What is a grand jury?
A grand jury hears evidence presented by the prosecutor in secret and decides whether there is probable cause to return an indictment. It is "grand" because it is larger than the petit jury that decides guilt at trial.
- Role
- Decide whether to indict
- Basis
- Fifth Amendment
- Federal size
- 16–23; 12 votes to indict
- Features
- Secret; no defense presentation
Grand versus petit jury
| Aspect | Grand jury | Petit jury |
|---|---|---|
| Stage | Pre-charge | Trial |
| Question | Probable cause? | Guilt beyond reasonable doubt? |
| Openness | Secret | Public |
| Federal size | 16–23 | Usually 12 |
| Vote | At least 12 | Unanimous in criminal cases |
Constitution and rules
The Fifth Amendment provides that no person shall be held to answer for a capital or otherwise infamous crime without a grand jury presentment or indictment. Federal Rule of Criminal Procedure 6 sets size, the 12-vote requirement and secrecy. Grand juries can subpoena witnesses and documents.
The defense has no voice before a grand jury. Because only the prosecutor presents, the saying goes that a grand jury would "indict a ham sandwich" if asked.
State variation
In Hurtado v. California (1884) the Court held the grand jury clause does not bind the states through the Fourteenth Amendment, so many states charge by information and preliminary hearing. See U.S. criminal procedure.
Comparisons
England effectively abolished grand juries between 1933 and 1948. Japan’s Prosecution Review Commissions of 11 citizens review non-prosecution decisions and, since 2009, two "prosecution appropriate" votes compel indictment. Korea uses judicial review of non-prosecution (jaejeong sincheong).
Frequently asked questions
- Is a grand jury the same as a trial jury?
- No. It decides on indictment; the petit jury decides guilt.
- Why is it secret?
- To protect witnesses and the uncharged, and prevent flight.
- Do all states use grand juries?
- No; many use preliminary hearings.
References
- U.S. Const. amend. V.
- Federal Rules of Criminal Procedure, Rule 6 (The Grand Jury).
- Hurtado v. California, 110 U.S. 516 (1884).
- 検察審査会法（昭和23年法律第147号）. e-Gov法令検索 https://laws.e-gov.go.jp/