I’ve worked as an Oregon criminal defense attorney in Medford, Jackson County, and Southern Oregon for nine years; and I also served on a grand jury in Deschutes County in 2007. Grand jury is probably the most secretive and misunderstood part of the criminal justice system. The purpose of this blog is to answer some common questions about how the state grand jury process works in Oregon. If you have been indicted by a grand jury or are being investigated by a grand jury, you should contact an Oregon criminal defense attorney for specific advice about your situation.

What is a grand jury?
A grand jury is a panel of seven people that hear evidence about crimes and decide whether there is sufficient evidence for the state to proceed with a criminal prosecution of a person. Grand jury is a function of the court, but the grand jury process is administered by the district attorney’s office, and most grand jury proceedings take place at the district attorney’s office. One of the primary purposes of grand jury is to serve as a “check” on the power of the district attorney to charge people with crimes.

What type of crimes go through the grand jury process?
The grand jury process is only required for felony charges, the state can file misdemeanor charges without presenting any evidence to a grand jury.

What is the standard of proof at grand jury?
If the grand jury finds that, “all the evidence before it, taken together, is such as in its judgment would, if unexplained or uncontradicted, warrant a conviction by the trial jury,” the person will be formally charged and the case will proceed to court. If the grand jury finds there is sufficient evidence, the indictment is endorsed as a “true bill” and the case proceeds to court (an indictment is a piece of paper that lists the crimes that a person is alleged to have committed). If the grand jury finds insufficient evidence, the indictment is endorsed as “not a true bill” and the case does not proceed to court. Five of the seven grand jurors must concur that the evidence is sufficient for an indictment to be endorsed as a “true bill;” if less than five grand jurors concur the indictment is endorsed as “not a true bill.”

I’ve heard different explanations of the standard of proof for grand juries over the years. Some of the judges in Jackson County explain the standard of proof as probable cause (more likely than not). I usually tell my clients that the grand jury must find that there is sufficient evidence to hold the person over for a criminal trial. It’s undisputed that the grand jury standard of proof is significantly lower than the “beyond a reasonable standard” that is required at a criminal jury trial.

What type of evidence is admissible at grand jury?
Generally, only evidence that would be admissible at a criminal jury trial may be presented at grand jury. The most significant exceptions are as follows: (1) a written report made by an expert, (2) an affidavit of a witness who is unable to appear, (3) the report of a police officer who is unable to appear, and (4) reports from a financial institution. Additionally, the constitutional right to confront adverse witnesses does not apply at grand jury. Because, the right of confrontation does not apply at grand jury, the state may present certain types of hearsay evidence at grand jury even if the declarant (the witness) is not present. The most significant effect of this rule is that a police officer may often testify to the statements of an alleged domestic violence victim even if he or she does not testify at grand jury.

Does a person have the right to testify at grand jury?
If a defendant appears in court on a charge before the grand jury hears evidence in his case, that defendant has a statutory right to testify in his own defense at grand jury. This right does not apply if the state presents the case to grand jury before the person appears in court. Additionally, the state has no obligation to inform a person that a grand jury is hearing evidence against him. If a person choses to testify at grand jury, his attorney may not accompany him into the grand jury room. A defendant and/or his attorney may not present any evidence other than the defendant’s testimony. A defendant and/or his attorney may not question the state’s witnesses at grand jury.

What happens after grand jury?
It depends. If criminal proceedings have already begun and the grand jury endorses the indictment as a “true bill,” the defendant will be required to make a brief appearance to be formally advised of the indictment and his case will proceed to plea, trial, or dismissal depending on the facts and circumstances of the case. If the grand jury endorses the indictment as a “true bill” and the defendant has not made a previous appearance, the state has two choices: (1) send a citation letter advising the defendant to appear or (2) request a warrant from the court for the defendant’s arrest. The state is not required to attempt to locate the defendant before requesting an arrest warrant and it has been my experience that the court will issue an arrest warrant without any explanation from the state about why a citation letter would not be sufficient. If the grand jury endorses the indictment as “not a true bill,” the case is dismissed and the state may not present the case to the grand jury again without permission from the court.

Is there any record of what happens at grand jury?
Grand jurors are allowed to take notes during proceedings and the state maintains copies of these notes. A defendant may request a copy of the notes through the court, but he must make a showing about why the notes are relevant to his defense and is rare for the court to order that grand jury notes be disclosed. Grand jury proceedings are not audio or video recorded. There was bill in the 2015 session of the Oregon legislature to require audio recording of grand jury proceedings. The bill was opposed by the Oregon District Attorneys Association and did not pass.

What happens if there are irregularities in the grand jury proceedings?
If there are irregularities in the grand jury proceedings (such as inadmissible evidence being presented), the indictment will not be dismissed and the case will proceed through the criminal process. The Oregon courts have decided that a defendant’s remedy for any irregularities during the grand jury process is to proceed to a criminal jury trial and present and/or challenge the state’s case at trial.