Criminal or Accusatory Function
Because Georgia law requires that the grand jury must find a "true bill" in most felony cases before the case may be
brought to trial, a substantial amount of your time will be spent inquiring into the existence of possible criminal conduct. It should be noted that not every criminal case requires action by the grand jury. Indictment by the grand jury is not required for misdemeanors and certain felony offenses and in all but capital felonies, the defendant may waive indictment by the grand jury. In these cases, the prosecuting attorney may file an accusation, or in some instances a citation, directly with the court. In addition, indictments are not used in cases when the accused is under 17 years of age and the case is brought in juvenile court.
How Cases Get to the Grand Jury
Most cases which will be brought before you begin with a crime being reported to or discovered by a law enforcement agency such as the sheriff’s department, police department, or a state law enforcement agency. Following an investigation, a law enforcement officer will obtain a warrant for the arrest of the person believed to have committed the crime.
In other cases, a private individual will have obtained an arrest warrant from a magistrate accusing a person of a crime. In these cases, there often has been little or no investigation by law enforcement.
After the accused is arrested, he or she will be brought before a magistrate, who will decide if the accused should be released on bail or held in custody. At that time, the accused may ask for a commitment hearing or allow the case to be bound over to superior court. If a commitment hearing is held, a magistrate will consider the facts in the case and determine if there is sufficient reason to believe that the accused committed the crime charged. If the magistrate determines that there is, the case will be bound over to the grand jury. After receiving and reviewing the warrants, police reports and interviewing key witnesses, the district attorney’s office will prepare an indictment or special presentment for presentation to you.
In addition to cases which are bound over, the district attorney’s office can bring an indictment or special presentment before you for investigation where the accused has not been arrested. Finally, if you or another member of the grand jury has personal knowledge that a crime has been committed for which the statute of limitations has not expired, the grand jury may request that the district attorney prepare an indictment or special presentment so the case may be considered by the grand jury.
It is the duty of the grand jury in criminal cases to determine from the evidence presented if there is probable cause to believe that a crime has been committed and that the person or persons named in the indictment or special presentment committed it.
Procedure in Criminal Cases
Preparation of the Case for Presentation to the Grand Jury
Prior to each meeting of the grand jury, the district attorney’s office will prepare an indictment or special presentment for each case which is to be presented. In most cases, this is done from the arrest warrant and any reports prepared by the investigating officers and the crime laboratory. In addition, the district attorney’s office will cause subpoenas to be issued by the clerk for any witnesses or physical evidence which will be needed in order to establish that probable cause exists.
Presentation of the Case
When the grand jury meets, the district attorney or an assistant district attorney designated by the district attorney willeither read or explain the proposed indictment (sometimes referred to as a “bill of indictment”) to the grand jury and will acquaint them with the witnesses who will testify. This is done to allow the grand jurors to know who the parties to the case will be in the event that one or more members are disqualified (see p. 11 and 12).
After explaining the indictment, the district attorney will begin calling the witnesses. These witnesses may appear voluntarily, at the request of the grand jury or the district attorney, or they may be ordered to appear by serving them with subpoena. Each witness who appears before the grand jury in a criminal case must be administered the following oath by the district attorney, an assistant district attorney, or the foreperson:
Witness Oath
"Do you solemnly swear or affirm that the evidence you shall give the grand jury on this bill of indictment or presentment shall be the truth, the whole truth, and nothing but the truth. So help you God."
If a witness fails to take the required oath, his or her testimony would not be evidence and any indictment or presentment returned on this testimony would be invalid. In addition, if the oath administered to the witness is not substantially the same as the statutory oath and the testimony given should prove to be false, the witness cannot be prosecuted for perjury.
The witness will normally be questioned first by the district attorney or an assistant district attorney, then by the foreperson, and finally, if desired, by any other members of the grand jury. If you have a question which you would like to ask a witness but are in doubt whether or not it is a proper question, the advice of the prosecuting attorney presenting the case should be sought. The prosecuting attorney may also advise the grand jury about what evidence you may consider in your deliberations.
In most cases, the only witnesses who will be scheduled to appear before the grand jury will be the law enforcement officers who have investigated the cases. These officers may testify as to statements made to law enforcement officers by the suspects or by witnesses to the crime and to the results of any laboratory tests performed on physical evidence in the case. Even though such testimony is considered to be hearsay (an unsworn, out-of-court statement), it can be sufficient evidence on which to return an indictment. It is important to remember that at least one witness must be sworn and give testimony as to each indictment or special presentment in order for the indictment or special presentment to be valid.
