Inside the grand jury system

can serve on a grand jury. In general, jurors must be 18 years old and a resident of the county where they are called for jury duty.

How do grand juries work?

Grand juries usually meet once per week (but sometimes more frequently) for several months at a time until their work is done or their term expires. This process can take between six months to two years, depending on how much evidence needs to be reviewed. Since grand juries operate independently, they are often considered a check on the government.

These proceedings are not open to the public, and jurors are sworn to an oath of secrecy. This protects the integrity of the grand jury’s work by preventing witness tampering or pressure from outside sources. It also prevents defendants from being subject to public humiliation, which could lead them to plead guilty just because they don’t want others to watch while their case is heard in court.

Grand juries are different from trial juries, in part because they convene earlier in the legal process. While a grand jury determines whether there is enough evidence for a trial to be warranted, a trial jury would actually determine the guilt or innocence of the accused.

What about Trump’s Manhattan case warranted a grand jury?

According to the U.S. Department of Justice, “States are not required to charge (an individual) by use of a grand jury. Many do, but the Supreme Court has interpreted the Constitution to only require the federal government to use grand juries for all felony crimes. (Federal misdemeanor charges do not have to come from the federal grand jury.)”

Different states have different rules and, in some cases, state prosecutors do not need a grand jury to bring charges against an individual or corporation. They can simply file charges themselves, if they have enough evidence and believe it’s in the public interest.

In New York state, however, a grand jury is necessary to charge someone with a felony. The only exception to this rule is if the defendant appears in open court and waives the grand jury process in writing. Manhattan District Attorney Alvin Bragg could have brought lesser charges against Trump without the assistance of a grand jury.

Pursuing felony charges, however, required this approach.

The main takeaway

While prosecutors argue in favor of an indictment before a grand jury, they do not have the power to decide whether an indictment will go forward. It is the grand jury that chooses whether to indict, and the judge makes the final decision.

Therefore, it’s important to understand, that Bragg didn’t indict the former president. He prosecuted Trump, but it was a group of ordinary citizens who made the decision to indict him, having spent months reviewing the evidence. The judge hearing the case, Manuel Merchan, then accepted the grand jury’s decision and moved forward with the charges.

Omar Ochoa is founding attorney of the Texas-based Omar Ochoa Law Firm. He holds degrees in business administration, accounting and economics from the University of Texas at Austin as well as a degree from the University of Texas School of Law there. As a trial lawyer, he has handled a variety of state and federal cases involving antitrust, class actions, insurance matters, securities, oil and gas, trade secrets, construction law, environmental law, qui tam (in which a whistleblower brings a suit on behalf of the U.S. government), the Fair Credit Reporting Act, employment issues, private equity transactions and breaches of contract.