Suppose that a case concerning Tommy Thug is brought before a grand jury. The police contend that on Jan 1, 2003, Tommy Thug beat up two people and killed one other. However, the grand jury feels that there is not enough to go on and refuses to hand up an indictment against Tommy Thug.
Is Tommy Thug now in the clear on this? Does jeopardy attach in this case or can the prosecution empanel another grand jury and try again.
If the state can’t try again, can they try holding back charges (as they often do in real trials)? For example, could they hand the GJ the murder case, but hold back the assault in case this GJ doesn’t indict?
Jeopardy attaches in a jury trial the moment the jury is sworn in, and at a bench trial the moment the judge begins hearing evidence.
Different jurisdictions have different procedural rules concerning grand juries, but in no case does a grand jury’s indictment trigger jeopardy protections.
As a general proposition, then, the prosecutor is free to try his hand with more evidence in front of a new grand jury. As I say, though, there are fifty states and each one of them have procedural rules which may modify this basic statement.
My understanding is that the whole point of the Grand Jury system is like this: The Grand Jury is NOT being asked “Is he guilty?” Rather, they’re being asked “Is the State’s case strong enough to convict?” Since he is not actually on trial for the crime, jeopardy protections do not come in.
One thing the Grand Jury might say is simply “This case will go to trial”. Then, at the regular trial, he’ll either be convicted, or get double-jeopardy protection.
The other thing the Grand Jury might say is “This case will not go to trial… yet.” In which case the suspect is in no immediate danger of having to go to trial, but will live in fear of additional evidence turning up. If the authorites do come up with more evidence, it can go back to another Grand Jury. The same case may go to a Grand Jury many times until the Grand Jury finally decides that the evidence is strong enough for the State to gamble on having the real trial.
Often a charge brought before the Grand Jury will enumerate a number of crimes, which can include “lesser included offenses.” Thus, the Grand Jury may refuse to indict Tommy on Murder or Assault with Intent to Kill but say, yes, we see enough evidence to throw the simple Assault charge at him.
Also, don’t forget that in most jurisdictions misdemeanors do not require a Grand Jury indictment, and the prosecutor can go ahead and charge Tommy with a misdemeanor. I think that the last sentence should have “unless the Grand Jury considered that possibility and brought a complete no bill in in the case,” but I’m not positive that I’m right on that.
Also note that what happens after a no bill is, I believe, that the person appears before a judge and the case is dismissed for want of an indictment – and, based on other dismissals, the judge can dismiss “with prejudice” or “without prejudice,” the former meaning the prosecutor is barred from, and the latter that he’s free to, take up the case again if more evidence turns up.
First of all, the prosecution does not empanel a grand jury. A Grand Jury is empaneled by the court and (at least in New York City) sits for a month. Sometimes, prosecutors will wait until a new jury is empaneled if the current GJ is near the end of their term and they might need more than one day to present.
When the prosecution presents its case to the GJ, it must submit a bill of all charges to be considered. If it’s not on the bill, it cannot be considered. The prosecution can not hold back charges simply to keep someone incarcerated. All relevant charges to the case at hand must be presented to the GJ at the same time.
After the state presents its case, the accused may testify and call witnesses and the prosecution may cross-examine. Finally, the chairperson asks the GJers to vote, beginning with the most severe version of the crime on the bill. The GJ must vote on each successive lesser charge until the jury votes to indict or all charges are exhausted.
If the GJ refuses to return a true bill (exhausts all charges without indicting), THE ACCUSED IS RELEASED unless there is further reason to hold him/her, such as an outstanding warrant or parole/probation violation.
Of course- there is the saying- “a Grand Jury would indict a ham sandwich”- which having been on one- is slander. Those dudes are hard workers for little pay.
However, note that the prosecution does almost all the talking- the defence doesn’t really get to come up with a full defense- it is NOT a trial. Thus, generally, if the DA thinks there is enough evidence to go to a GJ, he usually gets his “true bill”.
Note that in some juristictions- this being one of them- the GJ is also sometimes given “hot potato” cases where the DA might not really want to indict, so he dumps it on the GJ- as they don’t have to win elections.
Since this question has been answered, I’d like to tag on a related one rather than start a new thread: If a defendant pleads guilty during the actual trial, does the jury still have to vote as to his guilt or innocence, if only as a formality?
If the trial has not yet begun, and there is no jury impaneled, then obviously a guilty plea may be heard and accepted without a jury.
If the guilty plea is offered and accepted after the trial has begun, then the need for the jury has ended. They do not vote on the case.
In either event, as a part of accepting the plea, the judge must engage in a lengthy colloquy with the accused, ensuring that he personally understands that he’s giving up the right to a trial, the right to have his guilt decided by unanimous verdict of the jury, the right to appeal his verdict, and that there may be collateral consequences (deportation after the sentence is served for non-citizens, for example).
Cillasi: I’d just like to point out that the procedure you’ve described is not universal. It’s a true picture of New York, but it’s not accurate everywhere.
And doesn’t New York have some funky deal about use or transactional immunity fpr GJ witnesses?
This happened to the trial I was selected for. Day 1, the prosecution presented its arguments and one witness. Day 2, the jury showed up, was sent to our little room for three hours, and then were brought out to an empty courtroom to be told by the judge that the defendant had decided to change his plea to guilty. We were sent home, without having had to do anything.