Episode 47: Federal Grand Juries

Aug 11, 2017

The right to a Federal grand jury comes from the Fifth Amendment to the Constitution, but what exactly are they, how are jurors chosen and how do they work? We asked Erin Corcoran to join us again to explain this judicial tool. Erin is a former Senate Committee staffer, law professor, and legal consultant.

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[Virginia Prescott] Let's start with the basic, easy to understand definition, what is a grand jury? And let me clarify: There are federal grand juries. There are state grand juries. We're going to focus on Federal for our purposes because there's so much there.

[Erin Corcoran] OK great. So a federal grand jury is different from what we would refer to as a regular or petite grand jury. So the juries you see on television are juries that are assigned to decide in a criminal case whether someone's guilty or innocent. Grand juries are very different. Their job is to assist the prosecutor in investigating a crime and in the federal context it would be a felony. So a grand jury is impaneled, if the prosecutor decides that he wants to or she wants to further investigate a felony crime.

[VP] What is impaneled mean?

[EC] So it means that they're selected and the selection process is similar to how a regular jury is selected. The jury rules are called up. Jurors can be disqualified for cause reasons just as a regular jury, but a grand jury usually sits for a given amount of time and they can be assigned to actually be investigating several different cases during that time. So the prosecutors may have four or five cases that they're interested in having a grand jury investigate and so they'll impanel this jury and they'll sit at the court for weeks. I mean if I don't know if you've heard of a friend getting called for grand jury but they're basically out of commission for like six weeks and they're just they're reviewing the various cases that the prosecutors have assembled and to decide whether or not there's going to be enough evidence to indict the person that's subject to the criminal investigation.

[VP] An investigative role. That's really interesting. Is that different than other juries in general who are deciding cases?

[EC] Right. So the only thing that the grand jury is deciding is whether or not the prosecution has produced enough evidence through witnesses or documents to demonstrate that there is probable cause that the criminal defendant that's being charged did in fact commit the crime. Which is a lower standard than a regular jury has to convict for a crime. It's the same standard that a police officer would have to have in order to get a search warrant to search someone's property. Probable cause.

[VP] Well OK. So if they're investigating this must be done under the radar. Right. I mean are they deliberating in secret?

[EC] Yes. So the right to a grand jury comes from the Constitution, the Fifth Amendment, which basically says any person who's going to be charged for a capital or other infamous crime is entitled to a grand jury. And so while the grand jury definitely has that investigative function it also has a function of making sure the prosecution doesn't unduly go after someone without enough evidence. So it's almost a check on the prosecution as well as it is a tool for the prosecution to collect evidence and to sort of before they decide to go to trial.

[VP] How many people serve on a grand jury?

[EC] It can be anywhere from 16 to 23 members and you need 12 to find probable cause. So unlike a criminal jury where [you need] unanimous members to actually convict for a grand jury you only need 12 to actually go forward with an indictment.

[VP] Do ordinary citizens get called?

[EC] Yes and you're saying jury pool as regular jury pool.

[VP] If they're in an investigative role, I mean, what are the kind of responsibilities tasked with being on a grand jury? Do you have to be, I don't know how do you get educated in the case?

[EC] Well that's the role of the prosecutor. So it's interesting you mentioned earlier they're conducted in secret and in fact the only people that are allowed to be in the grand jury besides the jurors themselves are the attorneys for the government, the witness that's being questioned, if there is an interpreter that's needed that interpreter can be there and the court reporter will also be present. The records are sealed. The government attorney is not allowed to discuss who they're calling or the contents of what is what they testify to. And the grand jurors are not allowed to talk about the proceedings as well.

[VP] So no one's allowed to... if you're on a jury you're not supposed to talk about the case but you can't even say that you're on a grand jury?

[EC] You can say you're on a grand jury you just can't say what the content of the case is about.

[VP] So what are then the limits of a grand jury?

[EC] I mean the limits of the grand jury is they're not deciding the guilt or innocence of a person. They're just deciding whether or not the prosecution has met its burden in establishing that there is cause, probable cause, that this crime did occur by the person that the prosecutor thinks did it. But then once that happens, that indictment happens, then that prosecutor is responsible for taking that, having a trial, empaneling a regular jury. Right? That will then decide the guilt or innocence, a different jury, that will decide the guilt or innocence of the criminal defendant.

[VP] So this is they're check in whether or not they can go forward on a case.

[EC] Yes.

