The grand jury, a group of sixteen citizens–only twelve need to be present–chosen from the same pool of people as a regular jury (i.e., petit jury), serves as an "investigative body" that determines whether or not the State has enough evidence to justify charging a person with a crime. Based on its findings, the grand jury will do one of the following:
- File an indictment, which charges the defendant(s) with a criminal offense. This occurs if the grand jury believes the State has sufficient reasonable cause to bring the charges against the defendant.
- Tell the prosecutor to file an information instead.
- Dismiss the case. If the grand jury doesn't feel that the accused should be charged with a crime, they will issue a "no bill."
Grand juries are used for felony charges, where the defendant has a right to either have the determination of probable cause determined by the grand jury or during a preliminary hearing. In order for the grand jury to determine whether there is probable cause, they use their broad investigative powers, which include the power to compel testimony from potential defendants and witnesses by subpoenaing them. If a witness fails to appear in response to a subpoena, s/he may be held in contempt, which could result in the witness being jailed until s/he complies with the subpoena or until the grand jury's term ends. Grand juries may sit for as long as eighteen months.
The entire investigative process of the grand jury is secretive, with only the grand jury members, any witness/defendant who is testifying, the court reporter, and persons specifically authorized to attend its sessions being allowed inside of the courtroom.
If you are called before the grand jury and are someone who the State seeks to indict, you should have an attorney accompany you to your hearing. 725 ILCS 5/112–4.1. 725 ILCS 5/112–4(b). In such a situation, you should be informed that:
- you have the right to refuse to answer any questions that may incriminate you;
- that anything you say may be used against you in a court of law;
- that you have a right to be accompanied by your attorney; and
- that if you cannot afford an attorney, one will be appointed for you.
You do not have a general Fifth Amendment privilege against self incrimination if you are not suspected of a crime and merely asked to testify as a witness. If you are called as a witness and have not been told that you are suspected of a crime, it is still wise to seek counsel for the hearing. What seem like innocent questions/answers can turn into "leads" that an investigator may eventually use to bring a case against you. As a witness, you have a right not to incriminate yourself, but the State may compel you to testify anyway. Your attorney can mitigate the damage that testifying may cause by motioning the court for immunity.