What is a grand jury?
The general public may not know much about grand juries, but closed commissions feature prominently in the legal period following the January 6 riot at the US Capitol and efforts to overturn the results of the 2020 presidential election.
A grand jury subpoenaed the National Archives for all material the agency had submitted to the House Select Committee to consider events leading up to January 6. Justice Department prosecutors are working with a grand jury that is said to be examining former President Donald Trump’s role in the effort to reverse the election result. A grand jury in Fulton County, Georgia, has subpoenaed members of Trump’s legal team during its investigation into possible illegal interference in the 2020 Georgia election.
Mystery often surrounds grand juries because, by law, their work is done in secrecy.
Washington, D.C., has been investigating the individuals responsible for [January 6] break-in, but how far that goes and how far they’re investigating Donald Trump or those close to Donald Trump, we just know that, if anything, either because people told the press or they filed lawsuits against the subpoenas,” says Bruce Green, A former federal prosecutor who is now a professor at Fordham University Law School.” And even then, if one wants to, you can file as a John Doe [unnamed person] If you want to keep confidentiality.
“accused ham sandwich”
Grand juries play a central role in the American justice system. They are charged with hearing evidence presented by prosecutors and witnesses and then decide, by secret vote, whether there is sufficient evidence to charge a person with a felony, which is any criminal offense punishable by at least one year in prison.
Grand juries are required in federal crime trials, and many US states have adopted a similar system. However, in some states, prosecutors can also present their evidence to a judge, who then decides whether someone can be charged with a crime.
Federal juries consist of 16 to 23 members. At least 12 jurors must agree before an indictment – a formal charge – can be filed. Grand jury members are drawn from the same group of private citizens who serve as trial jurors. They are recognized from public records such as driver’s licenses and voting records. Grand juries serve from 18 to 36 months, usually meet several times a month, and have the power to examine witnesses and issue subpoenas.
“The grand jury system is important in terms of determining who will face criminal charges, but it is also important for engaging citizens in the criminal justice system,” says Peter Joy, a law professor at Washington University in St. Louis. “The origins of the grand jury system rest, in a sense, on a certain degree of trying to keep government honest.”
Grand juries were originally conceived of as a safeguard against government power, which is why the Founding Fathers wrote them into the US Constitution. But former federal prosecutor Green isn’t convinced that the so-called “people’s committee” is performing this function in a meaningful way.
“If, as I think, the original idea of the Founding Fathers was to limit the power of government … it’s probably not a very effective tool to protect people from bypassing prosecution,” says Green. “And there is a very big risk that if the prosecutor realizes that someone is guilty, they can issue an indictment whether the person is guilty or not.”
Grand juries rarely decline to indict. In 2010, government statistics showed that federal juries brought charges more than 99% of the time. In 1985, a famous New York judge said that prosecutors have so much influence over grand jurors that they can convince jurors to “indict a ham sandwich.”
While a grand jury may act as a rubber stamp in most cases, the commission is likely to play a more significant role in cases that attract widespread public attention, says Joy.
“I think it’s very likely that the plaintiffs in presenting evidence to the grand jury probably tried to present more evidence than they would in a typical type of case and present it in a way that would be balanced,” he says.
Some states require prosecutors to provide evidence that the accused may be innocent. However, federal prosecutors are not required to do so.
“The higher the standing of the accused, the more likely it is that the prosecutor really wants to feel like he or she has a strong case, and they will want to test the evidence in a way that will increase their confidence in the case that they have,” Joy says.
“Because the stakes are high, the prosecutor is smart—if there is some evidence to the contrary that might call into question guilt or innocence—they would probably use a grand jury as a vetting process for that.”
Green expects multiple grand juries to consider potential charges against people accused of storming the Capitol Building on January 6, 2021. The sheer size of the cases may be too big for a grand jury to consider. However, this may not be true in related cases further up the food chain.
“If you were looking at a number of people in Trump’s orbit who might have been working together before January 6th to plan the break-in, all the evidence would be related, they would all be in a relationship, and you would want one grand jury to look at everything because you want them to see all the evidence, Green says.
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