The Top Five: Grand Jury Proceedings

When I'm working with students, questions come up quite often as to the specifics of grand jury proceedings. Here are five things to certainly know:

1: The right to a grand jury is provided by the federal constitution. Some rights provided by the federal constitution have been incorporated by the states through the 14th Amendment. But the right to a grand jury proceeding is not one of those rights that have been incorporated, and so only if a state constitution requires such a proceeding will it be necessary in any given state.

2: A defendant has no right to notice that a grand jury is considering an indictment, nor does a defendant have a right to be present and confront adverse witnesses. There is also no right given to defendant to introduce evidence before the grand jury.

3: A witness subpoenaed to testify before a grand jury neither has the right to counsel, nor to Miranda warnings prior to testifying. This means that if the witness testifies falsely, that witness may still be convicted of perjury even though the witness was not provided Miranda warnings regarding the testimony. In addition, a witness does not have the right to an attorney while testifying.

4: A grand jury may base its indictment on evidence that would not be admissible at trial. In addition, a grand jury witness may not refuse to answer questions on the grounds that the evidence would be inadmissible at trial.

5: A witness may not claim that a subpoena to testify is invalid and attempt to justify that claim on the basis that there was no probable cause to call that witness to testify. The 4th Amendment's requirement for probable cause does not apply under these circumstances.