Grand Jury Proceedings in Texas: Indictment and Defense
Posted on by Michael Lowe.
An overview of Grand Jury Proceedings from a criminal defense lawyer’s standpoint.
There are two kinds of juries in Texas: “petit juries” and “grand juries.” In criminal cases, a “petit jury” is selected to serve in a particular trial in order to decide on the defendant’s guilt or innocence. A “grand jury” never makes that decision.
Petit Juries vs. Grand Juries
Instead, grand juries consider presented evidence and render a decision based solely on that presented evidence on whether or not there is probable cause to believe that (1) a crime (as defined by state or federal law) has been committed (2) by one or more individuals.
Petit juries return “verdicts.” Grand juries do not. They return “indictments,” which is a written statement of the criminal charges against the accused forming the basis for his or her arrest.
Actually, the grand jury will vote to “true bill” a case. The prosecutor will thereafter prepare a formal written statement called an “indictment.” The indictment gives the criminal court jurisdiction over the criminal case. To review an example of a federal indictment, see “Dallas County Commissioner John Wiley Price Indictment – Full Text of Federal Grand Jury Indictment July 2014.”
Grand juries exist under both state law (Tex. Const. art. I, § 10) and federal statute (28 U.S.C. § 1861). Under both state and federal law, a “grand jury” is the only means to issue a felony criminal indictment.
Right now in North Texas, for example, there may be federal grand juries convened in any or all of the various divisions of the Northern District of Texas; i.e., the Abilene Division; Amarillo Division; Dallas Division; Fort Worth Division; Lubbock Division; San Angelo Division; and/or Wichita Falls Division.
Simultaneously, state grand juries may be convened in the various Texas counties. Tarrant County, for example, has two grand juries in session at a time, with eight grand juries meeting during the year. Each Tarrant County grand jury will meet for three days a week for a three month session.
We’ve discussed Grand Juries before, see “Grand Jury in Texas: Defending Witnesses and Targets of Grand Jury Investigations.” We’ve also discussed the need for finding “probable cause.” See, “What Is Probable Cause For Police To Arrest In Texas?”
Today, we’ve delve into the criminal defense perspective on both state and federal grand jury proceedings and the need for advocacy as soon as possible for anyone involved in a grand jury investigation.
Examining Trials and Grand Juries
There are two vehicles for determining “probable cause” that an individual has committed a crime. They are alternatives. One is preferred by the prosecution and the other, by the defense.
An “examining trial” is a preliminary hearing where a judge will review evidence presented to him or her and decide if there is “probable cause” for an arrest. Criminal defense lawyers usually file motions for examining trials, and are known to appeal the trial court’s decision to a reviewing court if probable cause is found to exist. For more, read “Examining Trials in Texas.”
Grand juries also decide on “probable cause” in criminal cases. However, the process here is much different than in an examining trial.
Grand juries are not public hearings. They are secret. The defense lawyer is not calling witnesses and introducing documents in defense of the accused. The prosecutor is the only attorney presenting evidence to the jurors in a grand jury proceeding.
Even more important from a criminal defense perspective, the accused has no legal right to participate in the grand jury proceedings. Moreover, he or she does not even have a legal right to know that the prosecutor is presenting evidence regarding that person to the grand jury.
“They Can Get Them to Indict a Ham Sandwich”
It is no wonder that criminal defense attorneys are wary of grand jury proceedings at either the state or federal level.
Perhaps you’ve heard the famous quote from New York Judge Sol Wachtler, which first appeared in a 1995 New York Daily News interview where he explained “…district attorneys now have so much influence on grand juries that ‘by and large’ they could get them to ‘indict a ham sandwich.’”
Criminal Defense Lawyer Has No Opportunity to Question Grand Jurors
When there is a criminal trial, both the prosecutor and the defense lawyer have the chance in “voir dire” to question potential jurors for bias or cause before they are allowed to serve on the jury. That due process assurance is complicated enough. See, “Can Texas Criminal Defense Lawyers Rely Upon Jury Questionnaires In 2020?”
However, the criminal defense lawyer has no power to question or interview the grand jurors who are deciding whether or not there is probable cause to believe that the accused committed a crime (felony). Grand jurors are found in the same manner as petit jurors; however, they are selected and placed into service without any type of defense voir dire. The defense lawyer does not even know who they are: the identity of grand jurors is also kept secret.
One of the concerns over the due process of Texas grand juries was addressed by the Texas Legislature back in 2015. New laws were passed to stop the notorious “pick-a-pal” system for selecting Grand Jurors in Texas. This stopped the practice of placing friends and colleagues onto state grand juries. However, there is still no legislation allowing defense counsel to participate in the juror selection process.
