The Grand Jury System

What is a Grand Jury and what is it’s purpose

According to the Federal Grand Jury website, [1] a grand jury is a group of people that are selected and sworn in by a court, just like jurors that are chosen to serve on a trial jury (such as the jury in the O.J. Simpson criminal case or in the Louise Woodward (“au pair”) murder case).   In fact, the grand jurors are usually chosen from the same pool of people that provide trial jurors:  A judge selects and swears in a grand jury, just like judges select and swear in trial juries.  But grand juries differ from trial juries in several ways.

        For one thing, grand juries may sit for longer.  In the federal system, a grand jury can sit for up to 36 months, although it doesn’t have to sit that long.  The court that swears in a new grand jury can extend its term in 6-month increments, for a total of 36 months, but a federal grand jury may only sit for 18 months or so.  State grand juries sit for varying terms: Depending on the state, a particular grand jury may sit for a month, six months, or even a year.

        Unlike trial juries, grand juries don’t decide if someone is guilty of criminal charges that have been brought against them. Grand juries listen to evidence and decide if someone SHOULD be charged with a crime. In the O.J. Simpson case, the prosecutors were going to ask a grand jury to charge Simpson with murdering Nicole Brown Simpson and Ronald Goldman, but the defence attorneys persuaded the court that the grand jurors had heard too much about the case to be able to make an impartial decision.

That is, the defence attorneys filed a motion saying the grand jurors were too prejudiced by what they had seen on television and read in the papers to be able to review the evidence against Mr. Simpson impartially, the way a trial juror should.  The judge agreed with the defence attorneys, which is very unusual.   Normally, defence attorneys fail when they try to claim that a grand jury is biased.  Courts reject these claims on the theory that all the grand jury does is bring charges, so even if a grand jury is biased; the person they charge can still prove their innocence at trial.  But a California judge bought the defence’s argument in the case of O.J. Simpson (perhaps because of the extraordinary publicity surrounding Mr. Simpson) and, instead of trying to start over with a new grand jury, the prosecutors used another method to charge Simpson with the murders.

History of the Grand jury

Alexander and Portmann [3] claim that one of the earliest concepts of Grand Juries dates back to early Greece where the Athenians used an accusatory body. In early Briton, the Saxons also used something similar to a Grand Jury System. During the years 978 to 1016, one of the Dooms (laws) stated that for each 100 men, 12 were to be named to act as an accusing body. They were cautioned, “not to accuse an innocent man or spare a guilty one.”

The Grand Jury can also be traced to the time of the Norman conquest of England in 1066. There is evidence that the courts of that time summoned a body of sworn neighbors to present crimes that had come to their knowledge. Since the members of that accusing jury were selected from small jurisdictions, it was natural that they could present accusations based on their personal knowledge.

 Historians agree that the Assize [court session or assembly] of Clarendon in 1166 provided the groundwork for our present Grand Jury system. During the reign of Henry II (1154-1189), to regain for the crown the powers usurped by Thomas Becket, Chancellor of England, 12 “good and lawful men” in each village were assembled to reveal the names of those suspected of crimes. It was during this same period that juries were divided into two types, civil and criminal, with the development of each influencing the other. The oath taken by these jurors provided that they would carry out their duties faithfully, that they would aggrieve no one through enmity nor deference to anyone through love, and that they would conceal those things that they had heard.

By the year 1290, these accusing juries were given the authority to inquire into the maintenance of bridges and highways, defects of jails, and whether the Sheriff had kept in jail anyone who should have been brought before the justices. “Le Grand Inquest” evolved during the reign of Edward III (1368), when the “accusatory jury” was increased in number from 12 to 23, with a majority vote necessary to indict anyone accused of crime. Eventually, this body divided into two separate institutions: the grand jury, which charged individuals with crimes, and the petit jury, which tried them for crimes.

