Grand Jury

Criminal Prosecutions

Although the American grand jury originally was conceived as a protector of ordinary citizens by other ordinary citizens, the fairness of its criminal operations has been questioned by various commentators and judges. U.S. Supreme Court Justice William Douglas stated, "It is, indeed, common knowledge that the Grand Jury, having been conceived as a bulwark between the citizen and the Government, is now a tool of the Executive." Some even have referred to it as a "rubber stamp" for prosecutors. In the criminal system, the California constitution and laws provide that felony prosecutions are initiated only after a determination that there is "probable cause" to believe that specific individuals committed specific crimes. This is done either by "information" presented for examination and approval by a judge, or by indictment after a grand jury hearing and vote. In either case, the purpose of the objective review is to prevent overzealous prosecutors from unjustified, groundless, or unfair prosecutions when "probable cause" does not exist.

The grand jury operates without providing many fundamental rights common in court hearings and trials. For example, the defendant has neither the right to present evidence to the grand jury or cross-examine the witnesses against him or her. Only the prosecutor may present evidence, and the defendant has no right to counsel, even if required to testify. Even judges generally are excluded, leaving the grand jurors to rely on the prosecutor for all information. One early study indicated that 95% of all cases brought to the grand jury resulted in indictments, raising questions about the value of this review because the grand jury is not able to adequately evaluate the evidence presented only by the district attorney.

Civil Investigations

The role of the grand jury in civil investigations presents an interesting twist: the original (English) grand juries served to aid the government in finding and prosecuting private citizens' misdeeds; now, these juries investigate and accuse public figures, defending individual citizens' rights and expectations. Grand juries, both federal and state, may investigate criminal activity or non-criminal activities. In California, for example, the grand jury can investigate any activity by a public official (other than court), which violates a state law, and many other activities, as long as they occur within the county of the grand jury.

State grand juries, but not federal grand juries, can investigate any non-criminal activity and report and make recommendations based on the results of the investigation. These investigations commonly include reviewing the operation and condition of jails and prisons, investigating the conduct of local public officials, and other similar matters of public health, safety, and welfare. The results of these investigations may be criminal charges, recommendations for new laws, or merely reports to the public identifying problems but proposing no specific solutions.

Government Watchdog

In California today, provisions of the Penal Code to require the grand jury:

1. Investigate and report on the accounts, records, operations, and functions of district, city and county government and public officials (Penal Code § 925 & 925a); it may also inquire into the affairs of joint powers agencies located in the county.
2. Inquire into the condition and management of all correctional facilities within the county (Penal Code § 919(b)).

The grand jury may investigate or inquire into county matters of civil concern, such as the needs of county officers, including the abolition or creation of offices and the equipment for, or the method or system of performing the duties of the several offices.

Powers permitted to the grand jury include:

1. Free access, at reasonable times, to public prisons;
2. The right to examine all public records within the county;
3. The right to examine books and records of
   • any incorporated city, or joint powers agency located in the county;
   • certain redevelopment agencies and housing authorities;
   • special-purpose assessing or taxing districts wholly or partly within the county; &
   • non-profit corporations established by or operated on behalf of a public entity;
4. The authority to investigate and report on operations and methods of performing duties of any such city, county, or joint powers agency and to make recommendations as deemed proper;
5. The ability, with permission of the Superior Court, to hire experts such as auditors and accountants;
6. The right to inquire into the sale, transfer and ownership of lands which might or should escheat to the state.

Note: The grand jury has no authority to investigate the courts or the acts or commissions of any judge or judicial employee.

Criminal Indictments

The California Constitution permits criminal trial on the basis of indictment by a grand jury or by information after the district attorney recommends prosecution and a judge agrees that facts exist which warrant prosecution. In addition, under § 917 of the Penal Code, "the grand jury may inquire into all public offenses committed or triable within the county, and present them to the court by indictment." In actual practice, grand juries seldom initiate such inquiries; rather, such offenses are generally brought to the grand jury by the district attorney, who asks for and generally receives an indictment, upon presentation of adequate facts.

