A Guide to “Grand Jury” Proceedings in California

Felony (as opposed to misdemeanor) in California are brought in one of two ways:

1. Through an “information” filed by the district attorney after a preliminary hearing, or
2. Through an “indictment” brought by grand juries.¹

Grand juries are different from the jury (technically known as the “petit jury”) that one finds at a criminal jury trial. Whereas the petit jury at a jury trial decides whether the defendant is guilty or innocent—the grand jury’s job is just to determine whether there is probable cause to believe that the defendant may have committed the crime.²

California proceedings

The specific procedures for creating grand juries are determined by each California county.³ Criminal grand jurors are selected at random from a pool of eligible citizens.⁴

From the defendant’s perspective, the most interesting thing about grand juries is that the defendant is not present at it—and is probably not even aware that it is occurring! ⁵

Instead, what occurs at this proceeding is that the prosecutor presents evidence (possibly including witness testimony) to make the case that there is probable cause to charge the defendant with a crime.⁶

Example: The district attorney of a California county has been investigating a suspected case of bribery of an executive officer involving Sal, a local police chief. The DA thinks that he has enough evidence to bring a case against Sal.

Grand jurors are called to hear the case against Sal. The DA presents them with documentary evidence and testimony by witnesses who claim that Sal asked them for bribes. The jury deliberates and determines that there is probable cause to believe that Sal is guilty of accepting bribes.

The jury then issues an indictment of Sal, bringing bribery charges against him. This is the first time Sal has heard anything about the charges. He will now have the charges tried at a regular jury trial.

Federal proceedings

Federal criminal charges may also be brought through a grand juror process run by the federal courts.

In fact, under the Fifth Amendment to the U.S. Constitution, charges for serious federal felonies must be brought through indictment juries.⁷

Below, our California criminal defense attorneys⁸ address the following:

• 1. What is a grand jury?
• 2. What is the California indictment process?
• 3. What is the federal process?
• 4. What is serving as a witness like?

If, after reading this article, you would like more information, we invite you to contact us at Shouse Law Group.

1. What is a Grand Jury?

In California law, it is an independent body made up of a specified number of citizens of a particular county, whose job is to perform the following functions:

1. Determine whether or not charges should be brought against a potential defendant in certain criminal cases, and
2. Inquire into matters of civil concern in the county, such as county officers’ salaries and the budgets and operations of county governments.⁹

In short, they are an arm of the court. In this article, we will focus on the first of these tasks—the criminal function of grand juries, not their civil function.

In some California counties (such as Placer County¹⁰), the same jury focuses on both criminal and civil matters. But most large counties (such as Contra Costa County,¹¹ Los Angeles County,¹² and San Francisco County¹³) divide the two functions between different groups.¹⁴

1.1. When grand juries are used in California criminal cases

California prosecutors must bring felony charges in one of two ways:

1. They may hold a “preliminary hearing” before a judge or magistrate, at which the defendant is present and represented by a criminal defense lawyer. If the judge determines after the hearing that there is enough evidence to try the defendant for the crime, then s/he will be charged through a document called an “information;”¹⁵ OR
2. They may hold a grand juror proceeding, at which the defendant is not present. If the jury decides that there is probable cause to try the defendant for the crime, then s/he will be charged through a document called an “indictment.”¹⁶

Unlike a preliminary hearing, grand juries are held before the defendant appears for an arraignment (the first step in the California criminal court process).

In California, the vast majority of felony charges are brought through the preliminary hearing/information process—not through grand juries and criminal indictments.¹⁷

District attorneys are more likely to use the grand jury indictment process if any of the following are true:

1. There is high public interest in the case,
2. A preliminary hearing would take more time than a grand juror hearing,
3. The prosecution plans to call witnesses who are children or who for other reasons would not do well under the cross-examination that would occur at a preliminary hearing,
4. The case against the defendant seems weak—and the prosecutor wants a chance to “test” it out before jurors,
5. The case involves wrongdoing by a public officeholder, and/or
6. The witnesses are incarcerated in state prison.¹⁸

Example: Police have just informed the district attorney of Los Angeles County that they have a suspect in a very high-profile murder case. News about the murder has been making headlines for months.

