Challenging Grand Jury Indictments
“I’ve almost got one of them ready to swear that the docks are actually near the water,” says the prosecutor.
~The Wire, S2 | E5 Undertow
What is the Difference Between a Grand Jury and a Trial Jury?
A grand jury is different than a jury used in a trial. Those kinds of juries determine guilt or innocence. Grand juries do not. They merely decided if there is probable cause that a crime was committed by the accused. So, what do you need to know about making a challenge to grand jury? Here are 9 things.
An indictment by a grand jury requires the decision of juror which are not members of the law enforcement investigation you. They are your fellow citizens.
What Does it Mean If My Case Is Going To A Grand Jury?
During the grand jury process must comply with the requirements of substantive due process. This means the government observe proper methods in depriving a person of a fundamental right.
What Is an Arizona Grand Jury and How Does It Work?
A defendant must file a motion under no later than 45 days after the certified transcript and minutes of the grand jury proceedings are filed or no later than 45 days after the defendant's arraignment, whichever is later. See Rule 12.9., Arizona Rules of criminal Procedure.
How Does an Arizona Grand Jury Work?
A challenge to a grand jury proceeding limited to whether, in determining there was probable cause, there was a substantial procedural right violation or there was an insufficient number of qualified grand jurors.
To know if you have substantive due process violation you need to know what happened at the presentation of evidence. This means you need a copy of the transcript.
There are four (4) thing you need to obtain and then return a grand jury transcript. First, is a motion for removal of the transcript. Second, is an accompanying order for that motion. Third, a Release Receipt for the transcript. And Fourth, a Return Receipt for returning the transcript to the clerk.
What to do with these motions:
- File the Motion for removal and get three (3) conformed copies.
- Then go to the 13th floor and give copies to the presiding judge’s judicial assistant. They will take the conformed copies and get the order signed.
- Take the signed order, a release receipt, a return receipt, and a copy of the motion to the archives located in the basement across from 620 West Jackson. Staff will take them and tell you to come back in 24 hours.
The government has a duty to inform a grand jury of a defendant's request to testify.
Given the power of the prosecutor in the grand jury system, the statutory right of the grand jury to decide whether to hear evidence from the defendant, and the defendant’s right to request appearance before the grand jury,
we hold the county attorney must inform the grand jury that the defendant has requested to appear or has submitted exculpatory evidence. Without such a responsibility, A.R.S. § 21-412 and Rule 12.6 are rendered meaningless.
Given the power of the prosecutor in the grand jury system, the statutory right of the grand jury to decide whether to hear evidence from the defendant, and the defendant’s right to request appearance before the grand jury, we hold the county attorney must inform the grand jury that the defendant has requested to appear or has submitted exculpatory evidence. Without such a responsibility, A.R.S. § 21-412 and Rule 12.6 are rendered meaningless.
Why Arizona Prosecutors Would Choose Grand Juries Instead of Preliminary Hearings?
The Fifth Amendment
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger…nor be deprived of life, liberty, or property, without due process of law…
“A challenge to the denial of a motion for remand generally must be made by special action before trial, and is not reviewable on direct appeal.” Francis v. Sanders, 222 Ariz. 423, 426, ¶ 9, 215 P.3d 397, 400 (App. 2009).