A good friend of mine was recently summoned to grand jury service, where the grand jury pool was told by a prosecutor “We need you to help us bring charges against people.”
So after I finished making that face I decided to write this blog.
“We need you to help us bring charges” is possibly the exact opposite of what the grand jury is supposed to be doing. Yes, it is the case that prosecutors need a vote of confidence from a grand jury in order to bring felony charges against someone. But the grand jury isn’t there to help the prosecution — they are there as an independent judge of whether OR NOT to bring charges. To say the grand jury “helps to bring charges” obscures the purpose and power of the grand jury.
The grand jury (as opposed to the “petit” or small “jury of your peers” that sits at criminal trials) does not determine the guilt or innocence of the accused. The grand jury, traditionally 16-24 people, determines whether or not there is enough evidence to justify bringing a criminal charge, or an indictment, against the accused. The question before the grand jury is not whether the accused is innocent, but whether the accused might possibly be guilty. Furthermore, it is important to understand that the prosecution has enormous control over both the process and the outcome — whether they are seeking an indictment, or, as in some recent cases involving police, seeking to avoid an indictment.
The grand jury is an artifact of the days when criminal charges were brought by powerful individuals, instead of by the (often elected) District Attorney. Before the protection of the grand jury, the king could charge someone with a crime without there being any actual evidence against them. If the king didn’t like you, you might end up being hauled into court, even if there had not been a crime to begin with. The grand jury was a group of “good men” who were sworn to investigate and report violations of law, in order to insulate people from arbitrary charges being brought against them by nobles harboring a grudge. The grand jury had to hear all kinds of evidence and testimony, including rumors, and outright falsehoods. Therefore, the grand jury process was secret, as a protection for people whose lives were being exposed in great (and sometimes untrue) detail. Once evidence was presented to a grand jury, they would compare the facts, as they saw them, to the law, to see if criminal charges were called for, and if so, what those charges should be. Then the accused would go before a judge or jury to face the charge.
TL;DR: Originally, grand juries were a process that protected regular people from being put in jail for no reason, and they were secret in order to protect people from untruths and rumors that could have wrecked their reputations.
Grand Juries Today
In the United States, the grand jury system is written into the Fifth Amendment to the Constitution. It is possible to hold a preliminary hearing in front of a judge, who decides whether to indict, but the grand jury process is more common. As there are both state and federal laws, there are both state and federal grand juries. Although there are some procedural differences, they are pretty similar in terms of their function. But the constitutional preference for grand juries comes from the desire to make sure the United States never lets a single powerful individual arbitrarily put people in prison. (Note: Whether or not this is working out for us is debatable, but the grand jury was at least in theory intended to generate more due process, and less authoritarian caprice.)
Today grand jury proceedings are still held in secret, in part to protect people’s reputations, but also to protect the identities of witnesses who testify against the accused during the presentation of the evidence to the grand jurors. Grand jurors are not allowed to disclose what happens in the grand jury room, although the witnesses, including the accused, may disclose the content of their own testimony publicly, should they choose to do so. Today’s grand jury hears evidence that would not be admissible during a criminal trial, including hearsay, like rumors and speculation. Sometimes a grand jury even hears evidence that would not be admissible in court because it was obtained in violation of someone’s rights (although there are some protections against this). The grand jury can also inspect documents, make trips to look at a crime scene, and subpoena witnesses, meaning that they can legally compel witnesses to appear before them to testify. In short, the grand jury can hear anything that could be seen as remotely relevant to the question of whether or not charges should be brought.
The subject or target of the grand jury, that is, the person being investigated, has the right to testify at the grand jury, and conversely, the right to remain silent (most of the time). They do not have the right to have an attorney present during questioning, or to present witnesses or evidence on their own behalf, like they would have in a criminal trial.
The most powerful tool available to grand jurors is the right to ask questions.
The state’s attorney, the prosecutor, is the person who runs the whole grand jury process. The prosecutor presents witnesses and other evidence to the grand jury — but the prosecutors get to pick what they show — and what they don’t. They ask very narrow questions of the witnesses, and the witness can only respond to those questions. For example, they might ask a police officer “What happened immediately before you arrested Mr. Smith?” and the officer might answer “I saw him throw a gun on the ground.” But what if immediately prior to him throwing a gun on the ground, Mr. Smith disarmed a rampaging shooter? Wouldn’t that information be important? Wouldn’t that information change whether you would vote to indict, or return a “no true bill” instructing the prosecutor to let Mr. Smith get on with his life? Well, unless you ask questions, you might never hear that part of the story.
Most grand juries take less than a day to issue an indictment, because the jurors hear only the specific parts of a story that make the accused appear to be guilty. The grand jurors have the power to ask questions or request documents, but they rarely do.
If you every have the opportunity to sit on a grand jury, ask questions. Ask so many questions! Not all of them may be deemed relevant, or answered, but if you really want to know whether there is enough evidence to indict, make sure you have as much information as possible. Be curious, and encourage your fellow grand jurors to be curious! Be skeptical! Although the grand jury is often seen as a rubber stamp for the will of the prosecution, it has the power to protect citizens from a prosecution that may have lost sight of their intended pursuit of justice, rather than convictions.
[Here is a list of people who should know about grand juries:
- Anyone who might serve on a grand jury
- Anyone who might be accused of a crime
- Anyone who is confused about why it takes 30 seconds to indict most people accused of wrong-doing, but it is apparently impossible to indict Daniel Pantaleo, Darren Wilson, or Governor Rick Snyder.
Please share widely.]