A federal grand jury needs at least 12 jurors to vote yes before it can indict someone, no matter whether 16 or 23 jurors are seated. State grand juries set their own thresholds, and the number of grand jury votes needed to indict ranges roughly from 4 to 12 depending on the state and the size of the panel. No jurisdiction requires a unanimous vote.
The Federal 12-Vote Rule
Federal Rule of Criminal Procedure 6 sets the numbers. A federal grand jury is made up of 16 to 23 people, and an indictment requires the concurrence of at least 12 of them.1Legal Information Institute. Federal Rules of Criminal Procedure Rule 6 – The Grand Jury The 12 is fixed. It is not a fraction of whoever happens to be in the room that day.
That means the practical difficulty of getting an indictment shifts with the panel size. On a full 23-member panel, 12 votes is a bare majority. On a 16-member panel, 12 is three-quarters of the seated jurors. The prosecutor’s burden is the same number either way; the share of the room needed to meet it is not.
If 12 jurors do not agree, the foreperson has to report that fact to the court in writing.1Legal Information Institute. Federal Rules of Criminal Procedure Rule 6 – The Grand Jury The vote itself happens in secret. Jurors, court reporters, interpreters, and government attorneys are all prohibited from disclosing what goes on inside the grand jury room, which is part of why the tally is reported as a yes-or-no outcome rather than a public count.
The federal grand jury requirement itself comes from the Fifth Amendment, which says no person can “be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury.”2Constitution Annotated. Amdt5.2.2 Grand Jury Clause Doctrine and Practice In federal practice that covers all felonies, and the 12-vote threshold applies to each count the grand jury considers.
How State Vote Requirements Differ
The Fifth Amendment grand jury requirement does not apply to the states. The Supreme Court held in Hurtado v. California that the Fourteenth Amendment does not force states to use grand juries at all.3Justia. Hurtado v California, 110 US 516 (1884) More than half the states have made grand jury use optional, and a few have abandoned the institution. In those states, prosecutors usually file a charging document called an information, and the case goes through a preliminary hearing before a judge.
Among the states that do use grand juries, two numbers vary: how many people sit on the panel, and how many of them must say yes.
- Some states mirror the federal system with panels of up to 23 and require 12 votes to indict.
- Panels of 12 members requiring 9 concurring votes are common.
- Some states seat smaller panels of 5 to 7 members and require only 4 or 5 votes.
The underlying ratio differs just as much as the raw count. Some states accept a simple majority. Others demand a two-thirds or three-quarters supermajority. A handful of states keep grand juries only for the most serious charges, such as offenses punishable by life imprisonment, and use informations for everything else.
Why Unanimity Isn’t Required
Trial juries, in most cases, have to be unanimous to convict. Grand juries never do. Every jurisdiction, state or federal, lets a grand jury indict on something less than a full agreement of its members.
The reason sits in what the grand jury is actually deciding. It is not deciding guilt. It is deciding whether there is probable cause, which the Legal Information Institute describes as whether the evidence is enough to believe a crime was committed and that this person likely committed it.4Legal Information Institute. Wex – Grand Jury That is a far lower bar than the beyond-a-reasonable-doubt standard a trial jury applies, and the voting rule is calibrated to match the lower bar.
True Bill or No Bill
When the required number of jurors votes to charge, the grand jury returns a true bill. That document is the indictment. The foreperson signs it and sends it back to the court, and the person named becomes a defendant.5Legal Information Institute. True Bill
When the required number is not reached, the grand jury returns a no bill. A no bill is not an acquittal. Double jeopardy does not attach at the grand jury stage, so a prosecutor who gets a no bill can gather more evidence and present the same case to a different grand jury.5Legal Information Institute. True Bill The practical limit on how long that can go on is the statute of limitations for the offense.
Why the Vote Usually Goes the Prosecutor’s Way
Federal grand juries return indictments in the overwhelming majority of cases, and the structure of the proceeding is a big part of why. The prosecutor decides what evidence the grand jury sees and which witnesses testify. There is no judge in the room to rule on objections. The person under investigation has no right to be present, no right to have counsel inside the room, and no opportunity to cross-examine. A testifying witness can step out to consult their own lawyer, but that lawyer cannot enter.
The setup is intentional. The grand jury is a screening mechanism, not a mini-trial. The practical result is that reaching 12 votes, or whatever the applicable state threshold is, is usually not the hard part of a prosecution. The harder number comes later, at trial, with a different jury and a much higher standard of proof.