Grand Juries

The following was e-mailed to me by a reader of the blog:

"What should we know about grand juries for the MBE?"

Response:

Not too much actually. You should know the purpose of grand juries, and the distinctions between a grand jury proceeding and a trial.

The idea here is that defendants accused of federal felonies, and some state-court defendants as well, are entitled to a grand jury indictment. Before going to trial there has to be a determination as to whether there is probable cause to prosecute, and that determination will be made (when applicable) by a grand jury. If the grand jury determines there is enough evidence, and therefore finds probable cause to prosecute, an indictment will be issued.

For the MBE, you should note that the 5th Amendment right against self-incrimination does apply to grand juries, but there is no 6th Amendment right to an attorney (formal charges have not yet been filed at this point,) and the exclusionary rule does not apply (even illegally obtained evidence can be used). In addition hearsay is allowed during a grand jury proceeding.

Note also that there is no right to confront adverse witnesses during a grand jury proceeding, and, as such, no right to cross-examination. Without that right of cross examination (or developing the witness's testimony,) testimony provided at a grand jury proceeding cannot be used for the purposes of the former testimony exception to the rule against hearsay during trial.