The Grand Jury in the 21st Century

Chapter 20 of the Texas Code of Criminal Procedure contains information pertaining to the details of a Grand Jury. This involves not only its purpose, but its duty and the mechanics of how it works. While I have referenced some portions of that chapter in this article in order to avoid plagiarizing the text, I also have woven in my thoughts and comments on various parts of the chapter. I did not quote all of the sections but only those that I consider to be more interesting and more commonly misunderstood.

When a person is charged with a felony offense in Texas or an “otherwise infamous crime” and occasionally a misdemeanor, the prosecuting attorney, presents the case to a grand jury for its consideration for an indictment. If a case is indicted, then charges are pursued and the case must be resolved in a legal proceeding. It may not reach trial, and probably will not, as only about 8 to 10 percent of all criminal cases are ever tried to a judge or jury. If a case is “no-billed” then the grand jury says that there is not enough information present to pursue charges further. This is often a preferred method for prosecutors who are reluctant to dismiss a case for political or other reasons. I call this “passing the buck” because the prosecutor is failing to accept responsibility for his or her own decision.

Grand jury proceedings are considered “secret” and only a certain number of persons are allowed in the proceeding at different times. A defense attorney and the accused are never present in the grand jury room, unless the accused is providing witness testimony (not advised). Article 20.011 of the Texas Code of Criminal Procedure provides the following list of persons that may be present in the grand jury room while it is conducting proceedings:

(1) Grand jurors;

(2) Bailiffs;

(3) The attorney representing the state;

(4) Witnesses while being examined or when necessary to Assist the attorney representing the state in examining other Witnesses or presenting evidence to the grand jury;

(5) Interpreters, if necessary; and

(6) a stenographer or person operating an electronic recording device, as provided by Article 20.012.

If the grand jury is deliberating, only members of the grand jury may be present. As you can see from this list, the limited access greatly assists in maintaining the secrecy level, and although a record is maintained, these documents are rarely accessible to the public if ever.

From the above list, an attorney representing the State means the Attorney General, district attorney, criminal district attorney, or county attorney. The attorney representing the State, is entitled to go before the grand jury and inform them of offenses liable to indictment at any time except when they are discussing the propriety of finding an indictment or voting upon the same.

Article 20.04 allows for the attorney representing the State to examine the witnesses before the grand jury and to explain the proper way of questioning witnesses by the grand jury; however, no other person may question witnesses and without special permission may not directly address the grand jury, so often, the accused’s attorney never presents evidence or testimony to the grand jury. While Texas law allows for an accused to present evidence to the grand jury, as a criminal defense attorney, I would recommend against it because the defense attorney will not be present in the room to advise the accused how to answer a question or how to protect his or her interests. Depending on the county and the individual State’s attorney’s attitude, favorable evidence may or may not be presented to the grand jury.

Article 20.15 provides that if a person refuses to testify before a grand jury, that information will be provided to the State’s attorney or to the Court and the witness may be compelled to answer questions by imposing a fine not to exceed five hundred dollars and placing the party in jail until he or she is willing to testify. American society experienced this during the Clinton presidency. To some extent, it troubles me that someone can be jailed for refusing to testify. As a criminal defense attorney, I would advise someone that is subpoenaed to go but to only answer the questions that they know answers to and that do not possibly incriminate them of any wrong-doing. I do not believe it to be a common practice for grand juries to summon the accused, but it does happen.

If an accused or suspected person is subpoenaed to appear before a grand jury prior to any questions before the grand jury, the person accused or suspected shall be orally warned as follows:

(1) “Your testimony before this grand jury is under oath”;

(2) “Any material question that is answered falsely before this grand jury subjects you to being prosecuted for aggravated perjury”;

(3) “You have the right to refuse to make answers to any question, the answer to which would incriminate you in any manner”;

(4) “You have the right to have a lawyer present outside
this chamber to advise you before making answers to questions you feel might incriminate you”;

(5) “Any testimony you give may be used against you at any
subsequent proceeding”;

(6) “If you are unable to employ a lawyer, you have the right
to have a lawyer appointed to advise you before making an answer to a question, the answer to which you feel might incriminate you.”

These rights are very similar to those contained in the Miranda warning that is so commonly given to arrestees by the police. The most important part of this is the right to refuse to make any answers that may incriminate the accused… at least this Constitutionally protected right has not been lost.

Nine members of the grand jury must find that the information is sufficient to sustain upholding an indictment. When this happens, the foreperson of the grand jury will notify the State’s attorney, who is then responsible for preparing the documentation and submitting it. Here, it is not a unanimous requirement to find that charges should proceed, but it does require a “majority.” Usually, grand juries consist of sixteen to twenty-three people.

Personal Opinion

The grand jury is based in the United States Constitution’s 5th Amendment. While I believe it had a place in history and understand that it will likely not be amended, I sometimes question its usefulness today. As a criminal defense attorney, I have experienced multiple cases where the State’s attorney does not want to proceed with a case but rather than dismissing the case on his or her own, they will present the case to a grand jury expecting them to no bill the case… this means, charges would not be filed but the State’s attorney could “pass the blame” for the lack of indictment. I mentioned this previously. Or, I believe that grand juries often act as “rubber stamps” for the prosecutors and pass anything that is asked of them. While I would like to believe that this is untrue, the fact that the proceedings are cloaked in secrecy troubles me. After all, court proceedings are open to the public, so why shouldn’t this phase also be?

So, to conclude, a grand jury is one tool for investigation but given that it is so one-sided, it seems that it is little more than another way for the State to place blame. Thus, the next time you hear that someone was indicted by a grand jury, that does not mean that all is lost or that they have a poor case. Rather, it means that the State will be proceeding with charges against them.

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