What is a Grand Jury?

Oftentimes, we have clients charged with felony cases in which we suggest that we should present their defense to the Grand Jury. Clients get confused between a grand jury and a jury trial. A grand jury is not the same as a jury for a jury trial.

Oftentimes, we have clients charged with felony cases in which we suggest that we should present their defense to the Grand Jury. Clients get confused between a grand jury and a jury trial. A grand jury is not the same as a jury for a jury trial.

What is a Grand Jury?

A Grand Jury is a group of 12 citizens of a Texas county who listen to the facts of a case and determine if probable cause exists for the charges alleged against the defendant.

The grand jury is also an investigative body. It can assist the district attorney’s office in uncovering evidence to support charging a particular defendant with a crime, or it can choose to independently investigate matters brought to its attention. You might hear about someone being served a “grand jury subpoena.” This is a tool used when the grand jury is investigating a potential charge or criminal matter.

How is a Grand Jury Selected?

A grand jury may be selected in two ways:

First, a district court judge may appoint no fewer than two or more than five jury commissioners to assist the court by recruiting people who are willing to serve. The commissioners are sworn with the expectation that they will then supply the court with 15 to 40 qualified potential grand jurors. It is the commissioners, not the court, who are instructed “to the extent possible” to consider race, gender, and age to have a group of potential grand jurors who represent a broad cross-section of the community.

The second method of selecting a grand jury is basically what prosecutors would recognize as “voir dire” or jury selection/questioning. The judge can have a group of 20 to 125 prospective grand jurors, an “array”, brought in for questioning regarding qualifications and willingness to serve. Once an array of citizens has been provided to the court, the court will have them swear an oath to tell the truth and then question them. The court is to select twelve grand jurors and up to two alternates and choose from among them a foreman.

How Many Grand Jurors Must be Present?

Texas Code of Criminal Procedure Art 19.40 says a quorum of nine of the twelve grand jurors must be present to discharge any duty given the grand jury. Also nine grand jurors must vote to “true bill” or indict a case. Failure to get nine votes will result in a no-bill or dismissal of the case. If only nine grand jurors are present and one grand juror does not vote to indict or “true bill” the case, then the Grand Jury must return a “no bill” and the case is dismissed.

How is the Information Presented to the Grand Jury?

Typically, the prosecutor recites the relevant facts to the grand jury so the jurors can decide if probable cause exists to indict the defendant.

However, evidence may also be presented to the grand jury through documents or testimony from witnesses, including from the defense. This is where we would submit a grand jury presentation on behalf of our client.

A grand jury presentation is a letter from counsel laying out the defense, followed by exhibits backing up the legal argument in our letter to the grand jury. Some exhibits may include character reference letters, a client’s resume, a client’s academic transcript, awards or certifications and family photographs. These documents help to personalize the client to the grand jury.

Sometimes, we also submit photographs from the scene to clearly illustrate our defense to the allegation. Additionally, polygraphs (lie detector tests) are permissible to the grand jury and often used in our presentations to show the grand jury that the client is telling the truth.

Other items we may include in our grand jury presentations or packets are screenshots of text messages between the parties involved to prove what was being said before, during or after the incident alleged. This helps show context of what was transpiring between the parties at the time surrounding the allegation. Screenshots are also helpful in showing a time line of events. Medical records may be helpful, too, depending on the allegation.

There are no rules of evidence applied to what is presented to the grand jury, so the defense can include anything and everything that is helpful to explain to the grand jury why the case should be dismissed.

What Happens in the Grand Jury Room?

The grand jury proceedings are “secret” in nature. Only certain people are allowed in the room with the grand jury when facts are being presented or when testimony is being given. Given the secret nature of the proceedings, the list in the code includes: the grand jurors, the prosecutor, the witness or accused, an interpreter if needed, a person to record the proceedings (usually a stenographer), and the bailiffs.

