Erich Eisenhart wasn’t in the room when he was indicted on one count of drug trafficking in marijuana in August. His attorney wasn’t able to present evidence at the hearing, and it was January before they obtained a transcript of what was said.
By then, four months had passed, during which Eisenhart knew he was facing at least a five-year sentence if convicted. He and another man, Andrew D’Addario, were arrested in April 2018 after police in Ada County found what they said was marijuana in a truck the two were driving. Eisenhart and D’Addario have maintain throughout their court proceedings the substance was industrial hemp.
To set those court proceedings in motion, prosecutors had to show there was probable cause the men committed that crime. They had two options — present their evidence before a judge in a public preliminary hearing with Eisenhart and D’Addario present, or make their case to a grand jury, which is not a public process. They chose the grand jury.
Bethany Calley, spokeswoman for the Ada County Prosecuting Attorney’s Office, said the office could not comment on why prosecutors chose to present the case to a grand jury.
Grand juries have been a feature of the court system in the United States since colonial times. They’re a vestige of a still-older court system in medieval England. They’ve garnered criticism for decades, due to their secrecy and because the defendant is not allowed to be present or present evidence at a grand jury proceeding.
Yet, they’re used in criminal cases across the country every day, making the United States one of only two countries in the world, alongside Liberia, to use them to screen criminal indictments.
The grand jury process is different in every state, said Kristina Schindele, a deputy attorney general in the Idaho Office of the Attorney General. In Idaho, they are made up of 16 people, but only 12 need to agree to secure an indictment.
Ada, Canyon and Twin Falls counties have sitting grand juries — meaning they are always available when a prosecutor wants to present a case to them. Prosecutors in those counties select a new grand jury every six months. The jurors are left to govern themselves in some ways — they often select one weekday that works well for everyone, and they conduct business on that day, weekly, for the remainder of their six-month term of service. They only need a quorum of 12 jurors to meet — but even if they have fewer than the full 16 people present, 12 still have to agree to return an indictment.
“In smaller counties, you might create a grand jury for a particular case and then disband them,” Schindele said.
Schindele — a former Elmore County Prosecuting Attorney — said the same rules apply, except jurors won’t be serving a set six-month term.
The grand jury’s job is to determine if there is probable cause to prove the defendant committed a crime. If they find that probable cause exists, they return an indictment, also known as a “true bill,” which is a statement of their belief probable cause exists.
If the jurors are not convinced, the prosecutor cannot bring the case to a preliminary hearing — meaning they’ve effectively lost their chance to prosecute someone on that charge, Schindele said.
In Eisenhart and D’Addario’s case, jurors had to determine if there was evidence the two men were moving marijuana through Ada County. Because the proceedings are secret, neither of the men nor their attorneys knew what prosecutors said to jurors in making that case — until they requested a copy of the transcript, which a judge ordered delivered to them. It’s not an unusual move for a defense attorney to make.
“As a member of the public, you can’t obtain a copy of a grand jury transcript,” Schindele said.
No judge is present during the proceedings, either. Nor is a bailiff. The only people in the courtroom are the jurors, the prosecutors and the witnesses.
In Idaho, prosecutors do, however, have to present “exculpatory evidence” — evidence favorable to the defense’s case. That’s true in most states, although not all of them.
When to use a grand jury
Idaho is one of 25 states in which a prosecutor has a choice about whether to present a case to a grand jury or use a public preliminary hearing instead. In 23 other states, certain criminal cases must go before a grand jury by law. Connecticut and Pennsylvania are the only two states in the country where grand juries have been abolished for criminal indictments; Connecticut passed that legislation more than 30 years ago.
Prosecutors at the federal level must use a grand jury in all felony cases. In Idaho, a prosecutor can present their case to a grand jury before or after an arrest has been made.
Idaho’s law affords prosecutors options depending on the type of case they’re trying.
Prosecutors may choose to use a grand jury in cases involving drug trafficking rings or organized crime, because those cases so often involve criminal informants and undercover officers whose identities need to remain secret.
The private nature of the proceedings can provide peace of mind to some victims, especially if they have to testify.
“So generally you’re looking at sexual assaults,” Schindele said. “The primary reason is the defendant is not in the room.”
It also gives a victim more time to heal and prepare for the more public trial phase, she said.
A prosecutor can use a grand jury as a dry run for trial. They might present their case to jurors to test its strength, or to gauge opinion on it. Or, in complex cases with a great deal of evidence, they may use it to test how succinctly they can present their arguments, and see if the jurors follow them. This is not the norm.
“Most prosecutors will tell you they generally limit it to sexual assault and informant cases,” Schindele said.
In 1985, Chief Judge of the New York Court of Appeals Sol Wachtler famously told the New York Daily News that prosecutors have so much influence over grand juries they would “indict a ham sandwich.”
Almost 30 years later, grand jury decisions not to indict a defendant routinely spark public outcry. In 2014, a grand jury in Ferguson, Missouri, refused to indict Darren Wilson, the Ferguson police officer who shot and killed Michael Brown earlier that year.
A few weeks later, a grand jury in Staten Island, New York, declined to indict the officer, Daniel Pantaleo, who killed Eric Garner.
Instances of grand juries declining to indict are rare.
“It’s really more like … a conveyor belt,” said Carmen Naso, a former prosecutor who teaches law at Case Western Reserve University in Cleveland, Ohio. “There’s not many times a grand jury steps in and stops potential prosecution. They almost always indict.”
He acknowledged witnesses called during grand jury proceedings are still under oath and the proceedings are legal. While it’s perfectly constitutional for a prosecutor to present a case to a grand jury, and while he’s heard the argument about protecting witnesses in sensitive cases, Naso still has concerns. He points to the low bar prosecutors must hurdle when presenting a case to a grand jury.
“It’s a real loose standard,” he said. “That’s why prosecutors can use it and abuse it to indict anybody, it seems.”
Schindele acknowledged prosecutors have to consider what information they are making public if they choose to take the case to a preliminary hearing instead of a grand jury.
“There is that component of it when you have a preliminary hearing in public, then that evidence is out there...” she said.
Evidence presented at a preliminary hearing is, by definition, public. It may appear in media reports and will give defense attorneys a sense of the case prosecutors have. Naso believes that’s another reason prosecutors sometimes choose to present their case to a grand jury in secret.
Naso said, nationwide, the use of grand juries has decreased.
Other states are reforming the grand jury process. This past legislative session, lawmakers in Illinois considered legislation that would make grand jury proceedings public if they involved excessive use of force by a police officer, or cases in which a police officer fatally shot someone. New York considered similar legislation.
Lawmakers in New York also considered a bill that would make a prosecutor’s “legal instructions and charges” submitted to a grand jury public information, after the grand jury proceedings are complete.
Idaho has not seen any recent attempts to reform its grand jury process.
“Some people consider them a sword, some people consider them a shield,” Schindele said. “There’s all kinds of metaphors you can use.”