When the English colonists arrived in America, they brought the concept of the grand jury with them. After the American Revolution, the right to a grand jury in a federal criminal case was preserved in the Fifth Amendment to the U.S. Constitution (1791). This Amendment states that:

“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentation or indictment of a grand jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger “

In America, the Massachusetts Bay Colony empanelled the first Grand Jury in 1635 to consider cases of murder, robbery and wife beating. As early as 1700, the value of the Grand Jury was recognized as opposing the Royalists. These colonial Grand Juries expressed their independence by refusing to indict leaders of the Stamp Act (1765), and refusing to bring libel charges against the editors of the Boston Gazette (1765). A union with other colonies to oppose British taxes was supported by the Philadelphia Grand Jury in 1770.

In paragraph 12 of the constitution of Massachusetts [9]  as signed on 25^th October 1780, it is clearly stated:

XII. No subject shall be held to answer for any crimes or offence, until the same is fully and plainly, substantially, and formally, described to him; or be compelled to accuse, or furnish evidence against himself. And every subject shall have a right to produce all proofs that may be favorable to him, to meet the witnesses against him face to face, and to be fully heard in his defence by himself, or his counsel, at his election. And no subject shall be arrested, imprisoned, despoiled, or deprived of his property, immunities, or privileges, put out of the protection of the law, exiled, or deprived of his life, liberty, or estate, but by the judgment of his peers, or the law of the land.  And the legislature shall not make any law that shall subject any person to a capital or infamous punishment, excepting for the government of the army and navy, without trial by jury.

By the end of the Colonial Period, the Grand Jury had become an indispensable adjunct of Government: “they proposed new laws, protested against abuses in government, and wielded the tremendous authority in their power to determine who should and who should not face trial.

The Grand Jury now, derives its name from the fact that it usually has a greater number of jurors than a trial (petit) jury.

The Modern Grand jury

The primary function of the American Grand Jury according to  The American Bar Association [7] is to review the evidence presented by the prosecutor and determine whether there is probable cause to return an indictment.  Since the role of the grand jury is only to determine probable cause, there is no need for the jury to hear all the evidence, or even conflicting evidence. It is left to the good faith of the prosecutor to present conflicting evidence.

In the federal system, the courts have ruled that the grand jury has extraordinary investigative powers that have been developed over the years since the 1950s. This wide, sweeping, almost unrestricted power is the cause of much of the criticism. The power is virtually in complete control of the prosecutor, and is pretty much left to his or her good faith.

Regular v. Special Grand Juries

Brenner and Shaw [1] show that today, there are two main types of grand juries: regular and special. A federal judge officially convenes both types of grand juries, though a prosecutor (someone from a U.S. Attorney’s office) actually conducts the proceedings. Regular grand juries are called to decide whether or not a prosecutor has presented enough evidence that a crime has been committed. Regular grand juries are convened for a period of 18 months, but may be required to sit as long as 24 months.

Special grand juries are called to investigate a particular crime, usually one that is of some importance. Special grand juries are convened for a period of 18 months, and may be extended for six-month intervals for a total of an additional 18 months.

Both types of grand juries meet on an as needed basis. Depending upon the number of indictments a prosecutor seeks, they may meet daily, weekly, or monthly.

Grand Jury Proceedings

If either type of grand jury finds that sufficient evidence has been presented that an individual has committed a crime, it issues an indictment. This is known as a “true bill.” If the grand jury finds that sufficient evidence has not been presented, it issues a “no true bill.” The burden of proof is “probable cause.” Although lacking a precise definition, “probable cause” is generally defined along the following lines: It is a state of certainty that an individual has committed a crime that is more than a hunch but less than “beyond reasonable doubt.” As such, grand juries serve as a protection against overzealous prosecutors by serving as a check on their ability to indict individuals for crimes.

Both types of grand juries consist of between 16-23 persons, with the option of choosing a certain number of alternates. Once empanelled by a federal judge, the members of the grand jury must select two officers, a fore person and a deputy fore person.

Grand jury proceedings are secret, although they are recorded so that a transcript can be prepared. Grand juries have the power to subpoena witnesses and materials. A subpoena is a legal command ordering that either certain evidence be presented or certain witnesses appear to testify. Witnesses are not permitted to have counsel present in the grand jury room during their questioning. The prosecutor alone conducts these proceedings.

