Grand jury and the Supreme Court

Description: Panel of ordinary citizens having the authority to view evidence of criminal activity, presented by a prosecutor, solely to determine if sufficient evidence exists to warrant submitting the accused to trial.

Significance: Although long celebrated as a protection against the abuse of prosecutorial power, the Supreme Court imposed few procedural limits on the grand jury’s own sweeping investigatory powers. Thus, the contemporary grand jury may have actually become an instrument to expand prosecutorial power.

The grand jury is descended from English common law dating to the twelfth century. It originally performed an investigatory function, as citizens were assembled to report local crimes to an itinerant judge so that appropriate trials could be held. By the seventeenth century, the grand jury also demonstrated that it could, by its refusal to indict, protect the citizen against arbitrary, vindictive, or politically motivated prosecutions. In the North American colonies, the grand jury became a bastion of home rule, resisting prosecutions under oppressive British colonial policies. So esteemed was the grand jury in America that the Fifth Amendment of the U.S. Constitution provided 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.” This provision continues to govern all federal felony prosecutions, crimes that could result in a year or more of incarceration. However, the grand jury is today in decline, used in fewer than half the states. It was abolished in Great Britain in 1933, after having fallen into disuse there for many years.

The federal grand jury has followed the common law model of twenty-three citizens, with a quorum of sixteen. The grand jury is chosen from a cross section of the citizenry, without regard to race, national origin, religion, sex, or economic circumstances. A vote of twelve is sufficient to approve an indictment, or a formal accusation of criminal activity. Therefore, the grand jury is distinct from the petit, or trial, jury. The latter hears evidence at a public trial, including evidence presented by the defense, and may convict by unanimous vote only if convinced of guilt beyond a reasonable doubt. The grand jury convenes in secret to hear evidence presented by the prosecutor, solely to determine if there is sufficient cause to proceed to trial. The very permissive standard of evidence employed for this determination is merely that a crime has been committed and that there is “probable cause” to believe the subject of the investigation has committed it. A refusal to indict will block the prosecution. However, a disappointed prosecutor may present evidence to a subsequent grand jury, in hopes for an indictment, without the impediment of the Fifth Amendment’s double jeopardy provision.

Given its historical veneration and inclusion in the Bill of Rights, the grand jury could be expected to be a more universal presence in U.S. criminal justice. Most prosecutions are conducted under state authority, however, and in Hurtado v. California (1884), the Supreme Court held that the grand jury indictment was not an essential part of due process protected against the states by the Fourteenth Amendment. This ruling remains in effect today, even as most other provisions of the Bill of Rights have since been applied to the states through the incorporation doctrine of the Fourteenth Amendment. Most states authorize an alternative procedure called an “information,” whereby a prosecutor presents evidence to a judge, who performs an equivalent screening function. Many of those states that use grand juries have altered their size, quorum, or the majority necessary to indict, all in the interest of streamlining an expensive and, in the eyes of many, a dated procedure.

Procedural Rights

Despite its celebrated status as a protection against prosecutorial overreaching, the Court has extended few procedural safeguards to the federal grand jury. It has been given wide latitude to conduct its secret investigations, compelling the appearance of witnesses and the production of documents. Prosecutors dominate the proceedings of the grand jury and are not obligated to present exculpatory evidence. The subject of a grand jury investigation has no right to appear or to confront and cross-examine witnesses. Indeed, unless already under arrest, the subject may not know that he or she is being investigated. Few evidentiary rules are observed, therefore, for example, hearsay evidence may be introduced. In United States v. Calandra (1974), the Court declined to apply the Fourth Amendment exclusionary rule to bar evidence from the grand jury that would be inadmissible at trial. Indeed, by granting access to its subpoena power, the grand jury may offer prosecutors an avenue toward evidence the Fourth Amendment would otherwise place beyond reach.

Because the proceedings are secret, witnesses appear without an attorney present. They may, only on their own motion, step outside the grand jury room to consult with their attorney. Indigent witnesses have no right to court-appointed counsel. Witnesses may invoke their Fifth Amendment immunity against self-incrimination to resist having to testify, but the prosecutor is under no obligation to warn them of this right. The right against compulsory self-incrimination can also be circumvented by a grant of immunity, even against the wishes of the witness. This immunity can be “transactional,” which bars all future prosecution for matters on which the witness has testified, or the more limited “use” immunity, which permits future prosecution for matters that were the subject of grand jury testimony if based on independent evidence.

The practical significance of the grand jury in contemporary criminal law is controversial. Its original investigatory function has been taken over by professional police bureaucracies. Generally compliant and dominated by prosecutors, the ability of the grand jury to serve as a bulwark against arbitrary prosecution is realized only sporadically. Critics point to occasional abuse of the grand jury to support their contention that it is today more of a threat to liberty than a foundation for liberty’s protection.

Bibliography

Clark, Leroy D. The Grand Jury: The Use and Abuse of Political Power. New York: Quadrangle, 1975.

Frankel, Marvin E., and Gary P. Naftalis. The Grand Jury: An Institution on Trial. New York: Hill & Wang, 1977.

Katzmann, Gary S. Inside the Criminal Process. New York: W.W. Norton, 1991.