Right of a peace officer (or former peace officers) to appear before the grand jury considering his indictment
A “regular” criminal defendant in the State of Georgia does not have the right to appear before or be present when the Grand Jury is considering the issuance of a criminal indictment against them. When a grand jury is considering whether there is probable cause for the issuance of a true bill (a bill of indictment), most criminal defendants have no right to appear before the Grand Jury and tell them what a good person they are, point out the deficiencies in the State’s case, or bring forward any additional evidence suggesting that they did not commit the criminal acts alleged.
However, one exception to the general rule barring attendance at grand jury proceedings is made for peace officer or former peace officers alleged to have committed criminal acts during the performance of duties. O.C.G.A. § 17-7-52 states:
(a) Before an indictment against a present or former peace officer charging the officer with a crime which is alleged to have occurred while he or she was in the performance of his or her duties is returned by a grand jury, the officer shall be notified of the contemplated action by the district attorney of the county wherein the grand jury shall convene and the officer shall be afforded the rights provided in Code Section 45-11-4.
(b) The requirements of subsection (a) of this Code section shall apply to all prosecutions, whether for misdemeanors or felonies, and no such prosecution shall proceed either in state or superior court without a grand jury indictment.
NOTICE REQUIREMENTS FOR PRESENTING INDICTMENT TO GRAND JURY INVOLVING A PEACE OFFICER
If a peace officer has a right to appear before a grand jury considering criminal charges against him/her but the officer has no right of notice of the proposed Georgia criminal charges, the right would be worth very little. O.C.G.A. § 45-11-4 addresses this problem:
(f) Any indictment brought pursuant to subsection (b) of this Code section shall specially set forth the merits of the complaint against the accused public officer. A copy of the proposed bill of indictment shall be served on the accused public officer at least 15 days before it is presented to the grand jury.
WHAT RIGHTS DOES A PEACE OFFICER HAVE ONCE HE IS PRESENT BEFORE THE GRAND JURY?
The peace officer facing a criminal indictment and who decides to appear before the grand jury has the following rights:
- the right to be present before the grand jury,
- to make statement under oath after the State’s presentation is completed, and
- to be free from cross-examination.
Although the code section does not explicitly state it, it seems apparent that the peace office is entitle to counsel.
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