Criminal Complaints

In many state cases, and in some federal matters, prosecutors or members of law enforcement will press charges by filing a sworn statement that establishes probable cause that a specific crime has been committed.  If a judge, or in some cases a court commissioner, finds the statement sufficient to establish probable cause, the court will issue a warrant for the arrest of the accused.  In federal cases, the United States Attorney might decide to use this procedure to arrest a suspect faster than it would take for a grand jury indictment.  However, if a person is arrested under this procedure, the federal prosecutor must thereafter present the case to the grand jury and obtain a formal indictment.

Indictments

Using the subpoena power of the grand jury, prosecutors may question witnesses and obtain records and other evidence needed to establish probable cause that a crime has been committed -- evidence that may later assist them in obtaining a conviction at trial.  Yet, unlike a trial in which prosecutors and defense lawyers bicker over the evidence and present competing arguments, grand jury proceedings are actually one-sided affairs in which prosecutors preside over the presentation of evidence without interference from defense counsel or even from a judge!  Because grand jurors only determine whether there is probable cause to warrant a later trial on a particular charge, they act largely as instruments of the prosecutor, who directs them to issue certain subpoenas and handles the presentation of all evidence.  Indeed, the process is often so prosecutor-driven that many prosecutors boast that they could "indict a ham sandwich" if they really wanted to.

Because many people will not wish to volunteer information to inquisitive police or FBI agents, the subpoena power of the grand jury is extremely helpful to prosecutors seeking to uncover evidence of criminal acts. Yet, there are limits to a grand jury's power.  Under the Fifth Amendment to the United States Constitution, persons have a privilege against self-incrimination.  Thus, targets of a grand jury investigation may not be subpoenaed to testify against themselves.  And, where other witnesses may be concerned that their testimony may tend to incriminate themselves, they may "take the Fifth" and refuse to answer questions posed by prosecutors or by grand jurors themselves.  In some situations, prosecutors may even grant certain witnesses immunity from prosecution as a means of compelling their testimony.  By eliminating any possibility that they would incriminate themselves, immunized witnesses would be unable to "take the Fifth" and avoid these tough questions.

Grand juries typically consist of between 16 and 23 citizens.  To indict a person, at least 12 jurors must find probable cause to believe that the accused committed the crime to be charged.  While the grand jury is deliberating on whether to issue an indictment, the prosecutor, law enforcement agents, the court reporter, and everyone else must remain outside the grand jury room.  Though grand jury proceedings are transcribed by a court stenographer, they are kept secret.  Indeed, it is a crime for a prosecutor or grand juror to discuss grand jury proceedings in public.  However, in the event of an indictment, grand jury testimony may be used later at trial in the event that certain witnesses change their story on the stand.