“Grand Juries” & “Indictments” in Colorado – How It All Works

A Grand Jury in Colorado consists of 12 to 23 citizens summoned to investigate suspected criminal activity. By contrast, a Petit Jury, composed of 6 to 12 individuals, is responsible for determining a defendant’s guilt or innocence.

The grand jury process is most common in

• federal cases and
• high-profile state cases.

Grand juries are not necessary to charge suspects – the prosecutors can bring charges at their own discretion. However, having a jury of the suspect’s peers listen to the evidence and make the charging decision lends the case credibility in the eyes of the public.

The following flowchart summarizes the grand jury process.

 

Below, our Denver Colorado criminal defense lawyers discuss the following topics re. grand juries.

• 1. Overview
• 2. Size
• 3. Grand Juries vs. Trial Juries
• 4. The Proceedings
• 5. Failure to Appear
• 6. Sealed Indictments
• 7. Length of Service
• 8. Federal Court
• 9. Subpoenas
• 10. Right to Remain Silent
• 11. Immunity
• 12. Challenging the Indictment
• Additional Resources

1. Overview

A grand jury is a group of local citizens who decide whether a criminal suspect should be charged (“indicted”) with a felony crime. Grand juries make their decision based on evidence that prosecutors present to them.¹

In Colorado, the majority of criminal cases do not involve empaneling grand juries at all. Prosecutors usually decide whether or not to charge criminal suspects following a police investigation: They simply follow the standard complaint and information process.²

Though in serious or high-profile cases, the District Attorney’s Office may prefer to let a group of regular citizens – the grand jury – make the charging decisions.

Common Cases

A grand jury can be county-wide, judicial district-wide, or statewide, depending on which court has jurisdiction and the type of offense. State grand juries typically hear matters involving:

• racketeering and organized crime;
• crimes occurring in multiple judicial districts; or
• other complex cases under the state Attorney General‘s authority.

Preliminary Hearings

Note that defendants indicted by grand jury are not entitled to a preliminary hearing, which is where the trial judge determines if there is probable cause to prosecute the defendant. This is because grand juries and preliminary hearings serve the same purpose – deciding whether there is probable cause that the defendant committed a crime.

Defendants prosecuted through the standard complaint and information process – and not a grand jury – are entitled to a preliminary hearing.

2. Size

Colorado grand juries have 12 people. Nine of the grand jurors (called a “quorum”) must vote to indict for the suspect to get charged.

The District Attorney can ask the court to increase the size of a grand jury to 23 total jurors. If the court agrees, a 12-person quorum must vote to indict the suspect (“target”) to get charged.³

3. Grand Juries vs. Trial Juries

The primary difference between grand juries and trial juries (also called “petit juries”) is their purpose: Grand juries decide whether a suspect should be charged with a crime. By contrast, a trial jury decides whether the defendant should be convicted of the criminal charge. In short,

• grand juries begin criminal cases, and
• trial juries end them.

Ten other differences between grand- and trial juries are as follows:

1. Scope of Evidence: Prosecutors use grand juries as an investigative tool to help develop evidence that the police have not been able to, often by subpoenaing witnesses or certain documents. Some of this evidence may end up being irrelevant to the case. In contrast, trial juries hear only evidence that the judge has determined is relevant. Also, hearsay evidence is admissible during grand jury proceedings but is severely limited in criminal trials.
2. Standards of Proof: Grand juries and petit juries use different standards of proof to make their decisions: Grand juries must find there is probable cause to believe the suspect may have committed the crime in order to indict.⁴ In contrast, trial juries must find proof beyond a reasonable doubt that the defendant is guilty – that is a much higher bar than probable cause.⁵
3. Unanimity: As discussed above, grand jury decisions do not have to be unanimous under Colorado law – only a quorum is necessary to issue an indictment. In contrast, trial jury guilty verdicts must be unanimous.⁶
4. Jury Selection: Both grand jurors and trial jurors are summoned from the same pool of eligible citizens. Though whereas prosecutors and defense attorneys select trial jurors during “voir dire,” grand jurors are selected by the chief judge upon the advice of prosecutors.⁷
5. Defendants’ Rights: Grand jurors hear only from prosecutors and their witnesses; the suspect cannot testify or call witnesses.⁸ Whereas during jury trials, the defendant has the right to put on a defense and testify and cross-examine state witnesses.
6. Subpoena Power: Grand jurors can subpoena witnesses to testify under oath. Trial jurors do not have “subpoena power”.⁹
7. Jury Control: Prosecutors have near total control of grand juries. In contrast, trial juries are guided by the judge, who has to approve every step the prosecutors make. This is another reason why it is much easier for prosecutors to get a grand jury to indict than to get a trial jury to convict.
8. Privacy: Grand jury proceedings are held in private, and the suspect is usually not present.¹⁰ Meanwhile, trials are usually open to the public, and the defendant has the right to be present.
9. Judicial Role: Unlike during trials, judges are not present during grand jury proceedings. The presiding judge’s purpose is simply to select the jury members, decide motions, and issue search warrants, arrest warrants, subpoenas, and grand jury reports or materials. In statewide- or judicial district grand juries, the presiding judge determines the county in which an indictment will be tried.
10. Jury Size: Grand juries can be as big as 12 to 23 people. In contrast, trial juries in Colorado can be as small as three people for petty offenses and six people for misdemeanors and felonies. The maximum size of trial juries in felony cases is 12 people.

