How Is A Grand Jury Selected?

Inside a criminal courthouse with empty seats.

Though many states do not use them, most people have heard of a grand jury. Perhaps in the context of a news story about a major investigation of criminal activity involving important personalities, you may read about a prosecutor or attorney general mentioning assembling grand jurors. However, the majority of people are unaware of grand juries and their proceedings. Unless you live in a state that uses the grand jury to indict someone on criminal charges, you may not be familiar with what the grand jury does and how it differs from an ordinary jury.

One reason a grand jury may seem mysterious is that the grand jury proceedings are typically behind closed doors, away from the public. A panel selected from a cross-section of an accused’s community decides whether the state, represented by the prosecutor’s office, has enough evidence to support a criminal action against an accused. An indictment means that the grand jury found enough evidence to bring a criminal case against a defendant, despite the defendant never appearing in the grand jury room to present their side of the story. And even if your state uses the preliminary hearing in the criminal process to determine the sufficiency of the evidence, you might want to know how the grand jury works in your state.


The Purpose Of A Grand Jury

A grand jury convenes to investigate whether the state has sufficient evidence to charge a person with a particular crime. A panel of a designated number, usually 16 to 23, considers the prosecution’s evidence to determine whether an accused should be indicted. An indictment is a formal charge against someone or a notification of the crimes the state accuses a defendant of committing.

Members of the grand jury are responsible for listening to testimony and examining documents and other evidence that a prosecutor or district attorney supplies for consideration. As an agent of the state, a prosecutor or district attorney presents evidence to show probable cause that the accused individual committed a crime or crimes. The grand jurors are neutral examiners whose job is to return a decision, true bill or bill of indictment, that recommends indictment, further evidence, or no bill if the state does not have enough evidence to support a criminal charge.

Some grand jurors sit for weeks to months reviewing evidence in a specific case. In some states, like New Jersey, grand juries indict all superior court criminal cases, though not misdemeanor cases. In some states, an individual facing misdemeanor charges can waive an indictment (for felony charges as well) and plead guilty. In other states, the grand jury assembles for high crimes cases only.


How Grand Jurors Are Selected

Jurors of multiple ethnicities on the jury stand in a courtroom.

Prospective grand jurors must have certain qualifications. For example, they must be a United States citizen, over 18 years old, and a resident of the county of the superior court or federal court seeking a pool of jurors. Other qualifications may exist in different states, but most require grand jurors to speak English, be of sound mind, and have no felony charges or convictions on their record. They must also be available for the length of the grand jury duties, typically a year, serving a number of hours per week.

In most courts, potential grand jurors come from a pool representing a cross-section of the community where the county grand jury deliberates. Their names are gathered from voter registration and other government records, such as the Department of Motor Vehicles. California also allows the superior court to nominate individuals wishing to serve. The superior court distributes questionnaires randomly to individuals, who then become a list of potential applicants after they return their questionnaire. Court personnel compile the questionnaires, and the presiding judge finalizes the list of potential jurors whose qualifications must be confirmed. Then, a random selection of the requisite number of qualified grand jurors and alternates occurs.

Selected individuals may request an exemption if they perform public safety duties, such as police officers or firefighters, where attending jury service would cause undue hardship. If a selected juror can present evidence of their hardship, they may be excused from serving on a grand jury.


What Is A Special Grand Jury?

A special grand jury is for a special purpose. Jurors are impaneled to investigate a focused topic or case for an unspecified term. The special grand jury can subpoena the person under investigation to appear before the grand jurors and, in the end, they prepare a grand jury report on their investigative findings. They do not deliver an indictment as a regular grand jury would. However, the grand jury selection process is similar to that of a regular grand jury selection.

Special grand juries review longer and bigger cases, such as organized crime or public officials’ corruption. In other words, a complex case that takes a long time to review numerous documents and witness testimonies goes to the special grand jury. Thus, if a high-ranking government official or ex-government official is accused of crimes or corruption, the state or federal government may impanel a special grand jury to review the evidence and produce findings.


Federal Grand Jury vs. State Grand Jury

The grand jury process for the federal and state grand juries is similar to jury selection and the grand jury system. They function similarly. However, the state and federal grand jury systems differ in several ways. For one, a federal prosecutor has more resources and can build a case diligently before bringing it to a grand jury. The Fifth Amendment to the United States Constitution requires federal criminal indictment by a grand jury. States do not have such a mandate by the United States Constitution, but it may still be required by state law or state constitution.

