In the US, prosecutors must convince a grand jury of probable cause to justify a criminal charge and trial. Grand jury testimony is not given under oath, and witnesses are not subject to perjury. Grand juries are meant to ensure fair treatment of the defendant, but have come under criticism for only hearing one side of the story. Other countries have adopted a referral procedure system instead. Witnesses may be subject to subpoena and offered immunity in exchange for cooperation.
In the American judicial system, prosecutors who charge an individual with a serious crime must convince what is known as a grand jury that they have probable enough cause to justify a criminal charge and trial. This is generally accomplished through the presentation of evidence and grand jury testimony. Grand jury testimony is not given under oath, and witnesses who give it are not subject to perjury, unless they lie under oath following the criminal trial.
Grand jury hearings are meant to be part of a system of checks and balances that ensure fair treatment of the defendant. Jury membership is taken from the same pool of people who serve on a small jury, which is used later if a criminal trial is deemed necessary. Juries are not subject to the jury selection process, and testimony is not offered in front of a judge, although one is usually available to ensure that fair procedures are maintained. A judge in a grand jury hearing is not involved in deciding whether or not to indict.
Historically, grand juries were a feature of common law systems in many countries, however the United States is virtually the only country where they are still employed. Countries such as Australia and the United Kingdom have since adopted a referral procedure system, in which preliminary hearings take the place of grand juries. Pretrial hearings differ in that a judge, not a jury, decides whether a criminal trial is warranted. In the United States, in addition to federal crimes, about half of the 50 states require grand jury testimony for criminal violations of state law.
A defendant is generally not present at a grand jury hearing and there are no counterarguments offered by the defense. Grand jury testimony is provided solely for the convenience of the prosecution. Furthermore, the defense has no recourse to address prosecution witnesses who lie or present illegal evidence until the trial. Thus, the grand jury trial has come under criticism, as the jury is aware of only one side of the story.
Witnesses called to testify may be subject to subpoena, which means they may be held in contempt of court if they fail to appear and testify. Often, a witness with convincing evidence is offered immunity in exchange for her cooperation. Immunity is a valuable tool for prosecutors as it allows them to persuade witnesses, who may also be the subject of criminal charges, to testify against others.
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