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).