If you are charged with a California felony or with a federal crime in California—then there is a chance that your charges are the result of a grand jury proceeding.
In California, all felony (but not California misdemeanor) charges are brought in one of two ways:
- Through an “information” filed by the district attorney after a preliminary hearing, or
- 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 California 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
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 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
- 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.
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:
- Determine whether or not charges should be brought against a potential defendant in certain criminal cases, and
- 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
California prosecutors must bring felony charges in one of two ways:
- 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
- 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:
- There is high public interest in the case,
- A preliminary hearing would take more time than a grand juror hearing,
- 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,
- The case against the defendant seems weak—and the prosecutor wants a chance to “test” it out before jurors,
- The case involves wrongdoing by a public officeholder, and/or
- 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.
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
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
California grand juries must have at least the following number of members:
- Twenty-three (23) in counties that have a population larger than four million (only Los Angeles County currently meets this criterion),
- Eleven (11) in counties that have a population of twenty thousand or less, and
- 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:
- S/he must be a U.S. citizen;
- S/he must be 18 or older;
- 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;
- S/he must be “in possession of his natural faculties, of ordinary intelligence, of sound judgment, and of fair character”; and
- S/he must have sufficient knowledge of English.29
In addition, each grand juror must meet the following “negative qualifications”:
- S/he must not be currently serving as a trial juror in California;
- S/he must not have finished serving as a California grand juror within the past year;
- S/he must not have been convicted of malfeasance in public office or any California felony; and
- S/he must not be serving as an elected public officer.30
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:
- At least fourteen (14) grand jurors in counties with populations larger than four million;
- At least eight (8) grand jurors in counties with populations of twenty thousand or smaller; and
- At least twelve (12) grand jurors in all other counties.36
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:
- Sworn testimony by witnesses,
- Writings, material objects, or other tangible things, and
- 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 California 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:
- Has five (5) years of law enforcement experience, or
- Has completed a training course on the investigation and reporting of cases and testifying at preliminary hearings.39
The jurors 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
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 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
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:
- The jurors themselves,
- Attorneys for the government (federal prosecutors),
- Any witnesses being questioned,
- Interpreters if needed, and
- 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
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.
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.
1 California Penal Code 682 PC – Prosecution by indictment or information; exceptions. (“Every public offense must be prosecuted by indictment or information, except: 1. Where proceedings are had for the removal of civil officers of the state; 2. Offenses arising in the militia when in actual service, and in the land and naval forces in the time of war, or which the state may keep, with the consent of Congress, in time of peace; 3. Misdemeanors and infractions; 4. A felony to which the defendant has pleaded guilty to the complaint before a magistrate, where permitted by law.”); California state constitution. Note that there are also civil grand juries. Every year, superior court judges seek out jurors to determine which public officials, departments and agencies of local government it will investigate during its term of office.
2 Handbook for Federal Grand Jurors, at 3.
3 Penal Code 905 PC – Annual drawing. (“In all counties there shall be at least one grand jury drawn and impaneled in each year.”)
4 Penal Code 896 PC – Selection and listing by court; investigation; jurors. (“The court shall list the persons so selected and required by the order to serve as grand jurors during the ensuing fiscal year of the county, or until a new list of jurors is provided, and shall at once place this list in the possession of the jury commissioner.”)
5 See Johnson v. Superior Court (1975) 15 Cal.3d 248, 254.
6 Penal Code 935 PC – Appearance of district attorney.
7 U.S. Const., amend. V. (“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”)
8 Our California criminal defense attorneys have local Los Angeles law offices in Beverly Hills, Burbank, Glendale, Lancaster, Long Beach, Los Angeles, Pasadena, Pomona, Torrance, Van Nuys, West Covina, and Whittier. We have additional law offices conveniently located throughout the state in Orange County, San Diego, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.
9 Penal Code 888 PC
See also Penal Code 925 PC – County officers, departments or functions; operations, accounts and records; investigations and reports. (“[T]he board of supervisors pursuant to Section 25250 of the Government Code; this provision shall not be construed to limit the power of the [jurors] to investigate and report on the operations, accounts, and records of the officers, departments, or functions of the county. The [jurors] may enter into a joint contract with the board of supervisors to employ the services of an expert as provided for in Section 926.”)
See also Penal Code 927 PC
11 See About Grand Juries, California Grand Jurors’ Association Website.
12 See Los Angeles County website.
13 See People v. Brown (1999) 75 Cal.App.4th 916, 921. (“The City and County of San Francisco has dual juries—one is of the so-called watchdog variety which has civil investigatory duties. (§ 904.6; see Petersen, The California Grand Jury System: A Review and Suggestions for Reform (1974) 5 Pacific L.J. 1, 6.) The other is a traditional indictment jury. It is solely this indictment jury which concerns us here.”)
14 Penal Code 904.6 PC
15 Penal Code 682 PC – Prosecution by indictment or information; exceptions, endnote 1, above.
See also Penal Code 872 PC — California preliminary hearings; order holding defendant to answer; probable cause; basis of finding. (“(a) If, however, it appears from the examination that a public offense has been committed, and there is sufficient cause to believe that the defendant is guilty, the magistrate shall make or indorse on the complaint an order, signed by him or her, to the following effect: “It appearing to me that the offense in the within complaint mentioned (or any offense, according to the fact, stating generally the nature thereof), has been committed, and that there is sufficient cause to believe that the within named A.B. is guilty, I order that he or she be held to answer to the same.””)
