22:05 ET, March 31, 2023
Key things to know about what a grand jury is and does
Analysis by Zachary B. Wolf
following the manhattan grand jury indictment of former President Donald Trump, it is worth looking at the mechanics of what is happening in the legal system and how the process that applies to everyone applies to Trump.
We spoke with Elie Honig, CNN legal analyst, former federal prosecutor, and author of the new book, “Untouchable: How Powerful People Get Away With Murder,” to go over how grand juries and prosecutions work. Part of our conversation, conducted over the phone, is below:
Grand jury vs. trial jury
WOLF: What should we know about the difference between a grand jury and a trial jury?
HONIG: A grand jury decides to accuse, which means to accuse a case. A trial jury determines guilt or not guilty.
A grand jury is larger, usually 23 members, and the prosecutor only needs the majority votes of a grand jury, as opposed to a trial jury, which must be unanimous.
The standard of proof in a grand jury is lower than in a trial jury. In a grand jury, you just have to show probable cause, meaning more likely than unlikely. But of course, in a test environment, you need to show proof beyond a reasonable doubt.
The other thing to know is that a grand jury is an almost entirely one-sided process.
Usually, the only people allowed in the courtroom are the grand jury, prosecutors, witnesses, and a court reporter.
In some cases, including New York, there is a limited right of a potential defendant to present some evidence, but defense attorneys are not allowed in the courtroom.
There is no cross-examination of the prosecution’s evidence. There is no presentation of defense evidence.
Almost every time a prosecutor seeks a grand jury indictment, they will get a grand jury indictment.
What is an accusation?
WOLF: How would you define “accusation”?
HONIG: It is a document that establishes formal charges against the defendant.
Three Trump Grand Juries
WOLF: We have three grand juries that matter the most: for election meddling in Georgia, at the federal level for declassified documents, and then the District Attorney of Manhattan. How much variation is there in grand juries between the city, county, and federal government?
HONIG: There are minor variations, but the basics remain the same.
This is an example of one of the minor variations in New York State, but not in the federal system, ie for the Department of Justice. The defendant has a limited right to notice and an opportunity to testify or present defense evidence, which we saw with Trump and then with him. ask Robert Costello to testify.
That is not the case at the federal level. You do not have to give the defendant an opportunity to testify or present evidence. That is a slight variation. But the basic fundamentals are the same.