Who Decides Whether Or Not I Will Be Charged With A Crime?

Contrary to what some people think, the police are not who make the decision to charge someone with a crime. Police do wield tremendous investigatory and persuasive power, but the decision of whether or not to officially charge a person with a crime lies with the prosecutor, who will be the local district attorney if you are charged with a state-level crime, or the U.S. District Attorney if you are charged with a federal crime.

For misdemeanors in North Carolina, the criminal process papers (citation, criminal summons, order from a magistrate, or arrest warrant) usually double as the charging document in district court. A prosecutor can also file a statement of charges. A charge in North Carolina is referred to as a “pleading.”

The Fifth Amendment to the U.S. Constitution requires that all felonies (offenses typically punishable by at least a year in prison) be charged via an indictment by a grand jury.

A grand jury is the group of people that votes on whether or not a person should be initially charged with a crime after the person is arrested. If it is for a felony charge, the grand jury usually convenes after a probable cause hearing in court. Like a jury at trial (the petit jury), grand juries are comprised of a randomly selected cross-section of community citizens who are supposed to be representative of society as a whole.

How a Grand Jury Functions

The grand jury reviews the evidence against the informally-accused person from the police and prosecutor. If at least 12 jurors find probable cause that the individual committed the crime (a relatively low standard), the grand jury returns an indictment. At this point the accused person becomes a defendant officially charged with a crime. The grand jury for a federal crime must be between 16 and 23 people; for state crimes in North Carolina a grand jury must contain between 12 and 18 jurors. Only 12 are needed to indict for either.

Unlike the jury at a criminal trial who is free to go once they reach a verdict or hang, a grand jury makes decisions on many cases and for a much longer amount of time. A federal grand jury can serve for up to 18 months and a grand jury in North Carolina can serve for up to a year. The actual amount of time served on a grand jury is usually a fraction of this. Grand juries do not meet every day like a trial jury but rather whenever the prosecutor calls them because they have cases they want the grand jury to hear, usually a couple of times a week.

The Enormous Powers of the Grand Jury

The grand jury was originally designed as a check on government power—individuals facing prosecution that was baseless or politically-motivated in seventeenth-century England needed neutral community members to decide whether there was sufficient evidence to officially charge them with a crime. However, grand juries are given enormous power by the government. Grand juries issue indictments in the vast majority of cases they consider, resulting in the grand jury often referred to as the government’s “rubber stamp.”

In a grand jury:

You do not have the right to an attorney. Your right to an attorney does not attach until you have been officially charged, so you do not have the right to be represented by a defense attorney at a grand jury.

You do not have the right to hear evidence the prosecution is presenting against you. As discussed below, grand juries meet in secret. Therefore, unlike other trial rights, the grand jury does not afford a suspect the right to confront his or her accusers as guaranteed in the Sixth Amendment.

You do not have the right to receive exculpatory evidence. There is also no constitutional requirement that the prosecution present exculpatory evidence (evidence such as an alibi that indicates innocence) to a grand jury, so this frequently doesn’t happen.

You do not have the right to present evidence. A potential defendant does not present any evidence to the grand jury. If the prosecution wants to put them on the stand to question them they are not given the chance to explain or elaborate their actions.
- However, one of the few traditional pretrial rights preserved at a grand jury is the potential defendant’s right to “plead the Fifth” and not incriminate themselves if the prosecutor tries to force them to testify.

Hearsay is allowed against you. Prosecutors are allowed to use hearsay evidence against you at a grand jury, something that is not normally allowed at the trial level. Hearsay is information from other people that hasn’t been substantiated yet.

The Exclusionary Rule to evidence does not apply. The Exclusionary Rule prevents our government from using most evidence in a criminal trial that was gathered illegally in violation of the U.S. Constitution. This means the grand jury can consider illegally-obtained evidence that police handed over to the prosecution in weighing whether there is probable cause that you committed the accused crime.

The grand jury has investigatory powers beyond those of the police. Not only are witnesses not allowed to have their own counsel in a grand jury proceeding, but the prosecution can question witnesses in a grand jury without informing the witness who or what their object of investigation is. This includes situations where a witness might be a potential co-defendant in the same case.
- The grand jury also has the power to subpoena witnesses and force them to testify or bring in evidence. If the potential witness does not obey the subpoena, they can be held in contempt of court. This is another power (besides official charging) that the grand jury has that police do not.
- The police need at least probable cause to get evidence with a warrant. If a case has already focused on a suspect, police cannot question that person without their having an attorney present. As mentioned, there is no right to an attorney at the grand jury, either for the potential defendant or witnesses. This loophole lets grand juries fish for information not yet backed by probable cause and greatly boosts the grand jury’s power.
Grand juries meet in secret. Courts normally keep public records of trial proceedings so that they will be available in deciding appeals, and to promote transparency and fairness in judicial proceedings (with certain exceptions involving domestic violence, juveniles, and/or national security). However, it is illegal for anyone, including the grand jurors, to talk about what happened in the grand jury room with anyone who was not there. The one exception to this blanket rule is that a witness may discuss matters to which he or she testified.

Even if a grand jury does not indict an individual, the prosecutor can re-bring the same defendant before the grand jury on the same charges multiple times, although prosecutors will usually wait until a new grand jury is convened for especially high-profile cases. This is allowed because issues of double jeopardy do not attach until a person has been formally charged. If you or someone you love is the subject of police or prosecutorial investigation, or you have been officially charged with a crime, it is important to have the advice and/or representation of a skilled criminal defense attorney. At Arnold & Smith, PLLC our attorneys have years of experience in defending individuals accused of both crimes at both the state and federal levels. Our firm also offers the unique insight of a former prosecutor. Contact us today for a free consultation.