9.7 The Grand Jury

• Library: Virginia Law and Practice: A Handbook for Attorneys (Virginia CLE) (2020 Ed.)

9.7 THE GRAND JURY

9.701 Regular Grand Jury. Regular grand juries consider bills of indictment prepared by the commonwealth's attorney to determine whether there is sufficient probable cause to return "a true bill." This function is to be performed solely by a regular grand jury. ⁴⁴⁴

The function of the grand jury is to accuse, not to convict. An indictment does not even create a presumption of guilt; its charges must later be proved before the trier of fact, beyond a reasonable doubt. To indict, the grand jury need not act by unanimous vote. It does not hear both sides but only the prosecution's evidence, and it does not face a problem of choice between two adversaries. Its duty is to indict if the prosecution's evidence, unexplained, uncontradicted, and unsupplemented, would warrant a conviction. If so, the grand jury's indictment merely puts the accused on trial. ⁴⁴⁵ The Fifth Amendment to the United States Constitution guarantees the right to an indictment by grand jury for federal capital and "infamous" crimes; however, this guarantee is not applied to the states through the Fourteenth Amendment. ⁴⁴⁶ Each state may determine whether its judicial system will use a grand jury and the organization and procedure of that grand jury.

9.702 Special Grand Jury. A special grand jury investigates and reports on any condition that involves or tends to promote criminal activity, either in the community or by any governmental authority, agency, or official thereof. ⁴⁴⁷ This function may be exercised either by a special grand jury or by

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a regular grand jury that requests the court to impanel it as a special grand jury. ⁴⁴⁸

9.703 Secrecy of Proceedings Traditionally, grand jury proceedings have been secret for five reasons: (i) to protect jurors; (ii) to encourage complete freedom of disclosure by witnesses; (iii) to prevent the escape of the accused if he or she is indicted before arrest; ⁴⁴⁹ (iv) to prevent subornation of perjury in an effort to disprove facts there testified to; and (v) to protect the reputations of persons against whom no indictment is found.

In Virginia, every member of a regular or special grand jury must keep secret all proceedings that occur during sessions of the grand jury, unless required by the court to testify in a subsequent perjury prosecution of a witness who appeared before the grand jury. ⁴⁵⁰ However, there is no provision to enforce secrecy upon witnesses summoned before a grand jury that prevents them from...