Grand Jury Secrecy

According to Kadish [2]  the U.S. Supreme Court has addressed the issue of secrecy in grand jury proceedings. In the case of United States v. Procter & Gamble Co., 356 U.S. 677, 681-682 (1958), it provided five reasons why secrecy is required. The Court held that secrecy is necessary:

“(1) To prevent the escape of those whose indictment may be contemplated; (2) to insure the utmost freedom to the grand jury in its deliberations, and to prevent persons subject to indictment or their friends from importuning the grand jurors; (3) to prevent subornation of perjury or tampering with the witness who may testify before [the] grand jury and later appear at the trial of those indicted by it; (4) to encourage free and untrammeled disclosures by persons who have information with respect to the commission of crimes; (5) to protect innocent accused who is exonerated from disclosure of the fact that he has been under investigation, and from the expense of standing trial where there was no probability of guilt.”

Unlike potential jurors in regular trials, grand jurors are not screened for biases or other improper factors.

The modern Massachusetts Grand Jury

The Commonwealth became the first in the nation to implement a statewide one-day/one trial system. Under this system, [8] trial jurors serve either one day or, if empanelled, one trial. After juror service has been satisfied, in order to give more people the opportunity to serve, that juror is disqualified from serving again for a minimum of three years. The new system also shortened the length of grand juror service from six months to three. Today, class exemptions no longer exist so more citizens have an opportunity to perform juror service.

Largely responsible for the implementation of the One Day/One Trial jury system throughout Massachusetts was the decision of the Massachusetts Supreme Judicial Court in Commonwealth v. Bastarache, 382 Mass. 86, 414 N.E.2d 984 (1980), where a defendant was indicted and convicted of manslaughter. In its decision, the Court found that under the then existing juror selection system for Franklin County those persons between the ages of 18 and 34, who comprised 36% of the population, had been excluded from the juror selection process. Although it recognized that young people often have different opinions, reactions and impressions than older persons have, the Court nevertheless found that classifications based on age alone did not constitute “identifiable” or “distinctive” groups as defined by case law and were therefore not grounds for reversal. Yet, in Bastarache, the court determined that under representation of any age group should not continue.

Under its supervisory powers, the Court endorsed random techniques of juror selection so as to eliminate those flaws, which had previously brought about the exclusion of any group of citizens from the process. When Bastarache was decided, the One Day/One Trial jury system was functioning as a pilot program only in Middlesex County. Shortly thereafter, the Massachusetts legislature voted to expand the Middlesex County juror selection process into all counties of the Commonwealth (Chapter 298 of the Acts of 1982). The Office of Jury Commissioner for Middlesex County thereafter became the Office of Jury Commissioner for the Commonwealth of Massachusetts (OJC). The statewide expansion, under the supervision of the Supreme Judicial Court and the guidance of its standing oversight committee (the Jury Management Advisory Committee), was completed in 1988. All fourteen judicial districts of the Commonwealth were operating under the One Day/One Trial jury system.

As a result of the reduction in the number of days jurors are required to serve, the OJC had to increase the number of jurors summonsed for each judicial district to meet the needs of the juror requirements for each courthouse. The OJC, in an effort to achieve a higher juror yield and maintain a diverse jury pool, established a delinquent juror prosecution program http://www.mass.gov/courts/jury/failure.htm  to prosecute those jurors who unlawfully fail to respond to a jury summons, respond to the summons but then fail to appear at the courthouse as scheduled, or fail to fully complete juror service. The firm, persistent, yet gentle enforcement of this law is undertaken in order to ensure that all prospective jurors fulfill their duties and obligations to serve. The OJC also established a Public Outreach Team http://www.mass.gov/courts/jury/public.htm  whose members address schools, colleges and civic groups. This program makes the public aware that juror service is not as burdensome as they may believe, and it can be an obligation that is rewarding.

Currently in Massachusetts, fifty-eight courts utilize jurors in the fourteen judicial districts (counties). Although eighty-five percent of those who appear complete their jury service in just one day and ninety-five percent finish in three days, prospective jurors are advised to set aside three days in the event they are empanelled on a trial.

