CREW recommends transparency reform for when grand juries refuse to indict 

The Advisory Committee on Criminal Rules should consider an amendment to Federal Rule of Criminal Procedure 6 that would provide notice when a grand jury returns a “no bill,” meaning it has decided not to indict a person for a crime. CREW sent a letter to the committee in support of this amendment, noting that some courts have already undertaken this important transparency measure.

Despite the constitutional independence of grand juries, the grand jury has been long criticized due to prosecutors exercising significant control over its proceedings. In their role, prosecutors present evidence to the grand jury, serve as its legal adviser, advise on who to call as a witness or what documents to subpoena and prepare the formal written indictment. Additionally, grand jury proceedings occur largely behind closed doors. While there are important reasons for this near-total secrecy, there remain concerns about the limited oversight of prosecutors in this process and the lack of accountability for prosecutors’ conduct.  

Over the past year and a half, federal grand juries have declined to indict suspects in at least 18 cases. Federal judges have warned about this “unprecedented prosecutorial action,” and more than 100 former prosecutors have warned that “once-forbidden political considerations are infecting prosecutorial decisions.” In some instances, prosecutors have charged cases before conducting proper investigations, leading to the suspect being detained, only to dismiss the charges in early hearings. In other instances, prosecutors have pursued charges even after a grand jury declined to indict a suspect and charged cases despite apparent constitutional violations. 

The Department of Justice (DOJ) Justice Manual articulates a high standard for DOJ attorneys when determining whether to initiate a criminal case. It provides that the government should not begin a prosecution unless “the admissible evidence will probably be sufficient” to meet the beyond a reasonable doubt requirement for obtaining a conviction. 

Even if a court takes action to address these types of abuses of the criminal process, a victim of a vindictive or baseless prosecution may suffer significant and potentially irreparable financial, reputational or emotional harms even if their case is dismissed and even if the prosecutor faces consequences. 

For that reason, CREW recommends the development of a uniform rule to provide notice when a grand jury declines to indict a suspect. This modest yet important reform has already been undertaken by some courts as a transparency measure. A rule like this would balance the need for privacy for unindicted individuals against the risks of secret, largely unchecked prosecutorial control over the grand jury process. It would also facilitate fairness for an individual who may otherwise unknowingly be the subject of repeated grand jury investigations. In addition to this reform, CREW recommends the Committee consider broader reporting on grand jury data across districts. Aggregating and sharing anonymized information about no bills returned will help facilitate oversight, including by the DOJ inspector general and members of Congress.