Kathleen G. Kane - Pennsylvania Office of Attorney General - Protecting Pennsylvanians

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Investigating the Investigating Grand Jury -- What It Is, What It Does
by Andrea F. McKenna, Senior Deputy Attorney General, Appeals and Legal Services, Criminal Law Division

With a federal grand jury in Washington D.C. in the news almost daily, Pennsylvanians might wonder if state prosecutors also make use of grand juries. The answer is they do. Both the Attorney General and the Commonwealth's 67 district attorneys have the ability to use the powerful investigative tools of a grand jury to fight crime. The Attorney General regularly uses the resources of a multicounty investigating grand jury to investigate such activities as suspected drug trafficking, insurance fraud, Medicaid fraud, and other examples of organized crime and public corruption. District attorneys often convene grand juries to develop evidence and solve difficult crimes. Because a grand jury meets and deliberates behind closed doors, few citizens are aware of what a grand jury is and what it does. What follows is a brief guide to help you investigate the investigating grand jury.

What is a grand jury and what does it do ?
A grand jury convened under Pennsylvania law is a group of 23 citizens called together to investigate suspected criminal wrong-doing. The word "grand" distinguishes the jury from a "petit" jury of 12 who sit at trial to decide a defendant's guilt or innocence. Pennsylvania law provides for two types of grand jury--a multicounty investigating grand jury with statewide jurisdiction, convened on the application of the Attorney General, and a county investigating grand jury, generally convened upon the application of a county district attorney and limited in jurisdiction to the county in which it sits. Whether multicounty or single county in its make-up, a grand jury sits as a body and hears testimony of persons subpoenaed to appear before it.

Unlike a petit jury which decides whether the person on trial is guilty or not guilty of the crime charged, a grand jury's function is to determine whether sufficient evidence exists for prosecutors to file a complaint initially charging a person with a crime. If, after hearing and reviewing evidence presented to it, a grand jury determines there is sufficient evidence of criminal activity, the grand jury issues a written document called a "presentment." The presentment summarizes the evidence the grand jury has heard and recommends that prosecutors file specific charges against specific persons. Under Pennsylvania law, a prosecutor is not required to follow the grand jury's recommendation that criminal charges be filed. In most cases, the prosecutor does follow the grand jury's recommendations and often uses the grand jury presentment as the basis of the "affidavit of probable cause" needed to file criminal charges.

Where did the concept of a grand jury begin?
The grand jury originated many years ago in England. It was intended to serve as a buffer between the powerful King and his commoner subjects. The theory was that by summoning persons from the community who were likely to know the person under investigation, the grand jury would protect the common folk from arbitrary and oppressive action by the Crown. Our founders considered the grand jury to be an essential part of government. Consequently, they provided in the Fifth Amendment that prosecutions for serious crimes could only be instituted by the action of a grand jury. In Pennsylvania, "indicting" grand juries, that is grand juries which institute criminal charges, are no longer used. Pennsylvania grand juries are investigative bodies which recommend that a prosecutor file charges, but have no authority to enforce such a recommendation.

How is a grand jury selected ?
Like winning the lottery, random selection plays a role in being chosen as a grand juror, particularly in the case of a multicounty investigating grand jury. A county grand jury, convened by a district attorney, is chosen in much the same way as a trial jury, with county citizens providing the pool of prospective grand jurors. A multicounty investigating grand jury, as its name implies, is selected from a pool of citizens from various counties. Prospective jurors come from six counties selected at random in a drawing conducted by the Administrative Office of the Pennsylvania Courts. The seventh county required to provide jurors is always the county which will be the site of the grand jury. Generally, multicounty investigating grand juries convened at the request of the Attorney General have met in Harrisburg, the headquarters of the Attorney General's office. On a few occasions multicounty investigating grand juries have been convened in the eastern and western parts of the Commonwealth.

The Chief Justice of the Pennsylvania Supreme Court designates a judge to supervise the activities of the grand jury. The supervising judge travels to each of the seven counties and selects prospective jurors through a procedure known as a "voir dire." During this process, the supervising judge asks prospective jurors questions designed to establish both their suitability and their willingness to serve as grand jurors. The law requires that a grand juror be a citizen of Pennsylvania of voting age and able to read, write and understand the English language. Conviction of a crime punishable by imprisonment for more than one year makes a person ineligible for grand jury service. Because a grand jury meets three or four days a month for 18 months to two years, grand jury service can be a hardship to people who must care for family members or whose own health is frail. Such extended service can also be a hardship for persons who perform vital or highly skilled jobs. For this reason, the supervising judge is likely to grant reasonable requests to be excused from grand jury service.

From these seven counties, a jury pool of 200 persons is selected. Random selection again comes into play as the Administrative Office of the Pennsylvania Courts randomly selects 50 names. These 50 persons come together for a second voir dire, again conducted by the grand jury's supervising judge. This is the last opportunity for persons who believe that grand jury service will prove a hardship to themselves or their families to present their request to be excused to the supervising judge. Eventually, the group of 50 is winnowed down to 30---23 grand jurors and seven alternates. As the term of the grand jury progresses and permanent grand jurors are excused from duty, the alternates will fill the vacancies and become voting members of the grand jury.

