Sheryl Uhlmann: A grand jury’s power
March 22, 2013
Our elected District Attorney Brett Barkey recently announced the formation of a grand jury ("Grand jury seated for counties," March 14 Steamboat Today), a rarity in our judicial district. A grand jury is a group of citizens chosen to work with the prosecution to investigate criminal allegations and, if probable cause is found, to return indictments. While most criminal cases are investigated by local law enforcement or the District Attorney's Office, grand juries themselves are investigative bodies. They have powers that investigating police and prosecutors typically do not, including the ability to subpoena witnesses, even children as young as 10 years old; to subpoena documents; and to offer witnesses immunity. Unlike most court proceedings, which are open to the public, grand juries convene in secret. The times and places the grand jury meets are kept secret, jurors and witnesses are sworn to secrecy, and the only people allowed in the room during grand jury proceedings are the jurors, the prosecutor, the witness and the witness's attorney, who is allowed to advise only the witness.
Not necessitated by any actual need to investigate a specific case, our district attorney's experiment in prosecutorial power has been publicized by local media without any explanation of a person's rights in relation to grand jury proceedings.
The rights to representation and fundamental fairness are no less important in grand jury proceedings than they are in criminal trials. A person is not required to appear before a grand jury, give testimony or produce evidence, unless they are properly subpoenaed to do so at least 48 hours before their appearance is required. A subpoenaed person has the right to ask the court to quash or modify a subpoena to testify or bring evidence before the grand jury. Even if properly subpoenaed, a person required to testify before the grand jury is entitled to the assistance of counsel during the time they are being questioned and, if they cannot afford counsel, is entitled to have the court appoint a lawyer for them without cost. Finally, a person also may refuse to answer questions for "just cause" (for example, physician/patient privilege or spousal privilege) and always has the right to remain silent and to refuse to answer questions that may incriminate them.
Grand juries can be powerful tools — they can return indictments or can refuse a prosecutor's request to do so. But just as with all powerful tools, grand juries are subject to abuse. Knowing your rights will help guarantee that this district's grand jury becomes a tool for justice, not an excuse for an inquisition.