Federal Grand Jury Process
Federal grand juries concentrate on investigating and bringing charges for federal crimes. The Fifth Amendment to the U.S. Constitution requires that charges for all capital and “infamous” crimes be brought by an indictment returned by a grand jury. Because of the Fifth Amendment, the federal legal system has to use grand juries to bring charges. The amendment has been interpreted to require that an indictment based upon probable cause be used to charge federal felonies, unless a defendant waives his or her right to be indicted by a grand jury.
A federal grand jury has anywhere from 16 to 23 members, and their terms usually are for 18 months, while some grand juries have two-year life spans. One person is appointed as the foreperson, and another as deputy foreperson; the foreperson administers oaths and affirmations, and signs all indictments. The number of jurors concurring in the indictment will be recorded, but the record is not made public unless the court so orders. Grand jurors, interpreters, court reporters, transcribers, and government attorneys have an obligation not to disclose any matter that occurs before the grand jury.
A federal grand jury is a purely one-sided affair. The only people who may be present while the grand jury is in session are: 1) attorneys for the government, 2) the witness being questioned, 3) interpreters when needed, and 4) a court reporter or an operator of a recording device. You will notice that the target (unless he happens to be the witness), and the attorney for the target are not among those listed. After the government provides its version of the facts that supports its basis that the target of the investigation committed a federal crime the grand jury will deliberate about whether an indictment should issue. The grand jury can indict the target only if at least 12 jurors concur. This means that, on a 23-member grand jury, an indictment can issue when a bare majority votes to indict.
The indictment must be a plain, concise, and definite written statement of the essential facts constituting the offense charged. It must be signed by an attorney for the government, and it need not contain a formal introduction or a conclusion. Each count of the indictment may allege that the means “by which the defendant committed the offense are unknown.” However, in each count, the relevant statute allegedly violated must be provided. In the event that an error is made and a citation is omitted or a different offense is charged than was intended, it is not fatal unless the defendant was misled and thereby prejudiced.
Often the indictment will be sealed, or kept secret, until the defendant is in custody, and people involved in the indictment are under an obligation to keep its existence secret. At this point, the individual who has been indicted often is not aware that he has been indicted, and the US Attorney and a federal agent will walk out of the grand jury room, walk down the hall to the Federal Magistrate Judge, and in over 99% of the cases, an arrest warrant is issued. The “target” is now the “defendant.”
The magistrate will issue a warrant for each person named in an indictment. The warrant must contain the defendant’s name, the offense charged, command that the defendant be arrested and brought without unnecessary delay before the magistrate judge, and be signed by that judge. The next step is the arrest, and the often-unwitting defendant will be encountered at his home or workplace by 12-18 armed federal agents. He is arrested, brought to jail, and the next business day (which is often a Monday because the agents like to make arrests on Fridays) is when the defendant is brought before the federal court.