Grand Jury and Indictment
Grand jury is the last stage in a criminal investigation. As with all criminal investigations, grand jury proceedings are secret. Grand jurors and petit (trial) jurors are selected from the rolls of registered voters in the county and judicial district where they live. Grand jurors are chosen at random from this jury pool. Twenty grand jurors are impaneled. A minimum of fifteen grand jurors is required to meet and hear the criminal cases. However, only twelve grand jury votes are required to indict a criminal charge.
Once empaneled, the circuit judge will appoint a grand jury foreman. Grand jurors and witnesses must take an oath to keep deliberations secret. Typically a grand jury panel sits for six months, meeting as often as necessary to consider criminal prosecutions and other matters required by law.
A Mississippi grand jury is authorized and empowered by the Mississippi Constitution and law to investigate crimes to decide if whether a crime has been committed and whether the defendant can be identified as the perpetrator of that crime. In order to discharge its investigative duties, the grand jury has broad subpoena powers to compel the attendance and testimony of witnesses and production of documents and evidence.
The grand jury’s broad investigative powers extend to on site inspection of the county jail, youth detention, and sixteenth section land. The grand jury can also hear from the circuit clerk, chancery clerk, tax collector, forestry commission, and board of supervisors and make recommendations in their final report.
Persons testifying before the grand jury are entitled to immunity from prosecution for the crime being investigated. Of course, every witness has a fifth amendment U.S. constitutional right not to incriminate himself and the grand jury cannot compel a witness to do so. If the target or subject of a grand jury investigation wishes to testify, that person can voluntarily waive state law grand jury immunity and U.S. constitutional fifth amendment privilege. Anyone testifying before the grand jury is entitled to seek legal advice. However, the subject’s lawyer is not permitted to appear before the grand jury and must wait outside.
The only persons authorized to appear before the grand jury are the prosecuting attorney presenting the case and any witnesses, such as police investigators or victims. Prosecutors authorized to present matters to the grand jury are the District Attorney and assistants, Attorney General and assistants and the county prosecuting attorney. However, when the grand jury votes to indict or to no true bill a case, only the grand jurors themselves are present. Even prosecutors are excluded during the grand jury vote. Unlike federal grand juries, Mississippi grand juries generally do not have a court reporter to record and transcribe witness testimony. Mississippi grand juries are authorized to send target letters to subjects being investigated. Anyone receiving a target letter from a federal or Mississippi grand jury should immediately consult an attorney for representation.
When hearing criminal charges, a Mississippi grand jury is authorized to resolve the charge one of three ways. A “True Bill” is a finding of probable cause that the defendant committed the crime. The resulting accusation is called an “Indictment” and identifies the defendant, a concise statement of the facts sufficient to notify the defendant of the elements of the crime charged, jurisdiction of the court, the date of the offense and signature of the grand jury foreman and District Attorney. Depending on the nature of the crime, an exact date may not be required. As long as the defendant is on notice of the charge and its elements, the indictment is sufficient. In practice, most indictments today list the Mississippi code section charged but this is not required by law. The grand jury is authorized to indict felony crimes as well as misdemeanors. However, the overwhelming majority of indictments are for felonies only. If misdemeanor charges are indicted, they usually pertain to the felony charge subject of the indictment.
A “No True Bill” is a grand jury finding that probable cause does not exist. This means the investigation is concluded and the charge is dismissed. Finally, the grand jury is also authorized to charge a misdemeanor even if it is not a lesser included offense. In this case, the grand jury sends the charge back to the court it originated from, usually justice court or municipal court. By investigating and hearing criminal charges, the grand jury also protects the public from unwarranted prosecution. Even if the grand jury issues a No True Bill (dismissal) the arrest remains of record. The arrest and charge can be expunged from government records upon proper application to the court.
The defendant has the right to waive grand jury presentation and indictment after advice of counsel. Frequently, waiver of indictment follows plea negotiations with the prosecutor resulting in a more favorable or reduced charge. The defendant can agree to prosecution by a Bill of Information and Waiver of Indictment.
Other special considerations for the grand jury are multiple counts and multiple defendants charged in a single indictment. The defendant can file a motion to sever counts and co-defendants in order to provide the jury with a clear and unbiased view of the facts. Severance of counts and co-defendants is granted in order to fairly determine the defendant’s guilt or innocence.
Upon proper motion by the prosecution, indictments may be amended for form but not substance. Under some circumstances, an indictment can be amended to conform to the proof. Amendments to the indictment that affect sentencing have been held by the Mississippi Supreme Court to be formal (a matter of form) and not substantial (a matter of substance). This means that the prosecutor can file a motion in court before plea or trial to charge the defendant as habitual offender. Habitual offender status means that the defendant has been convicted of two prior felonies and sentenced to a year to serve on each, even if the defendant got probation. An habitual offender can be sentenced to the maximum time to be served day for day without parole or early release. A life habitual offender means the defendant has two prior felony convictions, that he served at least a year in prison on each conviction, and one conviction was for a crime of violence. A life habitual sentence means life without parole. Habitual offender sentences, like all sentences, must not be cruel or unusual. The sentencing court has authority to reduce the sentence below the maximum to avoid cruel, unusual or disproportionate punishment. However, all habitual offender sentences will be served day for day without parole or early release.
Sentencing enhancement for possession or sale of drugs near a church, school or playground enhances or doubles the penalty for a drug conviction. If the defendant has a prior drug conviction, the penalty can also be enhanced or doubled. The grand jury is authorized to include the sentencing enhancement in the indictment. Alternatively, the District Attorney, on written motion, can ask the court to amend the indictment to include sentencing enhancement.
Mississippi has a trigger lock law which adds a sentencing enhancement for possession of a firearm during a drug crime. The Mississippi trigger lock law increases the penalty for a drug conviction where the defendant possessed a firearm at the time of the offense or the arrest. Like other sentencing enhancements, the grand jury is authorized to include the enhancement in the indictment. Alternatively, the District Attorney can move the court to amend the indictment for the enhanced penalty.