John L. Brewer
A primer on grand juries and the role prosecutors play in the process
It was a day like any other day. My messy desk gave the illusion that more work was being done than actually was, people were stopping by to talk, and emails were interrupting as they annoyingly do. Then it happened.
Often people say they have a premonition before things like this happen to them. Some people, like me, just walk into them blindly. “It” was an email inviting me to write an article about grand juries. My initial reaction, usually the right one, was to reply, “Brewer died recently in a horrible incident on one of the elevators in the Harris County Criminal Justice Center; therefore, he is not be available to help.” I’m a trial lawyer; I don’t write—not anything for publication, anyway.
But I reconsidered because, well, I do know a little about this stuff. Grand juries are what I do every day at the Harris County District Attorney’s Office as the Division Chief of Grand Jury. So here is my primer on grand juries and the role we prosecutors play in the process.
Are there specific statutes about grand juries?
Yes, actually. If you find yourself in need of actual legal authority about grand juries, go to chapters 19 and 20 of the Code of Criminal Procedure. Chapter 19 tells a district court judge how to “get him or herself” a grand jury and chapter 20 tells how the grand jury works once there is one.
What is a grand jury?
A grand jury is a group of 12 people who meet the qualifications set out in Art. 19.08 of the CCP. They must be citizens of the county in which the grand jury sits, able to read and write, not under indictment, etc. Pretty basic stuff—much like the citizens we want on our trial (petit) jury, we are looking for good, decent folks.
But Art. 19.06 suggests the court consider additional factors when starting the selection process: that those chosen “represent a broad cross-section of the population of the county, considering the factors of race, sex, and age.” It is a very rare occasion that the law mandates that we take into account things like race, gender, and age when selecting a group of citizens to serve in the criminal justice system. Obviously, the idea is to have a grand jury made up of people from a variety of backgrounds representing the entire county in which it sits.
Every felony case that goes to trial or pleads must be indicted by a grand jury unless the defendant chooses to waive indictment and proceed per the Texas Constitution.
The most common role of the grand jury is to listen to the facts of a case and determine if probable cause exists for the charges alleged against the defendant. The grand jury is also an investigative body. It can assist the district attorney’s office in uncovering evidence to support charging a particular defendant with a crime, or it can choose to independently investigate matters brought to its attention.1
How is a grand jury selected?
A district court judge may use one of two methods to select grand jurors, and they are both found in Art. 19.01.
The first method allows the judge to appoint no fewer than two or more than five jury commissioners to assist the court by recruiting people who are willing to serve. The commissioners must be qualified per Art. 19.01(a) and sworn in per Art. 19.03. Of course they must be able to read and write but, interestingly, they also must be “intelligent citizens of the county” and residents of “different portions of the county.” The commissioners are sworn with the expectation that they will then supply the court with 15 to 40 qualified potential grand jurors. It is actually the commissioners, not the court, who are instructed “to the extent possible” to consider race, gender, and age to have a group of potential grand jurors who represent a broad cross-section of the community.
The second method of selecting a grand jury is basically what prosecutors would recognize as voir dire. The judge can have a group of 20 to 125 prospective grand jurors, an array, brought in for questioning regarding qualifications and willingness to serve.
Once an array of citizens has been provided to the court via either of these methods, the court will have them swear an oath to tell the truth and then question them. The judge must be satisfied each person meets the qualifications spelled out in Arts. 19.08 and 19.23. Given the emphasis on diversity included in the CCP, regardless of the selection method, when the judge makes his final selections, the panel should represent a wide cross-section of citizens from throughout the county. The court is to select 12 grand jurors and up to two alternates and choose from among them a foreman. The court then administers the oath included in Art 19.34. (In Harris County we swear the alternates separately from the 12 regular grand jurors.) Voila! You have yourself a grand jury.
For those non-civic minded souls who want to escape the opportunity to serve their county, see Art. 19.25 for a list of acceptable excuses not to serve, even if someone is otherwise qualified.
How many grand jurors must be present to function?
Art 19.40 says a quorum of nine grand jurors must be present to discharge any duty given the grand jury. Also nine grand jurors must vote to “true bill” or indict a case. Failure to get nine votes will result in a no-bill. If only nine grand jurors are present, be certain that the case is strong enough to ensure a true bill if that is what you are seeking.
