The Fifth Amendment to the Constitution of the United States reads:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
The Founders thought the grand jury important enough to be listed specifically in the Bill of Rights. By the time our Constitution was written, the grand jury had been a part of English jurisprudence for over five hundred years. At one time in England, people could be imprisoned at the whim of the king. The grand jury, designed to prevent such injustices, was part of the Magna Carta signed by King John in 1215. The grand jury, unlike the petit, or trial jury, does not determine the guilt of the accused in a criminal trial. The purpose of the grand jury is to determine whether there is enough evidence to try an accused at all. Although there are three different types of grand juries — regular, special, and multi-jurisdictional – the following is a brief discussion of only the regular grand jury.
A regular grand jury consists of five to seven persons. Each will swear or affirm that he is over the age of 18, and a resident of the Commonwealth of Virginia for at least the past year, and of the city or county in which the circuit court sits for at least the past six months. The judge will select one member to serve as foreman of the grand jury. All the jurors will be sworn with the following oath:
“You shall diligently inquire and true presentment make of all such matters as may be given you in charge, or come to your knowledge, touching the present service. You shall present no person through prejudice or ill will, nor leave any unpresented through fear or favor but in all your presentments you shall present the truth, the whole truth and nothing by the truth. So help you God.”
Following the oath, the judge may give the jurors a brief history of the grand jury and will explain the jury’s duties and obligations. The commonwealth’s attorney will have prepared bills of indictment for the jurors to consider. A bill of indictment is a written description of the crime that the accused is alleged to have committed. Sworn witnesses will appear before the grand jury to give evidence. There will be no lawyers in the jury room with them to question the witnesses, nor will the judge be with them. There will almost certainly not be any witnesses favorable to the accused, because the grand jury is not determining the guilt or innocence of the accused, but only whether the prosecution has sufficient evidence to persuade the grand jury that “probable cause” exists. Probable cause is defined as that degree of proof that would lead a reasonably prudent person to believe that a crime has been committed and that the person charged in the indictment committed it. Although we are used to hearing that guilt must be proven “beyond a reasonable doubt,” a much lower standard is necessary to indict someone. All the deliberations of the grand jury are secret. No member may divulge how any other member has voted unless ordered to do so by a court of competent jurisdiction.
If, after hearing the witnesses, the grand jurors believe that probable cause exists, they will return the indictment a “True Bill”; if not, they will return “Not A True Bill.” Unanimity is not required; a vote of four members is sufficient to return a true bill. It a true bill is returned, the accused will be tried for the crime at a later date by a trial jury.
About the Author: Tammy Ruble is a long time Chesterfield resident and an attorney with personal injury law firm of Allen, Allen, Allen & Allen. She serves as a resource on issues in her special fields of expertise which include the crafting of Complaints and documents relating to infant settlements, wrongful death settlements, due diligence, and discovery.