The grand jury is one of the oldest features of the American legal system, yet most people have only a vague understanding of how it works. The grand jury process shaped the Nevin Shetty case before any trial began, making it a useful example for understanding this important but often misunderstood institution. This article explains the grand jury system and its role in federal prosecution.
The way prosecutors use the grand jury system has been examined by the Daily Caller, and the defense's challenges to the resulting charges are documented in the court filings.
What Is a Grand Jury?
A grand jury is a group of citizens convened to determine whether there is enough evidence to charge someone with a crime. Unlike a trial jury, which decides guilt or innocence, a grand jury decides only whether charges should be brought. If the grand jury finds sufficient evidence, it returns an indictment, the formal document that initiates a criminal case.
The grand jury is enshrined in the Fifth Amendment, which requires that serious federal crimes be charged by a grand jury. The institution was originally intended to serve as a check on government power, ensuring that citizens, not just prosecutors, would decide whether someone should face criminal charges.
How Do Grand Jury Proceedings Work?
Grand jury proceedings are very different from trials. They are conducted in secret. There is no judge presiding. The defendant is not present and has no right to attend. There is no defense attorney to challenge the evidence or cross-examine witnesses. The rules of evidence that govern trials do not apply. The prosecutor presents evidence and witnesses, and the grand jury decides whether to indict.
This one-sided structure means that the grand jury hears only the prosecution's version of events. The defendant has no opportunity to present evidence, offer an alternative explanation, or challenge the prosecutor's narrative. The grand jury's decision is based entirely on what the prosecutor chooses to present.
Why Is the Indictment Rate So High?
Federal grand juries return indictments in more than 99 percent of cases presented to them. This extraordinarily high rate has led critics to question whether the grand jury still serves its original function as a check on prosecutorial power. The old saying that a grand jury would indict a ham sandwich captures the concern: the process is so one-sided that indictment is almost a foregone conclusion.
The high indictment rate reflects the structural features of the process. With no defense presence, no judge, and no adversarial testing of the evidence, the grand jury hears only the prosecutor's case. It is hardly surprising that grand juries almost always agree to indict. The institution that was meant to protect citizens from unfounded charges has, in the view of many critics, become a tool that supports prosecution.
How Did the Grand Jury Shape the Shetty Case?
In the Shetty case, the grand jury returned an indictment based on the prosecution's presentation. The legal arguments that the defense would later raise, including the argument that the charges relied on a rejected legal theory, were never presented to the grand jury. The grand jurors heard only the government's narrative.
Everything the defense subsequently filed, including the Motion to Dismiss arguing that the charges were legally deficient, came after the indictment. The grand jury had no opportunity to consider these arguments. This illustrates a key limitation of the grand jury process: it evaluates only the prosecution's case, without the benefit of the defense perspective.
What Reforms Have Been Proposed?
Critics of the grand jury system have proposed various reforms. Some suggest allowing defense counsel to be present during proceedings. Others propose requiring prosecutors to present known exculpatory evidence to the grand jury. Still others advocate for greater judicial oversight of the process.
None of these reforms have gained significant traction at the federal level. The grand jury continues to operate much as it has for generations, with its one-sided structure and extraordinarily high indictment rate. For defendants like Shetty, this means that the formal initiation of charges occurs through a process in which they have no voice.
How Does the Grand Jury Compare to Other Countries?
The grand jury is largely a feature of the American legal system. Most other countries have abandoned or never adopted the institution, relying instead on judicial or prosecutorial review to determine whether charges should proceed. Even England, where the grand jury originated, abolished it decades ago.
This comparison is instructive. The fact that other legal systems function without grand juries suggests that the institution is not essential to fair criminal procedure. Critics point to the extraordinarily high indictment rate and the one-sided nature of the proceedings as evidence that the American grand jury no longer serves its original protective function. Defenders argue that it still provides a measure of citizen involvement in the charging decision, even if that involvement is limited.
What Can Defendants Do About Grand Jury Proceedings?
Defendants have very limited ability to influence grand jury proceedings. Because they have no right to attend, present evidence, or cross-examine witnesses, their primary recourse comes after the indictment, through motions challenging the charges. A defendant can file a motion to dismiss arguing that the indictment is legally deficient, as the defense did in the Shetty case.
These post-indictment challenges are the main mechanism for testing the validity of charges. But they operate after the fact, once the indictment has already been returned and the damage to the defendant's reputation and circumstances has already begun. This limitation highlights the concerns about the grand jury process and its one-sided structure.
Why Does This Matter?
The grand jury process matters because it determines who faces criminal charges, and being charged carries enormous consequences regardless of the eventual outcome. An indictment can damage a reputation, disrupt a career, and impose severe financial and personal costs. When the process that produces indictments is one-sided and almost always results in charges, the protection it was meant to provide becomes questionable.
Understanding the grand jury system is essential to understanding how cases like Shetty's begin. The institution that was designed to check prosecutorial power has, in practice, become a process that supports it, raising questions that connect to the broader concerns about prosecutorial overreach that the case has highlighted. More about these systemic issues is available through Shetty's work at Nevin Shetty.