These similarities and differences are summarized in the chart below:

	Grand jury	Trial jury (“Petit juries”)
Purpose	Decides whether suspect will be charged	Decides whether suspect will be convicted
Size	12 to 23	6 to 12
Standards of proof	Probable cause	Beyond a reasonable doubt
Jurors required to make decision	A quorum (majority) to indict	Unanimous to convict
Evidence presented	Hears all evidence including hearsay whether it turns out to be relevant or not	Only hears evidence judge has deemed relevant, and hearsay is very limited
Who chooses jurors	Judge	Prosecutors and defense counsel
Defendant present	Usually not (defendant has no right to put on a defense)	Usually yes (though defendant has no obligation to put on a defense)
Subpoena power	Yes	No
Judge present	No (the prosecutor controls the proceeding)	Yes
Public allowed	No	Yes (usually)

4. The Proceedings

Grand jury proceedings are like one-sided trials where only the prosecutors present evidence. During a grand jury investigation, jurors will:

• Hear evidence presented by the prosecutor (all transcribed by a certified court reporter);
• Listen to witness testimony about crimes that a third party may have committed (witnesses often include police officers, and some witnesses may testify voluntarily without having to be subpoenaed);
• Question witnesses already called;
• Subpoena additional witnesses to testify under oath if jurors find it necessary;
• Request an investigator (if necessary) to find more information;
• Review documents, testimony, or other physical evidence; and
• Convene to discuss and decide whether there is enough evidence to indict the suspect.

If the grand jury quorum decides that probable cause exists to believe the suspect committed the alleged crime, it can issue an indictment. This is also known as a “true bill” or a “presentment.” Depending on the case, grand juries can also produce an investigative report.

If the grand jury decides not to indict, it will instead issue a “no true bill” – commonly called a “no bill.”¹¹

5. Failure to Appear

Subpoenas to testify at a grand jury are court orders. Properly subpoenaed witnesses are required to show up to the grand jury proceeding. Otherwise, the court will issue a bench warrant for the witness’s arrest.

If the witness does appear but refuses to answer questions, the court may find the witness in contempt.¹² Contempt carries such penalties as fines and/or jail.¹³

6. Sealed Indictments

The district attorney may file a petition with the court requiring the court to seal the indictment. This means that no person may disclose the existence of the indictment until the defendant is in custody or has bailed out (except when it is necessary to issue or execute a summons or warrant).

Prosecutors typically ask for a seal to prevent the suspect from learning about the charges and then trying to flee or escape law enforcement. Keeping the proceeding secret also:

• encourages witnesses to disclose the truth,
• promotes free deliberations in the grand jury room,
• helps avoid perjury (or subornation of perjury) and witness tampering, and
• protects the identity of innocent people who are under investigation.¹⁴

Everyone associated with a grand jury is required to keep the proceeding secret, as the following graphic shows:

7. Length of Service

Grand juror service in Colorado is for a term of 12 months, but it may be shorter if the court discharges the jurors. The term can be longer if a judge finds that it is necessary, but no term may exceed 18 months.¹⁵

8. Federal Court

Grand juries are used more often in federal court than in Colorado state court. This is because federal law specifically requires grand jury indictments in all felony cases.¹⁶

Another difference has to do with size. Whereas Colorado grand juries usually have 12 jurors, federal grand juries have 16 to 23 jurors. Plus a quorum of 12 is always necessary to indict.¹⁷

Otherwise, the federal grand jury process is largely similar to Colorado’s.

9. Subpoenas

Subpoenas ask either for testimony (ad testificandum), for documents (duces tecum), or for both. If you are subpoenaed to appear at a grand jury, consult an attorney. An attorney can:

1. Investigate the matter to determine whether you are:
   • a target of the investigation (the suspect),
   • a subject of the investigation (someone whose conduct is within the scope of the grand jury’s investigation), or
   • a witness (who merely may know things relevant to the investigation);
2. Evaluate whether you face criminal charges (though it is rare for targets of an investigation to get a subpoena – sometimes a “target letter” is appended to a subpoena);
3. Negotiate with prosecutors in an attempt to get any pending criminal case dropped and otherwise minimize exposure to criminal liability; and
4. Prepare you for the grand jury proceedings by going over the facts of the case, what the proceedings will be like, and how to safeguard your rights.

Witnesses Should Hire an Attorney

Ideally, subpoenas are served upon your attorney. Getting served can be embarrassing, especially if it occurs at work. If you do get served personally, you should accept, tell the server if you have an attorney, and decline to say anything else.

If a law enforcement officer or an investigator with the Attorney General’s Office or U.S. Attorney’s Office contacts you by phone or knocks on your door to do a pre-grand jury interview, do not say anything. Anything you do say will be used against you and can “open new doors” of criminal liability.

