Grand Juries

Grand Juries The American grand jury has its origin in English law. The earliest manifestation appears to have developed toward the end of the tenth century, when leading citizens were summoned to court to report what crimes had been committed in their communities. A more direct antecedent is the Clarendon jury of inquest of 1166, which was established in each community by Henry II as an accusatory body of twelve “good and lawful men.” It reported all offenses that had been (or were said to have been) committed in the venue to a group of knights who, in turn, reported the accusations to visiting royal officers (justices). The reports of the juries of inquest became the key instrument for initiating criminal proceedings. When trial by jury replaced oath‐taking, battle, and ordeal (after the Fourth Lateran Council in 1215), jurors were drawn initially from among the members of the jury of inquest.

Grand and petit juries became distinct entities by the middle of the fourteenth century. The modern form of the grand jury dates from 1368, when Edward III appointed twenty‐four men to an inquisitorial and accusatory board in each English county. It required another three hundred years (the Colledge and Shaftesbury cases of 1681) before the grand jury gained the function that is now regarded as its prime virtue and justification: the protection of citizens from unwarranted, malicious, and political prosecutions.

The grand jury came to the American colonies as part of English law. As conflicts developed with the mother country, the colonists made use of the grand jury's protective functions by, for example, refusing to authorize prosecutions sought by the Crown. The most famous example was the Zenger case of 1735. The American grand jury served as an instrument of resistance, as a revolutionary organizing body, and as an arm of democratic self‐government. The Fifth Amendment to the Constitution of the United States mirrors colonial esteem by providing that “no person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury.”

The U.S. Supreme Court, in Wood v. Georgia (1962), stated that the grand jury always
has been regarded as a primary security to the innocent against hasty, malicious and oppressive persecution; it serves the invaluable function in our society of standing between the accuser and the accused … to determine whether a charge is founded upon reason or was dictated by an intimidating power or by malice and personal ill will. (p. 390) In United States v. Calandra (1974), the Court also affirmed extraordinary powers and a wide procedural latitude for the grand jury. It guaranteed that the proceedings of grand juries be secret in United States v. Procter & Gamble Co. (1958). In In re Horowitz (1973), the Court affirmed the grand jury's extensive powers to compel the appearance of witnesses, their testimony under oath, and their production of documents. The Court held in Branzburg v. Hayes (1972) that not even newspaper reporters' sources of information are immune from the grand jury's subpoena power.

Persons appearing before the grand jury enjoy few procedural rights. The public prosecutor is not obligated to present exculpatory evidence, and the witness has no right to do so. The accused cannot confront and cross‐examine his accusers. No warnings are required regarding self‐incrimination (United States v. Wong, 1977). The likelihood of a criminal prosecution need not be pointed out (United States v. Washington, 1977). Witnesses can be granted immunity against their will. This may be “transactional” immunity ( Brown v. Walker, 1896), but it is more likely to be the considerably more hazardous “use” immunity (Kastigar v. United States, 1972). The protection against double jeopardy does not apply to grand jury proceedings. Hearsay evidence may be taken into account and the exclusionary rule does not apply (United States v. Calandra). Although a witness may ask leave to step outside for consultation, he has no right to be advised by his attorney in the grand jury room (United States v. Mandujano, 1976). Interestingly, the Court has not extended the right to a grand jury hearing and indictment to state proceedings (Hurtado v. California, 1884). Fewer than one‐half of the states now use grand juries; the majority authorize prosecutions by way of preliminary hearings before a magistrate.

The qualifications for grand jury service generally include citizenship, the ability to read and write English, mental soundness, and minimum‐age and residency requirements. The size of most federal grand juries is twenty‐three. Sixteen grand jurors constitute a quorum; twelve must agree to issue an indictment. The term of service typically is from three to eighteen months but can be extended. The Federal Jury Selection and Service Act of 1968 requires grand jurors to be drawn at random from a fair cross‐section of the community, without attention to race, color, religion, sex, national origin, or economic status.

See also Fifth Amendment Immunity.

Bibliography

LeRoy Clark , The Grand Jury (1972).
Marvin E. Frankel and and Gary P. Naftalis , The Grand Jury: An Institution on Trial (1977).
Richard D. Younger , The People's Panel: The Story of the Grand Jury (1963).

Peter W. Sperlich