You have probably heard of a “grand jury” without understanding its exact function. Unlike a trial (or “petit”) jury, a grand jury is not there to determine a person’s guilt or innocence. Rather, the grand jury interviews witnesses and reviews evidence to decide if there is “probable cause” to formally charge–indict–a defendant with a particular offense.
Because of the grand jury’s more limited role, defendants and suspects do not receive the same degree of constitutional or legal protections as during a trial. For instance, while a trial jury must be unanimous in finding a defendant guilty beyond a reasonable doubt, before a grand jury only 9 of the 12 jurors must find there is probable cause to present (issue) an indictment.
Can You Have an Attorney in the Grand Jury Room?
Another critical difference between grand jury proceedings and trials is the role that criminal defense attorneys play. During a trial you have the right to have your lawyer with you in the courtroom at all times to zealously represent your interests. Among other things, a defense attorney can cross-examine the prosecution’s witnesses and make opening and closing statements directly to the jurors.
That is not the case with a grand jury. The district attorney is the only lawyer allowed in the room with the grand jury at all times (except when the jurors are deliberating). A defense attorney may not address the grand jury or question witnesses before it except with the prosecutor’s approval.
So if you are called to testify before the grand jury as a suspect, your lawyer normally cannot assist you during questioning. However, you still have certain rights under the Texas Code of Criminal Procedure, including the “right to have a lawyer present outside this chamber to advise you before making answers to questions you feel might incriminate you.” Of course, you always have a constitutional right, under the Fifth Amendment, to refuse to answer any question that might serve to incriminate you.
But also keep in mind, any answers that you do give can be used against you. And all grand jury testimony is given under oath, so you can be charged with perjury for giving false answers even if you are never indicted for the original offense under investigation. This is why it is always a good idea to have an attorney advise you before giving any answers that might be construed as perjury or an attempt to obstruct justice.
Let Us Help You Before Facing the Grand Jury
The one thing you should never do is take a passive approach to a grand jury investigation. At the Law Offices of Tad Nelson & Associates, our Texas criminal defense attorneys have extensive experience dealing with grand juries. Let us advise you before you are called in for questioning. Call our offices in Houston, Galveston, or League City today if you are suspected of a crime and need immediate assistance.