of the Grand Jury Clause