Inside the Criminal Case: Grand juries in Indiana shrouded by law

The effectiveness of grand juries has been in the news lately. In one case, a Missouri grand jury failed to indict a police officer in a case involving the death of an unarmed suspect. When inconsistent testimony was raised as a possible justification for this result, many opined that police needed to carry body cameras. However, approximately a week later, a New York grand jury failed to indict another police officer involved in the death of an unarmed suspect where the officer’s interactions with the suspect were caught on a cellphone video.

This led lawyers and non-lawyers alike to wonder what happens behind the closed doors of grand juries. This article speaks to how grand juries are used in Indiana.

What is the purpose of a grand jury?

The Indiana Code does not specifically describe the purpose of our grand jury statute. As a general concept, however, a grand jury is broadly charged with “ferreting out criminal conduct.” State ex. rel. Pollard v. Criminal Court of Marion County Div. One, 329 N.E.2d 573, 582 (Ind. 1975). As many know, unlike other states and the federal system, Indiana prosecutors are not required to proceed to a grand jury in order to charge a person with a crime. A prosecutor may bring charges by indictment or information. See I.C. § 35-34-1-1. An information must contain the same substantive information as an indictment, but need only be signed by the “prosecuting attorney or his (or her) deputy.” I.C. § 35-34-1-2(b)(2) (parenthesis added).

Because a grand jury indictment isn’t necessary to proceed with criminal charges, a prosecutor will typically use a grand jury as an investigative tool. The grand jury can be used to issue subpoenas for evidence as well as to compel testimony from individuals who may otherwise be uncooperative. In addition, a grand jury can also be used to enable a prosecutor to elicit the help of six members of the community to determine whether criminal charges are appropriate in more complicated or more high-profile cases.

Why does the work of a grand jury seem so mysterious?

Like the first rule of “Fight Club,” the first rule of grand juries is that you do not talk about grand juries. Doing so is subject to criminal penalty. Per I.C. § 35-34-2-10(a), absent a court order, any person who has been present at a grand jury proceeding who discloses any evidence, testimony or statements made or votes of the grand jury commits a Class B misdemeanor.

Furthermore, according to I.C. § 35-34-2-4(h), “[d]uring the deliberations and voting of the grand jury, only the grand jurors may be present in the grand jury room.” Finally, grand jury proceedings “shall be secret” and no person may disclose “any decision, result or other matter attending the grand jury proceeding.” I.C. § 35-34-2-4(i).

What is the role of a prosecutor in the grand jury?

I.C. § 35-34-2-4(k) states that “a court and the prosecuting attorney shall be the legal advisors of the grand jury.” In addition, as legal advisers, prosecutors often make recommendations on whether a grand jury should return an indictment.

Can exculpatory evidence be presented to the grand jury?

Yes, but surprisingly, it isn’t required. Justice Antonin Scalia once noted that, “It is axiomatic that the grand jury sits not to determine guilt or innocence, but to assess whether there is adequate basis for bringing a criminal charge … it has always been thought sufficient to hear only the prosecutor’s side.”United States v. Williams 504 U.S. 36 (1991).

Similarly, Indiana’s system doesn’t explicitly mandate that a prosecutor present “both sides.” However, under most circumstances, the target has the right to testify on his or her behalf. See I.C. § 35-34-2-9. In fact, the target has the right to counsel while being questioned, and the attorney may be in the grand jury room during the target’s testimony after a vow of secrecy. I.C. § 35-34-2-5.5. Presence aside, the target’s attorney may not participate in any manner unless given permission by both the prosecuting attorney and the grand jury foreman. Id.

Grand juries are effective tools that can aid Indiana prosecutors in investigating complicated cases. Part of this effectiveness stems from the fact that a grand jury is confidential. However, this confidentiality may be why there are so many questions about the results we have seen in the last few weeks.•

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James J. Bell and K. Michael Gaerte are attorneys with Bingham Greenebaum Doll LLP. They assist lawyers and judges with professional liability and legal ethics issues. They also practice in criminal defense and are regular speakers on criminal defense and ethics topics. They can be reached at [email protected] or [email protected]. The opinions expressed are those of the authors.