History of the grand jury
The English origin of the grand jury commonly is traced to the Assize of Clarendon, issued by Henry II in 1166. The Assize required that criminal accusations thereafter be "presented" by juries composed of twelve "good and lawful men" selected from the township. The Assize was designed to strengthen royal judicial authority. The jurors were familiar with the local scene and could present charges that otherwise might not be known to the crown's representatives. They were required to accuse all whom they suspected and faced substantial fines if they failed to make appropriate accusations. Following the jury's accusation, the defendant was subjected to trial, typically by ordeal.
By the end of the fourteenth century, the English criminal justice process had turned to trial by jury rather than by ordeal, and the original jury had been divided into two separate juries. The trial of guilt was before a twelve-person petit jury, and the accusatory jury was expanded to twenty-three persons, chosen from the entire county. This jury became known as le grand inquest, which probably explains its eventual title of grand jury. At this point, the grand jury remained essentially an accusatory body that assisted the Crown in ferreting out criminals. Accusations were either initiated by the jurors themselves, acting on the basis of their own knowledge or information received from complainants, or were initiated by a representative of the Crown, often a justice of the peace, who supported his accusation with the testimony of witnesses who appeared before the grand jury. Where the accusation was initiated by the jury itself, the jury's written charge was titled a "presentment." Where the accusation was based on a case placed before the jury by the Crown's representative, the jury's charging document was titled an "indictment." The Crown's representative ordinarily would place a proposed indictment before the grand jury, and if the jury found the Crown's evidence sufficient to proceed, it issued the indictment as a "true bill." If it found the evidence insufficient, it returned a finding of ignoramus ("we ignore it") or, in later years, "no bill."
It was not until the late seventeenth century that the grand jury, refusing to indict two prominent critics of the king, achieved its reputation as a safeguard against the oppression and despotism of the Crown. In the case of Stephen Colledge, charged with making treasonous remarks, the grand jury refused to indict, notwithstanding considerable pressure from the Lord Chief Justice. In the case brought against the earl of Shaftesbury, the Crown's representative sought to place more pressure on the grand jury by presenting witnesses publicly rather than privately before the jurors alone, as had been past practice. The jurors nevertheless refused to indict. Colledge was subsequently indicted by a different grand jury, convicted, and executed, and the earl of Shaftesbury fled the country to avoid a probable indictment by a new grand jury. The grand jury nevertheless had established its reputation as an independent screening agency capable of resisting the pressure of the Crown.
This view of the grand jury as the "people's panel" was reinforced in the American colonies, where grand juries refused to indict numerous opponents of the Crown. Thus, the infamous prosecution of John Peter Zenger for seditious libel was brought by a prosecutor's information—a charging instrument issued by the prosecutor alone—because grand juries twice refused to issue indictments. It was with such cases in mind that those who drafted the Bill of Rights required grand jury review of prosecutions. The first clause of the Fifth Amendment prohibits prosecutions for all serious crimes "unless on a presentment or indictment of a Grand Jury." The reference to presentments recognized the grand jury's continued authority to bring accusations on its own initiative. Indeed, the colonial grand juries had exercised that authority even against the wishes of the Crown.
At the start of eighteenth century, the grand jury was a key participant in the criminal justice processes of both the states and the federal government. As commentators later noted, the grand jury provided both the "shield" and the "sword" of the criminal justice system. In screening proposed indictments put before it by the prosecution (or private complainants), it shielded potential defendants from mistaken or vindictive prosecutions. In pursuing through its own investigative powers possible crimes that had come to its attention through the jurors' knowledge of the community, it provided a sword against criminals whose activities might otherwise have escaped prosecution. Moreover, particularly in western states, the grand jury took on a broader "public watchguard" role as it investigated and issued public reports on governmental misfeasance that did not involve criminal behavior (a practice that continues today in many states).
Over the eighteenth century, two major developments substantially altered the use of the grand jury to screen potential charges and to investigate possible criminal activity. First, sharp criticism of the grand jury as a costly and inefficient screening body produced a strong movement to eliminate the requirement of prosecution by indictments, and to give prosecutors the option of instituting prosecution by a prosecutor's information supported by a magistrate's finding of probable cause at a preliminary hearing. In 1859, Michigan became the first state to adopt such a reform, and in 1884, the Supreme Court in Hurtado v. California, 110 U.S. 516 (1884), upheld the authority of the states to authorize felony prosecutions by information following a preliminary hearing bindover. Hurtado reasoned that the Fourteenth Amendment's due process clause (prohibiting the deprivation of life, liberty, or property without due process of law) required adherence only to "fundamental principles of liberty and justice which lie at the base of all our civil and political institutions," and prosecution by indictment was not such a fundamental principle. Admittedly, the indictment process, by requiring grand jury screening provided a valuable safeguard against the arbitrary exercise of prosecutorial authority; but other modes of proceeding could also provide such protection, as illustrated by the preliminary hearing and as recognized in the English common law, which had authorized prosecution of all misdemeanors and certain felonies without indictments. Following Hurtado, there was a gradual movement of the states away from mandatory prosecution of felonies by indictment, although that did not become a majority position until the twentieth century.
Second, a combination of the establishment of professional police forces and the granting to public prosecutors of a virtual monopoly over the decision to prosecute (largely eliminating private prosecutions) significantly altered the grand jury's investigative role. The growth of police investigative capacity lessened the need for grand jury's use of its investigative authority. Where private complainants sought an investigation and prosecution, they went to the police rather than to the grand jury. Indeed, in many jurisdictions, the authority of the grand jury to charge by presentment was eliminated. Cases came to the grand jury through the prosecutor, and when the special investigative powers of the grand jury were needed, they were exercised at the direction of the prosecutor, who served as the jury's legal advisor.
The grand jury retained the authority to initiate an investigation that the prosecutor opposed or to carry an investigation beyond what the prosecutor requested, and such "runaway" grand jury investigations did occur on rare occasions (usually by a grand jury that obtained judicial appointment of a special prosecutor). In large part, however, the grand jury investigations that came to bolster the modern grand jury's reputation as an engine for uncovering corruption in government, combating white collar crime, and undercutting organized crime were initiated and led by prosecutors. The same was true of those investigations that sullied the grand jury's reputation by suggesting that its investigative authority had been used for partisan political purposes. During the Vietnam War era, a flurry of such investigations at the federal level, directed at the alleged criminal activity of radicals (but seemingly operating more to harass than to produce supportable indictments), led to the adoption of reform legislation in various states. That legislation enhanced the rights of grand jury witnesses, providing, for example, that they could be accompanied by their attorneys in testifying before the grand jury. In the federal system, such reform legislation failed to gain legislative support, although the Justice Department did adopt as internal policy guidelines several requirements protective of witnesses and the targets of investigation (e.g., advising witnesses of their rights).