The DA wants to file Penal Code 187 PC murder charges against the suspect—but they are concerned that the evidence against him is not terribly strong.

Even though the prosecutors could bring charges through a preliminary hearing and an information, they decide to call grand jurors to consider the charges instead. They know that the case will get a lot of publicity—and would like to do a “test run” of their evidence in front of jury members before they bring charges.

1.2. When grand juries are used in federal courts

In contrast to California, where most criminal charges do not originate in the indictment process—the majority of federal felony charges are brought after an indictment

This is because the Fifth Amendment to the United States Constitution requires that all prosecutions for “infamous” crimes come through grand juries.¹⁹

However, federal misdemeanors can be charged through an information—they do not require a jury to issue an indictment.²⁰

Also, federal felonies may be charged without an indictment proceeding if the defendant waives the right to be prosecuted in this way.²¹

1.3. What grand juries do

In theory, grand juries are supposed to make an objective determination of whether there is enough evidence to try a suspect for a crime.

They are supposed to be not just a “sword” to help the government prosecute criminals—but also a “shield” protecting criminal suspects from unjustified criminal charges.²²

In reality, it doesn’t always work this way. The jury hears only one side of the story—the prosecutor’s side. Under these circumstances, there is a real danger that it will function only as a sword, not as a shield—and will vote to bring criminal charges that never should have been brought.²³

Unlike the juries in criminal or civil trials, which serve only for that one trial, grand juries are often formed to sit for a period of time rather than a particular matter. During this period of time, they may hear a number of indictment cases.²⁴

Example: In each calendar year, San Francisco County selects three (3) criminal/indictment grand juries. Each grand juror serves a term of four (4) months. During that 4-month period, the jury will meet several times a week and hear any criminal cases that happen to come up in that time.²⁵

2. What is the California Indictment Process?

2.1. Selection process

California grand juries must have at least the following number of members:

1. Twenty-three (23) in counties that have a population larger than four million (only Los Angeles County currently meets this criterion),
2. Eleven (11) in counties that have a population of twenty thousand or less, and
3. Nineteen (19) in all other counties.²⁶

Criminal grand juries in California are selected at random from the list of people eligible to serve on a “regular” jury (i.e., a “petit jury”) in a criminal or civil trial.²⁷ Grand jurors should represent a cross-section of the population that is eligible to serve on a jury at a jury trial.²⁸

In order to be eligible for grand jury service, a person must meet the following requirements:

1. S/he must be a U.S. citizen;
2. S/he must be 18 or older;
3. S/he must have been a resident of the state and of the county for one (1) year immediately prior to being selected as a juror;
4. S/he must be “in possession of his natural faculties, of ordinary intelligence, of sound judgment, and of fair character”; and
5. S/he must have sufficient knowledge of English.²⁹

In addition, each grand juror must meet the following “negative qualifications”:

1. S/he must not be currently serving as a trial juror in California;
2. S/he must not have finished serving as a California grand juror within the past year;
3. S/he must not have been convicted of malfeasance in public office or any California felony; and
4. S/he must not be serving as an elected public officer.³⁰

2.2. Proceedings

Indictment proceedings are very different from ordinary criminal trials.

First, unlike most stages of California’s criminal court process, this proceeding is not presided over by a judge.³¹ Instead, the prosecutor takes the lead role in running these proceedings, as s/he makes the case that the criminal suspect should be charged with a crime.³²

Second, unlike criminal court proceedings, these proceedings are closed to the public and are held in secret.³³

Third—and maybe most strikingly—the proposed defendant is not permitted to be present at these proceedings. In fact, s/he will not even be notified that the proceeding is going on.³⁴

If—after weighing all the evidence presented to it—the jurors believe that the evidence would warrant a criminal conviction of the suspect by a trial jury, it may issue an indictment against the suspect.³⁵

The vote of the jurors does not need to be unanimous for an indictment to be issued. Instead, the following numbers of votes are needed:

1. At least fourteen (14) grand jurors in counties with populations larger than four million;
2. At least eight (8) grand jurors in counties with populations of twenty thousand or smaller; and
3. At least twelve (12) grand jurors in all other counties.³⁶

Evidence rules

In a typical proceeding, the district attorney will present evidence to the jurors, to show that the criminal suspect is guilty of the crime. This evidence may include:

1. Sworn testimony by witnesses,
2. Writings, material objects, or other tangible things, and
3. Deposition transcripts.³⁷

The California evidence rules that apply to California criminal trials also apply to California grand juries³⁸–with one major exception.

