Q. What is a grand jury?
A. The Fifth Amendment of the U.S. Constitution guarantees that no person may be held for a "capital, or otherwise infamous crime" unless charged by a grand jury. While this right is often waived, it is designed to protect against groundless prosecutions by ensuring that criminal charges have some factual basis as determined by a group of the suspect's peers (i.e., a group of ordinary citizens). The federal grand jury is a panel of 16 - 23 people who hear evidence in secret with only the jurors, the prosecutor, a court reporter and the witness present. Based on the evidence presented, the grand jury decides whether there is sufficient evidence to justify a trial on criminal charges and, if so, issues an indictment. The grand jury also can make reports, as the Watergate grand jury did in naming President Nixon as an unindicted co-conspirator. The grand jury does not determine guilt--an indicted person will be determined "guilty" or "not guilty" at trial.

Q. Why did the OIC make use of a grand jury in developing a case against President Clinton?
A. Grand juries are often used by federal prosecutors. They have the power to subpoena witnesses and documentary evidence. (A subpoena is a court order requiring a person to appear and testify or produce records, other documents, and other physical evidence.)

Q. Why does the grand jury operate in secret?
A. The consequences of being subjected to a criminal investigation are significant. The rights of any targets of the grand jury--and third parties who are not targets but otherwise involved--must be protected. To ensure the protection of these rights, secrecy is imposed by prohibiting the jurors, the prosecutors and other court personnel from discussing grand jury proceedings. The courts take this obligation seriously. A federal judge has opened an inquiry into alleged "leaks" of grand jury testimony from the Office of Independent Counsel investigating the President.

Witnesses, however, can discuss their testimony, which allows for the witnesses to protect their personal interests from rumor or misinformation. This is especially important because the witness is typically not allowed to have counsel present while testifying, with the prosecutor controlling the proceeding. (In President Clinton's case, he did not appear because of a subpoena, but voluntarily testified. He was permitted to have counsel present and agreed to be videotaped for testimony rather than appear in person before the grand jury.)

Q. How were the President's grand jury testimony and other evidence made public?
A. The President's grand jury testimony and the other evidence were released by the House of Representatives after Independent Counsel Starr delivered these materials to the House. There was no legal prohibition against the House doing so.

Q. What other rights are implicated in grand jury proceedings?
A. There is no obligation to admit guilt, since the Constitution expressly protects against self-incrimination. (The Fifth Amendment specifies that no person "shall be compelled in any criminal case to be a witness against himself...")

GRAND JURY LINKS

Federal Grand Jury

Federal Grand Jury is a site created by two law professors/attorneys. The site details what grand juries are (both state and federal) and supplies an area for submission of questions relating to grand juries.

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