A Guide to “Grand Jury” Proceedings in California

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

Below, our California criminal defense attorneys 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, the grand jury 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 you 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.³

In short, grand juries 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 County⁴), the same jury focuses on both criminal and civil matters. Though most large counties (such as Contra Costa County,⁵ Los Angeles County,⁶ and San Francisco County⁷) divide the two functions between different groups.⁸

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 you are present and represented by a criminal defense lawyer. If the judge determines after the hearing that there is enough evidence to try you for the crime, then you will be charged through a document called an “information;”⁹ OR
2. They may hold a grand juror proceeding, at which you are not present. If the jury decides that there is probable cause to try you for the crime, then you will be charged through a document called an “indictment.”¹⁰

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

Indictments

In California, the vast majority of felony charges are brought through the preliminary hearing/information process—not through grand juries and criminal indictments.¹¹

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 you 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.¹²

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.¹³

However, federal misdemeanors can be charged through an information—they do not require a jury to issue an indictment.¹⁴

Also, federal felonies may be charged without an indictment proceeding if you waive the right to be prosecuted in this way.¹⁵

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 you for a crime.

They are supposed to be not just a “sword” to help the government prosecute criminals—but also a “shield” protecting you from unjustified criminal charges.¹⁶

In reality, it does not 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.¹⁷

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.¹⁸

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.¹⁹

Criminal grand juries in California are selected at random from the list of people eligible to serve on a “regular” jury (“petit jury”) in a criminal or civil trial.²⁰ Grand jurors should represent a cross-section of the population that is eligible to serve on a jury at a jury trial.²¹

Eligibility

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

1. A U.S. citizen;
2. 18 or older;
3. A resident of the state and of the county for one (1) year immediately prior to being selected as a juror;
4. “In possession of [their] natural faculties, of ordinary intelligence, of sound judgment, and of fair character”; and
5. Sufficient knowledge of English.²²

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

1. Not be currently serving as a trial juror in California;
2. Not have finished serving as a California grand juror within the past year;
3. Not have been convicted of malfeasance in public office or any California felony; and
4. Not be serving as an elected public officer.²³

2.2. Proceedings

Indictment proceedings are very different from ordinary criminal trials in three ways:

1. Unlike most stages of California’s criminal court process, this proceeding is not presided over by a judge.²⁴ Instead, the prosecutor takes the lead role in running these proceedings, as they make the case that you should be charged with a crime.²⁵
2. Unlike criminal court proceedings, these proceedings are closed to the public and are held in secret.²⁶
3. You are not permitted to be present at these proceedings. In fact, you will not even be notified that the proceeding is going on.²⁷

Voting

If—after weighing all the evidence presented to it—the jurors believe that the evidence would warrant your criminal conviction by a trial jury, it may issue an indictment against you.²⁸

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.²⁹

Evidence rules

In a typical proceeding, the district attorney will present evidence to the jurors, to show that you are 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.³⁰

The California evidence rules that apply to California criminal trials also apply to California grand juries³¹–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.³²

The jurors are not required to hear any evidence in your favor. Though if they have reason to believe that there is evidence available that tends to prove you are not guilty, it can order that evidence to be produced.³³

2.3. Defendant’s rights

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

The most important right that you enjoy is set out in Penal Code 939.71 PC. This law provides that the prosecutors must disclose any evidence they are aware of that tends to prove that you are innocent (this is known as “exculpatory evidence”).³⁴

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.³⁵

3. What is the federal process?

Federal grand juries must have sixteen (16) to twenty-three (23) members.³⁶ At least twelve (12) of the jurors must vote to issue an indictment.³⁷

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.³⁸

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.³⁹

As with California grand juries, you are not typically present at the proceeding—and the proceeding takes place in secret.⁴⁰

4. What is serving as a witness like?

If you receive a subpoena to testify before a grand jury as a witness, there are a few important things to keep in mind.

1. You may not bring a lawyer with you into the proceeding.⁴¹ Though 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.
2. 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.
3. Although you are not obligated to keep grand jury proceedings secret (like grand jurors are under Penal Code 924.2), it still may be a good idea not to disclose what happened. Discuss with your attorney whether or not you should talk about what happened.

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