Grand Jury Evidence, Rules, Indictments

Evidence

Legal scholars of the Anglo-American tradition, have long regarded evidence as being of central importance to the law.

In every jurisdiction based on the English common law tradition, evidence must conform to a number of rules and restrictions to be admissible. Evidence must be relevant — that is, it must directed at proving or disproving a legal element.

Types of Evidence

1. Physical Evidence — such as in a murder case where the weapon has the person’s fingerprints all over it. The list of physical items that can point to a crime are almost endless. If you can touch it, feel it or smell it, this might be considered physical evidence.
    
2. Written Evidence — really, it’s same as physical evidence, but fun to talk about — the Court loves written evidence. Things like contracts, wills, birth certificates, documents — You get the picture; written evidence is a piece of paper that can be used as evidence against the accused.
    
3. Witnesses — In systems of proof based on the English common law tradition, almost all evidence must be sponsored by a witness, who has sworn or solemnly affirmed to tell the truth.

By the way, for those of you that don’t know, the defendant, is the accused. This is the person that the Grand Jury is charged with making presentments or an indictment against.

Today all persons are presumed to be qualified to serve as witnesses in trials and other legal proceedings, and all persons are also presumed to have a legal obligation to serve as witnesses if their testimony is sought. In simple terms: if a person’s testimony is relevant, he has an obligation to testify.

However, restrictions can sometimes apply to witnesses. Good examples are: the marital secrets privilegeA privilege is defined as "a particular and peculiar benefit or advantage enjoyed by a person, company, or class, beyond the common advantages of other citizens; a particular right, advantage, exemption, power, franchise, or immunity held by a person or class not generally possessed by others; a temporary authority granted to you by someone of a higher authority"., the adverse spousal testimony privilege, the attorney-client privilege, the doctor-patient privilege, the psychotherapist-patient and counselor-patient privilege, the state secrets privilege and the clergy-penitent privilege.

Witness competence rules are legal rules that specify circumstances under which persons are ineligible to serve as witnesses. For example, neither a judge nor a juror is competent to testify in a trial in which they are serving in that capacity.

Grand Juries may call upon witnesses to testify. If the jury can interview a person that was witness to a crime, you have some serious stuff happening. But that doesn’t mean you MUST have a witness physically present to actually question him about evidence. Maybe you can listen to a recording, or read written testimony, or visit by telephone with such a witnesses. Remember, the Grand Jury’s job is to determine if there is enough credible evidence to indict or not indict. That is all they do. The Grand Jury does not try a case. That is the job of the Court.

4) Evidence that the defendant lied — Lies, on their own, are not sufficient evidence of a crime. However, lies may indicate that the defendant knows he is guilty, and the prosecution may rely on the fact that the defendant has lied alongside other evidence.

5) Hearsay — Hearsay literally means information gathered by the first person from a second person concerning some event, condition, or thing of which the first person had no direct experience. When submitted as evidence, such statements are called hearsay evidence. Confusing to many people, hearsay is simply “second hand” information. Generally speaking, a Grand Jury can use and listen to hearsay if they feel it may be relevant.

6) Circumstantial evidence — Evidence of an indirect nature which implies the existence of the main fact in question but does not in itself prove it. Circumstantial evidence can actually be quite credible in court cases. Examples: The introduction of a defendant’s fingerprints or DNA sample are examples of circumstantial evidence. The fact that a defendant had a motive to commit a crime is circumstantial evidence.

Rules

Rules for Grand Juries can vary from State to State but the Federal rules, of course, are consistent. If you are trying to form a Grand Jury for the sole purpose of indicting a local citizen then you would probably want to research your State’s rules.

Lets assume for right now the Grand Jury you are organizing wants to go after a national figure, someone that has broke the law and nobody at the Federal prosecutor’s office is calling for heads to roll. Concerned citizens have every right under the Constitution to proceed with their own Grand Jury investigation.

Let me suggest something here. It is a pet peeve of mine. Don’t allow a Federal prosecutor to intimidate you if are involved with a Grand Jury. As mentioned earlier, these attorneys will sometimes try and make a Grand Jury their step-child. That is the crux of the problem with Government today. You have every right to organize a Grand Jury and, if need be, to politely tell the Prosecutor to please let the jury do its job without interference.

