A California criminal grand jury hears evidence and decides whether there is probable cause to formally accuse someone of a felony through an indictment. Under the California Constitution and Penal Code, prosecutors can pursue a felony either by grand jury indictment or by filing an information after a preliminary hearing.
In San Diego, a criminal grand jury is different from the county’s better-known civil grand jury, which investigates local government. This article addresses the criminal indictment process under California law. If you’re involved in a grand jury investigation, Blair Defense Criminal Lawyers can help you understand your rights and what to expect.
Our firm has more than 15 years of criminal defense experience serving clients in San Diego County.
The Short Answer: What a Grand Jury Is and When California Uses One
A criminal grand jury is a group of citizens that reviews evidence presented in a confidential proceeding and determines whether there is enough evidence for felony charges to move forward. It does not decide whether the accused is guilty.
California Constitution Article I, section 14 permits felony prosecution by either indictment or information. Prosecutors have discretion to choose the indictment route, although California felony cases more commonly proceed through a complaint and preliminary hearing.
The grand jury’s task is essentially to determine whether probable cause exists to support the proposed charges. Penal Code § 939.8 states that an indictment should be issued when the evidence, if unexplained or uncontradicted, would warrant a conviction by a trial jury.
Grand Jury vs. Preliminary Hearing: How California’s Process Differs
The main difference is that a preliminary hearing gives the accused and defense counsel an opportunity to participate, while a grand jury proceeding takes place without the defense presenting its case in the ordinary course.
At a California preliminary hearing, the defense can appear through counsel, cross-examine prosecution witnesses, and present evidence. A judge decides whether sufficient cause exists to hold the defendant to answer.
Grand jury proceedings are different. They are conducted in private, and the prosecutor presents the evidence to the jurors. The prosecutor must inform the grand jury of known exculpatory evidence under Penal Code § 939.71, and the grand jury has statutory authority to order evidence that may explain away the charge.
One procedural consequence is especially important: if a felony is prosecuted by indictment, the California Constitution, Article I, section 14.1 provides that there is no post-indictment preliminary hearing.
What Happens During a Grand Jury Proceeding?
During a criminal grand jury proceeding, prosecutors present witnesses and other evidence outside the presence of the public and the defense. Grand jurors can hear testimony, consider exhibits, and ask for additional evidence within the procedures established by California law.
The proceeding is recorded when criminal charges are being investigated. The defense generally does not cross-examine witnesses or present competing evidence at this stage.
After hearing the evidence, the grand jurors deliberate privately. If they find the required evidentiary basis, they can return an indictment formally accusing the person of one or more crimes. An indictment is an accusation, not a conviction, and the prosecution must still prove guilt beyond a reasonable doubt at trial.
San Diego Superior Court specifically distinguishes these criminal grand juries from the 19-member San Diego County Grand Jury that serves primarily as a civil watchdog over government agencies.
Can You Have a Lawyer Present at a Grand Jury Hearing?
A witness generally cannot have their own defense lawyer inside a California criminal grand jury room while testimony is being taken. Penal Code § 939 limits who may be present during criminal grand jury sessions, and a witness’s private attorney is not among the people ordinarily permitted inside.
That does not make legal advice irrelevant. A lawyer can advise a subpoenaed witness beforehand, address potential self-incrimination issues, and be available outside the proceeding for consultation when permitted.
Someone who is a potential target of the investigation should not assume that a subpoena means they are merely a neutral witness. The risks depend on the person’s status, the questions likely to be asked, and the evidence already gathered.
What Happens After a Grand Jury Returns an Indictment?
Once a California grand jury returns an indictment, the indictment is filed in superior court, and the criminal case proceeds without a preliminary hearing. The defendant is arraigned on the charges and receives the grand jury testimony transcript under Penal Code § 938.1.
The transcript matters because it allows the defense to examine the evidence and testimony presented before the indictment. California law also provides procedures for challenging an indictment. For example, Penal Code § 995 permits a defendant to ask the court to set aside an indictment on specified legal grounds, including certain defects in the indictment process or insufficient cause to support the charges.
An indictment therefore moves a felony case forward, but it does not prevent the defense from challenging the prosecution’s evidence or the legality of the proceedings at trial.
What To Do if You’ve Been Notified of a Grand Jury Investigation
If you’ve received a subpoena or learned that you’re involved in a criminal grand jury investigation in California, it’s important to understand your rights before responding. Even if you haven’t been charged with a crime, your testimony or other evidence could become part of a criminal case.
If you’re notified of a grand jury investigation, consider taking these steps:
- Contact a criminal defense attorney: A lawyer can explain your rights, review the subpoena, and help you understand your potential legal exposure.
- Don’t ignore a subpoena: Failing to comply with a lawful subpoena can lead to legal consequences. An attorney can help you determine how to respond.
- Understand your right against self-incrimination: The Fifth Amendment may protect you from being compelled to provide testimony that could incriminate you.
- Preserve relevant evidence: Keep documents, messages, and other records that may relate to the investigation. Don’t delete or alter potential evidence.
- Prepare before testifying: If you’re required to appear, an attorney can explain the process and help you understand what to expect.
Being contacted about a grand jury investigation doesn’t necessarily mean you’ll face criminal charges. However, getting legal advice early can help you avoid mistakes and protect your rights.
If you’re involved in a grand jury investigation in San Diego, Blair Defense Criminal Lawyers can help you understand your options and prepare for the next steps. Contact our firm today to schedule a free consultation with a San Diego criminal defense attorney.
Blair Defense Criminal Lawyers
225 Broadway Cir #1750, San Diego, CA 92101
(619) 357-4977
