Key Points
- A federal grand jury of 16 to 23 citizens decides whether there is probable cause to charge someone with a federal crime; it does not decide guilt.
- The Fifth Amendment and Federal Rule of Criminal Procedure 7 require an indictment for federal crimes punishable by more than one year in prison, unless the defendant waives it.
- At least 12 grand jurors must agree to return an indictment, also called a true bill; otherwise the result is a no-bill.
- Proceedings are secret: only prosecutors, the witness being questioned, interpreters, and a court reporter or recording operator may be present, so a witness’s lawyer waits outside.
- Grand jurors generally serve up to 18 months, or up to 24 months if a judge grants an extension.
A federal grand jury is a panel of 16 to 23 citizens that hears evidence from federal prosecutors in private and decides whether there is probable cause to formally charge someone with a serious federal crime. If at least 12 jurors agree, it returns an indictment and the case moves toward trial. If not, no charge is filed on that evidence.
The grand jury does not decide guilt; a trial jury does that later. Here is how it is formed, how it works, and why it is secret, based on the Constitution, the federal rules, and official court and Justice Department guidance. This is general information, not legal advice.
What does a federal grand jury do?
The Justice Department’s Justice Manual says a grand jury’s principal function is to determine whether there is probable cause to believe one or more people committed a federal offense within the district. For each proposed charge it has two choices: return an indictment or return a “no-bill.”
The Handbook for Federal Grand Jurors, published by the Administrative Office of the U.S. Courts, calls the grand jury both a “sword” that authorizes prosecutions and a “shield” that protects people from unwarranted ones. The two sides check each other: under Federal Rule of Criminal Procedure 7, an indictment must be signed by a government attorney, and for serious crimes prosecutors generally need the jurors’ vote.
When is a grand jury required?
The requirement comes from the Fifth Amendment: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury,” except for cases in the armed forces or militia during war or public danger.
The courts’ handbook defines an infamous crime as one punishable by more than one year in prison. Rule 7(a) applies that line: a federal offense other than criminal contempt must be prosecuted by indictment if it is punishable by death or by more than one year of imprisonment. Misdemeanors, punishable by one year or less, do not need a grand jury.
Can a defendant skip the grand jury?
Yes. Under Rule 7(b), a defendant may waive indictment in open court after being advised of the charge and of his or her rights. The government then proceeds by “information,” a written charge filed by the prosecutor.
Do states have to use grand juries?
No. The Justice Department says the Supreme Court has interpreted the Constitution to require grand juries only for federal felony charges, so states are not required to use them, although many do. State grand juries handle only state crimes under state rules. Our explainer on federal vs. state law covers how the two systems divide authority.
Who serves on a federal grand jury?
Grand jurors are chosen at random from a fair cross section of the community in the district or division, usually from voter lists, and the judge directs the selection of 23 qualified people. Rule 6(a) sets the size at 16 to 23 and allows alternates. Sixteen members make a quorum, and the handbook says proceedings must stop if fewer are present, even for a moment.
The court appoints a foreperson and a deputy. Under Rule 6(c), the foreperson may swear witnesses, signs every indictment, and records how many jurors agreed to each one. Jurors swear or affirm to inquire diligently and objectively, without malice, fear, ill will, or other emotion, and the judge then gives the “charge,” the instructions they follow for the whole term.
How long does grand jury service last?
U.S. Courts says grand jurors generally serve up to 18 months, or up to 24 months if a judge grants an extension. Rule 6(g) allows extensions of no more than 6 months, except as otherwise provided by statute, when the court finds one in the public interest. Panels do not meet daily; some meet one day every other week, others a couple of days a week.
What happens inside the grand jury room?
Usually the U.S. Attorney or an Assistant U.S. Attorney presents witnesses and documents and advises jurors on the law. Jurors may ask for additional witnesses, but because they have no investigative staff, the handbook says they should consult the government attorney or the court before formally investigating other matters.
Who is allowed in the room?
Under Rule 6(d), only government attorneys, the witness being questioned, interpreters when needed, and a court reporter or recording device operator may be present during a session. During deliberations and voting, only the jurors remain, plus any interpreter needed for a hearing- or speech-impaired juror. An unauthorized person’s presence could invalidate an indictment, the handbook warns. Everything except deliberations and voting must be recorded.
How are witnesses questioned?
Each witness is sworn and ordinarily questioned first by the government attorney, then by the foreperson, then by other jurors. The Justice Manual says hearsay is generally proper if jurors are not misled into thinking it is firsthand.
What rights do grand jury witnesses have?
