Expanding and Reforming North Carolina’s Grand Jury System

A criminal case in North Carolina normally starts in District Court where, after a period of time and one or more “probable cause” dates at which a probable cause hearing is almost never held (at least in Wake County), the case is sent to a grand jury.

In the meantime, the North Carolina grand jury meets in secret with only the law enforcement officer present to give his side of the story. The case is almost invariably indicted – meaning that the grand jury by a vote returns a True Bill of Indictment – which is a fancy way of saying that the accusation against the Defendant has now moved the case into Superior Court.

(Cases can also reach Superior Court by criminal information, and that must be done with the consent of the Defendant. This happens when the Defendant is pleading guilty to a crime and is waiving indictment and proceeding on a separate charging instrument drawn up by the prosecution so to speed the case along.)

Except in certain drug conspiracy cases, North Carolina lacks what are called “investigatory” grand juries. These are grand juries that are convened for the purpose of subpoena’ing witnesses, and having people testify under oath, with the idea that it is a prosecutor’s tool to collect additional sworn testimony.

Grand juries can be problematic. In North Carolina, defense counsel has no right to be present at a grand jury, and cannot put on any evidence to the grand jury to try to counter the state’s claims.

Grand juries were once thought of as counterweights to runaway prosecutorial discretion – by involving citizens who form the Grand Jury early in the process. But they have become just tools of prosecutors and police.

If North Carolina wants to expand the use of grand juries, as Attorney General Roy Cooper has proposed to include investigations involving financial fraud or public corruption, then North Carolina should also look at reforming grand juries so they are fairer with respect to all our rights.

Probable Cause and the North Carolina Grand Jury

North Carolina laws provide three ways by which a case can be prosecuted in Superior Court, which is where all felonies must be tried. The prosecutor may request that a judge find probable cause that the person committed a crime after a hearing in open court. This is called a probable cause hearing. If the District Court judge finds probable cause exists, the District Court judge can bind the person over for a trial in Superior Court.

While some counties in North Carolina sometimes have probable cause hearings, in Wake County there is almost never a probable cause hearing. Defense lawyers practicing in Wake County may have had a probable cause hearing once in a career.

(The reason they’re so rare probably has to do with the open setting. The prosecution in Wake County typically does not want to produce its witnesses for vigorous cross-examination by a defense lawyer.)

The second way a case may be prosecuted in Superior Court is upon a bill of information, whereby the defendant typically consents to the finding of probable cause. This will occur in cases where there is a plea agreement, and the defendant simply signs the bill of information so that the case can be resolved expeditiously.

The third way a case may be prosecuted in North Carolina’s Superior Courts (also known as its trial courts) is through a Grand Jury indictment. Article 31 of Chapter 15A of the North Carolina General Statutes defines a grand jury and establishes how it works.

A North Carolina grand jury has not less than 12 people and not more than 18 people, drawn at random from the county. The grand jury differs from the petit jury (which is a trial jury) in that a grand jury does not determine guilt, but merely determines whether there’s “probable cause” to believe the person committed the crime. Probable cause is a very low standard, basically indicating there are some facts to think the person may have committed the crime. Consequently, plenty of innocent people are indicted, and plenty of people are indicted for which guilt will never be found because there is not proof beyond a reasonable doubt.

Second, the defense does not have the opportunity to either present evidence to a North Carolina Grand Jury or to even appear and hear what is said at a NC Grand Jury. And since, by law, grand jury proceedings are secret and there is no transcript, no one – besides the grand jurors themselves and the witnesses, usually police officers, who appear at them know what is said.

In addition, it is illegal for anyone, including grand jurors themselves, to discuss what has happened in the grand jury room with anyone who was not present.

As you can imagine, given such rules, a grand jury is basically a rubber stamp for the police and prosecution. There is no check on the grand jury. In the past five years, I’ve seen only one case “no true billed” and that case was sent back to a new grand jury for a second try, where the indictment was “true billed.” The person was later found not guilty – because he did not do the crime – after about a 5 minute deliberation by a trial jury. That’s how weak the case was. (Although that poor guy spent 8 months waiting in jail for his day in court.)

So when you see people who’ve been “indicted” in North Carolina, consider this old adage: “A grand jury would indict a ham sandwich for the death of a pig.”

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