How Colorado Grand Juries Work

The Following Article About Colorado Grand Juries was written from a Colorado DA’s Perspective – for that reason alone it is worth reading. H. Michael Steinberg

Mark Hurlbert discusses the Grand Jury Written by admin on August 4, 2011

Although we have heard about grand juries on TV in relation to the doping scandals in baseball and professional cycling, the process of a grand jury is not very well understood by most people. Some of this is by design since the proceedings of a grand jury are secret, but also it is a function of grand juries being used very sparingly in Colorado. When Chief Judge Thomas Moorhead granted our motion to empanel a grand jury in the district, I started to get questions about the grand jury and the process. Hopefully, I can provide a little insight into this process.

In the criminal justice system, there are two types of juries: the petit or trial jury and the grand jury. Most people are familiar with the trial jury from either serving on one or seeing it on television. The trial jury is made up of either 6 (for misdemeanor cases) or 12 (for felony cases) citizens to determine the guilt or innocence of a person charged with a crime.

A grand jury is made up of 12 or 23 people, which has three functions:

1. to investigate allegations of criminal activity;
2. to indict (or charge) persons believed to be responsible for the criminal activity; and
3. to afford security to the innocent against unfounded prosecutions. Whereas a trial jury hears both sides of a case to determine guilt or innocence, the grand jury hears only one side, that presented by the prosecutor, to determine whether a crime has been committed and the suspect who committed it. The nuts and bolts of how a grand jury is conducted are also very different. Whereas a trail jury is formal, with the lawyers generally asking all the questions of witnesses, in a grand jury, the prosecutor will ask initial questions and then the grand jury will ask the witness questions. Also unlike a trial jury, the grand jury has the power to subpoena witnesses to appear before it and to have them give testimony under oath.

The grand jury has powers even law enforcement does not have, such as compelling a witness to testify under oath. If the witness does not testify, they can be held in jail until they do.

What comes out of a grand jury is also very different than a trial jury. A trial jury will decide whether a defendant is guilty or not guilty beyond a reasonable doubt. A grand jury decides whether there is probable cause to charge a person with a crime. If a grand jury charges a person with a crime, they are charged by indictment. If the grand jury decides that no charges are warranted, then they give what is called a no true bill and no charges are filed.

In some states, all felony cases go in front of a grand jury and are charged by indictment, but in Colorado the vast majority of cases are filed via information. When a case is filed by information, the police officers will bring police reports and witness statements to the District Attorney’s Office. We will then make a decision whether charges are warranted or not and what those charges should be. We file a complaint and information with the court that outlines the charges against the defendant. This is the preferred method to file charges in Colorado according to the statues. In those cases that are of public importance, involve public corruption or where witnesses need to be protected, a grand jury can be used.

In Colorado, districts over 100,000 people have a sitting grand jury. Every year in those jurisdictions in January a new grand jury is summonsed and picked to serve for the next year. In smaller jurisdictions such as ours, we need to petition the Chief Judge of the district and ask for him to convene a grand jury. He can either grant or deny the request. If the Chief Judge grants the request, then summons go out and we start the process much like the bigger jurisdictions. Unfortunately, that means it can take a while to get a grand jury convened and we cannot be quite as responsive to events as the big jurisdictions.

A grand jury should be used as a tool to search for the truth and not merely a rubber stamp for the prosecutor. I know the grand jury currently empanelled will seek out the truth and render a verdict that will reflect that.