Grand Jury Presentations

Note: This was written a few months ago. Dallas County has now changed it’s policy and will no longer allow in person attorney presentations to the Grand Jury. Paper presentations are allowed in Dallas and Collin Counties (I’m not sure of the rules in other counties). I think this is crap. The Grand Jury works for the state not the DA. It the accuser gets their say, the defense ought to be afforded the same privilege. Some of us are better in person than on paper.

Keeping a client from getting indicted is sometimes the best defense possible. An indictment is when a grand jury formally charges a person with a crime. To do this they must make a finding a probable cause. Probable Cause is a reasonable ground to suspect that a person has committed a crime. If they find there is probable cause the case is indicted or “true billed”. If there is not probable cause the case is not indicted or “no billed”.

The rules of Grand Jury proceedings are covered by Chapters 19 and 20 of the Texas Code of Criminal procedure.  The rules are fairly strict. The only people allowed in the room are the jurors, a bailiff, a district attorney, a witness, a court reporter and interpreters (if necessary). When voting, only the jurors are allowed in the room.

The DA will present the police version of events to the Grand Jury and answer any question they may have. This will generally not be favorable to your client. At this point you have a few options. You can let it ride and let your guy get indicted or you can make a presentation to the Grand Jurors.

Sometimes there is no way out at this stage. The reality is there is probable cause that your guy did it. THIS DOES NOT MAKE HIM GUILTY. It just means your battle is better fought on other fields.

1. On Paper – In a cover sheet you explain why there is not probable cause that your client committed the crime. Does he have an alibi? Is the accusation a lie? Do other witnesses that contradict the complainant? Is it medically impossible? You can attach any documentation to support your version.

The grand Jury then reads these and makes their decision. The drawback is that if they have any questions, you can’t answer. So if they misunderstand you are sunk.

Any documents and affidavits can be used by the DA later. Make sure you don’t end up shooting your trial theory in the foot.

2. In Person – This can range from simple to elaborate.
You can simply sit, tell the story, and answer their questions. This is what I have done. The Grand Jurors can ask you whatever questions they want.  Moot Court in law school  is good prep for this. You are interrupted in the middle of sentences and sometimes the questions come out of left field. The success of this depends on how defensible your case is and how good you are at talking to a group of people. You need to read your audience and know which points are going somewhere and which ones are DOA. Abandon the stinkers and run with the ones they seem to like.

When I did this I thought I had two things in my favor, the law and the facts. I started with our version of the facts and followed with the law. Unfortunately, I had misread the law. The DA jumped on me and was supported by the lawyers on the panel. This was only mildly horrifying. So as my face turned a lovely shade of crimson I had to pivot. I abandoned the law and ran back into my facts. Luckily for my client the facts were good. He was not indicted.

Some lawyers add power point and other elements to their presentations. Lots of people are better with visuals so it can be a huge help. You can also add relevant video or audio recordings. If you use any media be sure to go check out the facilities well in advance to see what you need to do/ bring to make it work. The last thing you want is to stumble around in front of the Grand Jury not being able to make your computer work. Also have a backup, sometimes the wonders of technology fail and it’s just you talking.

Witnesses –  It’s best to hear it from the horses’ mouth. Maybe. Not Always.
Witnesses are great. If they are on your side, have good memories, speak well, and have no criminal records. In trial what a witness lacks can sometimes be made up for with good questioning by a lawyer. In a Grand Jury that is not an option. You (the Defense Attorney) are not allowed in the room, even if your client is testifying. The witness goes in alone and tells their story. Then they are asked whatever questions the Grand Jury wants, for as long as they want. The DA can ask questions too. Lovely. Further, all testimony is recorded to be used against the witness later. So you wait in the hall and hope your guy is not devoured.

The DA has the same right to call witnesses in their favor.

I haven’t had the stomach for this yet. Maybe if it’s the right witness at the right time. I don’t know. I at least like to know when my carefully prepped witness falls apart.

You May Have To Do It Again If Your Guy Is Not Indicted
I was horrified when I learned that the DA can present the case again to the same or another Grand Jury so long as the statute of limitations hasn’t run. Further, they don’t have to notify you. So my musings about unfairness aside, I look my guy up every so often to make sure a new date has not been set.

Which Way Is Best
Defense lawyers all have opinions on whether and how to do these. Procedures vary by county. My thought is if there is a slight chance to get the case no billed, go ahead and do a paper or lawyer presentation. There is very little to lose. The worst that can happen is the case is indicted. This will certainly happen if you don’t present. Just be very cautious with testimony and affidavits from witnesses. The DA sees it all and will use it against you later if possible.

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