The Grand Jury in the 21st Century

Chapter 20 of the Texas Code of Criminal Procedure contains information pertaining to the details of a Grand Jury. This involves not only its purpose, but its duty and the mechanics of how it works. While I have referenced some portions of that chapter in this article in order to avoid plagiarizing the text, I also have woven in my thoughts and comments on various parts of the chapter. I did not quote all of the sections but only those that I consider to be more interesting and more commonly misunderstood.

When a person is charged with a felony offense in Texas or an "otherwise infamous crime" and occasionally a misdemeanor, the prosecuting attorney, presents the case to a grand jury for its consideration for an indictment. If a case is indicted, then charges are pursued and the case must be resolved in a legal proceeding. It may not reach trial, and probably will not, as only about 8 to 10 percent of all criminal cases are ever tried to a judge or jury. If a case is "no-billed" then the grand jury says that there is not enough information present to pursue charges further. This is often a preferred method for prosecutors who are reluctant to dismiss a case for political or other reasons. I call this "passing the buck" because the prosecutor is failing to accept responsibility for his or her own decision.

Grand jury proceedings are considered "secret" and only a certain number of persons are allowed in the proceeding at different times. A defense attorney and the accused are never present in the grand jury room, unless the accused is providing witness testimony (not advised). Article 20.011 of the Texas Code of Criminal Procedure provides the following list of persons that may be present in the grand jury room while it is conducting proceedings:

(1) Grand jurors;

(2) Bailiffs;

(3) The attorney representing the state;

(4) Witnesses while being examined or when necessary to Assist the attorney representing the state in examining other Witnesses or presenting evidence to the grand jury;

(5) Interpreters, if necessary; and

(6) a stenographer or person operating an electronic recording device, as provided by Article 20.012.

If the grand jury is deliberating, only members of the grand jury may be present. As you can see from this list, the limited access greatly assists in maintaining the secrecy level, and although a record is maintained, these documents are rarely accessible to the public if ever.

From the above list, an attorney representing the State means the Attorney General, district attorney, criminal district attorney, or county attorney. The attorney representing the State, is entitled to go before the grand jury and inform them of offenses liable to indictment at any time except when they are discussing the propriety of finding an indictment or voting upon the same.

Article 20.04 allows for the attorney representing the State to examine the witnesses before the grand jury and to explain the proper way of questioning witnesses by the grand jury; however, no other person may question witnesses and without special permission may not directly address the grand jury, so often, the accused's attorney never presents evidence or testimony to the grand jury. While Texas law allows for an accused to present evidence to the grand jury, as a criminal defense attorney, I would recommend against it because the defense attorney will not be present in the room to advise the accused how to answer a question or how to protect his or her interests. Depending on the county and the individual State's attorney's attitude, favorable evidence may or may not be presented to the grand jury.

Article 20.15 provides that if a person refuses to testify before a grand jury, that information will be provided to the State's attorney or to the Court and the witness may be compelled to answer questions by imposing a fine not to exceed five hundred dollars and placing the party in jail until he or she is willing to testify. American society experienced this during the Clinton presidency. To some extent, it troubles me that someone can be jailed for refusing to testify. As a criminal defense attorney, I would advise someone that is subpoenaed to go but to only answer the questions that they know answers to and that do not possibly incriminate them of any wrong-doing. I do not believe it to be a common practice for grand juries to summon the accused, but it does happen.

If an accused or suspected person is subpoenaed to appear before a grand jury prior to any questions before the grand jury, the person accused or suspected shall be orally warned as follows:

(1) "Your testimony before this grand jury is under oath";

(2) "Any material question that is answered falsely before this grand jury subjects you to being prosecuted for aggravated perjury";

(3) "You have the right to refuse to make answers to any question, the answer to which would incriminate you in any manner";

(4) "You have the right to have a lawyer present outside this chamber to advise you before making answers to questions you feel might incriminate you";

(5) "Any testimony you give may be used against you at any subsequent proceeding";

(6) "If you are unable to employ a lawyer, you have the right to have a lawyer appointed to advise you before making an answer to a question, the answer to which you feel might incriminate you."

These rights are very similar to those contained in the Miranda warning that is so commonly given to arrestees by the police. The most important part of this is the right to refuse to make any answers that may incriminate the accused... at least this Constitutionally protected right has not been lost.

Nine members of the grand jury must find that the information is sufficient to sustain upholding an indictment. When this happens, the foreperson of the grand jury will notify the State's attorney, who is then responsible for preparing the documentation and submitting it. Here, it is not a unanimous requirement to find that charges should proceed, but it does require a "majority." Usually, grand juries consist of sixteen to twenty-three people.

Personal Opinion

The grand jury is based in the United States Constitution's 5th Amendment. While I believe it had a place in history and understand that it will likely not be amended, I sometimes question its usefulness today. As a criminal defense attorney, I have experienced multiple cases where the State's attorney does not want to proceed with a case but rather than dismissing the case on his or her own, they will present the case to a grand jury expecting them to no bill the case... this means, charges would not be filed but the State's attorney could "pass the blame" for the lack of indictment. I mentioned this previously. Or, I believe that grand juries often act as "rubber stamps" for the prosecutors and pass anything that is asked of them. While I would like to believe that this is untrue, the fact that the proceedings are cloaked in secrecy troubles me. After all, court proceedings are open to the public, so why shouldn't this phase also be?

