What Does It Mean to Be Indicted by a Grand Jury in Georgia?
You may have heard the saying, "You could get a grand jury to indict a ham sandwich." As a former prosecutor for the Coweta Judicial Circuit who presented many cases to grand juries, I can see where the saying comes from. There are three primary reasons why nearly every case presented to a grand jury is indicted:
The decision a grand jury is making is very different from the decision a trial jury makes.
The presentation of evidence to a grand jury is typically one-sided.
Prosecutors may dismiss a case without presenting it to a grand jury if they recognize it lacks sufficient evidence to later prove beyond a reasonable doubt.
The Purpose of a Grand Jury
For charges that the law requires be presented to a grand jury, the grand jury's role is a screening function. They are there to protect individuals by preventing people accused of crimes from having to face a prosecution when there is insufficient evidence to believe they committed any crime (or when the Grand Jury feels the prosecution is unjust).
16 to 23 Grand Jurors Decide
A grand jury in Georgia is composed of between 16 to 23 members. However, only 12 votes are needed for an indictment to be approved (also called "true-billed"). If fewer than 12 grand jurors believe probable cause exists to believe someone committed a crime, then the case is not indicted (also called "no-billed"). As a general rule, after two no-bills the State is prohibited from prosecuting the defendant for the same offense. In contrast, at a felony jury trial, there are 12 jurors deciding whether the State proved a defendant's guilt beyond all reasonable doubt, and all 12 must unanimously agree before any verdict is returned.
"Probable Cause" Does Not Equal Guilt
To be clear, grand jurors are not deciding whether someone is actually guilty of a crime. Instead, they are simply deciding whether "probable cause" exists to believe that a defendant committed an alleged crime. Probable cause is a low evidentiary standard. Probable cause exists when the known facts and circumstances create a reasonable belief that a crime was committed and the defendant committed it. While it requires more than just speculation or a bare suspicion that someone committed a crime, it requires far less than proof beyond any reasonable doubt. In fact, a grand juror could have some level of doubt as to whether someone is guilty and still find probable cause to indict.
A One Sided Presentation of Evidence
In determining the existence of probable cause, most grand jury presentations only involve a single officer explaining under oath the evidence in the case along with a prosecutor to answer questions about the law. The proceedings are required to be secret in nature by law. No judge is present. The rules of evidence do not apply, so the grand jury may hear evidence that is hearsay or which may not ultimately be admissible at trial. No defendant or defense attorney are present (except in cases when an officer is accused of a crime in the performance of their official duties - O.C.G.A. § 17-7-52). As a practical matter, grand jurors must rely primarily on the officer and prosecutor to provide them with an accurate and fair account of the evidence and applicable law. This set of circumstances presents the real risk that the grand jury could be missing important information that only the defense or the defendant could have provided.
Prosecutors Try to Filter Cases Before Grand Jury
Prosecutors do not have to present every single case they receive to the grand jury for indictment. Some cases are screened out and dismissed by the State if they identify early on a case lacks evidence and is not prosecutable. Those cases normally never make it to a grand jury. Even when a prosecutor believes there is enough evidence to obtain an indictment under the relatively low probable cause standard, they must also consider whether they could ultimately prove the case beyond a reasonable doubt at trial. If the evidence is so weak that a conviction at trial is unlikely, the prosecutor may decide not to pursue an indictment in the first place.
After Indictment Your Case Starts Appearing on Court Calendars
Once a case is indicted, the defendant is still presumed innocent under the law, and the defendant has not been convicted of anything. After indictment, the defendant's case will be scheduled for arraignment, where the defendant is formally called upon to enter a plea to the charges. Depending on the circumstances, formal arraignment may be waived. A defense attorney will be a part of the proceedings at this point, as the case makes its way through the court system to potential motions hearings, jury trial, or a guilty plea.
Your Attorney Should Try to Get Involved Pre-Indictment When Possible
In my practice, when I am retained early on after an arrest, I will seek to gather additional information and mitigating evidence concerning the charges, and when appropriate, request a meeting with the prosecutor to present them with this information and discuss the legal issues with the case. There can be significant value in raising these issues before indictment rather than waiting until the prosecution is already underway. While an indictment does not prevent a case from later being dismissed, addressing the weaknesses in a case before indictment may provide an opportunity to avoid the indictment altogether.