According to the California Grand Jurors Association, the district attorney much more frequently bypasses the grand jury and uses the process known as a preliminary hearing. A 1954 survey of California district attorneys listed the following factors as influential in the decision to seek a grand jury indictment rather than using the preliminary hearing:

1. High public interest in the case;
2. The fact that a preliminary hearing would take more time than a grand jury hearing;
3. The necessity for calling children or witnesses who would be subject to cross-examination at a preliminary hearing;
4. The existence of a weak or doubtful case which the district attorney wishes to test;
5. Cases involving malfeasance in office; and
6. The fact that witnesses are in a state prison.

A more recent study adds the following reasons for using the grand jury:

1. Cases where the defendant cannot be located and the time limit under the statute of limitations is about to expire,
2. Where the secrecy of the grand jury may allow defendants to be charged and taken into custody before they can pose potential danger to a witness's safety or flee from the jurisdiction,
3. The need to protect the identity of undercover agents,
4. And the ability to test a witness before a jury.

From 1978 until 1990, grand juries were seldom used for indictments. A California Supreme Court ruling required holding preliminary hearings even if grand jury indictments were obtained. In 1990, a constitutional amendment made significant alterations in California criminal law and court procedures, including a provision that defendants were not entitled to preliminary hearings if indicted by a grand jury. As noted above, recent statutes (Penal Code § 904.6) give district attorneys the option of using special grand juries chosen from the regular jury pool to handle criminal cases and thus ensure indictment by those who represent a cross section of the community. Although the law allows criminal indictments to be brought by a grand jury, in practice, the District Attorney generally prefers to use the speedier preliminary hearing process.

An Overview

Grand Juries are impaneled in every county in California. Article I, §23 of the California Constitution states: "a grand jury shall be drawn and summoned at least once a year in each county." Depending on a county's population, a specified number of citizens ranging from 11 to 23 in each of California's 58 counties are empowered to investigate and report on various activities of county and city government. The rules governing the makeup, organization, powers and duties of grand juries in California are found in the California Penal Code §888-939. Recent changes in the Penal Code (§904.6, 1991) permit any county to have an additional grand jury at the discretion of the presiding judge of the superior court.

The statutes permit some variation in the manner and time of selection of jurors and require only that the term of service be for one year and coincide with the County's fiscal year. Qualifications for grand jurors are outlined in Penal Code § 893. This section requires the prospective grand juror be at least 18 years old, in possession of their natural faculties and have sufficient knowledge of the English language. In Sacramento County, each grand jury begins its term July 1 and ends its service June 30 of the following year. Throughout the State, prospective grand jurors in each county are chosen through a lengthy process that includes application, screening by the jury commissioner from Department of Motor Vehicle Records, voter rolls, and nomination of interested persons by Superior Court Judges. A thorough background check is made on all interested persons and list of qualified candidates is submitted to the judges for review and approval. Since some members of the existing grand jury may be carried over for a second term, the number of names drawn will equal those needed to provide a grand jury of 19 members. (The law allows for a grand jury of 23 in counties with greater than four million population and for 11 members in counties with less than 20,000 population. (Penal Code §888.2)) It has been the practice in many counties to advertise widely and to encourage many people to apply for the grand jury. Because grand jury service requires the devotion and commitment for only a token payment, it is desirable for grand jurors to have an interest in community affairs and be open-minded with a true concern for the views of others. Grand jurors also should posses some investigative skills and be able to take good notes and write and type reports. A good knowledge of the functions and responsibilities of city and county government is also helpful.

Investigation of Complaints and Accusations

The grand jury also is likely to receive a number of citizen complaints, many of which involve operations of county or city agencies or special districts. Whether the complaint is civil or criminal, rules of secrecy apply, and during the course of its investigation, the grand jury may not divulge the subject or methods of inquiry. The subject of the investigation and the methods of inquiry are only revealed when the final report is published. Privileged or confidential material is not included in the grand jury reports. Thus the names of those questioned and facts that might lead to the identity of a person who provided information to the grand jury are not released. § 919(c) of the Penal Code requires the grand jury to inquire into the willful or corrupt misconduct in office of public officers of every description within the county. Where misconduct is found, the grand jury may file an accusation leading to a trial. If the official is convicted, the person is thereby removed from office. Very few of these accusations are filed. Frequently, if there is misconduct in office, it is of a criminal nature, and an indictment rather than an accusation would be issued. It is also possible that an official would resign rather than face an accusation. The grand jury may file an accusatory pleading against a corporation doing business in its county of jurisdiction (Penal Code § 892). In a report published by the California Grand Jurors Association, misconduct in office could include any of the following:

Nonfeasance:

1. The failure to act where duty requires an act; or
2. Neglect or refusal, without sufficient cause or excuse, to do that which is the officer's legal duty to do, whether willfully or through malice; or
3. Willful neglect of duty.