Certain elements of the legal structure of the grand jury relate primarily to either one or the other of its functions, but there are three basic structural features that influence both its screening and investigative roles—jury composition, jury independence, and the secrecy of jury proceedings.
Grand jury composition. In most jurisdictions grand jurors are drawn from the same constituency, and selected in the same manner, as the jury panel for petit jurors. The federal system and a majority of the states use a random selection system, where jurors are selected at random from a voter registration list or similar list. A smaller group of states use a "discretionary" selection system, under which jurors are selected by local judges or jury commissioners, usually on the basis of recommendations by various community leaders. Both selection systems seek representation reflecting a cross section of the community. The U.S. Supreme Court has long held that an indictment is constitutionally invalid if issued by a grand jury chosen through a racially discriminatory selection procedure. Many authorities conclude that the Court also would invalidate an indictment if the grand jury selection procedure failed to meet the other basic nondiscrimination requirement, that the jurors be drawn from a "fair cross section" of the community.
Grand jury independence
Relationship to the prosecutor. Independence from the prosecutor is, of course, basic to the grand jury's shielding function. In its investigative function, although the grand jury is expected to work in cooperation with the prosecutor, some degree of independence also is assumed. Thus, the legal structure of the grand jury seeks to ensure the jury's independence of the prosecutor, while allowing the jurors, as a group of laypersons, to take advantage of the professional expertise of the prosecutor. The prosecutor's position as the "legal advisor" to the grand jury illustrates these dual objectives. The prosecutor serves as the primary source of advice on issues of law arising in grand jury proceedings, but the grand jury always retains the authority to seek further legal advice from the court. Similarly, although the prosecutor must be available to examine witnesses who testify before the grand jury, many jurisdictions also recognize a right of the grand jurors to exclude the prosecutor if they so desire.
The grand jury, at least theoretically, also has the final say on the evidence presented before it. Some jurisdictions require the grand jury to listen to any witnesses presented by the prosecutor, but others still recognize the common law authority of the grand jury to refuse to hear such evidence. In all jurisdictions, the grand jury is free to seek additional evidence beyond that offered by the prosecutor. Jurors have authority to ask witnesses questions that go beyond the prosecutor's examination, and they also have authority to require the prosecutor to subpoena additional witnesses. Available data indicate, however, that grand juries only infrequently exercise their authority to override the prosecutor in determining the scope of their proceedings.
Relationship to the court. Although often characterized as an "independent body," the grand jury is also recognized to be an "arm of the court." The court cannot order the grand jury to indict or refuse to indict, but in most jurisdictions it can substantially influence what matters are considered by the grand jury. Thus, many states recognize the authority of the judge impaneling the grand jury to require the grand jury to undertake a particular investigation or to consider particular evidence where necessary to prevent a miscarriage of justice. More significantly, the prosecutor's authority to compel witnesses to testify before the grand jury rests on the use of judicially enforced subpoenas, and the court may refuse to enforce subpoenas if it determines that they are being misused. Since the impaneling judge is not present during the grand jury proceedings and is unaware of the particulars of grand jury activity, the exercise of judicial supervision to preclude grand juror or prosecutorial misconduct depends upon that conduct being brought to the judge's attention by the prosecutor, the grand jurors, a subpoenaed party, or other persons familiar with the proceedings.
In United States v. Williams, 504 U.S. 36 (1992), the Supreme Court suggested that federal courts have very limited supervisory control over the grand jury. The federal courts may use that limited authority to ensure that the grand jury abides by limits imposed under the Constitution, federal statutes, or the Federal Rules of Criminal Procedure. However, the federal courts may not create their own "common law" limits upon grand jury proceedings, as they do for their own trial court proceedings, as that would be inconsistent, the Court noted, with the "grand jury's functional independence from the judicial branch" (504 U.S. 48).
Grand jury secrecy. The requirement that the grand jury hear evidence in a closed proceeding grew out of the Crown's attempt to pressure the grand jury in the earl of Shaftesbury's case by presenting its witnesses at a public hearing. By the time of the adoption of the Fifth Amendment, it was firmly established that all grand jury proceedings were to be secret, with only the final result, if an indictment, made known to the public. The secrecy of the proceedings no longer was designed simply to protect the jurors from improper pressures. As noted by the Supreme Court in United States v. Procter and Gamble Co., 356 U.S. 677 (1958), grand jury secrecy came to be justified on several grounds:
(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 witnesses who may testify before 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 the 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. (356 U.S. 682)
Although the justifications for secrecy continue to be accepted, there has been a gradual movement over the years toward narrowing its scope. This movement has been supported by two lines of reasoning: (1) that the former, broader requirements often went beyond what was needed to serve the justifications for secrecy; and (2) that it is necessary to balance against those justifications other, equally important interests.
Perhaps the most significant loosening of secrecy requirements has occurred in the exemption of the grand jury witness from the obligation of secrecy. In all jurisdictions, the prosecutor, grand jurors, and grand jury stenographer are prohibited from disclosing what happened before the grand jury, unless ordered to do so in a judicial proceeding. In the vast majority of jurisdictions, witnesses are no longer under such an obligation. They may disclose what they wish to whomever they wish. A major objective of grand jury secrecy is to keep a target from learning of the investigation, and thus to preclude his probable flight or attempt to tamper with witnesses. However, a witness questioned about another is now free to inform that person of the grand jury's interest in his activities. The witness exemption was adopted partly because it was thought that requiring secrecy of the witness was unrealistic and unenforceable, particularly where the target is a relative or friend of the witness.
Another significant change in secrecy requirements has been the gradual expansion of the disclosure made to the indicted defendant. At one time, the defendant had no access to the testimony before the grand jury that led to his indictment. Today, however, in almost every jurisdiction, if a witness who testified before the grand jury later testifies at trial, the defendant will be given a transcript of the grand jury testimony of that witness for possible impeachment use. Roughly a dozen states take the further step of providing the defendant with a complete transcript of all relevant testimony before the grand jury. Insofar as secrecy requirements encourage otherwise reluctant witnesses to assist the grand jury, that encouragement is likely to be lost through extensive postindictment disclosures.
Grand jury screening
Federal prosecutions. The Fifth Amendment provides that except in certain military cases, "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 reference to "otherwise infamous crimes," has been interpreted, in light of historical practice, as encompassing all felonies (offenses punishable by imprisonment for a term exceeding one year). Thus, the net effect of the Fifth Amendment provision is to establish grand jury screening as the constitutional right of any person charged in a federal court with a felony offense. Since the provision is designed to protect the interests of the defendant, it does not require grand jury review when the defendant knowingly and voluntarily waives the use of an indictment. In such cases, and in prosecutions for misdemeanors, the federal prosecutor ordinarily will proceed by information.
