Criminal prosecutions may be initiated when the prosecuting attorney files a complaint and an information, or by grand jury indictment. MCL 767.1 et seq.; People v Glass, 464 Mich 266, 276 (2001). There is no state constitutional right to indictment by a grand jury. Glass, 464 Mich at 278. An information shall not be filed until the defendant has had or has waived a preliminary examination. MCL 767.42(1). However, indictees do not have the right to a preliminary examination. Glass, 464 Mich at 283, overruling People v Duncan, 388 Mich 489 (1972) (which had granted indictees the right to a preliminary examination). The grand jury indictment is a procedural alternative to the preliminary examination. Glass, 464 Mich at 278. See also People v Baugh, 249 Mich App 125, 129-130 (2002) (where the defendant was indicted by grand jury, the information issued after the defendant’s preliminary examination was null and void following the Court’s decision in Glass).
Grand juries are creatures of statute. Generally, the statutes provide for a one person grand jury, MCL 767.3 and MCL 767.4, a citizen grand jury comprised of 13 to 17 grand jurors, MCL 767.11, and a multi-county grand jury, MCL 767.7c, MCL 767.7d, MCL 767.7e, MCL 767.7f, and MCL 767.7g.
“Enacted in 1917, MCL 767.3 and MCL 767.4 are part of a statutory scheme that quickly became known as the ‘one man grand jury’ law.” People v Peeler, 509 Mich 381, 389 (2022). “A ‘one person’ grand jury may . . . be convened to investigate whether probable cause exists to suspect a crime has been committed.” People v Farquharson, 274 Mich App 268, 274 (2007). Whether the judge orders an inquiry “into the matters relating to [the alleged crime]” is discretionary. MCL 767.3. The one person grand jury statute does not violate a defendant’s right to due process. In re Colacasides, 379 Mich 69, 75 (1967).
Although MCL 767.3 and MCL 767.4 “authorize a judge to investigate, subpoena witnesses, and issue arrest warrants,” the two one-man grand jury statutes “do not allow a judge to issue indictments in criminal proceedings.” People v Robinson, ___ Mich App ___, ___ (2024). “And if a criminal process begins with a one-man grand jury, the accused is entitled to a preliminary examination before being brought to trial.” Peeler, 509 Mich at 400; see also Robinson, ___ Mich App at ___ (holding that “an indictment via one-man grand jury, although erroneous under Peeler, does not deprive the circuit court of subject-matter jurisdiction”).1 “Probable cause to arrest (which MCL 767.4 requires and authorizes the judge to order) is different from probable cause to bindover (which must be found at a preliminary examination to bind the defendant over on felony charges).” Peeler, 509 Mich at 394, overruling People v Green, 322 Mich App 676 (2018).2
Citizen grand juries are drawn and summoned as directed by the court. MCL 767.7. A grand juror’s term of service is six months. MCL 767.7a. Not more than 17 persons and not less than 13 shall be sworn on any grand jury. MCL 767.11. A foreperson is appointed by the court. MCL 767.11; MCL 767.12. Witnesses appearing before the grand jury have the right to counsel. MCL 767.19e and MCR 6.005(I). An indictment requires the concurrence of at least nine of the grand jurors. MCL 767.23. The foreperson shall present the indictment to the court in the presence of the grand jury. MCL 767.25(1). The judge presiding over the grand jury proceedings shall then return the indictment to the court having jurisdiction. MCL 767.25(3). An arrest warrant may be issued by the court. MCL 767.30. The statute contemplates that a defendant will be arraigned in the court having jurisdiction over the matter because the statute indicates that the court may properly receive the indictee’s plea of guilty if offered. MCL 767.37.
A grand jury is not required to “reflect the precise racial composition of a community.” People v Glass, 464 Mich 266, 284 (2001). The Glass Court indicated that the three-step analysis set out in Castaneda v Partida, 430 US 482, 494 (1977), should be used to resolve a defendant’s claim of racial discrimination in the selection of a grand jury. Glass, 464 Mich at 285. “[I]n addition to showing discriminatory purpose, [the] defendant must show that the grand jury selection procedure resulted in a ‘substantial underrepresentation of his race.’” Id., quoting Castaneda, 430 US at 494. In Glass, 464 Mich at 285, the Court applied the three steps set out in Castaneda, 430 US at 494:
(1) The defendant must show that he or she belongs to a recognizable and distinct class singled out for different treatment by the law as written or as applied.
