They Want You! You’re Rights at a Grand Jury Hearing

When many people think of the word jury they think of a group of individuals tasked with determining a person’s guilt or innocence following a trial. While this is correct a grand jury is convened in a similar way to a “petit” jury (jury used at a trial) but its function at the federal and state level is quite different. This short article focuses on grand juries in Pennsylvania State courts. While Federal Courts reside in every state it is important to understand that the Federal rules of procedure are often different from those in state courts despite the federal Court’s existence within a state’s boundaries. Pennsylvania is no exception.

In Pennsylvania there are “investigating” grand juries. Investigating grand juries do not have the power to indict (formally charge) a person with a crime(s). A Pennsylvania grand jury is composed of 23 citizens who, after hearing evidence, determine if sufficient evidence exists to find that a crime was more than likely committed within its jurisdiction. A grand jury’s typical jurisdiction is its county, such as Philadelphia, but Pennsylvania does have multi county investigating grand juries though extremely rare. If 12 or more of the 23 grand jurors agree that sufficient evidence exists, it issues a written document known as a “presentment”.

A presentment summarizes the evidence and recommends that the assigned prosecutor file charges against the person(s) who is the target or subject of the grand jury’s investigation. While a prosecutor is not required to act on a grand jury’s recommendation they do in most cases. The grand jury’s presentment often serves as the prosecutor’s “affidavit of probable cause” which Pennsylvania requires in order to file criminal charges.

The work of a state grand jury is secret and a defendant along with his/her defense counsel only becomes aware of its findings upon an indictment. Once indicted or charged, the defendant and his/her attorney only have 60 days to prepare a case for trial unless a Court grants a motion for a continuance. Until June 2012, grand juries did not exist in Pennsylvania. The previous grand jury system was actually abolished as unnecessary in 1976. After 1976 until 2012, the preliminary hearing process took the place of grand juries but the Pennsylvania Supreme Court in June 2012 granted their approval following motions by state prosecutors.

Grand juries are not permitted in all cases and in order to utilize this system in place of a preliminary hearing, a prosecutor must formally represent to the Court that the grand jury is needed because of the threat of witness intimidation. Defense attorneys prefer preliminary hearings over the grand jury process.

At a grand jury a defense counsel is not permitted to cross examine testifying witnesses or present evidence. Witnesses, however, testifying before grand jury are permitted to consult with counsel at any time following a question. While defense counsel do not have an absolute right to be in grand jury hearing room, judges will more than likely allow it. Answers to questions will frequently create a self-incrimination issue under the Fifth Amendment along with a right to counsel issue under the Sixth Amendment. This is one of the major differences between federal and state grand juries.
If you receive a subpoena for a Pennsylvania grand jury it is important to immediately consult with an attorney. I do not recommend ever appearing for a grand jury without an attorney as any statement you make could later be used against you at a trial.

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