State prosecutions. Only eighteen states continue to make a grand jury indictment mandatory for all felony prosecutions (absent a voluntary waiver). Most do not allow waiver for capital offenses, so such prosecutions always are brought by indictment. Four additional states require prosecution by indictment for capital offenses or both capital and life-imprisonment offenses, but not for other felonies.
The remaining twenty-eight states permit prosecution by information for all felonies. These states grant the prosecutor the option of proceeding by indictment, but in several states that option is entirely theoretical, as grand juries do not exist. In most of the states permitting the information option, convening a grand jury is a realistic option, but one that is rarely used. Prosecutors proceed by indictment rather than information only where they have a special reason for doing so (e.g., the case was originally brought to the grand jury because the prosecutor had need for its investigative authority, the prosecutor desires to avoid the preliminary hearing that would be required if the prosecutor proceeded by information, or the case is politically sensitive and the prosecutor seeks to share responsibility for the charging decision with the grand jury). However, an occasional prosecutor in a state permitting prosecution by information may have a general preference for proceeding through the grand jury and bring most felony charges by indictment.
Presenting the prosecutor's case. The prosecutor's grand jury presentation ordinarily begins with an explanation of a proposed indictment and a summary of the evidence that will be offered to support it. The evidence is then presented through the testimony of witnesses or the introduction of documents. In many jurisdictions (but not the federal), the prosecution has an obligation to produce, in addition to supporting evidence, any further evidence that it knows to be exculpatory. Thus, if a lineup produced conflicting eyewitness identifications, the prosecutor must make the jury aware of that conflict and not simply present the one eyewitness who identified the accused. The prosecutor's disclosure obligation is limited, however, to evidence obviously exculpatory and material. The prosecutor need not assume the role of a defense counsel and introduce all the evidence that a defense counsel might have wished to offer.
Although grand jury proceedings are secret, persons often are informed—for example, after being arrested—that charges against them will be presented to the grand jury. The grand jury proceeding is not an adversary proceeding, however, and those persons have no right to present their own evidence to that body. The potential defendant may request the opportunity to testify before the grand jury, but conventional wisdom deems that a risky tactic, as it subjects the potential defendant to cross-examination by the prosecution in a setting in which neither counsel (in most jurisdictions) nor the judge (in all jurisdictions) is present. Should such a request be presented, most jurisdictions hold that the grand jury can reject or grant the request at its discretion. Several states, however, give the potential defendant a right to testify if he so chooses, and they may permit him to be accompanied by counsel.
Evidentiary restrictions. All jurisdictions require that the testimonial privileges of a witness be recognized in grand jury proceedings. Beyond that, there is considerable variation in the applicability of rules of evidence that would govern at trial. A small group make these evidentiary rules fully applicable. Among indictment jurisdictions, those that generally favor application of the rules of evidence will recognize one or more broad exceptions to the rules of evidence. Those exceptions typically are designed to remove the burden of testifying from persons whose testimony ordinarily would not present a significant credibility issue (e.g., forensic experts).
Most indictment jurisdictions, and many information jurisdictions, simply refuse to apply the rules of evidence (other than testimonial privileges) to grand jury proceedings. In these jurisdictions, prosecutors may use any type of evidence without regard to whether it could be used at trial. Thus, prosecutors need not have key witnesses themselves testify, but may simply introduce statements the witnesses gave to the police, even though those statements would be inadmissible hearsay at trial. In Costello v. United States, 350 U.S. 359 (1956), the Supreme Court held that the prosecutorial practice of relying entirely on hearsay did not violate the Fifth Amendment. The Court stressed that historically, the grand jury was a "body of laymen" whose "work was not hampered by rigid procedural rules" (350 U.S. 362).
Standard for indictment. In many states the grand jury is directed to indict only if the evidence before it establishes probable cause to believe that the accused committed the felony charged; in others, it is directed to indict "when all the evidence taken together, if unexplained or uncontradicted, would warrant a conviction of the defendant." The first standard is very much like that applied by a preliminary-hearing magistrate. The second is a somewhat more rigorous standard, being similar to the standard applied by a trial judge in ruling on a motion for directed acquittal. No matter which standard applies in the particular jurisdiction, the jurors need not be unanimous in their conclusion that it is met. At common law, a vote of a majority (twelve out of twenty-three jurors) was sufficient to indict. Many jurisdictions now permit smaller grand juries, but require a somewhat higher percentage of votes for indictment (for example, twelve out of sixteen).
In some jurisdictions, generally those applying the rules of evidence, a defendant may challenge an indictment as not supported by sufficient evidence. To sustain such a challenge, the court must find that the evidence before the grand jury, even if read in a light most favorable to the state, did not meet the applicable standard for indictment. Other jurisdictions refuse all challenges to the sufficiency of the evidence before the grand jury. They stand by the standard suggested in Costello, that "an indictment returned by a legally constituted and unbiased grand jury, . . . if valid on its face, is enough to call for a trial on the merits" (350 U.S. 363).
The debate. Few criminal justice issues have been the subject of such prolonged and heated debate as the comparative merits of prosecution by indictment and prosecution by information. Critics of prosecution by indictment tend to fall into two categories. First, there are those who see the screening grand jury as no more than a rubber stamp for the prosecutor. They point to various indictment jurisdictions in which grand juries have refused to indict in less than three percent of their cases. The legal structure of the grand jury, these critics argue, gives it only theoretical independence; in light of the prosecution's ready access to investigative resources, its legal expertise, and its close working relationships with the grand jurors, it is inevitable that the grand jurors will follow the prosecution's lead on whether the evidence is sufficient to proceed.
Supporters of grand jury screening offer a quite different reading of grand jury independence and the statistics on refusals to indict. They argue that a low rate of refusals to indict simply indicates that prosecutors, respecting independent grand jury review, have themselves eliminated the weaker cases. The success of grand jury screening, supporters note, is evidenced by the high percentage of indictments that produce convictions and the very small percentage that result in dismissals for want of substantial evidence (opponents respond that dismissals on the prosecutor's own motion and negotiated pleas to lesser offenses are more common, and they may cover flaws in grand jury screening). Reference is also made to the experience in jurisdictions in which prosecutors do not screen so carefully and in which grand juries have refused to indict in as many as 15 percent of their cases.
A second group of critics acknowledge that the grand jury has some value as a screening agency, but believe that preliminary hearing is a better screening procedure. They contend that an independent magistrate, an adversary proceeding, and an open hearing clearly make the preliminary hearing the more effective procedure for eliminating unwarranted prosecutions. Grand jury supporters respond that the grand jury is the better screening agency because its strength lies where screening is most needed—in those cases where special factors, such as the involvement of politics or racial animosity, will probably result in unjust accusations. Lay participation permits the grand jury to evaluate the prosecution's case in light of community notions of justice and fairness. Indeed, the grand jury has the recognized authority to "nullify" the law by refusing to indict, notwithstanding legally sufficient evidence.
