What happens when a jury is bound

The grand jury
in American criminal procedural law

First published September 30, 2010
Theresa Dietz *

I. Introduction

It is common knowledge that a jury In American criminal proceedings, it represents the entirety of the jury in a criminal case and usually decides on the guilt of a defendant. About the Grand jury system however, there are a lot of rumors and a lot of half-knowledge.

This may be due to the fact that grand juries now only exist as preliminary investigations in the United States and only about half of the states use them in criminal proceedings. In addition, they advise in a secret session, and everything about the grand jury is shrouded in a mystery1. Everyone who has access to the proceedings must adhere to the rule of secrecy: public prosecutors, Grand Jurors, Reporters and the prosecution staff preparing to appear before the grand jury. The witnesses who testify before the grand jury are an exception2. Most legal systems in the US even consider it a crime if this confidentiality obligation is violated.

II. Definition of the grand jury

The grand jury consists of a minimum of 16 and a maximum of 23 people Grand Jurors3. It is selected at random by the competent court in the district in which the offense is alleged to have been committed and is used whenever proceedings before the grand jury are required. This must then continue to perform its duties until the court acquits it again. Overall, however, the grand jury procedure may not last longer than 18 months, unless the extension of the procedure is in the public interest.

As a rule, the grand jury consists of the same pool of people like that Trial jury, the jury in the main trial. However, it differs from it in two ways:

On the one hand, criminal proceedings before the grand jury can take a longer period of time than proceedings before a trial jury. The D.C. Superior Court in the federal capital Washington, for example, has set up five grand juries with 23 people each. Three of the five grand juries meet for deliberation five days a week over a period of one month. The other two juries meet three days a week4.

In cases where complex and long-term investigations are necessary, such as organized crime, political conspiracies or corruption, the grand jury becomes the judge impaneled: She is selected and summoned to court. Then she usually only consults two to three days a week, and the procedure is extended and can then last up to 24 months.

On the other hand, unlike the trial jury, the grand jury does not decide whether someone is guilty. It only determines whether the evidence is sufficient to lead a criminal trial, taking into account the charges that the prosecution intends to bring.

III. Grand Jurors Qualifications

The Grand Jurors conceptually represent the individual thoughts, experiences and reactions of the average citizen. In American criminal proceedings, all citizens have the option of becoming a member of a grand jury in their judicial district. In particular, according to federal regulations, no one may be excluded from service for reasons of race, skin color, religion, gender, national origin or economic status.

The grand jurors are only required to be at least 18 years of age5.

In addition, that requires common lawthat the Grand Jurors are based in the judicial district where the crime was committed6.

IV. Purpose of the Grand Jury

The purpose of the grand jury is to investigate crimes and violations of the law. If, following the assessment of the evidence, she is convinced that there is sufficient suspicion, she will bring an indictment7.

It thus prevents criminal proceedings from coming about solely on the basis of an unchecked indictment by the public prosecutor's office and acts as an extension of the prosecution. in the Fifth amendment to the Federal Constitution it is stipulated that, with a few exceptions, an indictment by the grand jury is always required before criminal proceedings come before the court.

An indictment is only not necessary if the dispute arose in the area of ​​land and naval forces, in the context of military service, at times of war or in the case of existing public danger. The grand jury independently determines the facts of a crime and decides impartially whether there is sufficient evidence that a crime has been committed9. Since the grand jury only has to determine whether there is sufficient suspicion, it is not forced to deal with all the evidence or even to hear contradicting testimony. Above all, it does not have to deal with evidence that contains facts exculpatory for the accused10.

So if the prosecution seeks admission of the indictment, it is their job to present representative evidence to the grand jury and to convince them that a particular crime has actually been committed. The public prosecutor's office can provide the following evidence for this: witness statements (including those from police officers and FBI agents), important documents, results of scientific investigations, photos, video and tape recordings. The public prosecutor's office is therefore a kind Advisor for the grand jury. However, it can never interfere with the legal independence of the grand jury11.

With its independent investigative measures, however, the grand jury primarily protects the citizens from unfounded criminal proceedings. It controls the power of the public prosecutor's office and thus takes on a checking function12.

V. The Grand Jury's Procedures

The grand jury's process is largely informal when it comes to gathering information. However, the court can intervene in the process at any time to ensure that the grand jury functions properly. The grand jury is not bound by the rules of evidence that normally apply in court proceedings13.

She gets her evidence by the office of the respective court, at the request of the grand jury, serving the witnesses with a summons, the so-called Subpoena. There are basically two types of summons: the Subpoena ad testificandum, with which the court seeks a testimony and which Subpoena duces tecumwith which other evidence such as documents, photos or tape recordings are obtained14. In grand jury proceedings there is no right to refuse to testify, which is a decisive difference to criminal proceedings in Germany, where the right to refuse to testify entitles the witness in court or other government agencies to completely refuse to provide information about himself or a third party under certain conditions15.

