State and federal prosecutors may elect to use a grand jury to determine whether to levy criminal charges or an indictment against a potential defendant. Grand jury review is usually reserved for serious crimes or felonies and is commonly the first step in criminal proceedings. Federal grand juries are comprised of between 16 and 23 jurors, and differs from other trial formats in several ways. Grand jury proceedings are held in strict privacy, with no judge present, and also exclude the defense attorney. Unlike normal courts, grand juries can evaluate any evidence or testimony the prosecutor deems appropriate to present – even evidence that may eventually be excluded from the criminal trial for some reason. A unanimous decision is not necessary, but instead a supermajority of agreement for indictment is required. Depending on the jurisdiction, that may be defined as a 2/3 or 3/4 majority in favor.
Regardless of the grand jury’s findings, the prosecutor still has the prerogative to bring charges against the defendant if they feel they have a strong enough case. But a grand jury can be a valuable tool in determining whether to bring a case to trial. With the indictment of a grand jury, the prosecution may proceed to trial immediately. Without it, the prosecutor must demonstrate to the trial judge that there is sufficient evidence to continue with the case.
So where does the criminal defense attorney factor into this process? If a client suspects they may be the target of a grand jury investigation, it’s important to bring a defense lawyer in for counsel as soon as possible. Defense attorneys can meet with the prosecutor to discuss the case, and possibly negotiate on behalf of the client. Negotiations may include an agreement about the scope of testimony, and possibly even an exchange of testimony for immunity from prosecution.
There are two forms of immunity that depend on the seriousness of the witness’ own criminal liability.
- Transactional Immunity: The witness is granted immunity for any and all crimes related to the topics discussed.
- Use Immunity: In this case, the testimony provided in the grand jury can’t itself be used to prosecute the witness. But the prosecution still retains the right to charge the witness with any crime related to the testimony.
When it comes to the actual grand jury proceedings, witnesses aren’t entitled to be represented by counsel, so their lawyers cannot accompany them into the jury room. Instead, lawyers may stand by and witnesses are permitted to leave the room for consultation as necessary. In fact, it’s not uncommon for defense attorneys to advise their clients to exercise this right for every question posed.
At Breen & Pugh Law Firm, our attorneys are experienced at assisting clients through this process and obtaining the most positive outcomes on their behalf. If you suspect you may be asked to testify before a grand jury for any reason, we would welcome the opportunity to offer you the counsel and expertise of our seasoned legal team.