Grand jury investigations
In contrast to their division on the use of the grand jury as a screening agency, both indictment and information jurisdictions use the grand jury as an investigative body. Although the extent of that use varies, the grand jury tends to be treated as a specialized investigative agency needed for a limited class of offenses. Compared to police investigations, grand jury investigations are expensive, time-consuming, and logistically cumbersome. However, the grand jury offers distinct investigative advantages where investigators must unravel a complex criminal structure, deal with victims reluctant to cooperate, or obtain information contained in extensive business records. Criminal activities presenting such investigative problems ordinarily relate to public corruption (e.g., bribery), misuse of economic power (e.g., price fixing), widespread distribution of illegal services and goods by organized groups (e.g., gambling syndicates), and threats of violence used by organized groups (e.g., extortion schemes).
The subpoena to testify
Significance. A major investigative advantage of the grand jury is its use of the subpoena ad testificandum, a court order directing a person to appear and testify before the grand jury. If the police wish to take a person into custody for questioning, they must have the probable cause required by the Fourth Amendment to justify the seizure of a person. Even then, the person has no duty to answer police questions. Moreover, if the person does answer and lies, his lying will not constitute a crime in most jurisdictions. If the prosecution, on the other hand, wishes to question a person before the grand jury, it may simply utilize the subpoena to testify, which avoids all of these obstacles. A subpoena to testify can be obtained without a showing of probable cause and, in general, without even a lesser showing that the person subpoenaed is likely to have relevant information. The compulsion of a subpoena to testify has long been held not to fall within the Fourth Amendment, since it does not involve taking a person into custody. Moreover, as various courts have noted, the grand jury (or the prosecutor acting on its behalf ) may utilize subpoena authority on no more substantial grounds than "tips" or rumors. This enables the grand jury to serve as "a grand inquest, a body with powers of investigation and inquisition, the scope of whose inquiries is not limited narrowly by questions of propriety or forecasts of the probable result of the investigation" (Blair v. United States, 250 U.S. 273, 282 (1919)).
Unlike the person questioned by a police officer, the subpoenaed witness is compelled to answer questions before the grand jury unless the witness can claim an evidentiary privilege, such as the marital privilege or the privilege against self-incrimination. If the witness refuses to testify without such legal justification, the witness will be held in contempt and subjected to incarceration. Ordinarily, the recalcitrant witness will be held in "civil contempt," which means the witness will be released when willing to testify, or if unwilling, when the grand jury term ends. Criminal contempt is available if the grand jury no longer has need for the witness' testimony, and it commonly carries a jail term of several months to a few years. If the witness testifies and fails to tell the truth, the witness may be prosecuted for perjury since the testimony is given under oath. Here the potential prison term is substantially longer.
Safeguards. The granting of subpoena authority to grand juries rests, in part, on the premise that extensive safeguards are available to prevent misuse of that authority. Judicial discussions of subpoena authority frequently note, for example, that the grand jury witness retains the same evidentiary privileges that would be available to a witness at trial. In particular, a witness who may be involved in a criminal enterprise can always exercise the privilege against self-incrimination, refusing to respond whenever his answer might provide "a link in the chain of evidence needed to prosecute" (Hoffman v. United States, 341 U.S. 479, 486 (1951)). Indeed, if the witness is a potential target for indictment, the prosecutor may be required to inform the witness specifically, before he gives testimony, of his right to claim the privilege.
Courts also have stressed that the grand jury itself provides protection against misuse of the subpoena power. The grand jurors, it is noted "have no axes to grind and are not charged personally with the administration of the law" ( Justice Black's dissent, U.S. 330, 346–347 (1957)). If questioning or other prosecutorial tactics offend their sense of justice, they may direct the prosecutor to discontinue (seeking the assistance of the court, if necessary). A final safeguard is the supervisory authority of the court issuing the subpoena. As the Supreme Court has noted, that court has the continuing obligation, if other safeguards fail, to prevent "the transformation of the grand jury into an instrument of oppression" (United States v. Dionisio, 410 U.S. 1, 12 (1973)).
Right to counsel. A primary legal reform urged by critics of grand jury investigations is the increased availability of counsel for witnesses. Because the witness is not an "accused" person (even if the target of the investigation), the Sixth Amendment right to counsel does not apply. Only a few jurisdictions have provisions requiring appointment of counsel to assist witnesses who are indigent. Even if a witness has counsel, the witness in most jurisdictions cannot have counsel accompany him before the grand jury. These jurisdictions view the presence of the witness' counsel before the grand jury as disruptive and inconsistent with grand jury secrecy. They will, however, permit the witness to interrupt his testimony and leave the grand jury room for the purpose of consulting with counsel just outside the grand jury room. Counsel for witnesses claim that this practice is not adequate, because witnesses do not always realize that they need legal advice in responding to a particular question. Moreover, witnesses often are fearful that they will appear to have "something to hide" if they too frequently leave the room to consult with counsel. Roughly twenty states do permit witnesses to be assisted by counsel within the grand jury room. These jurisdictions strictly limit the lawyer to giving advice to the witness, thereby seeking to prevent counsel from turning the grand jury examination into an adversary proceeding by making arguments to the grand jury.
Subpoena duces tecum. The subpoena duces tecum (a court order directing a person to bring with him specified items in his possession) gives the grand jury the capacity to obtain physical evidence in a manner very similar to its capacity to obtain testimony. This subpoena is used primarily to obtain business records and other documents in investigations of white-collar crimes. However, it has also been used to require a suspect to provide such identification evidence as fingerprints or handwriting samples. A subpoena duces tecum, in contrast to a search warrant, does not require a showing of probable cause. Although the subpoena does direct the subpoenaed person to search his files and bring forth specified documents, it does not authorize the police or prosecutor themselves to search the premises for those files. The only Fourth Amendment limitation imposed upon the subpoena duces tecum relates to its breadth. A subpoena may not encompass such a wide range of material as to impose an unreasonable burden on the subpoenaed party.
The safeguards applicable to the subpoena ad testificandum also apply to the subpoena duces tecum. However, the privilege against self-incrimination is far less likely to apply to a subpoena duces tecum. The privilege extends only to individuals, and therefore cannot be raised, to subpoenas requiring production of documents belonging to corporations or similar entities, notwithstanding potential incrimination to the persons who authored or possessed the documents. Moreover, even with respect to personal records, the privilege tends to be limited to private documents personally prepared by the subpoenaed individual. Since the writing of the previously prepared document was not itself compelled, the only compelled testimonial element occurs in the acknowledgments that may be inherent in the act of productions—that is, acknowledging that the document exists, that it is possessed by the person presenting it, and that it is the document described in the subpoena. Where the document is not private and personally prepared, compelling those acknowledgments often will not be viewed as seeking testimony because existence, possession, and the document's authenticity already will be known as "foregone conclusions." As the privilege extends only to testimonial disclosures, it also has no applicability to subpoenas requiring production of fingerprints or similar identification evidence.