If witnesses in an American criminal case refuse to testify, they can be arrested. A legal contestation of the joint detention is not possible. In contrast to ordinary court proceedings, witnesses are allowed to testify what they know from hearsay, and the results of unauthorized investigative methods such as clandestine searches are allowed to be noted.

It is true that this questionable or illegal evidence may not be introduced into the ordinary court proceedings after the indictment has been brought, but the public prosecutor's office will then already have knowledge of it in practice and can use it in its strategy without the defense ever finding out about it.

If, on the basis of the evidence available, the Grand Jurors are convinced that the crime has been committed, a majority of them will decide that the charge will be admitted: from that point onwards it will be valid. At the same time, criminal proceedings are initiated against the person in the indictment.

Even if the grand jury chooses not to bring charges, their decision does not mean the end of the process. The decision of this jury is not a final judgment, which in the principle Ne bis in idem, double Jeopardy, flows out16. In practice, however, it seldom happens that a prosecutor who fails to succeed in front of the jury will re-indict the same offense.

VI. Conclusion

Although the American criminal procedure cannot be compared with the German one, the question arises as to the advantages and disadvantages of a grand jury system.

On the one hand, wrong decisions by a single person can be counteracted, since each member of the grand jury has to justify his decision in this committee and justify it to the other members. It should also be positively emphasized that the individual citizen is more involved in the criminal proceedings and can actively participate in it, so that the decision of the grand jury is ideally neutral and reflects the values ​​of society.

On the other hand, the decisions can be arbitrary and disregard legal principles. After all, the jury does not have to justify its decisions either to the outside world or in the subsequent criminal proceedings in court. This means that the decisions made can be difficult to predict and just as difficult to understand for the general public. In addition, as legal laypersons, members of the grand jury can be overwhelmed with certain legal questions because they are not sufficiently qualified to do so.

Theresa Catherina Dietz studied law at the Julius Maximilians University in Würzburg. European and international legal and business transactions formed her university focus. She is currently doing her legal clerkship in the district of the Düsseldorf Higher Regional Court. Her legal practice focuses on national and international criminal law as well as on the field of intellectual property law. Ms. Theresa Catherina Dietz is currently in her elective position at the commercial law firm Berliner, Corcoran & Rowe, LLP. She thanks Mr. Clemens Kochinke, MCL, Attorney at Law and Mr. Thomas Wilson, Attorney at Law, for helpful suggestions on this article.


1 Cf. Rule 6 (e) (2) of the Federal Rules of Criminal Procedure, AmJur Vol. 2d, 2010, Grand Jury, Section 53. Originally, secrecy was used to ensure that Grand Jurors to protect against improper loads. Meanwhile, the escape of the accused, against whom an indictment is being considered, is also to be prevented. It should be ensured that the grand jury can consult without external pressure. Witnesses should be encouraged to freely express any information they may have about a crime.

2 A witness can speak about what happened in the courtroom after giving evidence to the grand jury, see Rule 6 (e) (2) (B) (v) of the Federal Rules of Criminal Procedure.

3 See Rule 6 (a) (1) of the Federal Rules of Criminal Procedure.

4 See the Grand Jury Service of the D.C. Superior Court.

5 On the requirements placed on grand jurors, see Section 1865 U.S. Code.

6 See AmJur Vol. 2d, 2010, Grand Jury, § 9.

7 See the Grand Jury Service of the D.C. Superior Court.

8 See the Bill of Rights, AmJur Vol. 2d, 2010, Grand Jury, § 5.

9 See AmJur Vol. 2d, 2010, Grand Jury, § 2.

10 See AmJur Vol. 2d, 2010, Grand Jury, § 41.

11 See AmJur Vol. 2d, 2010, Grand Jury, § 8.

12 See AmJur Vol. 2d, 2010, Grand Jury, § 3.

13 This particularly refers to the Federal Rules of Evidence. These regulations regulate the introduction of evidence in civil or criminal proceedings before a federal court. Although these provisions do not apply to proceedings in national courts, many states have closely adapted the rules to these rules.

14 See AmJur Vol. 2d, 2010, Grand Jury, Section 49.

15 Cf. §§ 52 ff. StPO.

16? Ne bis in idem as a prohibition of double punishment is a fundamental principle of criminal proceedings. The regulation can be found in the Fifth Amendment to the Federal Constitution. In criminal law, no one who has been acquitted by a jury of 12 jurors can be tried again for the same offense in the same jurisdiction. The public prosecutor's office has no review options in the event of an acquittal. In the area of ​​criminal law, it applies that an accused act is finally legally concluded by a final judgment.

Quotation / Cite as: Dietz, The Grand Jury in American Criminal Procedure Law, 19 German American Law Journal (September 30, 2010), http://www.amrecht.com/dietz-grand-jury-usa-2010.shtml