How is information presented to
the grand jury?
In the vast majority of cases here in Harris County, the prosecutor simply recites the relevant facts to the grand jury so the jurors can decide if probable cause exists to indict the defendant. Evidence may also be presented to the grand jury via documents or testimony from witnesses, including the accused. The CCP requires that all testimony before the grand jury by the accused be recorded,2 but the better practice may be to record all testimony before the grand jury. Before any grand jury testimony can be released to the defense, particularized need must be shown and the court would then order the release of the testimony.3
What happens in the grand jury room?
Only certain people are allowed in the room with the grand jury when facts are being presented or when testimony is being given. Given the secret nature of the proceedings, the list in the code pretty much makes sense: grand jurors, the prosecutor, the witness or accused, an interpreter if needed, a person to record the proceedings (usually a stenographer), and the bailiffs. Notice that your intern, boyfriend, and mother-in-law are not on the list, even if they think it would be really cool to sit in. The only other person statutorily allowed in the room during presentation is a witness who may assist the prosecutor in examining other witnesses. Typically this is an expert or an investigator who might have information the prosecutor needs to effectively question a witness. But be careful who asks the questions! The code restricts who can play Tomás de Torquemada; only the representative of the State or the grand jurors can actually ask questions of the witness or the accused.
After the questioning is over, everyone but the grand jurors vacate so they can deliberate probable cause in private. Although just about everything concerning a grand jury investigation is secret, deliberation is the most secret. Many errors in the grand jury process can be considered “technical” in nature and therefore will be subject to harm analysis upon appeal.4 Having someone besides the jurors in the room during grand jury deliberation will result in your case being reversed and having to try it again.5
Are there special procedures for testimony by a witness or the accused?
Yes. If a witness is going to give testimony, then she must be sworn in using the oath in CCP Art. 20.16 mandating that she tell the truth and keep secret any matter about which she was questioned or which she observed. If that secrecy is violated, the witness can be found in contempt and fined $500 and/or imprisoned for up to six months.
If the accused testifies, then Art. 20.17 controls the process. Along with providing the accused a written copy of the admonishments in Art. 20.17, similar to the Miranda warnings, the accused must be given an opportunity to consult with a lawyer if he so desires. Of course if he cannot afford a lawyer, he can ask the court to appoint one.
Before questioning starts, the accused must be told by the grand jury what he is suspected of and where and when it occurred. It seems best to just add this to the written admonishments the State must provide anyway under Art. 20.17. At no time is the defense attorney allowed in the grand jury room, though the accused should be allowed an opportunity to consult with the attorney during questioning if he desires. The attorney can wait in the hallway and the witness may step in and out of the grand jury room to consult. If that gets too tedious, the grand jury can certainly terminate the questioning and just vote based on what they have heard. That usually doesn’t go too well for the accused.
For what can the grand jury actually indict the accused?
In most circumstances we prosecutors have a charge in mind when we present a case to the grand jury. Regardless of what we expect, the grand jury can no-bill a case or return a true-bill if probable cause exists for any offense they think applies, including a lessor charge or a misdemeanor.
What is the
Clearly our role is to inform the grand jury when criminality is afoot in our jurisdictions and provide it with the details necessary to true-bill or no-bill a case. But the prosecutor’s role when dealing with grand juries goes much farther. Statutorily, CCP Art. 20.05 tells us that the grand jury can request our assistance and “ask advice upon any matter of law or upon any question arising respecting the proper discharge of their duties.” Because a grand jury is typically composed of regular (usually non-lawyer) citizens, they oftentimes need advice regarding the law.
On occasion, a grand jury will look to the prosecutor for guidance regarding its decisions. Although most prosecutors steer away from flat-out telling the grand jury what they think should be done (i.e., “Please no-bill this case”), there doesn’t seem to be any admonition in the code stopping us. I think the real reason is wariness on the part of the prosecutor to be seen as controlling the grand jury or infringing upon its independence. Such straightforward requests from a prosecutor can often upset the sensibilities of a grand jury, resulting in questions like, “Why are you using us to get rid of the case? Why didn’t you dismiss it?” The reality is that we may be “allowing” them to dispose of a case that ultimately we would have to dismiss. Is that OK, or should we be taking the responsibility and filling out the nolle ourselves? I can say that I have done both many a time. It seems to me that both prosecutors and grand juries have the responsibility of disposing of “bad” cases. Their responsibility starts at determining if probable cause exists but also includes a healthy dash of “how do we feel about this particular case in our county?”