A witness’s lawyer cannot enter the grand jury room. Instead, the handbook says, a witness may step outside to consult counsel, even after each question, as long as it does not obstruct the proceedings, and jurors cannot hold that against the witness. Witnesses may also invoke the Fifth Amendment privilege against self-incrimination; jurors can then ask the court whether an answer may be compelled.
Targets and subjects
The Justice Manual defines a “target” as a person the prosecutor or grand jury has substantial evidence linking to a crime and who, in the prosecutor’s judgment, is a putative defendant. A “subject” is anyone whose conduct falls within the investigation. Department policy attaches an “Advice of Rights” form to subpoenas served on targets and subjects, warning that they may refuse to answer incriminating questions and that anything they say may be used against them.
The person under investigation normally does not testify, but department policy says reasonable requests to appear should ordinarily get favorable consideration if the person waives the privilege against self-incrimination on the record. Policy also says a prosecutor personally aware of substantial evidence that directly negates a subject’s guilt must present or disclose it before seeking an indictment. In United States v. Williams (1992), however, the Supreme Court held that courts’ supervisory power does not let them dismiss an otherwise valid indictment over that failure.
How does a grand jury vote?
When the evidence is complete, everyone else leaves. Each juror may be heard before the panel votes on whether a crime was probably committed by the person under investigation. At least 16 must be present, and under Rule 6(f), at least 12 must concur to indict.
True bill or no-bill
An indictment, or “true bill,” is returned to a magistrate judge in open court, and Rule 6(f) allows that by video teleconference. Under Rule 7(c), it must be a plain, concise, and definite written statement of the essential facts and cite the law allegedly violated.
If fewer than 12 agree, the result is a no-bill, which the handbook says should be reported to the court in writing promptly so a person being held can be released from jail or freed from bail. Justice Department policy requires approval from the responsible U.S. Attorney before the same matter goes to another grand jury or back to the same one.
Why are grand jury proceedings secret?
The handbook gives five reasons: secrecy protects jurors from pressure, keeps people under consideration from fleeing, encourages witnesses to speak fully and truthfully, prevents witness tampering before trial, and spares people who are investigated but never charged from public stigma.
Rule 6(e)(2) bars grand jurors, interpreters, court reporters, government attorneys, and certain others from disclosing “a matter occurring before the grand jury.” Witnesses are not on that list. Listed exceptions allow some disclosures, such as to government attorneys for their duties or when a court authorizes it, but deliberations and votes stay off-limits even to prosecutors. A knowing violation can be punished as contempt of court.
Grand jury vs trial jury: what is the difference?
| Question | Federal grand jury | Federal trial (petit) jury |
|---|---|---|
| What it decides | Whether there is probable cause to charge | Guilty or not guilty, beyond a reasonable doubt |
| Size | 16 to 23 jurors | 6 to 12 jurors |
| Who presents evidence | Government attorneys, usually without a defense case | Prosecution, and the defense if it chooses |
| Open to the public? | No, proceedings are private | Trials are generally public; deliberations are private |
| Length of service | Generally up to 18 months, many cases | One case, then discharged |
What are the limits on a grand jury’s power?
The Justice Manual says a grand jury’s power, though broad, is tied to its purpose of deciding whether to indict. It cannot be used solely to build evidence against someone already indicted or solely for trial preparation. A federal grand jury can act only on federal crimes committed within its district, and apart from special grand juries under 18 U.S.C. 3331, it may not investigate conduct that is merely open to criticism rather than criminal.
Court orders that pause government action follow a different path, explained in our guide to a TRO vs. preliminary injunction. For the latest Justice Department and federal court news, follow the U.S. Politics Live center. The official text is in Federal Rule of Criminal Procedure 6 and the judiciary’s overview of grand juries and trial juries.
The bottom line
A federal grand jury is a citizen check on serious federal charges. It hears the government’s evidence in secret, asks its own questions, and needs 12 votes to indict on probable cause, a lower bar than proof beyond a reasonable doubt at trial. An indictment is an accusation, not a conviction. Anyone who receives a grand jury subpoena or target letter should talk with a lawyer about his or her own situation.
Sources
- U.S. Constitution, Fifth Amendment (Cornell Legal Information Institute)
- Federal Rules of Criminal Procedure, Rule 6, The Grand Jury and Rule 7, The Indictment and the Information (Cornell LII)
- Administrative Office of the U.S. Courts, Handbook for Federal Grand Jurors, Types of Juries and Criminal Cases
- U.S. Department of Justice, Justice Manual 9-11.000, Grand Jury
- U.S. Department of Justice, U.S. Attorneys, Steps in the Federal Criminal Process: Charging