[VP]  So how are grand juries I guess used by prosecutors I mean they're in some ways vetting evidence so would that evidence you said it was sealed that can it be used later in a trial?

[EC] Sure. The evidence that the prosecution uses can be used later in a trial as long as it's admissible. Again the rules are a little bit relaxed for grand juries. One of the things to note is while the defendant can certainly be questioned by the prosecutor, his or her lawyer is not permitted to be in the room at the time.

[VP] Really? You can't have a lawyer in the room when you're testifying in front of a grand jury?

[EC] No. You can take a pause and step outside the courtroom and counsel with your lawyer on sort of what to say. There's also no judge in the room. It's just the prosecutor and whatever witnesses he or she decides to call or evidence. One of the other thing that the grand jury has, gives the prosecutor the power to subpoena so they can subpoena both witnesses and documents or both.

[VP] So what happens if the grand jury does not find probable cause?

[EC] So they can issue what's called a "no bill" and then the prosecution...it doesn't mean that the case necessarily goes away, it just means the prosecution at that point in time cannot indict that individual for those charges. And so the prosecutor would then have to go out and find additional evidence or additional witnesses and reconvene another grand jury and go through the process all over again.

[VP] So because there are federal juries would it have to be a federal prosecutor who would call a case like that?

[EC] Right. So they would be in federal district court.

[VP] OK. So of course there are recent developments that special prosecutor Robert Mueller has been using a grand jury to assist in the investigation of ties, possible ties, between the Trump administration and Russia. What are the implications of using a grand jury for that?

[EC] Well I mean I think what it means is that a special prosecutor Mueller believes that there is evidence out there that he cannot necessarily obtain with sort of his investigatory powers as a special prosecutor.

[VP] So like what, what would that mean?

[EC] I mean he may want to have access to e-mails that could be privileged or that he can't get turned over. He may want to talk to people who are part of the administration or people who knew people who were part of the administration who were unwilling to voluntarily speak with him. So having a grand jury gives him the power to issue subpoenas if you don't answer the subpoena you can be held in contempt of court or fined. So there's criminal consequences for not complying with a grand jury request to testify. In addition prior to Robert Mueller, former FBI director [James] Comey was investigating possible ties as well. A big subject of the investigation was Mike Flynn. Which there was a grand jury investigation that was put together. So their thought is, is that this investigation, given Robert Mueller's actions to date suggest, of course this is reading the tea leaves, but suggest that the investigation might be beyond Mike Flynn, that there might be other people that could be implicated. Or there's concern that there's other people that are implicated which is why he wants to have this investigatory power.

[VP] So is there any kind of political cover in calling a grand jury for someone like Robert Mueller?

[EC] I mean I think the biggest political cover is that it's all takes place in secret. Right? And so that the press is not allowed to be there, the jurors are not allowed to speak with the press, the witnesses... well, the witnesses can speak to the press if they choose to. But other than the witnesses, no one is allowed to talk to the press or to talk to anyone about what happens and the records are sealed.

[VP] I'm bringing up politics because there have been some accusations already that in locating the grand jury or grand juries in Washington D.C., for example Newt Gingrich, I know Alan Dershowitz has also said you know this is a this is a biased jury. Should there be any concern over politics in the calling for a grand jury?

[EC] I don't think so. I mean I think the jury pool in D.C. In my experience is probably in some ways somewhat more sophisticated than other potentially other jury pools just because of the number of people who are qualified to serve on the jury in Washington D.C.; many are government employees and lawyers. I think you know it sort of Robert Mueller has been while he was a U.S. attorney in the state of Massachusetts, when he was the FBI director he spent a lot of time in D.C. and in the D.C. court so he has a comfort level with the courthouse with the local rules and the individuals who are there. So it may just be that that's just sort of a place that he feels more at home with because it's a place that he's practiced in regularly and ask the most recent place that he practiced when he was in government.

[VP] So Erin, any takeaway for our listeners and fellow classmates of Civics 101 in grand juries?

[EC] Well I mean I think the other thing to think about, there's a lot of talk about how this is really political, but I think the other thing to remember is why we have a grand jury and why the Constitution requires it is also to protect citizens against unjust zealous prosecution. So it sort of serves two functions. And even the U.S. attorney manual recognizes that, right? That in one instance we want to give prosecutors the ability to look at evidence and to talk to people they might not otherwise be able to do. But at the same time we don't want there to be this sort of political nature to prosecution. And so we're going to we're going to use grand juries to protect against that as well.