Retain an attorney to speak on your behalf anytime outside of the grand jury room. A witness’s attorney may be present during the grand jury proceedings that involve the witness.¹⁸

10. Right to Remain Silent

Everyone has the Fifth Amendment right against self-incrimination. Even grand jury witnesses who are not criminal suspects may be able to assert this federal- and state-constitutional right.

During preparation for grand jury proceedings, your attorney can help you determine if and when to assert the Fifth Amendment and refuse to answer the grand jury’s questions. In some cases, you may assert a blanket refusal to answer all questions.

Penalty of Perjury

Every grand jury witness is placed under oath by answering “I do” to the following:

Do You Swear (Affirm), under Penalty of Perjury, That the Testimony You Are to Give Is the Truth, the Whole Truth, and Nothing but the Truth, and That You Will Keep Your Testimony Secret, Except to Discuss it with Your Attorney, or the Prosecutor, until and Unless an Indictment or Report Is Issued?

If you lie, you face criminal charges for perjury in the first degree, which is a class 4 felony punishable by

• two to six years in prison and/or
• $2,000 to $500,000 in fines.

Requesting to Testify

In some cases, targets of an investigation may actually request to testify at a grand jury if they think they have exculpatory evidence that suggests they are innocent and fall outside the “spectrum of culpability”.

However, these targets should always consult with an attorney first about the pros and cons of testifying.¹⁹

11. Immunity

Depending on the case, prosecutors may grant certain grand jury witnesses immunity from criminal charges in exchange for them testifying fully and completely.

Your attorney can help broker an immunity deal ahead of time before the grand jury testimony. This would relieve you from having to appear twice (once to invoke your Fifth Amendment privilege, and then again to testify with immunity).

Alternatively, grand jury prosecutors can offer you immunity while you are on the stand after you lawfully claim your Fifth Amendment right.

Either way, if you accept immunity, you cannot then claim the Fifth Amendment right to remain silent. If you accept immunity but refuse to speak, you risk being held in contempt, which may include jail.

Types of Immunity

There are two types of immunity:

1. Use immunity: The testimony you give in the grand jury cannot be used against you in future prosecutions, but you can still be prosecuted for any crime related to the testimony.
2. Transactional immunity: You cannot be prosecuted for any crimes related to the testimony.

If you are granted immunity in one jurisdiction, you may still be vulnerable to criminal liability in other jurisdictions depending on the case (unless you are granted “blanket inter-jurisdiction immunity”).²⁰

12. Challenging the Indictment

To challenge an indictment against you in Colorado, first you (or your attorney) would make “discovery” of the grand jury proceedings by gathering all the relevant documents and evidence.

State law requires prosecutors to hand over the grand jury transcripts to you as soon as practicable within 30 days of the indictment. Any tangible evidence must be revealed no later than 30 days before trial.

For all other available evidence, you must make specific requests. For instance, you can ask for “colloquy transcripts.” These document all the discussions that occurred in the grand jury room other than the testimony. You can also ask for any notes memos, or communications that the prosecutors have in connection to the grand jury.²¹

Filing a Motion to Dismiss

Depending on the evidence, you can file a motion to dismiss based on such arguments as:

• The prosecutors committed misconduct. This is when the prosecutors’ behavior either caused you “actual prejudice” or compromised the proceedings’ integrity to the point where the court can “presume prejudice.” If the misconduct “substantially influenced the grand jury’s decision to indict”, there was prejudice.²² An example could be the prosecutor denying a witness who has exculpatory evidence from testifying. Another example is that the prosecutors’ grand jury investigators wrongly questioned the witnesses or commented on the evidence. It can also be misconduct if the prosecutors violated the grand jury’s secrecy rules.²³
• The indictment was facially deficient. For example, the paperwork did not include your name, charge, applicable statute, date and location of the offense, or language that a jury could understand. However, facial invalidity challenges are rare because prosecutors are experienced in following the sample indictment form in CRS 16-5-201.
• The indictment is not supported by probable cause. This is the most common challenge to indictments. It requires the trial court judge assigned to the criminal case (not the one who presided over the grand jury) to review the grand jury proceedings’ record in a light most favorable to the prosecution, even when there is a conflict in testimony.
• The grand jury selection process was discriminatory. It is a violation of the Sixth Amendment if the grand jury was not selected from a fair cross-section of the population.²⁴ It is a violation of the Equal Protection Clause of the Fourteenth Amendment if grand jurors were excluded from serving due to sex, religion, color, race, occupation, national origin, or economic status.
• A conflict of interest should disqualify the prosecutor. An example is that the prosecutor has a financial interest in the outcome of the case or that they have a personal relationship with the victim in the case.

If the judge agrees that there are valid grounds to dismiss the indictment, it could be dropped.

Additional Resources

For more in-depth information, refer to these scholarly articles:

• Restoring the Grand Jury – Fordham Law Review.
• Eliminate the Grand Jury – Criminal Law & Criminology.
• The Early History of the Grand Jury and the Canon Law – University of Chicago Law Review.
• Demythologizing the Historic Role of the Grand Jury – American Criminal Law Review.
• The Useful, Dangerous Fiction of Grand Jury Independence – American Criminal Law Review.

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Legal References