Rights of the Accused: Grand Jury vs. Petit Jury

There is sometimes confusion surrounding the two different types of juries, the grand jury and the petit jury, and the powers of each. Although jurors for either type of jury are chosen through the same random selection, either type of jury plays a very different role in the criminal process, and at much different points on the timeline of a criminal case. A defendant’s rights are also much different in each jury type.


When you think about a jury, what you are probably envisioning is also known as a petit jury. A petit jury is the jury of peers that a criminal defendant is guaranteed at trial by the Sixth Amendment of the U.S. Constitution.

Having an experienced criminal attorney on your side far before your case ever reaches the jury trial point is important. Your attorney can attempt to get your case thrown out because of insufficient evidence up until trial. They can also help negotiate a plea or immunity deal with the prosecution up until a trial commences. A plea deal is where you plead guilty to a lesser offense for a reduced sentence. In an immunity deal the government can offer you immunity from either getting prosecuted for the offenses involved or from using testimony you provide in such a deal against you in court.

However, if you reach the point where you proceed to trial in your case, in North Carolina this can mean just a judge trial if you are charged with a misdemeanor; If the judge convicts you at this level you can appeal to the “superior” trial court and receive a 12-person jury trial, all of whom must agree in order to convict. At this second trial, the jury cannot hold it against you if you were found guilty at the lower trial.

Felony trials require a jury of 12 people, all of whom must agree to convict.

In North Carolina and the majority of other states that require unanimous jury verdicts, the petit jury hears the evidence against a defendant and does one of the three following things:

  1. Return a “not guilty” verdict if all jurors agree the prosecution did not prove beyond a reasonable doubt that you committed the crime

  2. Return a verdict of “guilty” if all jurors agree the prosecution did prove that you committed the crime beyond a reasonable doubt

  3. Result in a “hung jury” if jurors cannot reach a unanimous verdict, which results in a mistrial. The prosecution can recharge and retry you for the same crime if they so wish.

Hung Petit Juries and the Allen Charge

Judges and prosecutors can go to great lengths to avoid the “cost” of a hung jury and pressure hold-out jurors into voting with the majority, particularly in cases with drawn-out jury deliberations. In fact, in many states, including North Carolina, prosecutors are allowed to give what is called an “Allen Charge” to a jury that is deadlocking to ask them to continue deliberations. An Allen Charge reminds a jury of the financial and emotional costs that a trial has to both sides and encourages holdout jurors to vote with the majority to avoid a mistrial. Defense advocates critical of the Allen Charge have pointed out that it is an overly persuasive tool for the prosecution used to strong-arm jurors into guilty verdicts in a system that is already slanted for the prosecution. There is no legal requirement on any jury to reach a verdict, and a hung jury does not mean that a group of jurors failed. It is a function of our justice system and what happens when jurors disagree on whether there is enough evidence to convict someone of a particular crime (or one of the jurors privately exercises his or right to “nullify,” and vote not guilty because they disagree with the charges on a moral level). However, the federal Fourth Circuit (North Carolina’s federal circuit) ruled just last year that Allen Charges are still permissible.

On a petit jury, potential jurors can be excluded with and without cause. During the jury selection process, both the defense and prosecution are given a certain number of peremptory challenges that let them exclude a potential juror with no reason or explanation unless the opposing party can prove the challenge was used to discriminate on the basis of sex, race or ethnicity. The jury selection process lets both the prosecution and defense exclude jurors that they think will be the most prejudicial to their side.

In a jury trial, the accused has numerous rights they did not have at the grand jury, including the right to an attorney, the right to exculpatory evidence by the prosecution, the right to present evidence, and the right to hear the evidence being presented against you.


The grand jury, by contrast, is the usually larger charging body that determines whether or not there is probable cause that a suspect committed a crime following a person’s arrest. The grand jury decides whether or not to issue a formal charge, or indictment, against a person for felony charges. Prosecutors have immense power in the grand jury setting and are the only side allowed to present evidence. For more facts about the vast powers of grand juries, click here (“Who decides whether or not I will be charged with a crime?”)

A grand jury will be between 12 and 23 people, 12 of whom must agree to charge the suspect. Unlike in the petit jury where each side gets a certain number of peremptory challenges to exclude jurors without cause, an individual does not have the right to have an attorney present at the grand jury because this right does not attach until you are officially charged.

Some of the major differences between the petit jury and grand jury are below for easy reference.

Petit (Regular) JuryGrand Jury
Purpose/Legal StandardTo determine a particular defendant’s guilt (if beyond a reasonable doubt) or innocence at trialDetermines whether there is probable cause that a person committed a crime/to officially charge the person with that crime
Size12 people (in most states including NC)12-23 people
Unanimity12 must agree to convict12 must agree to indict
Method of Being ChosenJudge appoints but prosecution and defense can exclude jurors both “for cause” (i.e. there’s a legal reason to exclude a juror because they might not be impartial) and for no causeJudge appoints. No peremptory challenges to exclude biased jurors
FrequencyMeets every dayMeets whenever the prosecutor calls them (usually a couple of times a week)
DurationLasts until it gives an innocent or guilty verdict or hangs from no consensusLasts until judge excuses them, usually after a couple of months

If you are facing criminal charges, having skilled defense representation can make the difference between jail time and freedom. The attorneys at Arnold & Smith, PLLC have years of experience in defending individuals in the Charlotte area that are accused of both state and federal crimes. Contact us today for a free consultation.