Sunday, August 31, 2014


I was interviewed by the Lake City Reporter the other day about “common law grand juries.” It seems that a “common law grand jury” has “indicted” our duly elected State Attorney, Jeff Siegmeister, on a charge of treason, and the Reporter wanted my opinion on what the “common law grand jury” had done. Trying to be as diplomatic as I possibly could, I used a precise legal term. I said it was “a bunch of baloney.”

In the first place, what they “charged” Siegmeister with is neither treasonous nor criminal, and it could conceivably render the “common law grand jurors” themselves subject to prosecution under Florida Statute § 836.09, which says

If any person shall state, deliver, or transmit by any means whatever, to the manager, editor, publisher or reporter of any newspaper or periodical for publication therein any false and libelous statement concerning any person, then and there known by such person to be false or libelous, and thereby secure the publication of the same he or she shall be guilty of a misdemeanor ….

I doubt that Siegmeister takes them seriously enough to prosecute them, but that does appear to be an option which is open to him.

In the second place, there is not now nor has there ever been a legally recognized “common law grand jury.” We derive our law from two sources: statutory law and common law. We can distinguish common law from statute law by its origin—common law comes from judges, statute law comes from legislatures (and historically from kings).   As I will demonstrate, grand juries were not created by common law but by statute law. We’re going to have to look at a little history for me to make myself clear.

The earliest record we have of anything like our modern grand jury goes back to the rule of the Anglo Saxon King Ethelred the Unready. In 997 Ethelred enacted his Wantage Code, which provided:

Let twelve elder freemen, and the foreman with them, retire and swear upon the holy book which is given into their hands that they will not accuse any innocent person, nor screen any criminal.

Thus the grand jury was born as an accusatory body which preferred criminal charges against those suspected of wrongdoing. It has retained this function down to the Twenty-first Century. Modern grand jurors take an oath very similar to the one sworn by Etheldred’s jurors. For example, Florida’s Grand Jurors swear they

… shall not make a presentment against a person because of envy, hatred, or malice, and … shall not fail to make a presentment against a person because of love, fear, or reward.

Florida Statute § 905.10.

Our next evidence of comes from 1166, during the rule of the Norman King Henry II. Under his rule the Assize of Clarendon was enacted. The Assize provided for an accusatory body of twelve men to prefer criminal charges against wrongdoers.

A watershed moment in the development of the grand jury came in 1681, when King Charles II sought to punish the Earl of Shaftsbury, a political enemy. Charles insisted that the London grand jury indict Shaftsbury for treason, and he further insisted that they hold their meetings in public so that he could see how each individual member of the grand jury voted. The grand jury met in secret and refused to indict Shaftsbury. Ever afterward grand juries have met in secret.

The London grand jury’s defiance of King Charles gave the institution a reputation as a protector of the innocent. Only a few years before the American Revolution, the English jurist William Blackstone described the grand jury in glowing tones, writing that

[S]o tender is the law of England of the lives of the subjects, that no man can be convicted at the suit of the king of any capital offence, unless by the unanimous voice of twenty four of his equals and neighbors. [12 grand jurors and 12 petit jurors].

Commentaries on the Laws of England, Volume 4, *301.

Our Founding Fathers agreed with Blackstone, providing in Article Seven of the Bill of Rights 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.  

Initially, this only applied to the Federal government, but almost all states have enacted statutory provisions creating local grand juries. Depending on the jurisdiction, a grand jury can consist of as few as 18 but no more than 24 grand jurors. In Florida the prescribed number of grand jurors is 21, with 15 constituting a quorum. Harking back to the days of Etheldred, it requires a vote of at least twelve grand jurors to bring criminal charges against anyone.

Grand juries, therefore, are and always have been creatures of statute. Whether it’s the Assize of Clarendon or the Bill of Rights, either a king or a legislative body has passed a law enabling the formation of grand juries. As I previously said, common law does not look to statutes, but to previous decisions of judges. In the strictest sense, then, there can be no “common law grand jury” because no grand jury was ever created by a judge’s decision.

As a matter of fact, the common law would not apply in the United States if it had not been enacted into law by local statutes. (Louisiana, for instance, is not a common law jurisdiction. Their legal system is based on the Napoleonic Code).  Florida Statue § 2.01 makes the common law applicable in Florida by saying

The common and statute laws of England which are of a general and not a local nature, with the exception hereinafter mentioned, down to the 4th day of July, 1776, are declared to be of force in this state; provided, the said statutes and common law be not inconsistent with the Constitution and laws of the United States and the acts of the Legislature of this state.

If our legislature had never passed any sort of law concerning grand juries, then quite possibly the Assize of Clarendon’s grand jury would be the law of Florida. But it’s not because it is inconsistent with Florida’s statutory law creating grand juries. At the risk of being redundant: when the Florida legislature enacted its laws relating to grand juries, it voided any previously existing English law on the subject, either statutory or common.

Conclusion: 1. There cannot be a “common law grand jury” because there never was a common law grand jury. English grand juries prior to July 4, 1776, were created by statute. 2. Even if there were such a thing as a common law grand jury, the Florida legislature voided it when they enacted laws governing grand juries. 3. Any group which is purporting to act as a “common law grand jury” is engaging in a legal nullity.