In federal cases, does the grand jury come before or after arrest?

Factual Questions
1

Federal crime cases seem a bit complex, but I think I understand the ingredients of the case, just not the order they come in.

The ingredients are: Feds launch an investigation, prosecutor assembles a grand jury, the grand jury investigates and issues an indictment, the defendant is arrested, and then is formally charged at an arraignment/preliminary hearing.

What I’m trying to figure out is whether the grand jury comes before or after the arrest - if before, wouldn’t that tip off the defendant to flee? If after, then how do they come up with the evidence to arrest him in the first place?

2

The grand jury must issue an indictment in cases in which an indictment is required and something like a bill of information from a prosecutor isn’t enough.

The indictment is required before arraignment and other criminal proceedings.

Routinely, a federal prosecutor will wait to have an indictment in hand before proceeding with an arrest, presuming that an arrest is needed.

In some cases, it might be necessary to arrest someone before laying charges, say to protect public safety or prevent flight. In those cases the arrest might come first, but the government will have to justify it.

3

I believe grand jury proceedings are in secret, so wouldn’t the prosecutor be able to hold onto the indictment until after getting an arrest warrant issued by the courts?

4

If an arrest is part of an ongoing investigation, then the Grand Jury indicts first. It can be “sealed” to avoid tipping off the target. If I guy is caught robbing a bank, the arrest comes first.

5

Sure but the process might tip off the target - ie if the grand jury is going around questioning potential witnesses or people who are acquainted with the target, and word gets to the target.

6

As I understand it - IANAL - the grand jury decides if there are crimes that have been committed, and if so, who should be charged with what.

Let’s pick on the Breanna Taylor case - not that I want to stir anything up, but it’s a really good example of the process. Police exercising a warrant break into a house, gunfight ensues, someone dead. What charges should be laid against whom?

The DA could simply lay charges, but charges apparently carry more weight if an independent “jury of peers” hears the evidence surrounding the event and decides on charges instead. Plus, the DA has to live with the police and rely on them for all the cases he prosecutes, so letting the grand jury decide also removes the blame that he would be “picking on” police if charges are laid - or allows him to blame the grand jury if charges are not laid. “They looked at all the evidence and decided no charges were warranted…”

The grand jury proceeding is secret, so what is said there (usually) is private under severe penalties, so testimony given there does not taint the possibility of a fair trial. It’s also said the grand jury is a fishing expedition. The DA can drag people in front of it, and see what they say about an event. Once they testify, witnesses who change their story later are committing perjury. If they plead the fifth, the prosecutor has the option of giving them immunity. With immunity, a witness is no longer at risk of self-incrimination and must testify.

The joke is that a grand jury will indict a ham sandwich if the DA asks them to, since the jury only hears the DA’s side of the case. Witnesses are interrogated for information by the DA, but the persons possibly being indicted are not present, don’t hear anyone else’s evidence, and certainly don’t get to cross examine to pick holes in what the DA is revealing.

What is interesting about the Taylor case is that the prosecutor did try the excuse “the grand jury said no charges should be brought”. Grand jurors objected, claiming it hurt their reputation and they needed to disagree - and the judge allowed the record to be made public, showing the prosecutor specifically told them certain charges against police should not be brought contrary to what he told the public.

But to answer the OP’s point - to arrest someone, you need probably cause. then to hold them, you need to charge them, IIRC within 48 hours, depending… (At which point they may or may not be able to get out on bail) As mentioned, the prosecutor can simply lay charges if he feels there’s enough evidence. If there’s a grand jury after this, it’s probably to examine further actions of the perp, or examine the actions in depth, to determine if more charges should be laid or those charges should be changed. After all, the purpose of a grand jury is to determine whether charges should be laid. If charges are already laid, the grand jury is redundant with respect to those charges.

Usually, grand juries are to examine complex cases to see who should be charges and who shouldn’t. The subject(s) of these investigations already know things are rolling; if they intended to flee, if they could have and should have, they would have. Plus, revealing that one has been summoned to testify in front of a grand jury is also forbidden until the indictments are public.

For example - news stories do not mention whether Bannon was indicted by a grand jury, or the DA simply laid charges; but the fund’s bank records were subpoena’d a year ago, so anyone with a clue would have known the feds were looking into it.

I assume - maybe a real lawyer can confirm - for fairly simple, obvious cut-and-dried cases a grand jury indictment is not needed.

7

The U.S. Constitution requires indictment by grand jury for all felonies charged under federal law. It has nothing to do with how easy the case is to prove.

8

Grand jury proceedings can certainly be kept secret. I was once on a grand jury investigating allegations of police misconduct, and we actually met in a part of the building that was “closed” so random police officers wouldn’t wander by as we were in session, and also do witnesses could be brought in without being seen by the police.

None of our indictments were public until the prosecutor was ready to arrest a bunch of officers.

