Grand Jury in Texas: Defending Witnesses and Targets of Grand Jury Investigations

You read about grand juries all the time: just this month, there was national news coverage in the Tamir Rice case, because there was no indictment; the grand jury voted against it.  Another example: in the Sandra Bland case, there was an indictment because the grand jury voted for it – after the grand jury didn’t issue other indictments in the same case.

Right now, there are editorials calling for the end of the grand jury system in this country (read, for instance, this editorial published earlier this week). Odds are not high that that’s going to happen: the grand jury process has been with us for years, it is an entrenched part of the criminal justice system.

Ask most of us involved in that system, and you’ll hear that grand juries are here to stay. One big reason they’re gonna stick around: prosecutors love them. More on that in a bit. Another reason for Texas Grand Juries: they’re guaranteed in the Texas Constitution. No one can face a Texas felony charge unless a grand jury has issued an indictment.

From Tex. Const. art. I, § 10:  “no person shall be held to answer for a [felony] criminal offense, unless on an indictment of a grand jury….”

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Texas Grand Jury Process Changed in 2016 by New State Law

This doesn’t mean that things cannot be changed within the process itself. Last September, a new piece of Texas legislation became effective that changed how people are selected to serve on Texas grand juries.

Before, grand jurors were selected under the “key man” system. A commission picked them. Now, that grand jury commission is gone. In its place, a computer that generates a list of potential jurors who are then summoned down to the courthouse. From that group, the grand jury is picked after potential jurors are questioned by a judge for things like being a resident of the county, being able to read and write, etc.

For more on what it takes to be a Texas Grand Juror in 2016, check out Texas Code of Criminal Procedure 19.08. Reason for the change in the law? To try and reduce the likelihood that grand juries are cherry-picked with members that will favor the state’s position. The goal is to have an unbiased group of folk on the grand jury.

What Does a Grand Jury Do? It’s a Secret.

There are state grand juries and federal grand juries. Their job is the same: to listen to everything presented by the prosecutor on a particular case and decide if there is (1) probable cause that crime has been committed, and if so, if there is (2) probable cause to think that a specific individual was involved in committing that crime. The grand jury does not decide guilt or innocence. The grand jury votes only on probable cause.

If the grand jury votes “yes” then that’s called a “true bill.” If the grand jury votes “no” then it’s called a “no bill.”

Unless the prosecutor can find more stuff to bring before the grand jury, a case that gets a “no bill” means no charges are filed. No one is arrested.

Key here: this is all private. A grand jury proceeding is totally secret.

What the grand jury hears is not subject to news media coverage and no one is allowed to watch what happens in the grand jury process.

One good thing: if someone is being investigated for a crime in Texas, and the result is a grand jury “no bill” then no one needs to know what was going on here. Jobs are saved. Relationships are protected. Scholarships aren’t in jeopardy. Reputations aren’t ruined. And most importantly: no one is arrested.

Why Do Prosecutors Love Grand Juries? Power.

Grand juries are really important to the District Attorney’s Office and the U.S. Attorney’s Office. That’s because the grand jury helps the government investigate crimes. The grand jury can subpoena people to come before it and give testimony. They don’t get an attorney — the only lawyer allowed before the grand jury is the state’s attorney (D.A. in Texas, AUSA in Northern District of Texas – Federal)

They can even subpoena the person that the prosecutor is wanting to arrest — but he or she cannot be forced to testify against their own best interests.

There’s no judge, either. The standard rules of evidence don’t apply here — grand juries can pretty much get documents and testimony to check out that wouldn’t be admissible in an official court setting.

Which means that grand juries have great power. They can snoop in ways the police cannot.

Of course, the idea here is that the secretive grand jury process helps witnesses feel safe to tell the truth without fear and being intimidated. And that grand juries protect innocent folk from being tainted by allegations that they may have been involved in a crime.

The reality is that grand juries are often seen as tools of the prosecutor.

Dallas Grand Jury Defense Lawyers and North Texas Grand Juries

Most people are aware if they are being targeted for a grand jury investigation here in Texas. Potential witnesses are also usually suspicious that they may be called down to testify before the grand jury. In either situation, it’s important for them to have legal representation. Legal rights may need to be protected immediately.

1. Witnesses

Witnesses who want to avoid testifying before a grand jury may need to understand the risk of contempt charges being filed against them, for example. There are ways to get relief from the courts from having to testify — e.g., you can file a motion with a judge to “quash” the subpoena, for example.

2. People Facing Potential Arrest

Those targeted in a criminal investigation by a grand jury can be proactive in dealing with the situation. Steps they can take include having an experienced criminal defense lawyer work with them in understanding the potential charges and what exactly the prosecution is wanting to find and the charges she is wanting to bring. They can also perform their own grand jury investigation, talking to witnesses and gathering documents for the grand jurors to consider.

Criminal Defense Lawyers Helping with Grand Jury Proceedings

There’s no law that says someone who is being targeted by a grand jury cannot provide his own side of the story to them. Working with his legal counsel, he or she can put together a package which must be presented to the grand jury for its consideration.

This package will provide the grand jurors with facts that argue either (1) there is NOT probable cause that a crime has been committed; and/or (2) that there is NOT probable cause that the individual was involved in the commission of any crime.

While the defense lawyer cannot enter the grand jury proceedings to object to evidence or make arguments to the Grand Jury, he can still advocate for his client.

In our list of Case Results, there are several examples of how Michael Lowe has succeeded in working with his clients to thwart any arrest or indictment from a Texas Grand Jury. These include:

• Richardson Police, Dallas County Felony Tampering With a Governmental Record Case No Billed
• Dallas Grand Jury “No Billed” Aggravated Sexual Assault
• Dallas County 1st Degree Felony Theft More Than $100,000 Case No Billed.

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For more information on Criminal Defense in Texas see our web resources page or visit Michael Lowe’s Case Results.

Also, read this Michael Lowe article:

PRE-ARREST CRIMINAL INVESTIGATIONS – Dallas Justice Blog