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Why is the Grand Jury session held in 'secret' ?

Cincinnati, OH |

It's well known a prosecutor can get an indictment for anything, or very high probability. But why exactly is it held in secret? Why can't a defense lawyer be present? Furthermore the government doesn't want a defendant to see or will never see what was said, unless there is a abuse of discretion or perjury is indicated. Even then, they still may bar any defense from seeing what was said.
If there is evidence of a defendants innocence, will the prosecutor usually suppress this evidence at the Grand Jury, or if he knows someone is lying, to let them lie to the Grand Jury, in order to get convictions later on in the judicial proceedings?

Attorney Answers 3


  1. Short answer. The US Constitution enshrines the Grand Jury process, which was always a secret process.

    Long answer. Grand Juries were originally designed to protect citizens from unjust accusations. The British recognized that the mere suspicion of criminal accusations could damage a person's reputation. So, to protect a person from having their reputation smeared, they invented this process that would protect a person until they were actually accused. It was a "shield"

    At some point in time, prosecutors began to figure out they could use the Grand Jury as an investigative tool. They could protect witness identities, and force their testimony, thereby preventing the "bad guys" from finding out who was testifying, and intimidating them. It became a "sword".

    No one has ever done an empirical study of the accuracy of claims of witness intimidation or need. The Supreme Court has established a series of rules regarding the Grand Jury. It is not just defendants who cannot see Grand Jury materials, no one can without a court order. Federal rules do not allow attorneys, or case agents, in the Grand Jury.

    Prosecutors are not obligated to offer the Grand Jury evidence consistent with innocence because the only question is there a probability of guilt; after all people are presumed innocent, even when they are charged by a Grand Jury.

    Grand Jury testimony is not admissible in a trial. No one can be convicted on statements that were made in front of the Grand Jury. The question of whether or not a prosecutor can be held responsible for knowingly offering false testimony to the Grand Jury is still open. If I were betting, I would bet against it.


  2. The grand jury process is held in secret for two main reasons. First, an investigation may be going on for some time without the target of the investigation knowing that he is under investigation. Second, the secrecy is intended to avoid damaging the reputation of someone who is investigated but no charges are ever brought. The prosecutor is not required to present both sides. If there is probable cause to believe that the defendant is guilty, that is a sufficient basis to get an indictment. I think most courts would take the position that any abuses in the grand jury are cured by a fair trial on the charges. If he knowingly presents false testimony, that could be viewed as a fraud on the court and could be a basis for dismissal. It would be almost impossible to prove, however.

    This answer is provided for educational purposes only and is not intended as the practice of law in any jurisdiction in which I am not licensed. The answer does not constitute legal advice nor does it create an attorney-client relationship. The answer is based only on the information provided, and may be inaccurate in the context of additional facts that have not been provided. The questioner should be aware that I am only licensed to practice law in the state and federal courts of Minnesota. Accordingly, before taking any action or refraining from taking any action, the questioner should consult with an attorney licensed to practice in his or her jurisdiction.


  3. Some of what you write about grand juries is correct, but some is not correct. When I was a prosecutor in the federal system, I often heard the remark, "You can indict a ham sandwich," so certainly you are right a prosecutor usually can indict anyone for anything, assuming that his superiors don't review his work very carefully. It is also true that grand jury proceedings are protected under Rule 6(e) of the Federal Rules of Criminal Procedure. This secrecy both protects grand jury witnesses from intimidation and targets who have not yet been accused on any criminal offense.

    However, it is not true that grand jury proceedings remain secret under all circumstances. For example, if a witness who testified in front of the grand jury testifies at trial, the government must disclose any transcript of that witness's grand jury testimony under what is known as the Jencks Act. Also, if the government knowingly fails to present exculpatory information, the defendant may file a motion to dismiss, although under Supreme Court precedent it is almost impossible to prevail in such a motion.

    On the other hand, at least when I was with the Department of Justice, targets were always permitted to testify before the grand jury if they so wished, and better prosecutors would seriously consider presented exculpatory evidence, since if a prosecutor cannot convince a grand jury to find probable cause despite such evidence, he should not be seeking an indictment that will require proof beyond a reasonable doubt,

    THIS RESPONSE DOES NOT ESTABLISH AN ATTORNEY-CLIENT RELATIONSHIP AND DOES NOT CONSTITUTE LEGAL ADVICE. IF YOU WISH TO OBTAIN LEGAL ADVICE UPON WHICH YOU CAN RELY, PLEASE CONTACT MY OFFICE OR THAT OF ANOTHER ATTORNEY FAMILIAR WITH THE SUBJECT MATTER OF YOUR INQUIRY.

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