Grand juries in the United States
Based on Wikipedia: Grand juries in the United States
In the United States, you can be charged with a serious crime without ever facing your accuser. A group of ordinary citizens—meeting in secret, hearing only one side of the story, with no judge present and no defense attorney allowed—can decide that you should stand trial. This institution is called the grand jury, and it wields extraordinary power in the American legal system.
Here's the strange part: almost no other country on Earth still uses grand juries. The United States and Liberia are the only two nations that continue this practice for screening criminal indictments. That's it. Every other democracy has moved on to different methods. Japan uses something similar, but only for investigating systemic corruption—not for deciding whether to charge individuals with crimes.
What Exactly Is a Grand Jury?
To understand grand juries, you first need to distinguish them from the juries you see in courtroom dramas. The jury that decides whether someone is guilty or innocent at trial is called a "petit jury"—petit being French for small. A petit jury handles one specific case, listens to both prosecution and defense, and renders a verdict.
A grand jury is different in almost every way.
Grand juries are larger—typically between sixteen and twenty-three people. They don't decide guilt or innocence. Instead, they answer a preliminary question: Is there enough evidence to formally charge someone with a crime and put them on trial?
The evidence threshold is called "probable cause," which is much lower than the "beyond a reasonable doubt" standard required for conviction. A grand jury essentially asks: Does it seem more likely than not that this person committed this crime? If at least twelve grand jurors say yes, they issue what's called a "true bill" or indictment—from the Latin "indicare," meaning to declare or proclaim. If they say no, it's called a "no true bill," and the prosecution cannot proceed.
But here's what makes grand juries truly unusual: the accused person has no right to be there. The proceedings happen "ex parte"—a Latin phrase meaning "from one side only." The prosecutor presents evidence, calls witnesses, and makes arguments. The suspect isn't present, can't cross-examine witnesses, and usually doesn't even know the grand jury is meeting until an indictment is issued.
The Revolutionary Origins
Grand juries trace back to medieval England, where they evolved as a check on royal power. The idea was simple but radical: before the king could throw someone in prison, a group of ordinary subjects had to agree there was reason to do so. The institution spread throughout the British Empire, including to the American colonies.
In colonial America, grand juries became tools of resistance against British authority. They indicted British soldiers for misconduct. They refused to indict colonists who criticized the Crown—a form of nullification that protected political dissent. They organized boycotts of British goods. After the Declaration of Independence, grand juries rallied support for the revolutionary war.
The founders saw grand juries as essential safeguards against government tyranny. When they wrote the Fifth Amendment to the Constitution, they enshrined the grand jury requirement: "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury."
In those early decades, grand juries were genuinely powerful. Any citizen could bring a matter directly before a grand jury—a complaint about a pothole that needed fixing, a corrupt official, or a serious crime. Grand juries conducted their own investigations. They didn't just rubber-stamp what prosecutors brought them; they actively sought out wrongdoing.
Most criminal prosecutions at the time weren't even conducted by government attorneys. Private citizens—crime victims, their families, or hired lawyers—would bring cases before grand juries. If the grand jury found sufficient evidence, they would essentially deputize the private citizen to prosecute the case on behalf of the state.
The Rise of the Prosecutor
Everything changed in the latter half of the nineteenth century with the emergence of professional public prosecutors—district attorneys, state attorneys general, and their federal counterparts called United States Attorneys. These officials took over criminal prosecution from private citizens, and in doing so, fundamentally altered the grand jury's role.
Instead of citizens bringing cases to grand juries, prosecutors now controlled what cases grand juries would see. Instead of grand juries conducting independent investigations, prosecutors directed the investigations and decided what evidence to present. The grand jury transformed from an active check on government power into something closer to a formality—a step prosecutors had to go through, but one they almost always won.
Today, there's a well-known saying among lawyers: a prosecutor could get a grand jury to "indict a ham sandwich." The phrase, attributed to a New York judge in the 1980s, captures the reality that grand juries almost never reject a prosecutor's request for an indictment. Federal prosecutors obtain indictments in more than ninety-nine percent of cases they bring.