Immunity grants. Perhaps the most significant advantage of the grand jury investigation is the availability of the immunity grant. An immunity grant is a court order that, in effect, supplants the witness' self incrimination privilege. Since the privilege prohibits compelling a witness to give testimony that may be used against him in a criminal case, the privilege can be rendered inapplicable by precluding such use of the witness' compelled testimony. An immunity grant does exactly that. It directs the witness to testify and protects him against use of his testimony in any subsequent criminal prosecution.
The Supreme Court has held that to be effective, the immunity grant must guarantee against further use of both the witness's testimony and any evidence derived from that testimony (Kastigar v. United States, 406 U.S. 441 (1972)). Moreover, if a subsequent prosecution is brought, the prosecution bears the burden of establishing that all of its evidence was derived from a source independent of the immunized testimony. As a practical matter, unless the prosecution had a fully prepared case before the witness was granted immunity, it will be most difficult to prosecute successfully for a criminal activity discussed in immunized testimony. Many states simply grant the witness what is commonly called "transactional immunity." They bar any prosecution for a transaction discussed in the immunized testimony, without regard to the possible independent source of the prosecutor's evidence.
Jerold H. Israel
Beale, Sara Sun; Bryson, William; Felman, James; and Elston, Michael. Grand Jury Law and Practice, 2d. St. Paul, Minn.: Westgroup, 1998.
Blank, Blanche. The Not So Grand Jury. Lanham, Md: University Press of America, 1993.
Brenner, Susan, and Lockhart, Gregory. Federal Grand Jury Practice. St. Paul, Minn.: West Publishing, 1996.
Clark, Leroy D. The Grand Jury: The Use and Abuse of Political Power.. New York: Quadrangle, 1975.
Frankel, Marvin E., and Naftalis, Gary P. The Grand Jury: An Institution on Trial. New York: Hill & Wang, 1977.
Lafave, Wayne; Israel, Jerold; and King, Nancy. Criminal Procedure. 2d ed. St. Paul, Minn.: Westgroup, 1999, chapters 8 and 15.
Liepold, Andrew. "Why Grand Juries Do Not (And Cannot) Protect the Accused." Cornell Law Review 80 (1995): 260.
Schwartz, Helene E. "Demythologizing the Historic Role of the Grand Jury." American Criminal Law Review 10 (1972): 701–770.
Younger, Richard D. The People's Panel: The Grand Jury in the United States, 1634–1941. Providence, R.I.: Brown University Press, 1963.
Blair v. United States, 250 U.S. 273 (1919).
Costello v. United States, 350 U.S. 359 (1956).
Hoffman v. United States, 341 U.S. 479 (1951).
Hurtado v. California, 110 U.S. 516 (1884).
Kastigar v. United States, 406 U.S. 441 (1972).
United States v. Dionisio, 410 U.S. 1, 12 (1973).
United States v. Procter and Gamble Co., 356 U.S. 677 (1958).
United States v. Williams, 504 U.S. 306 (1992).
A panel of citizens that is convened by a court to decide whether it is appropriate for the government to indict (proceed with a prosecution against) someone suspected of a crime.
An American institution since the colonial days, the grand jury has long played an important role in criminal law. The fifth amendment to the U.S. Constitution says that a person suspected of a federal crime cannot be tried until a grand jury has determined that there is enough reason to charge the person. Review by a grand jury is meant to protect suspects from inappropriate prosecution by the government, since grand jurors are drawn from the general population. It has been criticized at times as failing to serve its purpose.
The grand jury system originated in twelfth-century England, when King henry ii enacted the Assize of Clarendon in order to take control of the courts from the Catholic Church and local nobility. The proclamation said that a person could not be tried as a criminal unless a certain number of local citizens appeared in court to accuse him or her of specific crimes. This group of citizens, known as the grand assize, was very powerful: it had the authority to identify suspects, present evidence personally held by individual jurors, and determine whether to make an accusation. Trial was by ordeal, so accusation meant that conviction was very likely. (Trial by ordeal involved subjecting the defendant to some physical test to determine guilt or innocence. For example, in ordeal by water, a suspect was thrown into deep water: if he or she floated, the verdict was guilty; if the suspect sank, the verdict was innocent.)
The grand assize was not designed to protect suspects, and it changed very little over the next five hundred years. Then, in 1681, its reputation began to evolve. An English grand jury denied King Charles II's wish for a public hearing in the cases of two Protestants accused of treason for opposing his attempts to reestablish the Catholic Church. The grand jury held a private session and refused to indict the two suspects. This gave the grand jury new respect as a means of protection against government bullying (although ultimately in those particular cases, the king found a different grand jury willing to indict the suspects).
After this small act of rebellion, the grand jury became known as a potential protector of people facing baseless or politically motivated prosecution. The early colonists brought this concept to America, and by 1683, all colonies had some type of grand jury system in place. Over the next century, grand juries became more sympathetic to those who resisted British rule. In 1765, for example, a Boston grand jury refused to indict leaders of protests against the stamp act, a demonstration of resistance to colonialism.
The grand jury was considered important enough to be incorporated into the U.S. Constitution, and has remained largely unchanged. Grand juries are used in the federal and most state courts. Federal grand juries use a standard set of rules. States are free to formulate their own pretrial requirements, and they vary greatly in the number of grand jurors they seat, the limits they place on the deliberations of those jurors, and whether a grand jury is used at all. Federal courts use a grand jury that consists of 23 citizens but can operate with a quorum of 16. Twelve jurors' votes are required for an indictment. States use a grand jury consisting of as few as five but no more than 23 members. Grand juries are chosen from lists of qualified state residents of legal age, who have not been convicted of a crime, and who are not biased against the subject of the investigation.
Hearsay Evidence: Admissible before a Grand Jury?
The rules of evidence prohibit the introduction of most hearsay evidence in a criminal trial. (Hearsay is evidence given by a person concerning what someone else said outside of court.) However, when Frank Costello, alias Francisco Castaglia, a notorious organized crime figure of the 1940s and 1950s, argued that his conviction for federal income tax evasion should be overturned because the grand jury that indicted him heard only hearsay evidence, the Supreme Court rejected his claim (Costello v. United States, 350 U.S. 359, 76 S. Ct. 406, 100 L. Ed. 397 ).
