Thursday, December 11, 2014

What is a "grand jury" anyway?

What is a Grand Jury, anyway?

            With the recent developments in the tragic stories of Michael Brown in Ferguson, Missouri and Eric Garner in Staten Island, New York, the phrase “grand jury” has been used frequently, and misunderstood just as frequently, by many people.  So what is a “grand jury” anyway?

Is it the same as a regular “jury?”
            No!  A “jury” is impaneled to hear evidence at a trial.  Both the State and the Defense have a say in who sits on a jury.  At the trial, strict rules of evidence apply, both the State and the Defense are allowed to call witnesses, introduce tangible evidence (think: items related to the alleged crime) and make arguments.  The whole proceeding is open to the public, and is presided over by a judge.

So what is a grand jury?
            Grand juries are a vestige of the English system of government, and are intended to act as a check against the power of the executive (or the king) to bring a citizen to trial.  The role of the modern grand jury is to determine whether the State has probable cause to charge a person (or corporate entity) with a crime.  If the grand jury says “yes,” an indictment is issued, and formal criminal proceedings commence.  If the grand jury says “no,” there are no immediate criminal charges.

So how does a grand jury work?
            Grand juries function very differently than “regular juries.”  I will highlight the biggest differences:
  • Grand juries hear multiple cases per day, and can be impaneled for several months (federal grand juries can sit for up to 18 months, while grand juries in Maryland can sit between 3-12 months).
  • Grand jury proceedings are supposed to be secretSecrecy is intended to (1) reduce the risk that the defendant will flee; (2) reduce tampering with the grand jury; (3) permits witnesses to testify before the grand jury without fear; (4) encourages those with evidence to cooperate with prosecutors and police; and (5) exonerates those who are ultimately not indicted.  See, U.S. v. Proctor & Gamble, 356 U.S. 677 (1958).
  • The prosecutor may present any evidence (including evidence that would be inadmissible at trial : hearsay, illegally obtained evidence, etc.).  The prosecutor may also express his/her own opinion and explain the law directly to the grand jurors.  The prosecutor may withhold exculpatory evidence (evidence that tends to show that the defendant is innocent) from the grand jury.
  • The grand jury may conduct their own investigation – they are not limited to the evidence presented by the prosecutor.
  • The defendant has no right to be present, or testify – but if the defendant does appear/testify, he/she has no right to counsel.
  • The defendant has no right to cross-examine witnesses, or challenge evidence presented by the prosecutor.
  • If the grand jury decides not to issue an indictment, the prosecutor may impanel a new grand jury and try again.

What happens when an indictment is issued?
            This issuance of an indictment marks the beginning of formal criminal proceedings.  The indictment will issue with a summons/warrant.  Once the defendant is served/arrested, the pre-trial process begins.

If you are involved with a grand jury, either as a witness or defendant, or have otherwise been charged with a crime, call Young & Valkenet immediately for a free consultation (410) 323-0900.

Tuesday, December 9, 2014

Joint account funds can be stolen by a joint owner, and jail time awaits!

The Maryland Court of Special Appeals finally given a clear opinion on whether one joint owner of a bank account can be found guilty of criminal theft from the other joint owner by withdrawing funds from that same account. The answer is "yes," and jail time awaits those who commit the crime.

On October 31, 2014, the appellate court decided Wagner v. State, a case where the daughter of an 84 year old man was sentenced to eight years in prison (with all but 18 months suspended) for drawing over $122,000 out of jointly owned bank accounts. The case speaks to any family where children are added to accounts by elderly parents, and it speaks loudest to those families where children take advantage of their elderly parents by using the money for their own purposes.

Mr. Wagner, 84 years old, simply wanted a family member to help manage his accounts, and to have access to an ATM. Like many older folks, he trusted his kids, and so Mr. Wagner added one of his adult daughters to his bank account (and IRA). Similarly, the daughter added Mr. Wagner to her accounts.

Up to this point, the story is very common, and the actions are well intentioned. We routinely field questions from children who seek to control their parents access to money in joint accounts to 1) preserve an anticipated inheritance, or 2) to keep Dad from lavishing gifts on another woman, or 3) to pay the child's personal expenses.  In the best cases, we can persuade and counsel that the money belongs to the elderly parent, and absent court ordered guardianship, the parent is free to spend the money as he sees fit-- even on fast cars (or scooters?) and a reckless social life.

But Mr. Wagner's daughter drew money out of joint accounts solely for her benefit, and to support a failing business. And for that, she was convicted and sent to prison.

The case is important because it explains how banking rules on joint ownership are to be balanced with real life relationships.  It remains appropriate for an elderly parent to name a relative as an authorized person on the bank account. And it allows the elderly parent to later demonstrate that joint naming of the account does not necessarily imply joint ownership of the funds in that account.

It was Mr. Wagner's testimony that sent his daughter to jail.

Joint naming of bank accounts will always be a useful tool for helping mom and dad manage their money--just remember that it is always their money, and not yours!