Specifically, the hearsay rule does not apply in indictment proceedings to the sworn testimony of a law enforcement officer about a statement someone else made out of court, as long as the law enforcement officer either:

1. Has five (5) years of law enforcement experience, or
2. Has completed a training course on the investigation and reporting of cases and testifying at preliminary hearings.³⁹

The jurors are not required to hear any evidence for the defendant. But if they have reason to believe that there is evidence available that tends to prove the defendant is not guilty, it can order that evidence to be produced.⁴⁰

2.3. Defendant’s rights

As you can see from the discussion above, the rights of a criminal suspect—the potential defendant—in a criminal grand jury proceeding are very limited. But that does not mean that they are nonexistent.

The most important right that a suspect enjoys is set out in Penal Code 939.71 PC. This law provides that the prosecutor must disclose any evidence s/he is aware of that tends to prove that the suspect is innocent (this is known as “exculpatory evidence”).⁴¹

If the prosecutor does not fulfill this obligation at your proceeding, then you may be able to get the charges against you dismissed through a Penal Code 995 motion.

Example: Ray is charged with sale or transportation of a controlled substance. He is first charged through an information and appears at a preliminary hearing. His testimony at the preliminary hearing leads the presiding judge to dismiss the charges against him.

But the district attorney then turns around and submits the charges against Ray to a grand jury. At the indictment proceeding, the DA does not inform the jurors that the charges against Ray were dismissed after his preliminary hearing. The jurors decide to issue an indictment against Ray.

The district attorney has violated his obligation to disclose exculpatory evidence. Because of this, the indictment against Ray is dismissed.⁴²

3. What is the Federal Process?

As we discussed above, grand juries are used far more often for federal felony charges than they are for state criminal charges.

The process for federal grand juries is similar to that for California grand juries.

Federal grand juries must have sixteen (16) to twenty-three (23) members.⁴³ At least twelve (12) of the jurors must vote to issue an indictment.⁴⁴

The members of federal grand juries are also supposed to represent a fair cross-section of the community where the proceeding will take place. Therefore, like California grand juries, they are selected at random from federal jury lists.⁴⁵

Only the following people may be present at the proceeding:

1. The jurors themselves,
2. Attorneys for the government (federal prosecutors),
3. Any witnesses being questioned,
4. Interpreters if needed, and
5. Court reporters.⁴⁶

As with California grand juries, the accused is not typically present at the proceeding—and the proceeding takes place in secret.⁴⁷

4. What is Serving as a Witness like?

If you receive a subpoena to testify before, you will likely have many questions about the process and your role and rights in it.

There are a few important things to keep in mind if you are called upon to be a witness.

First, you may not bring a lawyer with you into the proceeding.⁴⁸ But that does not mean it is not in your interest to hire a lawyer—you may (and should) consult a criminal defense lawyer both before and after your testimony.

Second, you are required to respond to the subpoena and testify honestly. Failure to do so can result in charges for contempt of court or Penal Code 118 perjury.

Finally, as Beverly Hills criminal defense lawyer Neil Shouse⁴⁹ puts it:

“Under Penal Code 924.2, grand jurors are supposed to keep secret everything that goes on in an indictment proceeding. This obligation of secrecy does not apply to indictment witnesses, who legally may talk about their testimony with the press or anyone else. BUT that doesn’t mean it’s a good idea for a witness to do so. The exact details of the case and your role in it may mean that it’s not in your best interest to disclose what went on when you were in the courtroom.”

For information in Nevada, please see our page on grand jurors in Nevada.

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