Prior to his trial, Costello asked to inspect the grand jury record. He claimed there could have been no legal or competent evidence before the grand jury that indicted him. The judge refused the request. At trial, Costello's attorneys established that three investigating officers were the only witnesses to testify before the grand jury. These officers summarized the vast amount of evidence compiled by their investigation and introduced computations showing, if correct, that Costello had received far greater income than he had reported. Their summaries clearly constituted hearsay, since the three officers had no firsthand knowledge of the transactions upon which their computations were based. Therefore, Costello alleged a violation of the fifth amendment, and asked that hearsay evidence be barred from grand jury proceedings.
Justice hugo l. black, in his majority opinion, rejected these claims, noting that "neither the Fifth Amendment nor any other constitutional provision prescribes the kind of evidence upon which grand juries must act."
The usual role of a grand jury is to review the adequacy of evidence presented by the prosecutor and then decide whether to indict the suspect. In some cases, a grand jury decides which charges are appropriate. Generally, grand jurors do not lead investigations, but can question witnesses to satisfy themselves that evidence is adequate and usable. The prosecutor prepares a bill of indictment (a list explaining the case and possible charges) and presents evidence to the grand jury. The jurors can call witnesses, including the target of the investigation, without revealing the nature of the case. They call witnesses by using a document called a subpoena. A person who refuses to answer the grand jury's questions can be punished for contempt of court. However, no witness need answer incriminating questions unless that witness has been granted immunity. In federal courts, the jurors may accept hearsay and other evidence that is normally not admissible at trial.
If the grand jury agrees that there is sufficient reason to charge the suspect with a crime, it returns an indictment carrying the words true bill. If there is insufficient evidence to satisfy the grand jury, it returns an indictment carrying the words no bill.
Seldom do grand juries issue documents. However, when given a judge's permission to do so, they may use a report to denounce the conduct of a government figure or organization against whom an indictment is not justified or allowed. This occurred in 1973, when U.S. district court judge John J. Sirica allowed the grand jury investigating the watergate scandals to criticize President Richard Nixon's conduct in covering up the involvement of his administration in the June 17, 1972, burglary of the Democratic National Committee headquarters in the Watergate Apartment and Hotel complex. The judge recommended that the report be forwarded to the House Judiciary Committee to assist in proceedings to impeach the president. Many states allow the issuance of grand jury reports, but limit their use: the target must be a public official or institution who can be denounced only where statutory authority exists, and the resulting document can be released publicly only with a judge's approval.
In February 1996, for the first time in history, a first lady of the United States was required to appear before a grand jury. hillary rodham clinton testified for four hours before a federal grand jury on the disappearance and reappearance of billing records related to her representation of a failed investment institution that was under scrutiny when she was an attorney in Arkansas. Her testimony was part of the whitewater investigation, which examined past financial dealings of Hillary Rodham Clinton, President bill clinton, and others.
Should the Grand Jury Be Abolished?
Though the grand jury has existed in the United States since the colonial period, and the fifth amendment to the U.S. Constitution requires its use in federal criminal proceedings, it has come under increasing attack. Critics charge that it no longer serves the functions the Framers intended, and therefore should be abolished. Defenders admit there may be some problems with it today, but contend that these can be remedied.
Critics aim their attacks at both federal and state grand juries. They note that a grand jury has two functions. One is to review evidence of criminal wrongdoing and to issue an indictment if the evidence is sufficient. The other is to be an investigative arm of the government, helping the prosecutor gather evidence. Critics contend that in both areas contemporary grand juries have failed.
In reviewing evidence of criminal wrongdoing, a grand jury is supposed to act as a shield against ill-conceived or malicious prosecutions. Yet critics charge that grand juries typically rubber-stamp the prosecution's moves, indicting anyone the prosecutor cares to bring before it.
Historically the grand jury was not dominated by a professional prosecutor. Without a strong attorney leading the way, the grand jury was forced to be independent and diligent in reviewing evidence brought before it.
Critics note that many states abolished all or part of the grand jury's jurisdiction at the end of the nineteenth century, in large part because the process had come increasingly under the control of prosecutors. States acknowledged that a professional criminal prosecutor did not need a grand jury's assistance in the charging process. The prosecutor was capable of making an independent, disinterested review of the need to bring charges. Though forty-eight states have grand juries as part of their criminal justice system, many of these judicial bodies are now reserved for serious felonies, usually first-degree murder.
Those who favor abolition of the grand jury argue that the domination of the prosecutor has led to a passivity that destroys the legitimacy of the grand jury concept. Most grand jurors have little background in law and must rely on the prosecutor to educate them about the applicable law and help them apply the law. In addition, at the federal level, there are very complex criminal laws, like the racketeer Influenced and Corrupt Organizations statute. Even lawyers find many of these laws difficult to fathom, yet grand jurors are expected to understand them and apply them to intricate fact situations. Not surprisingly, charge the critics, the grand jury tends to follow the prosecution's advice.
Critics point out that though the Fifth Amendment requires a grand jury indictment for all federal crimes, the accused may waive this requirement and accept charges filed by a prosecutor alone on all but capital crimes. Waivers are frequent, and most prosecutions of even serious offenses are initiated by federal prosecutors. Therefore, critics argue that it makes no sense to take additional time and money for a grand jury to convene and participate in a hollow ritual.
For its critics the grand jury has declined from a proactive community voice to a passive instrument of the prosecution. Though the U.S. Supreme Court may talk about the historic importance of the grand jury in Anglo-American justice, few academics defend the institution based on its current performance. Faced with this poor performance, the critics argue that abolition is the best course. It would make the prosecutor directly accountable for the charging decision and remove the illusion that grand jurors are in control.
Defenders of the grand jury acknowledge that there are problems with the modern system, but insist the grand jury is worth saving. Despite its shortcomings the grand jury still allows citizens to help make important community decisions. Though critics may deplore prosecutorial domination of grand juries, they overgeneralize when they call the grand juries rubber stamps for the state. Congress recognized the competency and importance of citizen input when, in the Organized Crime Control Act of 1970 (18 U.S.C.A. §§ 3332–3333), it authorized the creation of "special" grand juries to investigate organized crime, return indictments if warranted, and issue reports on the results of their investigations.
Supporters also believe that the critics overemphasize the importance of the grand jury in acting as a shield against government oppression. The key function of the grand jury is to enhance the legitimacy of the criminal charges that are returned. Prosecutors use the grand jury to gain community support for charges that might otherwise be perceived as based on racial bias, political motivation, or prosecutorial vindictiveness. A grand jury review may also help a prosecutor avoid bringing charges where the formal requisites of a crime are present but the community's moral sense would regard charges as unjust.
Some supporters of the grand jury admit that it could be improved by severing the close tie between prosecutor and jurors. They point out that Hawaii provides grand juries with their own attorney. Such a "grand jury counsel" provides independent legal advice and acts as a buffer between jurors and prosecutors. This, in turn, makes grand juries more independent and gives their indictments more credibility. Some scholars have argued that though using such a system nationwide would cost more, the added expense would be a small price to pay to reinvigorate the grand jury and restore it to its proper role as a voice of the community.
