Grand jury proceedings are a unique part of the criminal justice process, especially for serious felony charges in Massachusetts. Unlike a trial jury (sometimes called a “petit” jury) that decides guilt or innocence, a grand jury determines whether there is probable cause to formally charge someone with a crime.
Below, we answer some of the most common questions about how grand juries work in Massachusetts, including indictments, the process, and what rights defendants and witnesses have during these secret proceedings.
Indictment vs. Complaint – What’s the Difference?
In Massachusetts, complaints and indictments are both charging documents, but they are used in different courts and stages. A criminal case usually begins with a complaint in the District Court:
a written charge is issued by a court official (clerk magistrate or judge) after an application for complaint by the police, upon a showing of probable cause. Misdemeanors and less serious felonies can be prosecuted to completion on a complaint in District Court.
An indictment, on the other hand, is a formal accusation returned by a grand jury, and it is required to proceed on serious felony charges in the Superior Court. In short, a complaint initiates a case (often leading to an initial arraignment or a probable cause hearing in District Court), while an indictment “returned” by a grand jury is necessary to move the case to Superior Court for trial on more serious offenses.
If a grand jury returns an indictment, the District Court complaint is typically dismissed, and the case is “transferred” to Superior Court under the new indictment (unless the defendant had waived the right to grand jury indictment in advance).
How Many Grand Jurors Does It Take to Indict?
Massachusetts law specifies both the size of the grand jury and the voting requirement to indict. A grand jury in Massachusetts can have up to 23 members, and at least 13 grand jurors must be present to form a quorum. To return an indictment (sometimes called a “true bill”), at least 12 grand jurors must vote in favor of it.
In other words, a minimum of 12 grand jurors (with at least 13 present) must concur that there is sufficient evidence to charge the defendant. This common-law rule has been preserved by statute and rule: “An indictment may be found only upon the concurrence of twelve or more jurors.” If fewer than 12 jurors support the charge, the result is a “No Bill,” meaning no indictment will issue.
Is the Defendant Present at the Grand Jury?
No. The “defendant” (and any attorney) generally does not attend grand jury proceedings. Grand jury hearings are conducted in secret and are one-sided (ex parte). Only the prosecutor, the witnesses being questioned, the grand jurors, and essential court personnel (like a stenographer or interpreter) are allowed in the grand jury room.
The accused person and defense counsel have no right to be present or to present evidence during the grand jury’s hearings. In fact, many defendants are unaware that a grand jury is considering their case until after an indictment is returned. (In rare instances, a defendant might be invited to testify as a witness before the grand jury, but this is uncommon and done only at the prosecutor’s discretion.)
Can Grand Jury Witnesses Have a Lawyer with Them?
Yes. A witness called before a Massachusetts grand jury has the right to have an attorney present during their testimony. Massachusetts law explicitly provides that any person testifying before the grand jury may consult with counsel and have counsel present during questioning. However, the lawyer for the witness may not address the grand jurors or object to questions.
The attorney can only quietly advise their client (the witness) and ensure the witness understands their rights. The witness’s counsel essentially serves as a silent observer in the grand jury room. They cannot argue or speak on the witness’s behalf, but they are there in case the witness needs legal advice before answering a question.
What’s the Difference Between a “True Bill” and a “No Bill”?
If the Grand Jury Returns a “No Bill,” Does My District Court Case End?
Generally, yes. A “no bill” usually means the end of that case (at least in its current form). When a grand jury refuses to indict, the original complaint is marked as “no bill” and filed with the court, and the defendant is discharged from that charge.
In Massachusetts, if you were being held in custody or on bail on a District Court complaint for a felony and the grand jury returns a no bill, you must be released from that charge (unless you are being held on some other matter). Since an indictment is required to prosecute most serious offenses in Superior Court, a no bill means the Commonwealth cannot proceed on that felony in Superior Court. In effect, the District Court proceedings on that charge come to a close.
There will be no bind-over or trial on that offense absent a new indictment. (While prosecutors have the option to re-present the case to another grand jury in the future if new evidence emerges, the no bill ends the pending case on that complaint at that time.)
Are Grand Jury Proceedings Recorded?
Yes. All witness testimony and evidence presented to the grand jury is recorded by a court stenographer (or, depending on the jurisdiction, by electronic means) to produce a transcript, often called the grand jury minutes. Every question and answer during the examination of witnesses is taken down.
The only part of the process that is not recorded is the grand jury’s deliberations and voting. After the prosecutor presents the evidence and leaves the room, the grand jurors deliberate in secret with no outsiders present. Because no court personnel (like a stenographer) are in the room during deliberations, those discussions are not transcribed.
Aside from that, the proceedings – the presentation of evidence and witness testimony – are preserved, and if an indictment is returned, the defendant will be entitled to obtain those transcripts as part of the discovery process.
Can I Read the Grand Jury Transcript in My Case?
If you have been indicted in Massachusetts, yes. You or your attorney have the right to obtain and review the grand jury transcripts related to your case. Under the automatic discovery rules, the prosecution must provide the defense with copies of the grand jury minutes (the transcripts of witness testimony) for any witnesses who testified.
In practice, after your Superior Court arraignment on an indictment, the grand jury minutes should be turned over to defense counsel as part of the discovery package. This allows the defendant to know exactly what evidence was presented to the grand jury and may provide an experienced attorney with grounds to challenge your prosecution.
If the grand jury did not indict (i.e. it returned a no bill), the transcript of that proceeding typically remains secret and is not released, since there is no active Superior Court case. Grand jury materials are generally confidential unless and until an indictment issues, and even then, the distribution of these materials should be carefully guarded.
Does an Indictment Show Up on My CORI Record?
Yes. In Massachusetts, your CORI (Criminal Offender Record Information) report will reflect all criminal charges brought against you in court, including any pending charges from an indictment. In fact, if you have ever been charged with a crime in a Massachusetts court, there will be a CORI entry for that case. Your CORI report is essentially a list of your criminal cases (past and present), and it includes even cases that ended in acquittal or dismissal.
It will explicitly list any open (pending) criminal offenses, as well as closed cases (unless they have been sealed or expunged). When you are indicted and arraigned in Superior Court on that charge, it will appear on your CORI as an open pending case. (An indictment itself is not a conviction, but it does create a record of a criminal case.)
How Long Can an Investigation Take Before an Indictment is Brought?
There is no fixed short-term deadline for prosecutors to seek an indictment; an investigation can continue for months or even years, as long as the indictment is filed within the applicable statute of limitations for the offense. The statute of limitations is the legal time limit within which criminal charges must be brought.
In Massachusetts, for most crimes (including most felonies), the general statute of limitations is 6 years from the date of the offense. Certain serious offenses have longer limits or none at all – for example, murder has no statute of limitations (an indictment for murder may be sought at any time).
Some sexual assault crimes have a 15-year limit or even allow prosecution decades later (up to 27 years or more, in certain cases involving child victims), although charges brought after a very long delay may require independent corroborating evidence.
As long as the indictment is returned within the time frame set by law, it is considered timely. In other words, the Commonwealth can take up to the last day of the statutory period to indict someone.
(Keep in mind that if a case has already started in District Court on a complaint, there are procedural safeguards like the right to a probable cause hearing and speedy trial considerations that prevent the prosecution from delaying indictment indefinitely while a defendant is held. But the outer legal limit for bringing the indictment is defined by the statute of limitations. Once that window has passed, a new indictment can’t lawfully be returned for that offense.)