In addition, federal prosecutors have more leeway in presenting evidence. For example, state grand juries hear witness testimony directly, while federal grand juries may hear a federal investigator’s report on what witnesses told them in their investigation. In regular jury trials, an investigator’s report of others’ testimony would be inadmissible hearsay. Thus, safety measures to ensure only reliable evidence is presented to jurors are laxer in federal grand juries.

Also, a defendant does not have the right to testify to a federal grand jury as they do in state courts unless the federal prosecutor allows them to, and the defendant waives their right to assert the Fifth Amendment against self-incrimination to the grand jury.


How A Grand Jury Differs From A Trial Jury

Trial jurors perform similar functions as grand jurors. Both assemble after being selected to serve the legal system. Each juror must swear under oath to perform their duties faithfully. Both trial juries and grand juries typically come from the same jury pool, representing a cross-section of the community in which the defendant resides. But there are key differences.

A trial jury serves until the case is completed. So, a criminal case may last a day to a few weeks. But a federal grand jury can serve from a year to several years, while state grand juries sit for a month to a year, on average. And grand juries do not convene daily as a trial jury would to finish a case. Grand jurors may attend once a week or fewer, depending on the case. Given the length of the commitment, many grand jurors are retired or remote workers who can devote the appropriate amount of time to fulfill their civic duties.

Finally, a trial jury reaches a verdict, whether the case is in civil or criminal court. A foreperson, or person charged with leading the jury, calls for a vote after the trial concludes and the jury reaches a decision on guilt or innocence in a criminal case. Sometimes, the jury does not reach a unanimous decision in a criminal case, which may be considered a mistrial. However, each state has its own rules and laws regarding verdicts and the majorities required to reach a verdict.

On the other hand, a grand jury is not concerned with guilt or innocence, or fault. They determine whether probable cause exists for bringing charges against an accused. A supermajority is required to indict. And while a prosecutor must prove guilt beyond a reasonable doubt in a criminal case, they have no such burden when presenting evidence to a grand jury. Generally, the prosecutor’s burden is to convince the grand jurors that probable cause exists by a preponderance of the evidence or a reasonableness standard. A preponderance of the evidence means that, more likely than not, probable cause exists to charge a defendant with a criminal offense.


Special Protections For Grand Juries

Grand juries convene in secret, usually with no judge, court reporter (unless it’s one who is sworn to secrecy), defense attorneys, or the prosecutor present. This allows grand jurors to do their job without fear of interference or threats. Trial jurors do not meet secretly but deliberate behind closed doors. Contrary to trial juries, the grand jury can review and hear evidence without objections based on violations of the evidence rules. In fact, they can hear and see just about anything they want to arrive at a decision. And because the proceedings are secret, witnesses are more likely to testify fully without fear of retribution. In addition, an accused can feel safe that they can preserve their clean reputation if a “no bill” is the outcome, meaning no indictment.

Further protections afforded to the accused are those against arbitrary charges and retaliation by law enforcement or others. A grand jury indictment shows a judge that enough evidence exists to bring a defendant to trial and that the criminal case is valid. To the contrary, a “no” bill may show a judge that the case is not strong and may influence the prosecutor’s decision to bring charges or dismiss the case. They can still bring charges after a no bill, but they face a judge’s scrutiny who may require the prosecutor to demonstrate that sufficient evidence exists to bring a defendant to trial.


Secrecy Requirements For Grand Jurors

Grand jurors are not only gathered in secrecy; they must keep secret what they hear and review in the proceedings. A juror who violates the secrecy rules may be charged with contempt. Grand jurors are prohibited from disclosing anything occurring in the jury room. Secrecy protects jurors from outside influence and interference. It also preserves the integrity of the process as those under investigation may not thwart the prosecutor’s and grand jury’s efforts. If they know how the investigation is turning out, an accused could present evidence in their defense to counter probable cause evidence.

Though jurors must keep an investigation secret under threat of contempt, witnesses who testify are not sworn to secrecy about their testimony, and prosecutors may take grand jury information to fellow prosecutors or government attorneys.

Since the grand jury’s purpose is not to determine guilt or innocence, the secrecy keeps the targets of the investigation blind as to the investigation’s contents and direction. The danger to prospective defendants is that the grand jury indictment is completely in the prosecutor’s control. Since defendants cannot appear and present evidence that clears them of the charges if they do not know what the prosecutor presents to the grand jury, the prosecutor has near complete control over the grand jury. Since juries and grand juries are constitutional instruments to keep the government in check to prevent unnecessary intrusion into people’s lives, some criticize the grand jury method of indictment.


