In Arizona, a grand jury indictment is a way to initiate a criminal case against a defendant. To get an indictment, the prosecutor presents evidence of a suspected criminal offense to a grand jury. If the grand jury finds probable cause that the crime was committed, it will issue an indictment and the prosecutor can file criminal charges.

1. What is the grand jury in Arizona?

In Arizona, a grand jury is a group of between 9 and 16 people.¹ Their job is to review potential criminal charges that the prosecutor wants to file, and screen out any that are not supported by probable cause.

Grand jurors can be nearly any member of the public. They do not need to have a legal background. There are only a few qualifications to be a grand juror. Jurors have to:

• be at least 18 years old,
• be a U.S. citizen,
• be a resident of the jurisdiction in which the grand jury is going to sit,
• not have a felony-level conviction on their criminal background or, if they do, their civil rights must have been restored, and
• not been adjudicated mentally incompetent or insane.²

Anyone with these qualifications can serve on a grand jury. People are summoned at random to serve on a grand jury in much the same way they are summoned to serve on a trial jury, usually through an official summons in the mail.³

These grand jurors serve for a period of time that depends on the size of their county:

• 120 days, if the county has more than 200,000 people in it, like in Phoenix or Maricopa County, or
• 180 days, if the county has fewer than 200,000 people in it.⁴

The grand jury is often in session one full day every week during this time, though this depends on the county.

Grand jurors can be disqualified from hearing about a particular criminal charge if they are:

• a witness in the offense,
• directly or indirectly interested in the outcome of the charge,
• closely related to a person under investigation, a victim, or a witness in the charge, or
• biased or prejudiced for or against the state or the defendant.⁵

2. What happens at the grand jury proceedings?

The prosecutor will present evidence to the grand jury that a crime occurred and that the defendant committed it. The grand jury will then decide whether the prosecutor’s case is supported by probable cause.

The prosecutor’s case usually relies heavily on the police report and on spoken testimony from:

• a police officer,
• a detective,
• the victim,
• any witnesses who saw what happened, and
• an expert witness, if something complicated needs to be explained to the grand jurors.

The grand jurors can question each witness.

Once the prosecutor has presented the state’s case, everyone leaves the room. The grand jurors then convene and deliberate. Regardless of whether the grand jury consists of all 16 jurors, if 9 of them agree that there is enough evidence to support probable cause to press charges, then the grand jury will issue an indictment against the suspect.⁶

The indictment, also called a true bill, is a listing of the formal charges against the defendant.⁷

Occasionally, the grand jury decides that there is not probable cause to support the prosecutor’s case. In these cases, the grand jury will refuse to issue an indictment.

Because the standard of proof is merely probable cause – far lower than the beyond a reasonable doubt standard used at trial – reliable hearsay is allowed in the grand jury room.⁸

These grand jury proceedings happen behind closed doors and in secret. Only the following people are allowed to be present during the prosecutor’s presentation of evidence:

• the witness providing testimony,
• the witness’ criminal defense attorney, if the witness is also under investigation,
• a police officer accompanying a witness who is in custody,
• one or more county attorneys or prosecutors,
• a court reporter, and
• an interpreter.⁹

Only the grand jurors can be in the room when they are deliberating.¹⁰

Perhaps most importantly of all, the person suspected of committing a crime is not among the list of people allowed to be present during a grand jury proceeding. Neither is his or her criminal defense lawyer. In most cases, the person under investigation is unaware that a grand jury is hearing their case.

The only time the person under investigation is allowed before the grand jury is if the grand jury compels their appearance to testify or if the suspect’s request to be present is granted by the grand jury.¹¹ In these cases, the suspect’s criminal defense attorney is not allowed to talk to anyone but the suspect, preventing cross-examination.¹² The grand jury is under no obligation to consider or even to hear exculpatory evidence that shows the suspect’s innocence.¹³

3. What happens after a grand jury indictment?

If the grand jury decides to indict the person under investigation, the prosecutor will present a draft indictment that lists the criminal charges to be filed. The grand jury can alter this draft indictment. The final version of the indictment is the true bill. It names the criminal charges that are actually to be filed against the defendant. All necessarily included offenses in each charge are implied in the indictment.¹⁴

The grand jury may then issue the defendant a summons to appear in court, or an arrest warrant for the defendant. If the defendant is arrested, he or she has a right to an initial appearance within 24 hours.¹⁵ At the initial appearance, the arraignment and an initial pretrial conference will be scheduled or, if the defendant takes a plea agreement, a sentencing date will be set.

4. How is this different from a preliminary hearing?

In both a grand jury and the preliminary hearing, the task is to determine whether the state has probable cause to file charges and initiate a criminal case.

The key difference between the two is the presence of the defendant and his or her lawyer. Grand juries happen in secret, often without the knowledge of the suspect. On the other hand, defendants being accused of a felony case have a right to a preliminary hearing.¹⁶At the preliminary hearing, the defendant and his or her lawyer can present evidence to rebut the prosecutor’s claim that there is probable cause to press charges.¹⁷

Because of this, prosecutors tend to go before a grand jury to prove probable cause, rather than before a magistrate judge at a preliminary hearing.

Another difference is in criminal law terminology:

• the criminal charges from a grand jury are listed in an indictment, while
• the charges filed in superior court by the county attorney’s office without the use of a grand jury come in the form of a direct complaint.

Because the two are so similar, there is little reason for them both to happen. If the prosecutor went before a grand jury and got an indictment, the preliminary hearing will usually be waived.

5. What crimes usually go through an indictment?

There are some types of criminal offenses that prosecutors are especially likely to file through a grand jury indictment rather than through a direct complaint and preliminary hearing.

White-collar crimes are usually initiated with an indictment because the arrest often does not have to happen immediately and because prosecutors often prefer proving probable cause in a hearing without the defendant. These crimes include:

• embezzlement,
• tax evasion,
• forgery,
• money laundering, or
• investment fraud.

Federal crimes are also often taken to a grand jury to get an indictment. These can include:

• interstate drug trafficking,
• cybercrimes,
• immigration offenses, and
• securities fraud.

Prosecutors often take high-profile cases to a grand jury, as well. This is usually to protect against a possible claim that the case is backed by probable cause. Examples include:

• Class 1 felonies, like murder,
• Class 2 felonies, like manslaughter, sexual assault, or extortion,
• Class 3 felonies, like aggravated robbery or second-degree burglary, or
• felony offenses against powerful or famous people, from driving under the influence (DUI) to bribing an official.

6. Can an indictment be challenged?

In Arizona state, the grand jury or its indictment may be challenged, but only on very limited grounds.

A defendant whose indictment has been returned by the grand jury can claim that the entire grand jury was not lawfully drawn or selected.¹⁸If successful, the whole grand jury will be discharged.¹⁹

A defendant can also challenge a particular grand juror on the ground that he or she did not meet all of the qualifications to become a grand juror, or that he or she should have been disqualified from hearing the defendant’s case.²⁰If successful, the particular juror in question will either be discharged or disqualified from the particular case.²¹

Finally, the defendant can challenge the outcome of his or her grand jury proceeding by claiming either that:

• the defendant was denied a substantial procedural right, or
• an insufficient number of qualified grand jurors voted for the indictment.²²

This challenge has to be filed within 45 days after the filing of the grand jury’s minutes or the defendant’s arraignment.²³If successful, the court will grant a motion for a new finding of probable cause and another grand jury can be seated to hear the case.²⁴

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