16 Penal Code 682 PC – Prosecution by indictment or information; exceptions. (“Every public offense must be prosecuted by indictment or information, except: 1. Where proceedings are had for the removal of civil officers of the state; 2. Offenses arising in the militia when in actual service, and in the land and naval forces in the time of war, or which the state may keep, with the consent of Congress, in time of peace; 3. Misdemeanors and infractions; 4. A felony to which the defendant has pleaded guilty to the complaint before a magistrate, where permitted by law.”)
17 See About Grand Juries, California Grand Jurors’ Association Website.
18 See same.
19 U.S. Const., amend.V, endnote 7, above.
20 Duke v. United States (1937) 301 U.S. 492, 495. (“The offense with which appellant was charged was not a petty offense within the proviso, but it was a misdemeanor of a kind, as the certificate recites, not subject to infamous punishment — therefore open to prosecution by information.”)
21 Federal Rules of Criminal Procedure, Rule 7 – The Indictment and the Information. (“(b) Waiving Indictment. An offense punishable by imprisonment for more than one year may be prosecuted by information if the defendant—in open court and after being advised of the nature of the charge and of the defendant’s rights—waives prosecution by indictment.”)
22 Handbook for Federal Grand Jurors, at 3.
23 See Frederick P. Hafetz and John M. Pellettieri, Time to Reform the Grand Jury, The Champion, Jan./Feb. 1999.
24 See, e.g., People v. Brown (1999) 75 Cal.App.4th 916, 922. (“Three indictment juries, each composed of 19 jurors, are chosen per calendar year to serve successive 4–month terms.”)
25 See same.
26 Penal Code 888.2 PC
27 Penal Code 904.6 PC – County or city and county; one additional indictment jury; equal opportunity; jurisdiction.
28 See same.
29 Penal Code 893 PC – Competency; incompetency [for grand jury members].
30 See same.
31 See, e.g., United States v. Williams (1992) 504 U.S. 36, 48. (“And in its day-to-day functioning, the grand jury generally operates without the interference of a presiding judge.“)
32 Penal Code 935 PC
34 See same.
35 Penal Code 939.8 PC
36 Penal Code 940 PC – Concurrence of jurors; number; endorsement. (“An indictment cannot be found without concurrence of at least 14 grand jurors in a county in which the required number of members of the grand jury prescribed by Section 888.2 is 23, at least eight grand jurors in a county in which the required number of members is 11, and at least 12 grand jurors in all other counties. When so found it shall be endorsed, “A true bill,” and the endorsement shall be signed by the foreman of the grand jury.”)
37 Penal Code 939.6 PC – Reception of evidence. (“(a) Subject to subdivision (b), in the investigation of a charge, the grand jury shall receive no other evidence than what is: (1) Given by witnesses produced and sworn before the [j; (2) Furnished by writings, material objects, or other things presented to the senses; or (3) Contained in a deposition that is admissible under subdivision 3 of Section 686.”)
38 See same. (“(b) Except as provided in subdivision (c), the grand jury shall not receive any evidence except that which would be admissible over objection at the trial of a criminal action, but the fact that evidence that would have been excluded at trial was received by the grand jury does not render the indictment void where sufficient competent evidence to support the indictment was received by the [jurors].”)
39 See same. (“(c) Notwithstanding Section 1200 of the Evidence Code, as to the evidence relating to the foundation for admissibility into evidence of documents, exhibits, records, and other items of physical evidence, the evidence to support the indictment may be based in whole or in part upon the sworn testimony of a law enforcement officer relating the statement of a declarant made out of court and offered for the truth of the matter asserted. Any law enforcement officer testifying as to a hearsay statement pursuant to this subdivision shall have either five years of law enforcement experience or have completed a training course certified by the Commission on Peace Officer Standards and Training that includes training in the investigation and reporting of cases and testifying at preliminary hearings.”)
40 Penal Code 939.7 PC – Evidence for defendant, authority to exclude; weighing evidence; order for production of explanatory evidence. (“The [jurors] is not required to hear evidence for the defendant, but it shall weigh all the evidence submitted to it, and when it has reason to believe that other evidence within its reach will explain away the charge, it shall order the evidence to be produced, and for that purpose may require the district attorney to issue process for the witnesses.”)
41 Penal Code 939.71 PC – Exculpatory evidence; duties of prosecutor. (“(a) If the prosecutor is aware of exculpatory evidence, the prosecutor shall inform the [jurors] of its nature and existence. Once the prosecutor has informed the grand jury of exculpatory evidence pursuant to this section, the prosecutor shall inform the [jurors] of its duties under Section 939.7. If a failure to comply with the provisions of this section results in substantial prejudice, it shall be grounds for dismissal of the portion of the indictment related to that evidence.”)
42 Based on Johnson v. Superior Court, endnote 33, above.
43 Federal Rules of Criminal Procedure, Rule 6. (“(a)(1) In General. When the public interest so requires, the court must order that one or more grand juries be summoned. A grand [jurors] must have 16 to 23 members, and the court must order that enough legally qualified persons be summoned to meet this requirement.”)
44 See same. (“(f) INDICTMENT AND RETURN.
45 Handbook for Federal Grand Jurors, at 5-6.
46 Federal Rules of Criminal Procedure, Rule 6.
47 Handbook for Federal Grand Jurors, at 9-10.
48 Penal Code 939 PC
49 Beverly Hills criminal defense lawyer Neil Shouse is the Managing Attorney of Shouse Law Group. He is a former Los Angeles County Deputy District Attorney, where he worked on complex, high profile gang, murder, and firearms cases. Now, Shouse has turned the inside knowledge he gained as a prosecutor into extraordinary expertise in criminal defense law, including highly sensitive grand jury proceedings . . . thanks to which he frequently appears as a guest legal commentator on national television. He appears in criminal court defending clients throughout California.