(2) The defendant must show that significant underrepresentation of that distinct class existed over a significant period of time.
(3) The defendant must show that the selection procedure was susceptible to abuse or was not racially neutral.
The Court of Appeals may convene a multicounty grand jury if the petition establishes: (1) probable cause to believe that a crime, or a portion of a crime, has been committed in two or more of the counties named in the petition, and (2) reason to believe that a grand jury with jurisdiction over two or more of the counties named in the petition could more effectively address the criminal activity referenced in the petition than could a grand jury with jurisdiction over one of those counties. MCL 767.7d. The term of a multicounty grand jury must not exceed six months. MCL 767.7f.
Committee Tip:
In considering a challenge to the creation or scope of a multicounty grand jury, consider reviewing a copy of the petition, order of the Court of Appeals, presiding judge’s order, and any order continuing the term of the grand jury. In addition, seek information regarding the number and source of the grand jurors along with the number concurring in any indictment being challenged.
The following oath should be used when a grand jury is sworn:
“‘You as grand jurors of this inquest do solemnly swear that you will diligently inquire and true presentment make of all such matters and things as shall be given you in charge; your own counsel and the counsel of the people, and of your fellows, you shall keep secret; you shall present no person for envy, hatred or malice, neither shall you leave any person unpresented for love, fear, favor, affection or hope of reward; but you shall present things truly, as they come to your knowledge, according to the best of your understanding; so help you God.’” MCL 767.9.
“A witness called before a grand jury or a grand juror is entitled to have a lawyer present in the hearing room while the witness gives testimony. A witness may not refuse to appear for reasons of unavailability of the lawyer for that witness. Except as otherwise provided by law, the lawyer may not participate in the proceedings other than to advise the witness.” MCR 6.005(I)(1). See also MCL 767.19e, containing substantially similar language. If the witness is financially unable to retain a lawyer, upon request, the chief judge in the circuit court in which the grand jury is convened will refer the witness to the local indigent criminal defense system for appointment of an attorney at public expense. MCR 6.005(I)(2).
With the exception of those rules regarding privilege, the rules of evidence do not apply to grand jury proceedings. MRE 1101(b)(2).
Testimony given before the grand jury may be admissible at trial, subject to the rules of evidence. People v Chavies, 234 Mich App 274, 281-284 (1999), overruled on other grounds by People v Williams, 475 Mich 245 (2006).3
A defendant is entitled to a transcript of his or her grand jury testimony and other parts of the grand jury record—including other witnesses’ testimony—that touch on the issue of the defendant’s guilt or innocence. People v Bellanca, 386 Mich 708, 715 (1972). This entitlement applies whether the defendant is charged by information or indictment. People v Fagan (On Remand), 213 Mich App 67, 68-70 (1995) (definition of indictment includes information, see, e.g., MCL 750.10, MCL 761.1(g); MCL 767.2.
In general, MCL 767A.2 permits a prosecuting attorney to petition the court to issue one or more investigative subpoenas to investigate the commission of a felony. MCL 767A.3 authorizes the judge to issue the investigative subpoena. “A court may ‘authorize the prosecutor to issue an investigative subpoena if the judge determines that there is reasonable cause to believe a felony has been committed and that there is reasonable cause to believe that the person who is the subject of the investigative subpoena may have knowledge concerning the commission of a felony or the items sought are relevant to investigate the commission of a felony.’” People v Farquharson, 274 Mich App 268, 273 (2007), quoting In re Subpoenas to News Media Petitioners, 240 Mich App 369, 375 (2000), citing MCL 767A.3(1).