As the case is being presented, each grand juror should be attentive to the testimony and evidence being presented. If it should appear that there is a difference between the testimony and the facts alleged in the indictment, this should be called to the attention of the district attorney or the assistant handling the case. (Example: the indictment alleges that John Smith was robbed, but the testimony is that Jane Smith was the victim.)
Deliberations and Voting
After the evidence is presented the prosecuting attorney will leave the room and the grand jury will be given the opportunity to discuss the case in private and to vote whether the bill of indictment is to be returned as a "true bill" or a "no bill." They may also defer taking action on the case by tabling it, holding the case for further investigation, or request that additional or different charges be presented to them.
In considering an indictment, it is important that you remember that the function of the grand jury is not to try the merits of the case but rather to determine if probable cause exists. It would be difficult, if not impossible, to determine a case on its merits as the defendant does not have the right to appear before the grand jury, to cross-examine witnesses or to present evidence on his or her own behalf. A defendant may not be compelled to appear and testify before the grand jury.
The law requires that not less than 16 grand jurors actually participate in voting on an indictment or special presentment. If 12 or more grand jurors vote in favor of the indictment, then the foreperson or clerk should enter the words "true bill" in the appropriate space on the indictment. The indictment should also show on its face the names of all the grand jurors who voted on the indictment (strike only the names of those who did not participate).
If, however, the grand jurors vote that there is insufficient evidence to believe that the person named in the indictment committed the act charged, then the foreperson or clerk would enter the words “no bill” in the appropriate space on the indictment. If in finding a “no bill,” the grand jury concludes that the indictment was unfounded or malicious, the grand jury may endorse the indictment as a “malicious prosecution,” in which case the person instigating the prosecution (the "prosecutor") will be compelled to pay all costs for bringing the unfounded charge.
If two successive grand juries should make two returns of “no bill” on the same charge, further prosecution of the same offense is barred, unless the “no bill” was procured by the fraudulent conduct of the person charged in the indictment. Whatever entry is made on the indictment, it must be signed by the foreperson or acting foreperson.
Actions Taken if the Indictment Is "True Billed"
If a "true bill" is found, the indictment must be returned in open court, either by the entire grand jury or delivered by the grand jury to the sworn grand jury bailiff to be returned in open court. In order for the return to be made in "open court" it must be made "in the courtroom or place where court was being held open to the public with the judge and clerk present." If an indictment is not returned in open court or if it is returned by anyone other than the grand jury or bailiff, the defendant can have the indictment dismissed.
If court has recessed for the day or the judge and clerk are not available when the grand jury is ready to have
an indictment returned, the grand jury bailiff may hold the indictment overnight and return it the next day when court opens.
After a "true bill" has been returned, the accused has the opportunity to have a fair and impartial jury determine if he or she is guilty of the crime(s) charged in the indictment.
Criminal Proceedings Involving Certain Public Officials
Although generally the accused has no right to appear before the grand jury, Georgia law allows some current and former public officials and peace officers to be present when the grand jury is considering indicting them for offenses involving the conduct of their official duties. These public officials include present and former:
- State officials whose positions are created by the Constitution or by a statute;
- Elected county officers (including judge of probate court, clerk of superior court, tax commissioner and county commissioner); and
- Mayors and members of municipal governing authorities.
In addition to public officials, a peace officer who is charged with a crime alleged to have occurred while the officer was in the performance of his or her duties is also permitted to be present with the grand jury.
In these cases, the accused has a right to receive a copy of the proposed indictment before it is presented to the grand jury and to be present with his or her attorney in the grand jury room during the presentation of all evidence against him. The official or officer also may make a sworn statement to the grand jury but cannot be subjected to cross-examination.
The courts have held that these procedures are based on the belief of the legislature that "... the smooth, uninterrupted functioning of government, so important to the public welfare, may be endangered by requiring high public officials to endure a time consuming trial ... (on) an unfounded indictment."
The Supreme Court of Georgia has also held that a grand jury has no right, in the absence of specific statutory authority, to return a general presentment which charges a public officer with misconduct in office. If the grand jury finds such misconduct, they are limited to returning an indictment or special presentment charging the official with a crime.