Grand Jury Indictment: True Bill vs. No Bill

A “true bill” is the name given to a grand jury’s decision to indict. After deciding that the prosecution provided evidence to support probable cause for charging a criminal offense, the grand jury gives a true bill, an indictment. The prosecutor may then add the case to the court’s calendar for trial.

A grand jury must have a quorum, which is a minimum number of jurors present to conduct the business of the grand jury. Of 23 jurors, for example, 16 must be present for a grand jury to proceed. Without a quorum, the grand jury is dismissed until there is one.

A “no bill” means no indictment, meaning the prosecution failed to supply enough evidence to support probable cause for charges. The prosecutor can drop the charges after a no bill or continue to press charges. A grand jury no bill may dismiss the charges in some states.


The Bottom Line

A grand jury is assembled whenever a federal or state proceeding requires a grand jury investigation. Some states use grand juries for felonies only, some for felonies and misdemeanors; and some for neither. Sometimes states use grand juries only for complex or high-profile cases.

Each jurisdiction has its own methods of selecting jurors, but all have qualifying criteria such as age, language ability, and criminal background clearance. Those chosen for grand jury service must participate in the entire grand jury process from start to finish, though not daily.

Grand jurors perform the important duty of hearing a prosecutor’s case or a civil case to determine the sufficiency of the evidence to proceed with a case. Behind closed doors, they meet to hear testimony and review other evidence the prosecutor presents. It is unusual for the accused or a defense attorney to appear before the grand jury. At the conclusion, they come down with an indictment or dismissal.

The grand jury has a long-standing history in American jurisprudence as a safeguard against state or government overreach. Still, some criticize the secrecy and lack of defendants’ input as giving the state too much control over influencing when criminal proceedings are brought into the criminal justice system.


Frequently Asked Questions


What qualifications are needed for being on a grand jury?

While states may differ and federal district courts differ from states, to qualify as a grand juror, you must be at least 18, a resident of the county in which the proceedings will be held, able to speak English, and not have criminal charges pending or criminal convictions in your criminal history.

Jurors must also be able to attend all meetings of the grand jury and stick it out until the conclusion of the investigation.


How many people are on a grand jury?

While a trial jury consists of 6 or 12 jurors, a federal grand jury holds 16 to 23 people. A court also selects alternate jurors to ensure a quorum and the minimum number of votes for indictment. Of the 23 jurors, 16 make up a quorum to conduct grand jury proceedings. An indictment is valid if a supermajority agrees. A unanimous decision is not required. In fact, only 9 of 16 can indict or dismiss.

In some states, the constitution sets the number of grand jurors required. For example, California requires each county to assemble a grand jury annually of either 11, 19, or 23, commensurate with the population size. In Alaska, a minimum of 12 grand jurors is mandatory, and Florida requires 15 to 21. States differ as to the number of impaneled jurors and the rules determining how many serve.


What makes me ineligible to serve on a grand jury?

If you are not a United States citizen or at least 18 years old, you can not serve on a grand jury. Although the requirements for serving on a grand jury differ from state to state, most require jurors to speak English and have a record free of felony charges or convictions. Some would disqualify you if you committed wrongs while holding public office, are a registered sex offender, or are required to register as one.

And, of course, being of sound mind is important to fulfill the duties of a juror. Those who have conservators are unlikely to serve on a jury. Since the commitment to attend each meeting is important, other disqualifications and exemption reasons may include physical incapacitation, caretaking responsibilities, and financial hardships that limit one’s ability to perform juror functions.


What is the difference between a grand jury and a preliminary hearing?

The purpose of the grand jury and preliminary hearing is the same; both end with potential formal charges against an accused. At a preliminary hearing, a judge decides if the prosecutor’s evidence supports the probable cause to believe a crime occurred and the accused committed it. If so, the state lodges formal charges against the accused, and the judge sets a trial date. As in grand juries, evidence rules are relaxed, so evidence that would not be admitted into evidence at a trial may be admitted into evidence during preliminary hearings and grand jury inquiries.

Though the grand jury also establishes probable cause and formal charges against a prospective defendant, it differs in significant ways. The preliminary hearing is in open court, attended by prosecuting and defense attorneys who may both offer evidence. The accused also attends the hearing. A defense attorney may challenge witnesses and evidence to show an absence of probable cause for a crime or the accused’s involvement with the crime.

The grand jury works in secret, and no one but the prosecuting attorney presents evidence and attends. In most cases, a defendant may not know a grand jury convened until after being charged with crimes. In contrast, a defendant knows of the preliminary hearing in advance and may choose to waive it. Finally, the grand jury decides whether probable cause exists rather than a judge.