Court Systems and Grand Juries

Federal Use of Municipal Jails

The federal court system and the state court system operate differently. The federal court system does not have cash bail. Instead, the federal court system releases people with specific conditions. Sometimes those conditions require some amount of monetary bond as a condition of release. We have been assured by the federal public defender’s office that people arrested this weekend by the US Marshals will be released later today.

When someone is arrested by the US Marshals and they need to be held in Portland, they are held at MCDC. The US Marshals rent beds from the Multnomah County Detention Center (MCDC) to hold people. People held by Multnomah County on behalf of the US Marshals will appear on the MCSO website, with the arresting agency listed as the US Marshall Service and charges only showing a US Marshal (USM) hold with no bail. They cannot be bailed out through the county jail system because they are technically under the legal control of the US Marshals, rather than Multnomah County. In these situations, MCDC is just a holding facility for federal agencies, with no control over charges or the bail process. Under the federal system, people arrested on federal charges have to go through a probable cause hearing within 48 hours of their arrest. At this hearing the judge can either release them on conditions or continue to hold them in detention. This is different from the Oregon legal system in which people can be bailed out before they even have an arraignment hearing with a judge.

What is a Grand Jury?

Grand Juries are used at the federal level and in many states to secure indictments on felony charges. They are, in essence, how the state decides whether or not someone should be charged with a crime.

In the federal legal system, the grand jury is used to decide whether someone should be charged (“indicted”) for a serious crime. The grand jury hears evidence presented by the prosecutor: the U.S. Attorney. The grand jury uses subpoenas to gather this evidence. A subpoena is a legally mandated summons for someone to go to court. It is a crime if you are subpoenaed and refuse to go to court.  The grand jury can subpoena documents, physical evidence, and witnesses to testify. The “special” federal grand jury, created in 1970, can be used to investigate “possible” organized criminal activity rather than a specific crime. 

The Oregon legal system also has grand juries. Before someone is formally charged with a felony in Oregon, the case must first go before a grand jury or to a preliminary hearing. A preliminary hearing is held in open court, where both the prosecution and the defense present their cases. A judge determines if there is enough probable cause to move forward with a criminal charge. 

By contrast, a grand jury proceeding is more secretive, involving only the seven members of the jury, the prosecutor and the witnesses. Grand jury members listen to witness testimony, ask questions, and vote on whether there is enough evidence to indict someone for a crime. According to a July 2017 article in The Oregonian, “Nearly all felony cases in Oregon go through a grand jury process.” 

How is a Grand Jury Different Than a Trial Jury?

Unlike the “petit” jury, which is used to determine guilt in a trial, a grand jury consists of 16 to 23 jurors who are not screened for bias. The purpose of the grand jury is not to determine guilt or innocence, but to decide whether there is probable cause to prosecute someone for a felony crime. The grand jury operates in secrecy and the normal rules of evidence do not apply. 

The prosecutor runs the proceedings and no judge is present. Defense lawyers are not allowed to be present in the grand jury room and cannot present evidence, but may be available outside the room to consult with witnesses. The prosecutor and the grand jury members may not reveal what occurred in the grand jury room and witnesses cannot obtain a transcript of their testimony.

How Has the Grand Jury Been Misused?

Because of their broad subpoena powers and secretive nature, grand juries have been used by the government to gather information on political movements and to disrupt those movements by causing fear and mistrust. The grand jury lends itself to being used for improper political investigation due in part to the prosecutor’s ability to question witnesses without regard for rules that prohibit irrelevant, unreliable or unlawfully obtained evidence. Those called before the grand jury may be compelled to answer any question, even those relating to lawful personal and political activities. That information has been used by the government as a basis to conduct further surveillance and disruption of political dissent. 

When used against political movements, the grand jury causes fear and mistrust because persons who refuse to answer questions about their First Amendment political activities, friends and associates may be jailed for the time of the grand jury: up to 18 months. If a witness asserts their Fifth Amendment right to remain silent, they may be forced to accept immunity or go to jail for contempt. Even a witness who attempts to cooperate can be jailed if minor inconsistencies are found in their testimony. Such a perjury charge may stand even when the grand jury fails to hand down any indictment for what it was investigating. More information on grand juries and ways to resist them is available at grandjuryresistance.org