In the News, On the Bar Exam: Grand Juries, Indictments, and the “Ham Sandwich” Saying

Last week, journalists Don Lemon and Georgia Fort were arrested and charged in connection with coverage of a protest at a church in St. Paul, Minnesota, with the government pursuing the charges through a grand jury indictment.

I’m not weighing in on whether these indictments are correct, justified, constitutional, politically motivated, or anything else. I’m using the headline as a clean bar-exam hook to answer a question you may see in some form:

What does it take to return an indictment, and what evidence rules apply in the grand jury room?

You’ve probably heard some version of this line:

“Any good prosecutor can get a grand jury to indict a ham sandwich.”

This saying (often attributed to former New York Chief Judge Sol Wachtler) is memorable because it points to a bar-tested reality: A grand jury is deciding probable cause, not guilt, and the process is typically prosecution-driven.

So on an exam, treat it as a reminder not to overread the word “indicted.”

An indictment is a formal charging document returned by a grand jury after it finds probable cause to believe a crime occurred and the defendant committed it.

That’s it. The trial is where the government must prove guilt beyond a reasonable doubt.

What Happens (and Doesn’t Happen) in the Grand Jury Room

Grand jury proceedings aren’t mini-trials. They’re typically secret, and the prosecutor largely controls what evidence the grand jury hears. In most settings, the target/defendant has no right to attend, present evidence, or cross-examine witnesses.

Here are some bar-exam clarifications that flow from that setup:

• Confrontation: The Sixth Amendment right to confrontation is about cross-examining witnesses at trial. Because a grand jury proceeding is not a trial, the confrontation right does not give the defendant a right to cross-examine grand jury witnesses.

  
  

• Exclusionary rule: The exclusionary rule generally does not apply in grand jury proceedings. Under United States v. Calandra (1974), even illegally seized evidence may be presented to a grand jury. Suppression is usually litigated later.

  
  

• Evidence rules: The Federal Rules of Evidence generally do not apply in grand jury proceedings (see FRE 1101(d)), except for privilege. So a grand jury may consider hearsay and other information that might be inadmissible at trial.

One more Evidence crossover worth knowing:

If the witness testifies at trial and is subject to cross-examination, and the witness previously made a statement under oath that is inconsistent, that prior statement can come in for its truth under FRE 801(d)(1)(A) (i.e., it’s not hearsay). Grand jury testimony is a classic example of an “other proceeding” for this rule.

But if the witness is unavailable and you’re trying to use the grand jury testimony as “former testimony,” the usual candidate rule is FRE 804(b)(1)—and it typically fails against a criminal defendant because the defendant generally had no opportunity (and thus no similar motive) to develop the testimony by cross-examination at the grand jury stage. That’s also where the Sixth Amendment Confrontation Clause problem often shows up.