Critics have complained that the grand jury offers witnesses and suspected criminals insufficient protection. The cause of the controversy is the set of rules that govern the operation of federal grand juries. For example, a prosecutor manages the work of the grand jury, which some say is contradictory since the job of prosecutor is to prove a defendant's guilt. Another contradiction, according to critics, is that a defense attorney does not represent the suspect. Instead, prosecutors may be required in state grand jury proceedings to present, on behalf of the suspect, information that they feel is exculpatory (so strong that it could create a reasonable doubt that the suspect committed the crime); however, the U.S. Supreme Court has held that federal prosecutors are not required to do so in federal grand jury proceedings (United States v. Williams, 504 U.S. 36 ). In arguing that a suspect should be charged, prosecutors may make arguments and use information that would normally not be admissible during a trial. Witnesses who are called before a grand jury are not allowed to have an attorney present when they testify. This holds true for a witness who may be a suspect. A final concern is that grand juries meet in secret, and a formal record of federal grand jury proceedings is not usually provided to the suspect even after indictment.
Critics of the current system claim that justice is ill served by these rules. They say that ambitious prosecutors may be tempted to misuse the powers of a nonprofessional grand jury to harass, trap, or wear down witnesses. For example, activists who opposed the vietnam war during the 1960s and 1970s accused the justice department of abusing the grand jury system as it searched for information about political dissidents. The activists believed that the department used the power and secrecy of the grand jury to intimidate witnesses and fish for evidence. Members of the news media, the business community, and organized labor, have also criticized the institution.
Supporters of the current system say that the secrecy of the grand jury's work prevents several things, including a suspect from escaping, attempts to influence jurors, and the coaching or intimidation of witnesses. Supporters also contend that the system encourages candid testimony and protects the privacy of innocent suspects who are later cleared. Regarding witnesses' lack of legal representation,supporters of the status quo point out that delay, disruption, and rehearsed testimony would lessen the efficiency of the grand jury's work and would result in a minitrial. Similar arguments have been made against limiting evidence that would not be admissible at trial. In addition, federal courts have held that because the rights of a suspect are adequately protected during trial, where the strength or weakness of evidence determines the verdict, no examination of grand jury indictment proceedings is necessary.
Grand juries also face criticism in the area of jury selection, especially with high-profile cases. Criticism focuses on bias and a lack of balance in the selection process. The requirement that grand juries be unbiased has evolved since 1807, when Vice President aaron burr was indicted as a traitor. Burr insisted that the evidence against him be heard by an "impartial" jury as guaranteed in the sixth amendment to the Constitution. He successfully challenged many jurors on the all-Republican grand jury that had been selected. Burr was willing to accept jurors who were familiar with some details of his famous case but who claimed they had not drawn any conclusions about it. (Although he was indicted, Burr was eventually acquitted at trial.)
Today, an unbiased grand jury means one that comprises people who have no prior familiarity with the facts of the case. Critics of this requirement say that it greatly limits the quality of people who are chosen to sit, since many intelligent, engaged, and otherwise ideal candidates for a grand jury also follow the news. On June 24, 1994, a California state judge dismissed a grand jury that was considering whether to indict former athlete and media personality o. j. simpson for the murder of his ex-wife and her friend. The judge was responding to concerns, of both the prosecutor and the defendant, that grand jurors had been exposed to pretrial publicity that might prejudice them—such as transcripts of 911 calls made by Simpson's ex-wife after he broke down the back door to her house.
After numerous struggles to balance grand juries racially and by gender, federal case law provides that "a defendant may challenge the array of grand jurors … on the ground that the grand jury was not selected, drawn or summoned in accordance with law, and may challenge an individual juror on the ground that the juror is not legally qualified" (Estes v. United States, 335 F.2d 609, cert. denied, 379 U.S. 964, 85 S. Ct. 656, 13 L. Ed. 2d 559).
There have been suggestions that the federal grand jury should be abolished, but this action seems unlikely because it would change the bill of rights for the first time. In addition, the investigative and indicting roles of the courts have to be performed by some entity, and an alternative entity may be less desirable than the grand jury. Some states have abolished grand juries or provided alternatives. For example, in some states, prosecutors are allowed to file an information, which is a formal list of charges, usually submitted with notice of some kind of probable cause hearing.
Other suggestions for change at the federal level may experience more success. Among those promoted by groups such as the american bar association are:
- Better instructions from judges to jurors about the grand jury's powers and its independence from prosecutors
- Reports by prosecutors on the performance of the grand jury system
- Increased access to grand jury transcripts for suspects who are eventually indicted
- Expanded safeguards against abuse of witnesses, including education about their rights and the presence of their attorneys
- Notification of targets of investigations that they are targets
- Optional rather than mandatory appearances by targets of investigations
- An end to the requirement that prosecutors present defense evidence, and replacement with a requirement that grand jurors be informed that the defense was not represented in the hearing.
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Historians date the grand jury to King Henry II's Assize of Clarendon in 1166. That ancient ancestor was markedly different from its American descendants. The Grand Assize, as it was known, was comprised of local gentry, relying on personal knowledge and local rumor to report alleged cases of misconduct. Today's grand jury—surviving in America, but since 1933 abolished in England—normally considers events and people unknown to the grand jurors, who receive fairly formal testimony and other evidence, presented by prosecutors to decide whether or not alleged wrongdoers ought to be indicted.
Between 1166 and 1791, when the American bill of rights was adopted, the grand jury had come to be viewed as a safeguard for the people rather than an investigative arm of the executive. This is reflected in the portion of the Fifth Amendment that says: "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment 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."
This means that nobody outside the armed forces may be put to trial for a serious federal crime unless a grand jury has heard enough evidence to satisfy it that there is probable cause (enough evidence on the prosecution side, largely or wholly ignoring what the defendant may show, to make it reasonable) to issue an indictment. The good sense of the safeguard is the realization that "merely" being brought to trial can be an agonizing, expensive, destructive experience. In this light, the grand jury stands as a shield against arbitrary or wicked or careless prosecutors bringing people to trial on insufficient or improper grounds.
In modern times, this role as bulwark retains an exceedingly limited reality. As a practical matter, grand juries, especially in the busy urban settings where they do the bulk of their work, function largely as the investigative and indicting arms of prosecutorial officials. There could be no other feasible or acceptable way for them to operate. The detection of crime, the decision to investigate, the judgment as to where prosecution resources should be invested are no longer, if they ever were, subjects suitable for amateur, part-time management. Inevitably, then, grand jurors work almost entirely under the guidance and effective control of prosecutors. They consider cases brought to them by the government's lawyers. They tend almost always to indict when they are advised to indict, and not otherwise.