How Grand Juries Work Today
The federal government is required by the Constitution to use grand juries for all felonies—serious crimes punishable by more than a year in prison. Misdemeanors, lesser offenses, can be charged without a grand jury.
Only about half of U.S. states require grand jury indictments, and many of those limit the requirement to the most serious felonies like murder. The other states use "preliminary hearings" instead—court proceedings where a judge, not a jury, determines whether there's probable cause. In a preliminary hearing, the defendant is present and has an attorney who can cross-examine witnesses. It's a more adversarial process than the one-sided grand jury.
Grand jurors are selected from the same pools as regular trial jurors—typically lists of registered voters. But unlike trial jurors, they aren't screened for potential bias through the process called "voir dire." You can serve on a grand jury even if you've read about the case in the newspaper or formed preliminary opinions. Grand jurors are only disqualified for basic eligibility factors: felony convictions, language barriers, and the like.
A federal grand jury serves for a term of up to eighteen months, meeting a few days per month. During that time, they'll hear dozens or even hundreds of different cases, all presented by prosecutors from the same U.S. Attorney's office. They develop ongoing relationships with those prosecutors, which critics argue makes them more likely to defer to prosecutorial judgment.
Everything happens in secret. Grand jurors, witnesses, and prosecutors are forbidden from revealing what occurs in the proceedings. The official justifications for secrecy include protecting grand jurors from intimidation, preventing innocent people from being stigmatized by unfounded accusations, avoiding tipping off criminal suspects who might flee, and encouraging witnesses to speak freely. But secrecy also shields the process from public scrutiny and accountability.
The Tools of Investigation
Grand juries possess remarkable investigative powers. They can issue subpoenas—legal commands requiring people to testify or produce documents. Unlike police, who generally need search warrants approved by judges, a grand jury subpoena requires no judicial approval. Prosecutors simply issue them in the grand jury's name.
Witnesses before a grand jury have no right to have their attorney present in the room. They can leave the grand jury room to consult with a lawyer waiting outside, but this awkward arrangement is no substitute for real-time legal advice. Witnesses who refuse to appear or refuse to answer questions can be held in contempt and jailed for the remainder of the grand jury's term.
The Fifth Amendment does protect witnesses from being compelled to incriminate themselves. A witness can "take the Fifth" and refuse to answer questions that might expose them to criminal liability. But prosecutors can override this protection by granting immunity—a promise not to use the witness's testimony against them. Once immunized, the witness must testify or face contempt charges.
These powers make grand juries potent investigative tools, particularly for complex cases involving organized crime, public corruption, or financial fraud. Prosecutors can use grand jury subpoenas to gather documents, compel reluctant witnesses to talk, and build cases that would be difficult to develop through ordinary police investigation.
Special Grand Juries
Federal law provides for a distinct category called "special grand juries." While regular grand juries primarily decide whether to charge individuals with crimes, special grand juries are convened specifically to investigate organized criminal activity—drug trafficking networks, systematic government corruption, racketeering enterprises.
Special grand juries can sit for up to three years, much longer than the eighteen-month limit for regular grand juries. They're required by law in every federal judicial district with more than four million inhabitants—essentially, the country's largest metropolitan areas.
Some states have their own versions. Georgia law allows for "special purpose grand juries" focused on single topics. These became nationally prominent in 2022 and 2023 when a special purpose grand jury in Fulton County investigated efforts to overturn the 2020 presidential election results in Georgia.
Importantly, Georgia's special purpose grand juries cannot issue indictments themselves. They issue "presentments"—reports of their findings and recommendations—which then go to a regular grand jury for any actual charging decisions. This two-step process added an extra layer to the Georgia election investigation, as a regular grand jury ultimately had to approve the indictments that the special grand jury had recommended.
Civil Grand Juries
Not all grand juries deal with criminal matters. California has a distinctive institution called the civil grand jury, empaneled annually in every county. These bodies don't investigate crimes or issue indictments. Instead, they examine the operations of local government—county agencies, city departments, special districts, school boards.
