The Federal Grand Jury Process In A Criminal Case

The Federal Grand Jury Process

A grand jury is a group of citizens who in theory are supposed to function as a check on executive power, the executive branch, and the prosecutors. In practice, the truth is far different.

In most federal judicial districts, the court will have a grand jury in session most (if not all) of the time. They will sit in the grand jury room of that district, and the Assistant United States Attorneys (or “AUSA’s”) will schedule time with that grand jury and present evidence in front of that grand jury – typically in the form witness testimony. Often, grand jurors will ask questions themselves, and the AUSA will answer those questions, functioning as the legal “advisor” to the grand jury.

After presenting their proofs, the AUSA will request charges against the defendant or defendants – most often requested specific charges. The grand jury will then vote on whether to issue charges; and unlike a jury at trial a grand jury does not need to be unanimous. Then, if the grand jury agrees with the assistant United States attorney and does authorize charges, the grand jury foreperson will approve or sign a “true bill.” That true bill becomes the indictment, and formally charges a defendant with a federal crime.

The role envisioned by the founding fathers a few hundred years ago was that a grand jury would serve as a check on the abuse of executive power by prosecutors, the abuse of power by the government, and the arbitrary charging of people wrongfully with crimes that they didn’t commit. In theory, the grand jury was designed to prevent the random charging of offenses for reasons such as bias or prejudice, or charging based on political reasons. But unfortunately, that check has disappeared.

Grand juries now don’t serve any actual protective gatekeeping function. Grand juries overwhelmingly approve every indictment requested by the Assistant United States Attorney. They rarely, if ever, reject charges and refuse to authorize a true bill. There is an old saying that has become a famous statement: that a federal prosecutor could get a grand jury to indict a ham sandwich. Unfortunately, there is much truth to that.

In many ways, the grand jury process has become a formality that a federal prosecutor has to check off, but an inevitable formality without any actual screening or gatekeeping role. With the screening or gatekeeping protection gone, the grand jury is much more of a formality than anything else.

What To Do If You’re Facing Charges Of A Federal Crime

A federal case begins with the defendant coming into court for an Initial Appearance. That initial appearance requires a federal magistrate to read the defendant’s rights, caution him that he has the right to remain silent and doesn’t have to speak, and that anything he says can and will be used against him.

The judge will also inform the defendant of the charges in the complaint and address the bond, which the federal system calls “Detention.” For that reason, an interview with pretrial services becomes extremely important.

When Arrested By Federal Law Enforcement Vs. When Surrendering To Federal Law Enforcement

The first appearance in federal court on a criminal charge can happen in one of two basic ways: either you are arrested by federal law enforcement and brought into court, or you voluntarily walk into court and surrender yourself to answer the charges. Either way you get into court for the first time, your detention decision begins with an interview by pretrial services.

So, if you are arrested and brought into custody by a federal law enforcement agency, then you are put into the custody of the United States Marshall, and the pretrial services officer will come and interview you while in custody.

On the other hand, if you voluntarily surrender to a complaint (or Indictment), you can schedule a pretrial services interview on the morning of your initial appearance, walk into the pretrial service office with your lawyer, and be interviewed that way.

For example, suppose federal agents executed a search warrant, seized some guns and drugs, and arrested some people. In this case, the Government would quickly draft a Complaint for each defendant charging that person with a crime, and an affidavit supporting that complaint. That Complaint would then be presented to the court at the defendant’s initial appearance.

In contrast, let’s assume that federal law enforcement has issued a Complaint against a defendant who is not in custody. That complaint would allow federal agents to go out and arrest that defendant. However, in the right circumstances government may allow the defendant to voluntarily walk into the courthouse and self-surrender, get processed, and then appear at the initial appearance.

Pretrial Services Interview

Once the pretrial services (“PTS”) interview has taken place, PTS will generate a pretrial services report and recommend to the magistrate judge whether you can be given pretrial release or must be detained.

It is important to understand that there is no real concept of monetary bond for the most part in a federal case: you are either granted pretrial release (without posting money), or you are detained. If you must be detained, federal courts generally don’t believe that posting an amount of money alleviates whatever concerns prevent you from being released.

There Is No Bond In Federal Detention Hearings

The decision in a federal detention hearing is not how much bond will be required for a defendant to post in order to be released; it’s whether the defendant will be released or detained.

In the initial appearance, the bond hearing, or “Detention Hearing,” can sometimes be held the same day as the initial appearance, but that usually happens only when there is an agreement between the parties. For example, the Assistant United States Attorney and the defense lawyer agree that the person should either be detained or that the person should be given pretrial release.

In an overwhelming number of cases, there isn’t an agreement. The government will seek pretrial detention, but the defendant and his lawyer will seek pretrial release. In these cases, the detention hearing will be adjourned and set for a later date. The government has the right to ask for up to three business days to prepare for that detention hearing and convince the court why someone should be held in custody. The defense has up to five business days to request an adjournment or a delay to prepare for a detention hearing.

Once that detention hearing is scheduled and held, there are two legal concepts that a magistrate judge will consider when deciding whether somebody should or should not receive pretrial release or pretrial detention:

• Will the community be safe if this defendant is released?
• Is this defendant a flight risk?

If the government argues that someone should be detained because releasing them could harm the community, the government must prove dangerousness by “clear and convincing evidence.” Clear and convincing evidence has a threshold higher than a preponderance of 51% to 49% proof, but below the “beyond reasonable doubt” standard used at trial. If the government wants detention based on the risk of flight, they only must prove that by a preponderance of the evidence, or 51% to 49% proof.

If the person is a flight risk, a danger to the community, or both, then a federal or magistrate judge is supposed to detain them without bond. If the person is neither a danger to the community nor a flight risk, the federal judge or a magistrate judge is supposed to release them and give them a pretrial release.

The critical legal concept in a detention hearing is that a person should be released if there is some combination of conditions that achieve the dual purpose of protection of the community and risk of flight. So if a set of conditions would assure the community’s safety and prevent the risk of flight, short of detaining the defendant, then a judge or a magistrate judge under the law must give that person a pretrial release.

Common conditions that would assure the safety of the community and prevent the risk of flight include:

• Home detention
• A curfew
• A GPS tether or GPS monitor
• A requirement for a third-party custodian
• Restrictions on travel
• Restrictions on who you can be around
• Requirements that you have a job
• Requirements to attend counseling
• Requirements to get drug tested

Third-Party Custodians

Often courts will order a “third-party custodian,” which means not only are you ordered to have home detention, but you must also live in a particular house, must not leave there except for limited reasons, and must live with someone who is acting as a legal custodian for you.

This third-party custodian will promise the court to watch you and ensure you are doing what you’re supposed to do and following all the bond conditions. A third-party custodian can often reduce a court’s concerns of flight risk or danger to the community instead of detention.

With the guidance of a skilled attorney for Criminal Law Cases, you can have the peace of mind that comes with knowing that we will do everything we can to ensure you are given pretrial release, and not kept in custody while your case is pending.

For more information on The Federal Grand Jury Process In a Criminal Case, a free initial consultation is your next best step. Get the information and legal answers you seek by calling (248) 509-0056 today.