Grand Jury

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.

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.

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 [1992]). 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.