Civil grand jurors tour jails and juvenile detention facilities. They review how tax dollars are spent. They investigate complaints about government inefficiency or misconduct. At the end of their term, they publish reports with findings and recommendations, which local officials must formally respond to.
This oversight function echoes the original colonial conception of the grand jury as a general watchdog over public affairs, not just a gatekeeper for criminal prosecutions.
The Michigan Anomaly
Michigan took a completely different path. In 1917, the state enacted what became known as the "one-man grand jury" law. Under this system, a single judge can investigate whether probable cause exists to suspect that a crime has been committed. The judge can subpoena witnesses, compel testimony, and issue arrest warrants.
But there's a crucial limitation: the one-man grand jury cannot issue indictments. It can only recommend prosecution to the county prosecutor, who retains the final decision on whether to bring charges. This arrangement preserves some investigative function while eliminating the group deliberation that defines traditional grand juries.
The Critics
Grand juries face substantial criticism from legal scholars, defense attorneys, and civil liberties advocates.
The secrecy that surrounds proceedings, while designed to protect the innocent, also prevents any meaningful oversight of how prosecutors use their power. Grand jurors themselves are sworn to secrecy and cannot publicly explain or defend their decisions, even when those decisions spark controversy.
The prosecutor's near-total control over what evidence a grand jury sees creates an obvious potential for manipulation. Unlike at trial, prosecutors presenting to grand juries have no obligation to share evidence favorable to the accused. They can present a one-sided case and obtain an indictment even when significant evidence of innocence exists.
The composition of grand juries raises equity concerns. Studies have found that grand jurors tend to be older, wealthier, and more educated than the general population—not representative of the communities whose members they're deciding to charge with crimes. Some counties have addressed this by drawing grand jurors from the same pools as regular trial jurors, but the problem persists in many jurisdictions.
Defense attorneys argue that targets of grand jury investigations should be allowed to appear and present their side of the story, or at least to have counsel present when they're called as witnesses. The current system, they contend, tilts too far toward prosecution.
The Constitutional Argument
Legal scholar Suja Thomas has advanced a provocative argument: the grand jury is the only right in the Bill of Rights that the Supreme Court has not required states to protect.
Through a legal doctrine called "incorporation," the Supreme Court has gradually applied most Bill of Rights protections—originally binding only the federal government—to state governments as well. Freedom of speech, the right to counsel, protection against unreasonable searches—all these federal rights now constrain state governments too.
But not the grand jury right. The Supreme Court has allowed states to abolish grand juries entirely and use preliminary hearings instead. Thomas argues this is inconsistent with how the Court has treated other fundamental rights, and that the founders intended grand juries as an essential check on government power at all levels.
Her broader critique extends beyond the grand jury to juries generally. Thomas argues that the founding generation conceived of juries—grand and petit alike—as a co-equal branch of government, a check on prosecutors, judges, and legislators comparable to the checks those branches exercise on each other. Through two centuries of legal development, she contends, these other branches have systematically stripped juries of their power, leaving a system where professional lawyers and officials dominate every stage of criminal justice.
A Democratic Paradox
The grand jury embodies a peculiar tension in American democracy. On one hand, it represents citizen participation in the justice system—ordinary people, not just lawyers and judges, deciding who faces criminal prosecution. On the other hand, its secret proceedings, one-sided presentation, and prosecutor-controlled agenda make it largely a rubber stamp for government power rather than a check on it.
The institution that once indicted British soldiers and protected revolutionary dissent now indicts whomever prosecutors ask it to, in proceedings hidden from public view. The question isn't whether grand juries serve their original purpose—they clearly don't. The question is whether they serve any meaningful purpose at all, or whether they've become, as critics charge, a vestigial organ of American law—still present, still functioning, but no longer performing the job for which it evolved.
For now, grand juries remain embedded in the federal Constitution and entrenched in half the states. Anyone facing serious federal criminal charges—from tax fraud to terrorism, drug trafficking to public corruption—will first have their fate weighed by sixteen to twenty-three anonymous citizens meeting behind closed doors, hearing only what the prosecutor chooses to tell them. It's an arrangement unique in the democratic world, a relic of English common law that America alone continues to practice.