Defense attorneys are not allowed in the grand jury room. The defense attorney can wait in the hallway. If the client wants to testify, then the client may step in and out of the grand jury room to consult with his or attorney, if needed. However, you can imagine what this would look like to the grand jurors who are “sizing up” the credibility of the client during this process.

Should the Client Testify?

If the client wants to testify in person to the grand jury, in addition to the presentations we prepare and present, then the law requires that all testimony before the grand jury by the client must be recorded. If our client testifies before the grand jury then he or she is advised on the law regarding perjury before testifying. Once the advisement is signed, then the client goes into the grand jury room (without counsel), he or she is sworn before the grand jurors and then testifies under oath.

The danger in doing this is twofold: 1) we as defense counsel cannot be inside the room to help the client if he or she gets confused; and 2) if the case gets “true billed” or indicted then whatever the client testifies to at this proceeding can be used against the client at a traditional jury trial, should the case go to trial.

The other drawback to presenting to the grand jury is that the defense is pretty much laying their cards on the table – showing the State prosecutors the defense in advance. However, the burden of proof at the grand jury is only probable cause – very low. The burden is not Beyond a Reasonable Doubt like it would be at a traditional jury trial. Therefore, if a prosecutor is having a difficult time obtaining an indictment from a grand jury at this very low burden of proof (probable cause) then the prosecutor will have a hell of a time proving their case to a traditional jury at the level of Beyond a Reasonable Doubt.

Why Use the Grand Jury to Dismiss a Case?

Experienced prosecutors recognize that if the case is not very strong for the State, presenting to the grand jury is a great tool for a prosecutor to “dump” a case. The reason being is that when a grand jury “no bills” or dismisses a case, the prosecutor is off the hook from having to explain to anyone why the case did not move forward.

Compare that to if a prosecutor signs his or her name to a dismissal. If someone is upset about the case being dismissed, then the prosecutor may find himself/herself in hot water with the higher-ups asking for an explanation for the action. Remember, the main prosecutor – a District Attorney or a County Attorney – is an elected official. All of the prosecutors below the elected official are “assistants.” If an Assistant District Attorney or ADA makes a controversial move, then it could cost the elected official great grief.

If a witness is going to give testimony, then he or she must be sworn in mandating that he or she tell the truth and keep secret any matter about which the witness was questioned or that the witness observed. If that secrecy is violated, the witness can be found in contempt and fined $500 and/or imprisoned for up to six months.

After the questioning is over, everyone but the grand jurors leave the room so they can deliberate probable cause in private. Although just about everything concerning a grand jury investigation is secret, deliberation is the most secret.

What is the Prosecutor’s Role?

The prosecutor’s role in the grand jury process is to inform the grand jury and provide it with the details necessary to true-bill or no-bill a case. Even more, the grand jury can request the prosecutor’s assistance and “ask advice upon any matter of law or upon any question arising respecting the proper discharge of their duties.” Since a grand jury is typically composed of regular (usually non-lawyer) citizens, they oftentimes need advice regarding the law.

On occasion, a grand jury will look to the prosecutor for guidance regarding its decisions. Although most prosecutors steer away from flat-out telling the grand jury what they think should be done (i.e., “Please no-bill this case”), there doesn’t seem to be any admonition in the code stopping them from doing so. This is when we would want the prosecutor to guide the grand jury towards dismissing our case.

What Happens if We Lose at the Grand Jury?

However, if the case is “true-billed” or indicted, then we are really not much worse off (and usually better off) than if we had done nothing at all. The case just moves forward as it was before we presented. If the case is indicted, at least now the prosecutor knows the weaknesses in their case and they can still dismiss the case later down the road.

There is much more to the grand jury process. This is just a brief outline of the process to aid our clients in understanding what we mean when we say, “we may want to present your case to the grand jury.” Over 20 years of practice, this has shown to be an effective tool in disposing of our clients’ felony cases early in the criminal justice process.

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