No Requirement that Prosecutor Present Exculpatory Evidence to Grand Jury
Last year, proposed legislation was presented to the Texas Legislature that would require prosecutors to bring evidence that tends to exculpate (or clear) the defendant before the Grand Jury. In the words of SB 1492, “Prosecutors are required to disclose exculpatory evidence, which is evidence that is favorable to the defendant or tends to negate their guilt. However, currently this requirement does not apply to grand jury proceedings. S.B. 1492 would mandate that this crucial evidence be disclosed to the grand jurors to aide in their decision.” (Original Author’s/Sponsor’s Statement of Intent)
This bill did not make it out of committee. Until future legislative grand jury reform laws are passed, the Texas Grand Jury is not required (and undoubtedly will not) hear exculpatory evidence when considering probable cause to indict an individual for a felony crime.
What does this mean for criminal defense lawyers and their clients? No matter how convincing the witness statements or documents might be, there is no legal requirement that any evidence favorable to the accused be presented for grand jury deliberations. What the Grand Jury hears is 100% up to the prosecutor’s discretion.
The defense lawyer is left to strategize on whether or not informal discussions with the prosecutor are advantageous at this point. If the prosecutor is overly zealous in pursuing the case, then negotiations prior to a Grand Jury indictment may be pointless.
No Need for Unanimous Grand Jury Vote to Indict
In Texas, a grand jury need not agree 100% on the existence of “probable cause” before an indictment is issued. Pursuant to Texas Code of Criminal Procedure 20.19, only nine (9) jurors are needed for an accused to be faced with criminal charges. (This lack of unanimity does not change in the 2021 amendments to this statute.)
Compare this to a felony criminal trial under Texas law. If there is not a unanimous decision by the jury to convict, then the judge must declare a mistrial.
No Judge Overseeing the Grand Jury Proceedings
Unlike a criminal trial, where the judge oversees everything that is happening and rules on objections made by counsel, there is no judge present during the grand jury proceedings. Under Texas law, only the jurors themselves along with the prosecutor, the court reporter, and a court bailiff are allowed to be present.
How Can a Criminal Defense Lawyer Defend His Client Before a Grand Jury?
Given the secrecy, the imbalance of presentation in favor of the prosecutor, and the lack of any need for a unanimous decision, among other disparities, how can an experienced criminal defense lawyer advocate for someone who is being investigated by a local grand jury?
First of all, what if the grand jury does not have nine members finding probable cause in the matter? Then a “no bill” is issued. The criminal defense lawyer can get this “no bill” expunged from their client’s criminal record. For more, read “Expungement.”
Second, in some jurisdictions – like Dallas County – it may be possible for the criminal defense lawyer to go before the Grand Jury on behalf of the accused. The judge presiding over the grand jury proceedings may allow the defense lawyer to appear and make a brief statement to the Grand Jury, advocating on behalf of his client. This is not the general rule, but it is possible in some cases.
The defense is able to prepare and provide a packet containing written information (documents, affidavits, etc.) for consideration by the Dallas County Grand Jury in its deliberations. This defense presentation packet is not presented live in the Grand Jury room; the defense attorney is required to drop it off at the Grand Jury Window on the 11th floor of the Frank Crowley Courthouse in Dallas.
With enough advance notice and preparation, it is possible for the defense lawyer to successfully thwart a Grand Jury indictment through the defense packet presentation and/or statement to the jurors.
Alternatively, the defense lawyer may be able to convince the Grand Jury that even if they do indict, it should be for a lesser charge than what the prosecutor is seeking.
For more, read “Ring Camera Proves Alibi Defense In Tarrant County Aggravated Assault/Deadly Weapon,” where I presented a grand jury packet to the Tarrant County prosecutor for presentation to the Grand Jury, which resulted in a “no bill” of the matter (and a subsequent expungement).
Grand Jury Defense in Texas: The Need to Have a Criminal Defense Attorney ASAP
Long ago, when grand juries were considered so vital they were guaranteed in the Texas Constitution, the practice of having a group of citizens serve as a double check on the police powers, confirming “probable cause” existed before anyone was subjected to arrest seems to be a clear legal protection and a part of due process.
Things have changed. The grand jury process is not an independent process by the people of an innocent person being scrutinized by the government. Today, it is a tool of the prosecutors to get indictments and arrests, and to build a case load.
Grand juries are secret, operating without judicial oversight. The proceedings are blatantly slanted in favor of the government’s position.
Arrests are serious. Lives can be forever changed when someone is arrested and charged with a serious crime. Social stigma, gossip, innuendo – and the view of many that “where there is smoke, there’s fire” can result in permanent harm both personally and professionally.
Therefore, anyone who believes that they are being considered or suspected of a crime in any grand jury proceeding must not procrastinate or minimize the ramifications here.
Rest assured that the arresting officers, investigating agents, and prosecuting attorneys are adept at their jobs. Their goal is to bring evidence before the grand jury that result in an indictment.
In some matters, their efforts may be exacerbated by the factual circumstances or alleged criminal charges. Certain types of sex crimes, for instance, may bring with them more fervor than allegations of grand theft.
Having an advocate on your behalf, to try and level the playing field as best you can during the early stages of a Grand Jury investigation, can be of critical importance.
There are no guarantees that having an aggressive and experienced defense lawyer will get your case dismissed or “no billed” – but failing to get a criminal defense attorney advocating on your behalf at the earliest possible moment does guarantee that the state will be operating at a tremendous advantage.
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