Grand Jury

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.