The Grand Jury — A Mysterious Process Explained

Because of some recent news regarding a high profile case with which I was involved, there has been a good deal of discussion of the Grand Jury process and how it works. To many, even within the legal community, Grand Juries are mysterious and there is a lot of misinformation circulating about exactly what happens when a Grand Jury considers a case. This blog will seek to remove some of the mystery around the process.

The law says that any felony charge must be indicted by a Grand Jury before it can be tried. At some point after any felony charge is brought, it will be presented to a Grand Jury. An arrest is not a prerequisite to the Grand Jury’s consideration of a matter. Often cases are handled as “present only” cases in matters where an arrest has not been made.

A Grand Jury is made up of 18 members of a jury venire, chosen at random to serve a term. The length and frequency of Grand Jury terms vary widely depending on the case load in that jurisdiction. For example, Montgomery County’s Grand Jury meets monthly and jurors typically serve two week-long sessions. By contrast, in Autauga County, just to the North, the Grand Jury only meets a couple of times a year.

Typically, the Grand Jury only hears facts and information that is presented to it by the prosecutor. Sometimes an accused will request the opportunity to testify before a Grand Jury’s consideration of a case, although this is done rarely. In my 20+ years of practice I have only had a client testify at Grand Jury around a dozen times. Each time we got the desired result, which was that the Grand Jury “no-billed” our case, or refused to return an indictment.

In most cases, the only testimony presented to the Grand Jury will be from a “case agent” (a detective or other law enforcement officer responsible for the case) and/or any victim of the offense. Grand Jurors are allowed to ask questions of witnesses and their deliberations are done outside the presence of the prosecutor or other parties.

Once the information has been presented to the Grand Jury, they vote on whether or not they feel that there is “probable cause” to send the case on to be tried. A majority of the Grand Jurors must vote to return an indictment. If a majority of votes are against indictment the case is “no-billed” and this effectively ends the matter. If, however, a majority votes to indict the case, the case is “true-billed” and will continue on to Circuit Court where it is assigned to a Circuit Judge and placed on that Judge’s trial calendar.

Importantly, all proceedings before the Grand Jury are secret in nature and all witnesses take not only an oath to tell the truth, but also to keep secret anything that happens during their testimony.

The delay in presenting certain types of cases to the Grand Jury is becoming problematic. It is routine for there to be a 12-month to 14-month delay in presenting drug charges because the Alabama Department of Forensic Sciences has a backlog of cases for analysis of the drug evidence. The case I just finished took 18 months for the Grand Jury to consider it.

Hopefully this will lift some of the mystery and misinformation circulating about the Grand Jury and its role.

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