LawyerLandLegal Glossary

Grand Jury and Indictment

A closed proceeding in which citizens decide whether there is enough evidence to charge someone - not whether they are guilty.

Informational only - this is not legal advice. These definitions explain general legal vocabulary in plain English. They are not advice about your situation, reading them creates no attorney-client relationship, and the law differs from state to state and changes over time. For advice you can rely on, speak to a lawyer licensed in your state.

What it means

A grand jury is a body of citizens that decides whether a prosecution may be brought. It is not the jury that decides a case. It hears the prosecution's evidence, in private, and votes on whether the standard for charging has been met; if it has, it returns an indictment, the formal document setting out the charges.

Almost everything about the proceeding differs from a trial, and the differences are the reason indictment rates are high. The defence is generally not present and does not cross-examine. There is no judge in the room presiding over the presentation. The standard is probable cause, not proof beyond a reasonable doubt. The rules of evidence largely do not apply, so material that could never be put before a trial jury may be heard. And the proceeding is secret, with disclosure of what happened restricted by rule.

Being called before a grand jury does not mean a person is a suspect. Witnesses are routinely subpoenaed to give evidence or produce documents, and a witness retains the privilege against self-incrimination and may decline to answer questions on that basis. A witness is normally not permitted to have a lawyer beside them in the room - the usual practice is that they may leave to consult one - which makes advice before attending, rather than during, the useful step.

Grand juries are not universal in the United States. The federal system requires an indictment for serious offences, but the Supreme Court has never applied that requirement to the states, and states are divided: some require indictment for felonies, and many permit prosecutors to charge instead by information, with a judge testing the evidence at a preliminary hearing. Which route applies determines whether there is any early public hearing on the evidence at all.

Where this comes from

The Fifth Amendment requires presentment or indictment by a grand jury for capital and otherwise infamous crimes in federal prosecutions. Hurtado v. California, 110 U.S. 516 (1884), held that this requirement is not imposed on the states through the Fourteenth Amendment, which is why state practice varies; each state constitution or code supplies its own rule. Federal grand jury composition, procedure and secrecy are governed by Federal Rule of Criminal Procedure 6, and the alternative charging document is provided for in Rule 7. The privilege against self-incrimination available to a witness is also in the Fifth Amendment.

When people hire a lawyer for this

A grand jury subpoena is a reason to speak to a lawyer before the return date, whoever the recipient is: the distinction between a witness, a subject and a target is one the prosecutor draws and does not always announce, and it is the first thing to establish. A subpoena for documents raises separate questions about scope and about privileged material, and complying by handing over everything asked for is not always the correct response. Anyone who has been told they are a target is in a different position from a witness and should not attend to "clear things up" without advice - grand jury testimony is given under oath and stands for the life of the case.

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Part of the LawyerLand plain-English legal glossary. Definitions are written from primary sources - statutes and court rules - and each entry states the authority it rests on, or says plainly when the doctrine is state law with no national rule.
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