Grand juries

SIGNIFICANCE: Arrest and arraignment; prosecution; trial procedures

In US criminal proceedings, grand juries, unlike trial juries, do not determine the guilt or innocence of the accused. Rather, they assess whether the government has enough evidence to advance to a criminal trial (grand juries do not operate in civil proceedings). In this sense, the grand jury is intended, in the words of the Supreme Court, to “serve as a buffer or referee between the government and the people who are charged with crimes.”

The grand jury was imported to America as part of English law and was originally meant to protect the colonies against capricious actions of royalist courts. Grand juries are explicitly recognized in the Fifth Amendment to the US Constitution, which specifies that “no person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury,” although it also lists a limited number of exceptions for those engaged in military or militia service.

Operation and Composition

Grand jury proceedings, which occur as part of the criminal process at both state and federal levels, usually begin when a “bill of indictment,” or a written accusation of a crime, is submitted to the jury by a prosecutor. The grand jury then examines the government’s case, conducting hearings in which witnesses are called and evidence is presented. Again, in contrast to trial proceedings, these hearings are conducted in secret, the public is excluded from attendance, and the accused has no right to present evidence, although the jury may grant this right. Grand juries operate without the direct supervision of a judge—who still exercises some oversight outside the jury chamber—and proceedings are usually dominated by the prosecution, in part because defense attorneys are generally excluded from participation. Although grand juries are normally formed to assess evidence presented by prosecutors, at times they are constituted as independent investigative bodies, the basic function of which is to determine whether there is enough evidence of a crime to proceed to trial.

Federal grand juries have twenty-three members, while state grand juries vary in size from five to twenty-three members. If a legally specified number of jurors from this group believes that the evidence is sufficient to continue prosecution, the grand jury issues an indictment, also known as a “true bill,” to the court with jurisdiction over the case. If a true bill is not returned, the case is dismissed and a “no bill” or “ignoramus” is rendered. At the federal level, twelve jurors are needed to return an indictment or ignoramus; at the state level, the number varies depending on the juries’ overall size. In any event, unanimity is not required. By some estimates, grand juries issue indictments 95 percent of the time.

Grand jury members are usually selected at random from voting rolls, although the process varies somewhat at the state level. Grand jurors generally serve for three to eighteen months, although the terms of service can run shorter or longer. Thus, a single grand jury typically reviews a large number of cases.

Powers of the Grand Jury

Witnesses who appear before grand juries possess few procedural rights. Prosecutors are not required to consider or present evidence that might demonstrate the innocence of the accused. In Williams v. United States (1992), the US Supreme Court ruled that federal prosecutors need not present evidence favorable to the defense in seeking indictments. Moreover, although the accused may know the names of those testifying before the grand jury, they have no right to confront and cross-examine them. Some evidence inadmissible before trial juries is acceptable in the context of a grand jury inquiry, including hearsay. Those appearing before a grand jury have no right to representation by counsel, although they may request to consult with an attorney outside the grand jury chamber. Some states permit attorneys to be brought into the jury room.

The courts have consistently upheld the broad powers and prerogatives of the grand jury, including the secrecy of its proceedings and its power to compel witnesses to appear, testify, and provide evidence. However, in Kastigar v. United States (1972), the US Supreme Court found that grand juries’ power to subpoena witnesses and compel testimony must be balanced against constitutional protections against self-incrimination found in the Fifth Amendment. The Court ruled that compelled testimony and any information or evidence directly derived therefrom cannot be used in subsequent criminal proceedings against the testifying individual—who might still be prosecuted through evidence obtained independently from the grand jury. The Court has consistently avoided insisting that the grand jury is constitutionally required at the state level, making the grand jury provisions of the Fifth Amendment one of the few portions of the Bill of Rights that have not been applied to the states. In Hurtado v. California (1884), the Court held that the grand jury protections of the Fifth Amendment need not be extended to the states.

Informations and Presentments

While numerous states authorize the grand jury system, many others use an alternate process known as an “information” to determine whether the prosecution’s case should proceed to trial. In an information, a prosecutor provides a written accusation of a crime to the court with the initial authority to hear the case. Usually the prosecution’s accusation is initially inspected by a magistrate to ensure its propriety.

On occasion, grand juries go beyond simply determining the sufficiency of the evidence before them by offering “presentments.” Although not quite indictments, presentments draw attention to alleged illegal or corrupt activities. In 1974, for example, a grand jury presentment identified President Richard M. Nixon as an “unindicted coconspirator” for his role in the Watergate scandal.

Grand juries are used in most federal felony prosecutions, although the information is employed in noncapital criminal cases at the district court level and in some civil cases. The state use of grand juries varies widely, with some states employing them optionally and others relegating them to certain classes of investigations, such as in the event of corruption charges against public officials. Grand juries are no longer employed in England; their importance in the US legal system is unique.

The grand jury has been the object of frequent criticism, both from those who find it a cumbersome element of the legal system and from those who consider it a menace to criminal rights and civil liberties in general. The former critics often point to the “information” as a preferable, more efficient procedure for advancing the course of a criminal investigation. Those who object that grand juries have great potential for abuse argue that prosecutors’ unbridled authority within the grand jury chamber allows them to intimidate witnesses and cajole jurors, so that the indictment becomes more of a foregone conclusion than an actual check against improper investigations. Defenders of the existing grand jury insist that it serves a critical function in ensuring that the charges against a suspect stem from well-considered evidence rather than from malice, haste, or expedience.

Bibliography

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