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Grand Juries in Virginia

On Behalf of | Sep 28, 2020 | Criminal Law

Grand juries are one of the more unique features of the United States’ criminal justice system. While regular (or “petit”) juries decide whether a particular defendant is guilty of a crime beyond a reasonable doubt, grand juries decide whether criminal charges should be brought in the first place. Grand juries are essential to not only the federal criminal justice system, but Virginia’s criminal justice system as well.

In this article, we explore the role of grand juries at both the state and federal level, and defendants’ rights throughout the process.

Grand juries in federal court

The history of grand juries dates back to English common law; when the United States gained its independence and ratified the Constitution in 1791, it enshrined the role of grand juries in the federal criminal justice system.

The Fifth Amendment to the United States Constitution requires that all felonies (“capital or otherwise infamous crime”) must be presented or indicted by a grand jury. In other words, a person can only be tried for felonies if a grand jury determines that such charges should be brought.

The grand jury process

Under federal law, a grand jury must consist of 16 to 23 members. One member is appointed as the foreperson, who may administer oaths and affirmations and will sign all indictments.

The grand jury process, however, is a secretive one. Only attorneys for the government, the witness being questioned, interpreters when needed, and a court reporter or an operator of a recording device are allowed to be present. Even the defendant is not permitted to be present during grand jury proceedings.

Once the grand jury is convened, it will typically consider a number of cases. The evidence tends to be limited to that which the prosecutor will use to support the government’s case; the grand jury does not see the counterevidence a defendant may ultimately offer at trial. After considering the evidence presented, then the grand jury can either bring an indictment—a “true bill”—or determine not to do so. However, an indictment can be brought only if at least 12 of the grand jurors agree to do so.

What is an indictment?

An indictment is essentially a written document formally charging a person with a criminal offense. It accuses the defendant of violating a particular crime, on a particular date.

Defendants’ grand jury rights

As held by the United States Supreme Court in the landmark decision of Strauder v. West Virginia, the government cannot exclude persons from service on a grand jury on account of race, color, or previous condition of servitude; doing so would violate the defendant’s constitutional rights. This rule was later made law under the Jury Selection and Service Act, which provides: “No citizen shall be excluded from service as a grand or petit juror in the district courts of the United States or in the Court of International Trade on account of race, color, religion, sex, national origin, or economic status.”

If the selection of grand jurors violates these rules, the defendant may challenge a resulting conviction. This can be done on appeal; through a petition for habeus corpus; and via lawsuits pursuant 42 U.S.C. § 1983 and 18 U.S.C. § 243. The defendant may also challenge the grand jury on the ground that it was not lawfully drawn, summoned, or selected, and may challenge an individual juror on the ground that the juror is not legally qualified.

In the federal system, a defendant also has the right to be indicted by a grand jury only within a particular timeframe, called the statute of limitations. Under current federal law, this period is within 5 years of the time the offense was committed.

Waiver of right to grand jury indictment

The Constitution and federal law expressly require indictment by a grand jury for felony offenses. This right, however, belongs to the defendant, and it may be waived. Waiver must be done clearly and transparently; federal law requires that it be done in open court and only after the defendant has been advised of the nature of the charge and his or her rights.

If a defendant so waives his or her right to a grand jury indictment, the prosecution can proceed by information—a formal criminal charge similar to an indictment. However, this too must be done within the 5-year statute of limitations period.

Grand juries in state court

Grand jury proceedings differ from state to state. In Virginia, grand juries function similarly to the federal system. Grand juries in Virginia, however, are not mandated by the Constitution of Virginia. They are simply required by the Code of Virginia, particularly Title 19.2.

Virginia grand juries are convened regularly, and each circuit court has its own schedule. For example, in the City of Roanoke, grand juries are convened on the first Monday of every month. In Bedford County, on the other hand, grand juries are set for the first Tuesday of January, March, May, July, September, and November, and the first Friday of February, April, June, August, October, and December. Like their federal counterparts, grand juries in Virginia are secretive proceedings.

There are some differences, however, between federal grand juries and Virginia grand juries. One major difference is size—a grand jury in Virginia is between 5 and 7 persons, instead of 16 to 23.

Another notable difference is the waiver rule. In Virginia, a defendant’s waiver of his or her right to be indicted by a grand jury must be in writing and signed before the court having jurisdiction to try the felony or the judge thereof.

Fishwick & Associates: Experienced criminal defense attorneys

If you are facing criminal charges under either federal or Virginia law, it is important you understand your rights to and during a grand jury proceeding. If you or a loved one is facing indictment by a grand jury, or has been indicted, or has otherwise been charged with a criminal offense, the experienced Virginia criminal defense attorneys at Fishwick & Associates can help you understand your legal options at no cost to you. To schedule your confidential consultation, complete our online contact form or call us at 540-345-5890.


U.S. Const. Amend. V

Fed. R. Crim. Pro. 6

Fed. R. Crim. Pro. 7

Strauder v. West Virginia, 100 U.S. 303 (1879)

18 U.S.C. § 3282

Va. Code § 19-2.191

Va. Code § 19-2.195

Va. Code § 19-2.217

The content provided here is for informational purposes only and should not be construed as legal advice on any subject.