Although this quality of "rubber stamp" is markedly unlike the constitutional ideal, there is no agreeable alternative if we are to keep the grand jury as a body of lay citizens. The grand jury is a potent instrument for invading privacy, threatening reputations, and cutting a swath of terror and anxiety if it proceeds without a prudent awareness of its impact and a deep sense of its duty to be fair and discreet. In the hands of untrained people, it would be an engine of destruction. Such considerations might point in the end to abolishing the grand jury altogether. But while and wherever it survives, the leadership role of professionals is probably desirable as well as inevitable.
The passive character of the grand jury should not, however, be overstated. In strict law, the grand jury is an agency of the court rather than of the prosecution. A judge of the court is required to instruct the jurors concerning their powers and responsibilities. A judge should be available to answer questions and give guidance as the group proceeds with its work. Properly performed, these judicial directions can promote some measure of the independent judgment and common-sense wisdom that grand jurors are in principle expected to supply. Grand jurors do in fact decline now and again to return indictments sought by the prosecution. In far fewer cases "runaway" grand juries may contrive to investigate and indict people whom the prosecutors, for reasons that may be good or bad, do not deem suitable targets. These occurrences are, however, rare indeed, and usually happen in circumstances of local disarray and political upset.
In its normal functioning, the grand jury operates as a peculiar variant of the familiar Anglo-American judicial process—in some measure aping courtroom procedures but differing in fundamental respects. The similarity consists mainly in the types of evidence and, partially, in the mode of presentation. Grand juries hear witnesses under oath, proceeding by question and answer in something close to the style of the courtroom, with a prosecuting attorney doing most or all of the interrogation. Similarly, the grand jurors are given documents or other things as "exhibits" to assist in the attempted reconstruction, or partial reconstruction, of the events under inquiry. A critical difference from the courtroom is the one-sidedness of the presentation. In a system that prides itself on being "adversarial"—as distinguished from the so-called inquisitorial system of the European continent and many other countries—the grand jury is more purely inquisitorial and nonadversarial than almost any other criminal law agency anywhere. Subject to some variations among the states, the norm is that only one side, the prosecution, is heard. There is no opposing lawyer to object to questions or answers on grounds of relevance, fairness, privilege, or anything else. Nobody impartial presides; there are no disputes to umpire. In some places a potential defendant may be allowed on request to appear and present evidence that may persuade the grand jurors not to indict. More commonly, the prospective target will be heard only upon being summoned (and duly warned about the right against self-incrimination) by the prosecution.
The ex parte character of the proceeding means, in most states and in the federal courts, that the trial rules of evidence are not applicable. These rules require for effective operation the presence of an opposing lawyer to object and a judicial officer to rule on objections as the evidentiary record is being made. Free (or deprived) of all that, the grand jury may receive, and base indictments upon, hearsay or other evidence that would be excluded on objection in a trial.
Still more thoroughly ex parte, the grand jury's proceedings, until an indictment is published, are almost totally secret. This aspect accounts for a good part of what is perceived (and not infrequently functions) as fearsome and threatening in the grand jury. The concealed tribunal is by its nature more likely than the open courtroom to be a place where corners are cut and abuses are perpetrated, ranging from the tricking and bullying of witnesses to the misleading of the grand jurors themselves. Still, the received doctrine thought to justify the secrecy retains considerable vitality. As they were summarized in 1958 by the Supreme Court, the reasons are:
(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 witnesses 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 [the] 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. [ United States v. Procter & Gamble Company, 356 U.S. 677, 681 n. 6 (1958).]
Granting these salutary concerns, the concealed proceedings of grand juries are pregnant with grave possibilities of abuse, too often realized in the work of insensitive or malevolent prosecutors. As mentioned, witnesses in the grand jury room face dangers of abuse, oppression, harassment, and entrapment. Judge learned hand, never tender in enforcing the criminal law, noted this familiar problem in United States v. Remington (2d Cir. 1953) where he thought decent bounds had been overstepped: "Save for torture, it would be hard to find a more effective tool of tyranny than the power of unlimited and unchecked ex parte examination."
A grand jury has the power to compel witnesses to testify. (See immunity grants; branzburg v. hayes.) The plight of a grand jury witness is aggravated by the standard rule, in federal and most state courts, barring lawyers from accompanying witnesses to the grand jury room. Abstruse questions of privilege, the ever present dangers of later perjury prosecutions, and problems of relevance or other evidentiary objections must be discerned by the lay witness and somehow handled on the spot or made the subject of hurried consultation with counsel outside the grand jury room, an ungainly procedure that often has witnesses trotting back and forth between lawyer and grand jurors during hours or days of interrogation.
Among other grievances evoked by grand juries is the superficially paradoxical complaint against failures of secrecy. The grand jury "leak" is a familiar and pernicious phenomenon, scarring reputations and threatening the right to a fair trial. The problems of preventing and sanctioning leaks remain among the unresolved doubts concerning the grand jury's net worth as an institution. Probably all these criticisms have helped persuade the Supreme Court not to extend the incorporation doctrine, applying the "right" to indictment by grand jury to state felony prosecutions. (See hurtado v. california.)
These unresolved doubts are subjects of ongoing debate. Many distinguished jurists and scholars argue that the grand jury has outlived its usefulness and should be abolished. That is a tall order at the federal level, where it would require amendment of the Fifth Amendment (which would be the first change in any portion of the Bill of Rights since its adoption). On the other hand, over half the states have dispensed with the requirement of grand jury indictment, permitting felonies to be prosecuted by information (a written accusation by the prosecutor), and that trend seems likely to continue.
Still, at the federal level and in at least a number of states, total abolition seems highly improbable through at least the remainder of the twentieth century. In this setting, grand jury reform is a recurrently lively topic. Among the proposals (and changes already effected in some states) are provisions that would allow counsel to accompany witnesses before the grand jury; require closer control and supervision by judges; prescribe more detailed accounting by prosecutors and records of grand jury proceedings; better advise and protect prospective defendants; and confine the abuses of leaks and prejudicial publicity by prosecutorial staffs. The prospects for sound reform are greatest when citizens outside the legal profession take an informed interest in the problems.
Marvin E. Frankel
Dash, Samuel 1972 The Indicting Grand Jury: A Critical Stage. American Criminal Law Review 10:807–828.
Frankel, Marvin E. and Naftalis, Gary P. 1975 The Grand Jury. New York: Hill & Wang.
Note 1961 The Grand Jury as an Investigatory Body. Harvard Law Review 74:590–605.
Younger, Richard D. 1963 The People's Panel: The Grand Jury in the United States. Providence, R.I.: Brown University Press.
grand ju·ry • n. Law a jury, normally of twenty-three jurors, selected to examine the validity of an accusation before trial.