Indictments and Grand Juries

What is a Grand Jury in Massachusetts?

What is an Indictment?

Cases in the Superior Court Begin With Indictments.

Serpa Law Office is a Boston criminal defense law firm representing clients in Eastern and Central Massachusetts. Attorney Joe Serpa has deep experience in Massachusetts felonies, trial court practice and the defense of serious felonies in the Massachusetts Superior and District Courts.

An indictment in Massachusetts is simply a decision to formally accuse a person of a crime in the Massachusetts Superior Court. The decision is made by a group of people chosen randomly from the community to hear evidence and determine whether there is enough to charge somebody with a crime. The standard of proof for an indictment is “probable cause.” Probable cause requires a somewhat low amount of evidence.

Grand jury indictments in Massachusetts are required before a person can be accused of a crime in the Massachusetts Superior Court. The Superior Court can hear all Massachusetts criminal cases and can sentence convicted people to as much as life in prison.

The Massachusetts District Courts and the Boston Municipal Court also review accusations before deciding whether to formally charge a person with a crime. Those courts hear only misdemeanor cases and less serious felony cases and can only sentence convicted people to no more than 2 1/2 years in the House of Correction. Because those courts hear less serious cases, there is no grand jury indictment process. Instead, court officials known as clerk magistrates decide whether to formally charge a person after considering whether there is probable cause to support the accusation. Depending on the alleged crime, a clerk magistrate will either consider whether to charge a person at a hearing called a show cause hearing, or, for more serious offenses, in the absence of the accused after hearing from a police officer only.

In all Massachusetts criminal courts, arraignments are scheduled after a court has decided to formally charge a person, whether by a Superior Court indictment or a District Court criminal complaint.

The District Attorney’s Offices of Massachusetts sometimes decide to prosecute a criminal case in the Massachusetts Superior Court rather than in the District Court. The Superior Court has jurisdiction over all crimes, whether punishable in state prison or in the house of correction, but in reality the Superior Court only hears the most serious cases. (By contrast, the Massachusetts District (or Municipal) Courts have jurisdiction only over less serious offenses. The District Court cannot hear cases that carry a only a possible state prison sentence. The Massachusetts District Courts can only hear crimes that carry a possible house of correction sentence or no possible jail sentence at all, whether state prison sentences are allowed for that crime or not.)

In the event that a minor offense or misdemeanor is alleged to have happened during the commission of a serious felony, the Massachusetts Superior Court will almost always hear both the felonies and the misdemeanors alleged in that case.

Grand Juries Decide Whether There is Enough Evidence to Indict, or Charge, Someone.

Nearly all Superior Court prosecutions can begin only if a person has first been “indicted.” The District Attorney’s office will present an accusation to a grand jury, and will call witnesses to support its case. At the end of the prosecution’s “presentment,” the grand jury votes on whether there was enough evidence to indict. Once a person is indicted, the official, public criminal case that we all see begins.

Grand juries are people from the community who listen to accusations presented only by one side: the prosecution. Grand jury investigations are secret, “ex parte” (one-sided) proceedings. Though secret, an accused person who is later formally charged with a crime will receive the “minutes” (a transcript) of all of the testimony and evidence presented to the grand jury. This transcript is released only if a person is formally charged in the Superior Court.

Only the prosecutor, prosecution witnesses and the grand jury participate in the process. Prior to being indicted, the defendant is not present at the grand jury, nor is his lawyer. Sometimes, a defendant doesn’t even know there is a grand jury investigation taking place. Defense witnesses or defense evidence are not available to the grand jury unless a suspected person notifies the prosecutor of exculpatory evidence. This is usually not a good idea because the likelihood of avoiding an indictment is very low. Instead, the suspected person has only given the prosecution an early preview of the defense.

The indictment is not proof of guilt, and the grand jury’s job is not to decide whether a person is guilty or innocent. That comes later in a jury trial. The grand jury’s responsibility is only to make an initial decision of “probable cause,” similar to a clerk magistrate’s hearing or a search and seizure. In the most basic sense, an indictment is valid if the grand jury has heard enough evidence to support all the elements of a criminal offense, without deciding if the evidence is true or false. Once the prosecution has finished presenting its evidence, the grand jury votes. A “true bill” is presented to the Superior Court if the grand jury has decided, as it almost always does, that the minimum evidence has been presented to establish “probable cause.” A “no bill” is rare, and ends the accusation prior to a formal charge in the Superior Court.

The next step after a “true bill” vote and and an indictment is a Superior Court arraignment.

The grand jury is the prosecution’s territory. There is very little a suspected person can do to interfere. The rules of evidence do not apply. Grand jury indictments can be based entirely on hearsay. Scientific evidence can be admitted without a showing that it is reliable evidence. Witnesses are not cross-examined or challenged in any way, unless jurors decide to ask questions.

Challenging an Indictment

Once indicted, however, accused persons can challenge the grand jury proceedings for several reasons. This is why having the “grand jury minutes” is such an important right.

The laws about challenging the grand jury indictment are various and sometimes complicated. A person can challenge an indictment for lack of probable cause. If a trial court judge agrees that the grand jury did not hear enough evidence to allege that the charged crime has been committed, the indictment can be dismissed. An indictment can also be dismissed if a grand jury received false or misleading evidence, if that evidence was “material” to the grand jury’s decision to indict. Very, very rarely, judges will dismiss grand jury indictments if they were based solely on evidence protected by the rights against unreasonable searches and seizures and against self incrimination.

An old joke among lawyers is that a prosecutor can indict a “ham sandwich.” That is a fairly accurate description of a process that is truly the prosecution’s territory. The time for an accused person to defend herself only begins after indictment.