When is a jury not a jury? ANSWER: When it is a grand jury.

No, this is not an example of the weirdness of lawyer humor.

Over the years we’ve had a dozen or more “regular” jury trials set on the court calender every month. In the time I have been here (almost 20 years) we’ve probably had an average of one or two jury trials a month that don’t settle and actually go to trial. Those of you who have not been on a jury have seen “Twelve Angry Men” or “My Cousin Vinnie” or any of a number of TV shows that deal with Law and Order, so we know how “regular” juries work.

By contrast, there have been only a handful of grand juries that have been convened in Nobles County during my time here. Grand juries are almost never directly the subject of movies or TV plots, and proceedings are not public, so there is little chance to find out what they are all about.

I know I promised that my next blog would be about revocations, suspensions and cancellations of driver’s licences, but forgive me if I kick that down the road and do this first. I want to give you some information about grand juries, mostly by showing how they are different from “regular” juries. To make things easier, I will refer to them as “jury” and “grand jury” and just drop the “regular”. I am limiting my comparison between a jury that sits on a felony case and a grand jury. Here is the primer, then, on the difference between a jury and a grand jury.

What is their size and composition?

A felony jury has 12 members (though there may be one or two alternates if the trial is to last any length of time). A grand jury, by law, must have no fewer than 16 and no more than 23 people. All of those on a grand jury participate in the deliberations.

When do they serve?

Several times a year the court administrator in Nobles County makes up a master jury list and the people on that list are on call for whatever jury trials are going to come up during their time of service. When we gear up for trial, a group of people from that list is told to report for jury duty. The county administrator also chooses the people who will serve on a grand jury, but the practice here is only to select a grand jury when we need to have one. Technically those who were selected for the grand jury are also on call for a period of time, but the reality is that they usually only sit on the one case they were originally called in to hear.

What is their function?

A felony jury decides whether the prosecuting authority has proved beyond a reasonable doubt that a criminal defendant is guilty as charged. A grand jury decides whether there is probable cause for a person to be charged with a crime. (Though technically we say that a prosecutor “charges” someone with a crime and that a grand jury “indicts” someone.)

Who presents the evidence?

In a jury trial, both the prosecutor and defendant have the opportunity to present evidence. They each question each other’s witnesses. In a grand jury, the prosecutor presents the evidence; no defense attorney is present. Members of the grand jury can ask questions of the witnesses.

What evidence do the jurors see?

In a felony jury trial, the defense attorney has a chance to question whether certain prosecution evidence should be shown to the jury, and the judge may decide that some of the evidence the prosecution has may not be presented. In a grand jury there is no defense attorney yet (because there is no defendant yet) and there is no judicial determination of admissibility. Therefore the prosecutor has to think ahead to whether certain evidence is likely to be admissible at trial before using that evidence as part of the presentation to the grand jury. The grand jury can ask the prosecutor to call additional witnesses. The prosecutor instructs the grand jury in the law and the possible charges.

Who can be present?

A jury trial is open to the public, unless the presiding judge decides there is a sufficient reason to close it. (That happens rarely.) After a jury trial, jurors are allowed to talk about their experiences. Grand juries are closed to anyone not directly involved. While the existence of a grand jury is not secret, but pretty much everything else about it is. No one can be there except the grand jurors themselves, the prosecutor(s) actually involved in presenting the evidence, and the testifying witness (with an interpreter if needed). No one present at the grand jury proceedings is allowed to talk about the testimony that was presented or the deliberations. If there is a transcript of the proceedings prepared, that transcript will identify grand jurors only by the number assigned to them.

Does the defendant have the right to be there?

A defendant has the right to be present at a jury trial, to question witnesses testifying and to present evidence. Because the grand jury is not making a decision that will land a person in jail, but only deciding whether someone should be charged with a crime, the potential defendant has no right to be there. That person may be invited to attend, however.

What are they deciding?

In a felony jury trial, the jury is deciding whether the defendant should be convicted or not. They may also be deciding certain sentencing issues. A jury in a felony crime can only make a decision on the crimes put before them and the culpability of the person that is the defendant in that case. By contrast, a grand jury is deciding not only what the charges should be (and that could include charges other than the ones originally suggested by the prosecutor) but also who should be charged (it could be someone not suggested by the prosecutor presenting the case).

What kind of cases do they hear?

A jury will hear any kind of felony case. Anyone charged with a felony criminal offense has the right to a jury trial, so unless the defendant decides to give up that right, a felony case will be presented to a jury. Most felony cases are charged out by prosecutors, though, not grand juries. Grand juries hear cases that are difficult for the prosecutor to decide, cases that are politically charged, and cases that involve possible first degree murder charges. The law in Minnesota is that a person can’t be convicted of first degree murder unless a grand jury made the charging decision and issued an indictment.

How many have to agree?

All 12 on a jury must agree for there to be a conviction. On a grand jury only 12 (of the 16 to 23 panel) have to agree for there to be an indictment.

I know this will not answer everyone’s questions on how a grand jury works, but I think I have gone on long enough for today. If there are questions that related to grand juries or to “regular” juries, but not to a grand jury or jury trial on a specific case, ask and I will answer if I can.