“Investigative subpoenas must include a statement that a person may have legal counsel present at all times during questioning, MCL 767A.4(g), and a witness must be advised of his or her constitutional rights against compulsory self-incrimination, MCL 767A.5(5); People v Stevens, 461 Mich 655, 659 n 1 (2000). A person served with an investigative subpoena must appear before the prosecuting attorney and answer questions concerning the felony being investigated. MCL 767A.5(1). The prosecuting attorney is authorized to administer oaths, MCL 767A.5(2), and if a witness testifies falsely under oath during an investigative proceeding under oath, perjury penalties apply, MCL 767A.9.” Farquharson, 274 Mich App at 273.
“If a criminal charge is filed by the prosecuting attorney based upon information obtained pursuant to this chapter, upon the defendant’s motion made not later than 21 days after the defendant is arraigned on the charge, the trial judge shall direct the prosecuting attorney to furnish to the defendant the testimony the defendant gave regarding the crime with which he or she is charged and may direct the prosecuting attorney to furnish to the defendant the testimony any witness who will testify at the trial gave the prosecuting attorney pursuant to this chapter regarding that crime except those portions that are irrelevant or immaterial, or that are excluded for other good cause shown.” MCL 767A.5(6).
“If the defendant requests the testimony of a witness pursuant to [MCL 767A.5] and the trial judge directs the prosecuting attorney to furnish to the defendant a copy of that witness’s testimony, the prosecuting attorney shall furnish a copy of the testimony not later than 14 days before trial. If the prosecuting attorney fails or refuses to furnish a copy of the testimony to the defendant pursuant to this subsection, the prosecuting attorney may be barred from calling that witness to testify at the defendant’s trial.” MCL 767A.5(6).
“If a person files an objection to, or fails or refuses to answer any question or to produce any record, document, or physical evidence set forth in an investigative subpoena, the prosecuting attorney may file a motion with the judge who authorized the prosecuting attorney to issue the subpoena for an order compelling the person to comply with that subpoena.” MCL 767A.6(1). In People v Seals, 285 Mich App 1, 8-9 (2009), the defendant argued that the testimony he gave pursuant to an investigative subpoena was involuntary; however, the Court held that “[t]he fact that [the] defendant did not take advantage of his opportunity [under MCL 767A.6(1)] to have the trial court determine whether he was required to respond to the investigative subpoena d[id] not make his testimony forced.” Therefore, admission of his testimony at trial did not violate his right against compulsory self-incrimination. Seals, 285 Mich App at 9-10.
Disclosure in a civil action of transcripts of testimony obtained pursuant to the investigative subpoena process, during an investigation of alleged criminal conduct, is not authorized by the statutes governing the disclosure of such information, MCL 767A.1 et seq. Truel v City of Dearborn, 291 Mich App 125, 131-135 (2010). According to the Truel Court, MCL 767A.8 “makes several delineated items related to an investigation confidential, including (1) petitions for immunity, (2) orders granting immunity, (3) ‘transcripts of testimony delivered to witnesses pursuant to grants of immunity,’ and (4) ‘records, documents, and physical evidence obtained by the prosecuting attorney pursuant to an investigation under [the investigative subpoena statutes].’” Truel, 291 Mich App at 133. However, “[items delineated] in [MCL 767A.8] were meant to address those matters not already covered elsewhere in the [investigative subpoena statutes].” Truel, 291 Mich App at 134. Because MCL 767A.5(6) specifically “provides for the limited disclosure of testimony to a defendant who has been charged based upon information obtained pursuant to the investigative subpoena statutes[,]” its disclosure under other circumstances is not expressly or impliedly authorized under other provisions of the investigative subpoena statutes. Truel, 291 Mich App at 134-135. The plain language of MCL 767A.5(6) states that “transcripts of witness testimony are only available to a criminal defendant when the charges result from information obtained through investigative subpoenas and (a) the testimony is that of the defendant or (b) the testimony is that of witnesses who will testify at trial[.]” Truel, 291 Mich App at 135. In Truel, the trial court improperly ruled that transcripts of witness testimony obtained under the investigative subpoena statutes, during an investigation into alleged criminal activity, should be disclosed to the defendants named in the plaintiff’s civil action. Id. at 131-135.
The Michigan Supreme Court has held that the exclusionary rule does not apply to statutory violations of MCL 767A.1 et seq. People v Earls, 477 Mich 1119 (2007).