Now, that being said, never look a gift horse in the mouth. If you have local DA’s, Sheriffs or Police Officials that are favorable to your cause, then by all means, allow them to help you. But politics is politics. When a national or public figure is involved in an investigation chances are the Federal boys may not be so happy with your Grand Jury venture. So be careful, but remind the Federal people, in a nice way, to respect your rights.

Okay, here are some basic rules.

Number one, the Grand Jury investigation is a secret affair. That means you don’t open the Grand Jury to the public. The members that are sworn in as jurors together with support staff such as recorders, stenographers, intepreters, transcribers must never disclose a matter before a Grand Jury hearing. The reason is simple. The Grand Jury needs to protect the integrity of the investigation. When you hand an indictment to a Prosecutor you do not tip your hand to the defendant by divulging information or evidence. The Prosecutor needs all the power of secrecy so he can mount the best case possible with the evidence that the Grand Jury will hand over to him. Bottom line, if you are involved with a Grand Jury, keep your mouth shut outside of the hearing.

Rules provide for the Grand Jury to be aggressive. What does that mean? Persons appearing before the grand jury enjoy few procedural rights. The public prosecutor is not obligated to present exculpatory evidence, and the witness has no right to do so. The accused cannot confront and cross‐examine his accusers. No warnings are required regarding self‐incrimination. The likelihood of a criminal prosecution need not be pointed out. The protection against double jeopardy does not apply to grand jury proceedings. Hearsay evidence may be taken into account and the exclusionary rule does not apply. Although a witness may ask leave to step outside for consultation, he has no right to be advised by his attorney in the grand jury room.

WOW! Are you getting the picture? The Grand Jury can be somewhat ruthless when trying to pry information from witnessess with regard to a criminal investigation.

The qualifications for grand jury service generally include citizenship, the ability to read and write English, mental soundness, and minimum‐age and residency requirements. The size of most federal grand juries is twenty-three. Sixteen grand jurors constitute a quorum; twelve must agree to issue an indictment. The term of service typically is from three to eighteen months but can be extended. The Federal Jury Selection and Service Act of 1968 requires grand jurors to be drawn at random from a fair cross‐section of the community, without attention to race, color, religion, sex, national origin, or economic status.

In summary, the rules governing grand jury proceedings are very different from those governing trials by (petit) jury. The public is not admitted to hearings, and witnesses can be compelled to testify. The procedure is inquisitorial rather than adversarial: the defense is not allowed to call witnesses, and the prosecutor is not obliged to present both sides of the case. Hearsay and other evidence that might be excluded at a jury trial may be introduced in a Grand Jury room.

Some States do not use the Grand Jury metod of indictment anymore, in part because they were perceived as prone to either prosecutorial domination or abuse of their investigatory role. The Fifth Amendment to the U.S. Constitution, however, guarantees a grand jury inquiry to anyone accused in federal court of a capital “or otherwise infamous” (i.e., a felony) crime.

Indictments

In the common law legal system, an indictment is a formal accusation that a person has committed a criminal offense.

Traditionally an indictment was handed up by a grand jury, which returned a “true bill” if it found cause to make the charge, or “no bill” if it did not find cause. Most common law jurisdictions (EXCEPT for much of the United States) have abolished grand juries.

That previous statment applies to places like Canada, Australia, England, etc. The United States is the last bastion where prescribed law uses the Grand Jury system.

Why is the United States the only Nation as such that uses the Grand Jury system? It is very easy to answer. It is because we are a Free Nation and the Bill of Rights 5th Amendment under the Constitution protects us as follows:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury…

We have the right in this country to be judged by a jury of our peers and we cannot be charged with a major criminal offense UNLESS a jury of our peers hands down “presentments” or an indictment against us. The 5th Amendment is incredibily powerful. It is also the reason we need to use it before we lose it. Already the Grand Jury system in the United States is considered by many the “puppet” of the Court Prosecutor. But the truth of the matter is that the Constitution makes it perfectly clear that it is NOT. 

The Grand Jury trumps the Prosecutor with the ultimate law of the land. The Grand Jury is truly the Fourth Branch of the Government.

Our Founding Fathers were pretty smart, weren’t they?