Misfeasance:

1. The improper or doing of an act that a person might lawfully do; or
2. The performance of a duty or act that one ought to do or has a right to do, but in manner such as to infringe upon the rights of others.

Malfeasance:

1. The performance of an act that is positively unlawful or wrong; or
2. The performance of a wrongful act that the person has no legal right to do.

The major functions of a grand jury are divided into criminal indictments and civil investigations. While the same panel in Glenn County executes both functions, the civil investigation portion requires the majority of the jury’s time. California Penal Code section 904.0(a) allows the presiding judge of Superior Court to impanel one additional grand jury. The additional grand jury would have sole jurisdiction to return criminal indictments.

Criminal Indictments

The District Attorney will bring the majority of cases that are presented to the grand jury; however, the State Attorney General or a Special Prosecutor may present a case. The responsibility of the grand jury does not extend beyond the determination of whether or not there is probable cause to believe that a crime has been committed and that the accused has committed such crime. Criminal indictment hearings are conducted in secrecy to protect witnesses and defendants in cases of no indictment. During a criminal investigation only District Attorney representatives and a court reporter are allowed in the jury room, with a few exceptions. No person other than a grand juror may be present during deliberations or voting. An indictment can be returned only if a minimum of 12 jurors agrees.

Historically, the grand jury indictment process is used for cases where:

• Public officials, employees, or police officers are involved
• Statute of limitations is a concern
• The indictment is complex and must be presented over a long period of time
• Grand jury subpoena powers are necessary
• Secrecy and non-adversary nature for sensitive cases are needed, such as cases involving children or rape victims
• Criminal indictments are extremely rare in Glenn County.

Civil Investigations

The civil, or “watchdog”, responsibilities of the grand jury encompass the examination of all aspects of county government, including special districts, to ensure that the county is being governed honestly and efficiently and that county monies are being handled appropriately.

The grand jury is mandated by law to inquire into the conditions and management of public jails. The grand jury may conduct investigations on public agencies and on the administration and affairs of any city within the county, as well as examine books and records of redevelopment agencies. It is also appropriate for any private citizen, county official or county employee to present a written complaint to the grand jury for investigation.

During its term, the grand jury selects the government affairs it wishes to investigate. These investigations are generally conducted by committees, which correspond with the primary functions of the county. Committees may ask for support and advice from the Superior Court Presiding Judge, District Attorney, County Counsel, Attorney General, or outside consultants.

On the last day of each year of service, the grand jury is required by law to submit all final reports to the Presiding Judge. These reports include all studies and investigations conducted by the grand jury during its term, with appropriate recommendations. Copies of individual reports are submitted to each county entity investigated, with instructions that response to findings/recommendations be made by the responsible governing body within 60 or 90 days.

Past grand jury reports are available for inspection by the public at most public libraries.

The law states grand jury applicants must have these qualifications:

• Citizen of the United States, 18 years of age or older
• Resident of state and county for at least one year prior to being selected
• In possession of natural faculties, ordinary intelligence, sound judgment, fair character
• Possess sufficient knowledge of the English language

Applicants are disqualified if any of the following apply:

• Presently serving as a trial juror in any court in the state
• Presently serving as an elected public official
• Discharged as a grand juror in any court in the state within one year
• Convicted of malfeasance in office or any felony or other high crime

Beyond the legal requirements, several other qualifications are desirable for a grand juror:

• General knowledge of the functions, authorities, and responsibilities of county and city government and of other civil entities
• Research abilities, including ability to read and comprehend complex material, a background in accessing/analyzing facts and experience in report writing
• Background in group/committee work
• Good to excellent health
• Respect and objectivity concerning the positions and views of others

Download a Grand Jury complaint form. 

Click here to read about the History of the Grand Jury.