The Grand Jury Is a Screening Device, Not a Trial

The Fifth Amendment requires a grand jury indictment for capital or otherwise infamous federal crimes. The grand jury's function is to decide whether probable cause exists to charge a person, not whether that person is guilty.

Probable cause is a low standard. It means there is a reasonable basis to believe a crime has been committed and that the person charged committed it. It does not mean the evidence is sufficient to convict. It does not mean guilt is more likely than innocence. It means the government has shown enough to require an answer.

The process that produces the indictment is unlike a trial in almost every important respect.

The grand jury meets in secret. The defendant is not present. Defense counsel is not present. The rules of evidence are relaxed; hearsay that would be inadmissible at trial is routinely presented to grand juries. The jurors hear the government's case and are not required to hear anything else.

Witnesses subpoenaed to testify before a grand jury have no right to have counsel present in the room during their testimony, though they may leave the room to consult with a lawyer waiting outside. They have Fifth Amendment rights against self-incrimination and may invoke them for individual questions. They do not have a right to present evidence or call witnesses on their own behalf.

The Justice Department's internal guidelines require prosecutors to present exculpatory evidence to the grand jury in some circumstances, a rule that has no constitutional basis and is enforced primarily through professional responsibility norms rather than dismissal of indictments.

The standard characterization of grand juries, that a competent prosecutor could indict a ham sandwich, reflects a real feature of the institution. The statistics support it. Federal grand juries decline to indict in less than one percent of cases presented to them. The filtering function that the Fifth Amendment contemplates — a check on prosecutorial overreach — operates very rarely in practice. Most federal criminal cases never reach trial at all; Plea Bargaining Is the Criminal Justice System examined what happens to the vast majority that do not.

State systems vary. Many states have abolished the grand jury requirement for most offenses and substituted a preliminary hearing before a judge, which gives the defense an opportunity to contest probable cause and cross-examine the government's witnesses. The federal magistrate who presides over the early stages of a case — and over many of those hearings — is described in The Magistrate Does the Work. Federal practice retains the grand jury for all felonies.

Grand jury secrecy is protected by Federal Rule of Criminal Procedure 6(e), which prohibits disclosure of grand jury matters by participants. The purpose is to protect witnesses, encourage candid testimony, and prevent targets from fleeing before indictment. The secrecy also means that the public has almost no visibility into the basis for an indictment at the time it is returned.

What gets disclosed later, in pretrial proceedings and at trial, often looks different from what a grand jury would have received. Evidence that seemed solid at the indictment stage may weaken when subjected to adversarial testing. Evidence favorable to the defense that was not presented to the grand jury emerges in discovery.

The indictment is an accusation. It establishes that a neutral body has found probable cause to require the defendant to answer. It does not establish anything about what a jury will find when it hears both sides under rules designed to produce a fair verdict. Those are different proceedings with different standards and different records.

The confusion between them — between the screening function and the determination of guilt — is persistent and consequential. An indictment ends careers and reputations at a standard that would not sustain a conviction. The institution was designed to protect defendants from unfounded prosecution. It also exposes them to the full weight of a public accusation before the adversarial process has run.