Grand juries are perhaps the least understood aspect of the criminal justice system, both in Pennsylvania and across the country. Of course, some of that confusion comes from the fact that different states and the federal government use them for different purposes.
That confusion can have some real-life consequences for people who get asked to testify in front of one. They may have read that they don't have the right to a lawyer in a grand jury setting.
But that's not entirely true.
The Role of the Grand Jury in Pennsylvania
In Pennsylvania, grand juries are used by law enforcement to check off an important requirement in the criminal investigation: Satisfying probable cause.
While they are not used in every criminal case – in fact, grand juries tend to be reserved for only the most complicated investigations in Pennsylvania – the grand jury stage is where prosecutors present evidence that a suspect committed a crime.
Note that it's a “suspect” at this stage, not a “defendant.” Criminal charges haven't been filed, yet.
If most of the grand jurors agree that there is probable cause to believe that the suspect did the deed, they will issue a document called a presentment. This gets sealed until criminal charges are filed.
The Right to a Lawyer at the Grand Jury: Suspects Versus Witnesses
The grand jury is notorious for being a one-sided affair: The prosecutor presents incriminating evidence for the jurors to consider, but there is no defense lawyer there to present exculpatory evidence.
This is where the myth that people don't have a right to an attorney at the grand jury comes from.
Suspects don't have a right to a lawyer at the grand jury. In fact, in many cases, suspects are never even aware that there is a grand jury convened in their case.
However, much of the evidence that the prosecutor presents to the grand jury is in the form of testimony from witnesses. Those witnesses come with knowledge of the suspect and his or her doings, and are often collateral or minor players in whatever criminal activity the prosecutor is investigating.
Witnesses do have a right to a lawyer when they are brought before a grand jury. Having one at your side during the grand jury can be a very wise move to make, especially if you were at all connected to the person being investigated or were involved – even remotely – in their conduct. A defense lawyer can help guide a witness through the hearing, alerting them to possible traps being laid by the prosecutor and suggesting when the best response to a question is no response and an invocation of the Fifth Amendment's prohibition against compelled self-incrimination.
With a lawyer's help, witnesses can avoid committing perjury and can reduce their risk of turning from a witness into another suspect.