1. The Role of a Grand Jury

A federal grand jury is composed of no less than 16 nor more than 23 persons residing within the boundaries of the given federal district.  The members of the grand jury are chosen at random from voter registration lists within the federal district.  If chosen to serve as a grand jury member, such a citizen will usually serve in this capacity for one year.  The grand jury by law, however, can sit as long as 18 months and in rare circumstances for longer periods.  Typically, 2 to 4 days a month for a one year period of time, the federal grand jury will serve to minimize abuse during the investigative stage of the federal process and will ensure that no person is ever held to answer federal charges unless probable cause is first demonstrated by credible evidence.

Before any person in this country can be formally charged – i.e. – indicted for a federal crime, at least 12 grand jurors must affirmatively vote to issue a “true bill” of indictment.  By voting in favor of a true bill of indictment, such persons are affirmatively voting that there is probable cause to believe that the charges contained within the bill of indictment are more probably true than not.  Probable cause, as a legal term of art, means that the guilt of the putative defendant is more probable than not.

An independent grand jury of ordinary citizens is a buffer between the federal government and the individual.  No individual in this country can be indicted for a crime unless the grand jury assents thereto.  In other words, unless a majority of the grand jury believes that the evidence amassed by the federal investigative agency demonstrates more probably than not that a crime has occurred and that the defendant has committed it, a true bill of indictment cannot be issued.

A federal grand jury has investigatory powers.  It may subpoena witnesses to appear before it to give testimony, to produce evidence, or both.  However, while the grand jury has the authority to issue subpoenas and compel attendance, the grand jury may not compel testimony in violation of an individual’s Fifth Amendment privilege against self-incrimination.  While the Fifth Amendment and other legal restrictions limit the grand jury’s powers, the grand jury does have the power to secure that evidence and testimony that is necessary for a proper consideration of the “probable cause” standard referenced above.

If a subject is suspected of violating a federal law, a grand jury may subpoena his bank account records for examination and review.  Such records may lead to the identity of co-conspirators or may help to trace illicit funds.  The grand jurors may question witnesses with knowledge about their involvement in a certain set of facts and is free to issue any appropriate follow-up subpoena for the production of evidence or testimony it deems necessary. In short, a federal grand jury is empowered by law to fully investigate a set of facts, by way of its subpoena power, before having to address the probable cause determination fundamental to its central duty.

Of course, a grand jury only knows so much about a certain set of facts as is reported to it.  In a bank robbery case where a suspect is immediately apprehended, it may not be necessary for the grand jury to use its investigatory powers.  In such a case, the grand jury will be presented with such probable cause testimony as is necessary to obtain an indictment.  Such testimony, required by law to be given under oath, will either satisfy the grand jury that a true bill of indictment should be returned or it will not.  If the agent in charge of the investigation testifies under oath about the facts he has uncovered, it may not be necessary for the grand jury to hear from any other witness before voting for issuance of a true bill.  On the other hand, in a more complex case, the grand jury will usually play an active role during the investigatory process.  A hypothetical complex narcotics conspiracy case is best illustrative of this.

It may be that an agent of the Drug Enforcement Administration (DEA) has received a tip that several identified suspects are involved in a narcotics scheme, whereby drugs are imported into the United States through Mexico and thereafter distributed through other co-conspirators in various cities throughout the country. Typically, after receiving the tip and attempting to preliminarily verify its accuracy, the DEA agent in charge of the case will obtain a preliminary opinion from the AUSA that there is sufficient federal interest in the case to commence a formal investigation. Thereafter, the DEA and the United States Attorney’s office will work closely in the case in an effort to develop evidence sufficient to obtain a conviction of the persons involved in the alleged conspiracy.

It may be that long before the grand jury becomes involved in the investigative process of this hypothetical case, much work has already been accomplished.  For example, the DEA agent in conjunction with the AUSA assigned to the case may previously have obtained a court authorized wiretap of a telephone and may have uncovered abundant evidence from this.  A search warrant may have been executed and drugs seized. And yet, the grand jury’s subpoena power may be necessary in order to fully explore all leads developed from such prior work.  If so, the AUSA will prepare an appropriate grand jury subpoena designed for this purpose.

If, during his/her investigation, the DEA agent suspects that a local businessman is involved in the drug conspiracy under investigation, obviously, it would be helpful to obtain information about certain activities of his that might only be obtained through subpoena.   For example, if the businessman has been identified through surveillance as being associated with known drug dealers, the whereabouts of any money he may have received from such persons may be unknown.   In order to investigate this further, the DEA agent may ask the AUSA in charge of the case for a subpoena for the businessman’s bank records, credit card accounts, charge records and business accounts.  If convinced by the agent that such records may direct to other leads or evidence in the case, the AUSA will then prepare a grand jury subpoena directed to the custodian of the records at issue.  Once the subpoena has been prepared, it will then be served by the agent upon the custodial witness.  The subpoena will specify when the records must be produced before the grand jury but it may also specify whether only the production of records is sought or if testimony will also be required. Obviously, the subpoena will be “returnable” or answerable on a day the grand jury is convened for business.

If testimony is being sought before the subpoenaed witness testifies before the grand jury, the DEA agent will usually first testify before the grand jury about his prior investigation. He/she will tell the grand jury what his investigation has uncovered and provide its members with the background information essential to an understanding of any subsequent evidence that might be presented by other live witnesses.  Once this foundation has been laid, the custodial witness in our hypothetical case will then be called before the grand jury and questioned by the AUSA about the evidence his records reflect.  For example, the witness may be able to testify from records in his possession how much money the businessman/suspect deposited on a given day or withdrew on another.  The witness may also be able to identify through available records other possible co-conspirators.

It may be that before an indictment is ever presented for its consideration, the grand jury may hear from many different witnesses and/or examine much documentary and/or forensic evidence. As stated, however, it may only hear from one witness, the case agent, before being asked to make its probable cause determination. The complexity of the case under investigation will usually dictate just how active the grand jury becomes involved in the investigative phase of any case.

Next Section: 2. Techniques of Investigation

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