What to do with evidence that favors the defendant
Obviously taking cases to a grand jury is not an adversarial proceeding because the defense attorney is not allowed in the room. Because it is not adversarial, appearing before the grand jury is another one of those times where prosecutors need to play the roles of both prosecutor and defense attorney. Being fair in the grand jury room definitely includes informing the grand jury of things exculpatory and mitigating. The goal is to give the grand jury a complete picture of all the relevant facts, good and bad. After all, these are facts the State may have to deal with at trial, and this is probably our first chance to see how a “jury” responds to them. If the grand jury is uncomfortable with the case, you better believe the prosecution will have issues at trial. For a short discussion of the split in Texas caselaw on the necessity to present exculpatory evidence to the grand jury see In re Grand Jury Proceedings.6
What we should not address in the grand jury room
Issues that are irrelevant or purely meant to prejudice the accused should not be relayed to the grand jury. Also, be careful that any paperwork grand jurors receive before voting does not contain such things. Information such as race and criminal history typically is not relevant to determining probable cause.
But like any good, simple rule, there is always an exception. Criminal history can be relevant when it is jurisdictional (e.g., theft 3rd or DWI 3rd). Criminal history can also be relevant when the accused has engaged in a crime that fits a pattern from his past. The fact that an accused has stolen cars in the past may not be information prosecutors need to pass on to the grand jury in an auto-theft case, but the fact that the accused has previously used a knife to kill two people, making the same claim of self-defense as in your murder case, I believe is relevant. Of course the grand jury can always decide to ask about criminal history. If they do, prosecutors have two choices, to tell them or not, but if you do, make sure they know they should not use that information to determine probable cause in your case.
Should I encourage the grand jury to hear witnesses?
The answer is always yes if the witness is the accused! Grand-jury testimony is an unprecedented opportunity to ask the defendant any questions, including about his defenses, who helped him, to whom he has told his story, who his witnesses are, what he did with the evidence, what he did in the two weeks between the crime and his arrest, and anything else we can think of. You may even get information that allows you to obtain a search warrant. Remember, a prosecutor’s job in grand jury is not to refute what the defendant says, but to gather information, including material that may be of use against the defendant in trial.
When a prosecutor is considering putting a witness other than the defendant before the grand jury, the question is a little more complicated. The State certainly can use the grand jury to “tie down” a witness’s testimony. If you’re not sure what the testimony will be, then it’s best to find out now. If you already know what the story is—and let’s hope it has been written down or recorded—then it might be unnecessary. Also note that though a defense attorney has to show “particularized need” to obtain grand-jury testimony, that decision is up to the judge.
How secret are grand jury proceedings?
Secret enough to cost a violator $500 and 30 days in jail! The code tells us that the “proceedings of the grand jury shall be secret.” Provisions are made in Art. 20.02(c) for prosecutors to share information obtained via the grand jury with another grand jury, a law enforcement agency, or another prosecutor when they need their assistance with the case. The code also says when a prosecutor does share such information, she should also admonish the recipients that they must keep it secret. It is not required, but if you are sharing grand jury transcripts or other information obtained via the grand jury process with other another law enforcement agency, it may be advisable to obtain a court order allowing the release. When you release the information, have the recipient sign an acknowledgement that she has been admonished to keep the information secret.
Of course there is much more to the grand jury process than I can put in an article, but I hope this information gives readers a place to start. Look closely at Chapters 19 and 20 to find answers to any other questions. If not, I’m happy to help, and maybe we can figure it out together.
1 Tex. Code Crim. Proc. art. 19.34.
2 Tex. Code Crim. Proc. art. 20.012.
3 Tex. Code Crim. Proc. art. 20.02(d)(e).
4 Mason v. State, 322 S.W.3d 251 (Tex. Crim. App. 2010).
5 Ray v. State, 561 S.W.2d 480 (Tex. Crim. App. 1977).
6 198. GJ.20, 129 S.W.3d 140 (2003).