In Nevada, a grand jury is a special proceeding convened at the outset of a criminal case to decide whether the state has enough evidence to prosecute (indict) a suspect for a particular crime or set of crimes.
Most Nevada criminal cases do not involve grand jury indictments. Prosecutors generally decide whether they have probable cause to initiate criminal charges. However, for very serious or high-profile felony allegations, the district attorney may prefer to let a jury of peers determine whether suspects should face charges.
What is the difference between a grand jury and a trial jury?
The purpose of a grand jury is to determine whether the state has sufficient evidence (“probable cause”) to press criminal charges.1 So grand juries come into play at the beginning of a case, and they decide whether a case will go forward.
In contrast, the purpose of a trial jury (also called a “petit jury” or just plain “jury”) is to determine whether the state has proven a defendant guilty beyond a reasonable doubt. So trial juries come in only if the defendant goes to trial, and they decide how the case will end.
Another difference between grand juries and petit juries is that grand jury proceedings are secret, and defense counsel cannot attend. Meanwhile, jury trials are open to the public, and defense counsel must be allowed to participate and present evidence.
Finally, grand jury decisions do not have to be unanimous: Only 12 of the 17 grand jurors have to agree to indict. In contrast, trial juries – which usually have 12 jurors total – must unanimously decide whether or not to convict a defendant.
Grand juries begin a criminal case. Trial juries end them.
Do all cases start with grand juries?
No. Many do not.
When police finish a pre-file investigation, they submit their findings to state prosecutors. If the prosecutors decide to pursue the case, they have two choices of how to try to press charges in Las Vegas:
1. An Information
The quickest and most common route is to submit to the court a sworn statement called an “information” charging the defendant with a crime. The judge will then set an arraignment date for the defendant to come to court and answer to the charges.
2. An Indictment
The second alternative route is to present the police findings to a grand jury. It then becomes the grand jury’s job to determine whether sufficient evidence exists to charge the defendant with a crime.
If the grand jury follows the prosecutors’ recommendations to press charges, the prosecutors then submit to the court a charging document called an “indictment.” Similar to an information, an indictment explains that there is probable cause that the defendant has committed a crime. Only then does the court set an arraignment date.2
Grand jury proceedings can be very time-consuming, so prosecutors tend to reserve them for only felony cases that are extremely serious or that may garner public attention. Commonly these cases involve:
- murder,
- drug trafficking rings, or
- racketeering.
Can someone be indicted after they have already been charged through an information?
Unfortunately, yes. If the court dismisses a case that was originally charged through the information, the prosecutors may try to press the same charges again through a grand jury indictment.
Do people who have been indicted have the same rights as people who were charged through an information?
For the most part, yes, except that a defendant who is charged through a grand jury indictment does not have a right to a preliminary hearing prior to trial. This is because the grand jury essentially serves the same function as a preliminary hearing, which is to determine whether the state has probable cause to press criminal charges.
Note that in some situations, the prosecution can introduce hearsay evidence against the defendant during a grand jury. This hearsay evidence includes statements made by alleged victims of:
- felony child abuse,
- child sex abuse, or
- felony battery domestic violence.3
This way, victims are not forced to testify.
What is the point of the state using grand juries?
Theoretically, grand juries serve as a “check” on the district attorney (or the U.S. Attorney in federal cases) by preventing the state from pressing charges when insufficient evidence exists. In practice, however, grand juries nearly always agree with the prosecutors.
Currently, the majority of states do not ever use grand juries to file state criminal charges. However, grand jury indictments are required in order to charge someone with serious federal crimes such as RICO violations.
How are grand juries formed?
To form a grand jury, the court does not send out notices to hundreds of people like they do for trial jury service. Instead, they mail a few dozen people questionnaires with information about when the grand jury hearings will occur, how long they may last, and what they will receive in pay.
Then, the potential grand jurors send back the questionnaire informing the court whether or not they can participate. If necessary, the court sends out the questionnaires to more people until it can impanel a large enough grand jury lawfully qualified to serve (17 jurors total).
Whereas trial juries convene for one trial in one case, grand juries can be summoned to convene for several different cases over several months. Though similar to trial juries, the composition of the jury can be the basis of a motion to dismiss the case.
What happens at a grand jury proceeding?
During the grand jury hearing, prosecutors present all their evidence to the grand jurors. The jurors are allowed to ask questions of the prosecutors and any witnesses.
Afterwards, the grand jury deliberates in secret, and they vote on a foreperson (similar to trial juries).
Grand juries also have a deputy foreman to take the place of the foreman if they are not available, and grand juries have a secretary to keep minutes and file records with the clerk.
One of the foreman’s jobs is to administer an oath to all the grand jury members where they promise to inquire into whether the defendant committed an offense based on the available evidence. If they do indict, the foreman signs the paperwork.
Do defendants testify?
Defendants may testify before a grand jury, but it is advised that they not speak at all since they are not allowed to have their attorneys present at grand juries.
The prosecution may also subpoena witnesses to testify at the grand jury.4
Do defendants get notice?
Yes, the state is required to give defendants notice and to permit them to testify before the grand jury hearings unless the court determines there is a good reason not to give notice (such as if the defendant is a flight risk). If an indictment occurs, the defendant may have a transcript of the proceedings.
Is there any way to fight an indictment?
Yes, the defense attorney can file a writ of habeas corpus challenging the indictment. If the court grants the writ, the case will be dismissed.
However, judges rarely grant these writs of habeas corpus and instead allow the charges to be litigated in court.
Additional Resources
For more in-depth information, refer to these scholarly articles:
- Restoring the Grand Jury – Fordham Law Review article on restoring respect to the grand jury system.
- Eliminate the Grand Jury – Criminal Law & Criminology article on why grand juries should not be used.
- The Early History of the Grand Jury and the Canon Law – University of Chicago Law Review.
- Demythologizing the Historic Role of the Grand Jury – American Criminal Law Review.
- The Useful, Dangerous Fiction of Grand Jury Independence – American Criminal Law Review.