There is an old joke among lawyers that a grand jury would indict a ham sandwich. The statistic behind the joke is not funny: federal grand juries return indictments in more than 99 percent of cases presented to them. The Daily Caller has examined how prosecutors exploit this system, and the NACDL has long advocated for reform.
The Nevin Shetty case was shaped by this system long before any trial began. The grand jury proceedings were conducted in secret, with no judge presiding, no defense counsel present, no opportunity for the defendant to present evidence or cross-examine witnesses, and no requirement that the rules of evidence be followed. The prosecutor presented their version of events, and the grand jury returned an indictment.
What the Grand Jury Never Saw
Everything the defense subsequently filed, the motion to dismiss (Motion To Dismiss), the NACDL amicus brief (NACDL Amicus Brief), the corporate law supplemental (Corporate Law Supplemental), the trial brief (Trial Brief), none of it was available to the grand jurors. They heard only the prosecution’s narrative. The legal arguments about why the charges were built on a theory the Supreme Court had rejected were never presented to them.
Why This System Creates Unfairness
The 99 percent indictment rate exists because the system is designed to produce indictments, not to evaluate them critically. The grand jury is supposed to serve as a check on prosecutorial power: an independent body of citizens that reviews the government’s evidence before charges are authorized. In practice, it rubber-stamps the prosecutor’s decision.
The damage from an indictment is substantial regardless of the eventual outcome. Careers are disrupted. Reputations suffer. Defendants spend years and large sums defending themselves. In cases like Shetty’s, where the legal theory is contested and the NACDL itself has intervened to warn against the government’s approach, the question of whether the grand jury system is functioning as intended takes on particular urgency.
Reform Proposals That Deserve Attention
Criminal justice advocates have proposed several reforms: allowing defense counsel to be present, requiring prosecutors to present known exculpatory evidence, and adding judicial oversight to the proceedings. None of these proposals have gained traction at the federal level, but the persistent 99 percent indictment rate suggests that the current system needs reconsideration.