So, to conclude, a grand jury is one tool for investigation but given that it is so one-sided, it seems that it is little more than another way for the State to place blame. Thus, the next time you hear that someone was indicted by a grand jury, that does not mean that all is lost or that they have a poor case. Rather, it means that the State will be proceeding with charges against them.

Bill of Sale - Legal Form Explained

A "Bill of Sale" is a legal document that is used when you sell or transfer the ownership of goods or items such as a car, boat, equipment, photocopier, computers, furniture, or other assets from a seller (also called a "vendor") to a purchaser. A Bill of Sale may also be used for the purchase and sale of intellectual property such as a customer list or a website. A typical Bill of Sale is provided by the seller to the purchaser and depending on the circumstances usually describes: (i) the names of the vendor and purchaser, (ii) a list of the items being purchased and sold, (iii) the purchase price and method of payment, and (iv) possibly also various legal terms depending on the complexity of the transaction.

If you are buying a business and as part of the purchase you are purchasing all the equipment (eg. furniture, chairs, office equipment, inventory, and supplies), you should request that the seller provide to you a Bill of Sale agreement. One of the main reasons why a purchaser wants to receive a Bill of Sale from the seller is to prevent the seller from later claiming that the seller owns the assets listed on the Bill of Sale document. Essentially the Bill of Sale is a receipt or a written record of the purchase and payment of the purchase price similar in nature to the sales receipt you receive from the cash register at the time you purchase an item at a retail or convenience store.

The Bill of Sale is similar to a "sales receipt" however it may also contain additional legal terms regarding the purchase and sale. The document will serve as proof of the purchase and sale of specified items listed on the Bill of Sale.

Other provisions that you may wish to have in a Bill of Sale include terms dealing with such matters as the condition of the equipment (eg. "subject to being able to obtain financing"), and other provisions such as a "warranty" by the seller that the seller is the legal owner of the equipment being sold and the items are in good and working order. In the event that someone else claims they are the legal owners of the equipment, the "warranty" provisions in the Bill of Sale would give the purchaser some legal rights to make a claim against the seller. In the even that the item is damaged or doesn't not work as claimed, the "warranty" provisions would also provide some legal rights for the purchaser.

It is important to note that receiving a Bill of Sale from the seller is not a guarantee that the seller is in fact the legal owner of the items listed on the Bill of Sale. Technically, one cannot sell what they do not own. By extension, when someone purchases something they only acquire the legal rights in the items to the same extent that the seller possesses. As such, if the seller is not really the legal owner of the items, then the seller has no legal rights of ownership, and therefore the purchaser acquires no legal rights of ownership in the items on completion of the purchase. For example, the items purportedly being sold by the seller may actually be items that the seller has does not legally own but has only leased from a supplier and not actually purchased them. An example of such a situation is someone trying to sell a photocopier that is actually only leased. In such a case, the seller does not actually own the photocopier and does not have the legal right to sell it, even though the seller may be physically in possession of the photocopier. As such one must be careful when purchasing used items or items from someone other than the manufacturer or a retailer or a distributor. If the purchaser is buying new goods from a manufacturer, retailer, or distributor then usually there is an acceptable risk that the seller is not the legal owner of the items and the purchaser can be relatively confident that they are purchasing the items from the true owner of the items.

If the items listed on the Bill of Sale are either used items or are new items but are being sold by someone other than the original manufacturer, retailer or distributor of the items, there is a risk that the items may be actually legally owned by someone other than the seller and in such a case the true legal owner has the legal right to recover the items from the purchaser notwithstanding that the purchaser paid for the items and has a Bill of Sale from the seller. As such, if the purchaser is not careful, the purchaser may find itself paying for items but not actually acquiring ownership of them.. In such a case, all is not lost for the purchaser because the Bill of Sale may be used by the purchaser in a lawsuit by the purchaser against the seller to claim monetary losses incurred by the purchaser for breach of contract, specifically breach of "warranty" (provided that the Bill of Sale is written properly. In order for the purchaser to avoid the above situation and to be protected as much as possible, it is important that when using a Bill of Sale the purchaser also examine other documents that are in the possession of the seller so that the purchaser can satisfy itself that the seller is in fact the true owner of the items being sold. For example, in the case of used goods, the Purchaser should ask the Seller to provide a copy of the original purchase order showing where the Seller originally purchased the items. If the Seller is unable to provide any documentation, then the Purchaser needs to be careful in proceeding forward. The purchaser may also wish to do a search in the local government office for any liens that have been registered against the items being sold or the seller.

The use of various legal forms are useful for transactions and can be found online. Sample Bill of Sale documents can be found online. Please note that the information in this article is for discussion purposes only and not intended to be free legal advice. It is by no means legal advice or even a statement of the law on this subject. Please do not rely on the accuracy or completeness of this information. Any question or concern elicited by the information on this page should be taken to a lawyer who will consider the facts of each case and the legal remedies available.