Strengths and weaknesses of the modern Grand jury system

Strengths

The grand jury plays an important part in the administration of criminal justice. The grand jury protects the people from possible abuse of power. No person may be prosecuted for a serious crime unless the State satisfies an independent body of citizens that there is probable cause to do so. The grand jury is both a shield and a sword of justice-a shield to protect the innocent and a sword to prosecute the guilty. The grand jury is an arm of the court answerable to no one except the court for the proper performance of its important powers. Grand jury service is a high duty of citizenship. Grand jurors put into practice the principles of our great heritage of liberty under law and help maintain local law and order. Their greatest reward is the knowledge that they have discharged this duty faithfully, honorably, and well.

Weaknesses

Rosebraugh in his article [9] claims there is a sound argument for abolishing the grand jury system in America, arguing that among many other faults, the system is t he mouthpiece and tool of the prosecutor. That they work behind closed doors with seemingly little regulation.

He goes on to claim that it’s a common belief that the U.S. constitution guarantees certain rights and liberties to its citizens. This includes certain protections thought to be universal in the court system. Yet, a closer look reveals the shocking reality of an institution that operates in secrecy and strips individuals of their basic, fundamental rights: the Grand Jury system. The use of Grand Juries to repress social movements in the U.S. has a long history. The National Lawyers Guild tells us that “Grand Jury activities and investigations have targeted political dissenters, escaped slaves in the 1850s, movements involving causes deemed anti-American, and, more recently in the 1970s the Vietnam Anti-war and Women’s Movements.”

It does seem fair to say that historically, Grand Juries did have one good intention: to give the people some power against an oppressive and corrupt government. But what the grand jury system has devolved into is something so distant from this early intention that its current true meaning is difficult to grasp.

Reformists, for the most part, want one of two options: either to abolish the Grand Jury system entirely or to reconstruct it to become the “people’s panel” as it was (at least in theory) intended to be. But the struggle for reform is met with great resistance from the Executive Structure itself, which has relied upon Grand Juries to target dissidents for many years.

Rosebraugh ends by stating that there’s a sound argument for abolishing the Grand Jury system in the United States. If the people were properly informed and they were to decide, the current abuses and oppressive practices by the Grand Jury system and the Justice Department would not be tolerated. We must take a closer look allies in England for methods for a successful abolition campaign. But I think it is obvious to everyone, including the most hardline Grand Jury supporters, that with public education, the reform of the Grand Jury system is all but inevitable.

Works Cited

1  Brenner, Susan, Gregory G Lockhart and Lori E Shaw Federal Grand Jury: A Guide to Law and Practice (Criminal Practice Series) 1996 http://www.udayton.edu/~grandjur/

2  Kadish, Mark BEHIND THE LOCKED DOOR OF AN AMERICAN GRAND JURY: ITS HISTORY, ITS SECRECY, AND ITS PROCESS Copyright © 1996 Florida State http://www.law.fsu.edu/journals/lawreview/frames/241/kaditxt.html

3  Alexander, Richard and Sheldon Portmann, Grand jury indictment versus prosecution by information-an equal protection- due process issue   Alexander, Hawes and Audet, LLP’s  “The Consumer Law Page”™ http://consumerlawpage.com/article/grand.shtml  October 2005

4  U.S. Courts, the Federal Judiciary    An Act of Conscience or Contempt of Court? http://www.uscourts.gov/outreach/topics/journalistgrandjury.html  October 2005

5  WordiQ.com – a comprehensive and searchable reference tool on the web http://www.wordiq.com/definition/Grand_Jury

• The American Bar Association – Division for media and communication services – frequently asked questions http://www.abanet.org/media/faqjury.htmml
• Brief Description of the Massachusetts Grand Jury System http://www.mass.gov/courts/jury/introduc.htm
• Rosebraugh, Craig, Grand Juries tools of government repression – NO COMPROMISE – http://www.nocompromise.org/issues/12grandjuries.html
• Massachusetts Declaration 1780 – http://www.lonang.com/exlibris/organic/1780-mdr.htm