Why is a grand jury so effective in fighting crime ?
Because criminal activity--particularly crimes involving fraud--often occurs out of public view, rooting out evidence of criminal wrong-doing can be difficult. Persons who have knowledge of criminal activity are often understandably reluctant to share their information with prosecutors, either because they, too, are engaging in criminal activity or because they fear retribution from the "bad-actors" they turn in. A grand jury is equipped with powerful legal tools which can overcome the various barriers to obtaining evidence. First, the grand jury has the power to issue subpoenas to compel persons to appear before it and answer questions about the matter under investigation. A person served with a grand jury subpoena who refuses to appear or to testify may be held in contempt and jailed. The prospect of time in prison is generally a powerful incentive for otherwise reluctant persons to be forthcoming with their knowledge of criminal activity.

While both the federal and state constitutions protect a person from being forced to give testimony which is personally incriminating, a grand jury may also get around this barrier to obtaining a person's evidence. If a prosecutor believes that a subpoenaed witness is likely to make a legitimate claim that his testimony will tend to incriminate himself, the prosecutor may apply to the supervising judge of the grand jury for an order of immunity. Such an order gives the witness protection from having his testimony before the grand jury used against himself in a later court proceeding. Protected with an immunity order, a witness must testify or face being found in contempt and jailed.

The grand jury also has the power to subpoena documents. By using this power, the grand jury can obtain all types of records from sources such as banks, businesses and telephone companies. This information is often extremely useful in identifying participants in criminal activity and tracing the financial gains of criminal activity.

Criminals do not respect of political boundaries. Drug traffickers, for example, ply their trade wherever they find willing buyers. Prosecutors, on the other hand, must respect political boundaries. A county district attorney is limited to investigating and prosecuting crimes which occur within the county borders. A multicounty investigating grand jury may have jurisdiction over the entire state, meaning it has the legal authority to investigate criminal activity in each of the Commonwealth's 67 counties. This particular power of a multicounty investigating grand jury makes it a powerful tool for obtaining evidence of organized criminal activity which crosses county borders.

Grand jury proceedings are conducted in secret. The start of a grand jury investigation is not publicly announced nor are names of persons subpoenaed to appear before the grand jury made public. The proceedings are not open to the public and both the grand jurors and the prosecutors who bring evidence before the grand jury swear not to disclose matters occurring before it. The secrecy of the proceedings protects both the integrity of the investigation and the privacy of persons called to testify before the grand jury.

With all this secrecy, how does information "leak" from the grand jury ?
The only legitimate means through which grand jury proceedings can be made public is through the persons who are subpoenaed to testify. They, alone, of all the people associated with the grand jury, have the right to disclose their testimony to whomever they choose, if they choose to do so.

A grand jury witness is served with a subpoena which indicates where and when the witness should report. Prior to entering the grand jury room, the witness appears in private, or with other grand jury witnesses, before the supervising judge. The judge instructs the witnesses as to the rights and duties of a grand jury witness and then administers an oath in which the witness swears to answer truthfully all questions asked.

When called to the grand jury room, the witness sees the grand jurors, usually seated at tables, a court reporter and one or more prosecutors. Unlike a federal grand jury witness, a witness before a Pennsylvania grand jury may take a lawyer into the grand jury room. While the lawyer may not pose objections to questions asked or address the jury, the witness is free to consult with counsel and obtain advice.

The prosecutor begins the session by posing questions to the witness. Everything said in the grand jury room is transcribed by a court reporter. When the prosecutor has finished asking questions, individual jurors may, and often do, pose questions to the witness.

Typically, a grand jury investigation will extend through several months. When the prosecutor has no further evidence to put before the grand jury, the jurors are asked to consider a presentment recommending that specific persons be charged with specific crimes. After considering this request in closed deliberations, the grand jury may ask to hear more evidence or may question the addition or exclusion of certain persons from the list of persons against whom charges are to be recommended. If the grand jury agrees to consider a presentment, prosecutors prepare a draft document which summarizes the evidence the grand jury has heard and sets out specific, recommended charges. The grand jury considers this document in secret proceedings. If twelve or more of the 23 permanent grand jurors agree, the presentment is "returned" and submitted to the supervising judge for his approval. After the judge's review, the presentment is typically sealed until the prosecutor is ready to bring the recommended charges. At that point, the grand jury's work on this investigation is finished; however, the potential defendant's days in the legal system are just beginning.

For further information:
The complete text of the Investigating Grand Jury Act is at 42 Pennsylvania Consolidated Statutes §§ 4541 through 4553, 42 Pa. C. S. § 4541 et seq.

A helpful guide to grand jury practice is Pennsylvania Grand Jury Practice by Savitt and Gottlieb, Banks-Baldwin Law Publishing Company, 1993.