9

Bob Woodward almost got in trouble with Judge Sirica for trying to interview the grand jurors in the Watergate prosecutions. Fortunately for Woodward, the one juror he contacted told him that the oath he had taken bound him to secrecy.

10

OK, thanks. That was the piece I wasn’t sure of. I assume that this is because unlike state law, there’s not a lot of “petty crimes” in federal law, most charges are fairly serious?

The issue is that depending on what evidence the DA provides (or doesn’t) and what they ask for, they can usually get indictments no matter how weak the case - and conversely, if they don’t ask for an indictment, then based on the Taylor case discussion, the jury cannot spontaneously come up with its own charges?

But this gets us back to the OP’s key question… Let’s say Fred or Jose is caught crossing the border illegally or with a huge amount of illegal drugs. They toss him in jail immediately. Does that mean they have to convene a grand jury within 48 (72?) hours in order to continue to hold him in jail? After all, an arrestee must be charged or released within a reasonable time.

As I understand from reading the news, Grand Jury proceedings are secret and rarely revealed. Everyone involved is required to maintain secrecy under penalty of law - sometimes even participants - jurors or witnesses - revealing the existence of one is illegal. (After all, if you reveal what the jury is investigating, you have revealed some aspect of the proceedings) The proceedings continue to stay secret even after charges are laid. The Breanna Taylor case was extremely unusual, in that the Attorney General had made statements the jurors felt mischaracterized their role and they applied to have the proceedings made public to disprove him.

11

Some misunderstandings here–there are both felonies and misdemeanors in the Federal criminal code. The Fifth Amendment of the constitution has four constitutionally important elements–one is that no person shall be held to answer for a “capital or other infamous crime” unless upon presentment of charges from a grand jury. The other constitutionally relevant parts of the Fifth Amendment aren’t germane to this discussion–but they are generally binding on both the Federal and State governments. The grand jury requirement is only binding on the Federal government.

Due to structural reasons the Federal government doesn’t process as many “petty crimes” per capita as say, a municipality, but there are still plenty of low level misdemeanors that go through the Federal criminal courts. There’s areas of primary jurisdiction overseen by the Feds for example where this isn’t unusual.

So the reason the Federal system requires grand juries for capital and infamous cases (interpreted as Felonies in modern terms) is simply because the constitution explicitly requires it. The constitutions of the various states, and their body of laws, differ tremendously. Some states allow prosecutors to bring even the most serious of charges with only a preliminary hearing being required before the case proceeds, not a grand jury indictment. Some states require a grand jury indictment in all cases of felonies, and some states have mixed systems where the prosecutor has situational leeway, this is one area of criminal law it is all but impossible to generalize on because each state has made a different set of decisions on this topic.

12

Martin has the correct answer.

13

Breonna (not Breanna) Taylor.

14

But see:

Rule 5.1 Preliminary Hearing

(a) In General. If a defendant is charged with an offense other than a petty offense, a magistrate judge must conduct a preliminary hearing unless:

(1) the defendant waives the hearing;

(2) the defendant is indicted;

(3) the government files an information under Rule 7(b) charging the defendant with a felony;

(4) the government files an information charging the defendant with a misdemeanor; or

(5) the defendant is charged with a misdemeanor and consents to trial before a magistrate judge.

For more info on preliminary hearings:
https://www.justice.gov/usao/justice-101/preliminary-hearing

15

Note point 2 of Rule 5.1: “(2) the defendant is indicted”, a grand jury is the body that indicts people for serious crimes in the Federal system, and as per Rule 5.1 a preliminary hearing is not required if the defendant is indicted.

In some circumstances a person will end up arrested even for a serious crime without an indictment, and the process flow may go in a bit different order. But there is no bypassing the grand jury requirement for felonies in the Federal system unless the defendant waives it, as per Rule 7 of the Federal rules of criminal procedure:

Rule 7. The Indictment and the Information

Primary tabs

(a) When Used.

(1) Felony. An offense (other than criminal contempt) must be prosecuted by an indictment if it is punishable:

(A) by death; or

(B) by imprisonment for more than one year.

(2) Misdemeanor. An offense punishable by imprisonment for one year or less may be prosecuted in accordance with Rule 58(b)(1).

(b) Waiving Indictment. An offense punishable by imprisonment for more than one year may be prosecuted by information if the defendant—in open court and after being advised of the nature of the charge and of the defendant’s rights—waives prosecution by indictment.

16

To be clear here, you are quoting rules for when a preliminary hearing by a magistrate judge is required. These are not the rules for when an indictment by a grand jury is required.

17

You clearly have not been on a Grand Jury.

18

I have been. Yes, we got to ask questions. But no, we never heard the accused’s side the story, and no, as a practical matter, we never heard from anyone other than those the prosecutor brought in to speak to us.

19

The GJ can and does summon other witnesses etc, that it needs.

And it is a indictment, not a trial, so the defense side isnt needed.

20

In theory, the grand jury could have asked the DA to bring someone else to us. In practice, I doubt we could have done it. The process is very much controlled by the DA.