1. History. The decision to prosecute may not always be a unilateral decision
made by the prosecutor. Sometimes the prosecutor must obtain the consent of the
grand jury. Sometimes the prosecutor finds it prudent to consult the grand jury
even though it is not necessary. The roots of the grand jury go as far back as
997 when Ethelred the Unready, a Saxon king of England, decreed: “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.”[1] Thus was born the
accusatorial body which would evolve into our modern grand jury. Ethelred’s
charge to the “twelve elder freemen” was very similar to the oath that a modern
grand jury takes, swearing that it “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.”[2]
In 1166 the Norman King Henry II established the Assize of
Clarendon, which provided for an accusatory body of twelve men to make sworn
complaints of criminal activity.[3] This proto-grand jury
appeared before itinerant judges appointed by the king. In a secret meeting,
the judges would present the jurors with a list of crimes. The judges would
then go down the list crime by crime asking whether or not the jurors knew of
any man in their jurisdiction who had committed the crime. The jurors were not
precluded from making accusations because they might have been witnesses to the
crime, and the judges could question the jurors to determine whether the
charges were well‑founded.[4] The grand jury remained a
tool of the King until 1681, when the London grand jury considered the
complaint of King Charles II against the Earl of Shaftesbury and one Stephen
Colledge, political enemies of the King. Charles wanted public proceedings
before the grand jury, but the grand jury insisted on meeting in a secret
session. The king wanted a quick indictment, but the grand jury refused to
indict either man.[5]
This twofold defiance of the king’s will (meeting in secret and refusing to
indict) established the tradition of grand jury secrecy, and won for the grand
jury its fame as a “shield of justice * * * because it is protection of the
innocent against unjust prosecution.”[6]
Writing in the late 1760's the English jurist William Blackstone
described the operation of the grand jury in this fashion:
As many as appear upon this panel, are sworn upon the grand jury,
to the amount of twelve at the least, and not more than twenty three; that
twelve may be a majority. Which number, as well as the constitution itself, we
find exactly described, so early as the laws of king Ethelred. * * *
The grand juries are previously instructed in the articles of
their enquiry, by a charge from the judge who presides upon the bench. They
then withdraw, to sit and receive indictments, which are preferred to them in
the name of the king * * * ; and they are only to hear evidence on behalf of
the prosecution: for the finding of an indictment is only in the nature of an
enquiry or accusation, which is afterwards to be tried and determined; and the
grand jury are only to enquire upon their oaths, whether there be sufficient
cause to call upon the party to answer it. A grand jury however ought to be
thoroughly persuaded of the truth of an indictment, so far as their evidence
goes; and not to rest satisfied merely with remote probabilities: a doctrine,
that might be applied to very oppressive purposes. * * *
When the grand jury have heard the evidence, if they think it a
groundless accusation * * * , they assert in English, more absolutely, “not a
true bill;” and then the party is discharged without farther answer. But a
fresh bill may afterwards be preferred to a subsequent grand jury. If they are
satisfied of the truth of the accusation, they then endorse upon it, “a true
bill;” * * * The indictment is then said to be found, and the party stands
indicted. But, to find a bill, there must at least twelve of the jury agree.[7]
2. Modern Procedure. Not much has changed in the past 240 years. Grand juries number
between 15 and 21.[8]
They meet in secret to consider charges against certain types of crimes, and
they are assisted in their investigations by the prosecuting attorney for the
jurisdiction in which they sit. A vote of at least twelve is required to find
an indictment, and a no true bill is not a bar to further prosecution. The
prosecutor may present the case to a subsequent grand jury, or if he works in a
state which allows prosecution by information, he may file an information
charging the defendant with a crime. The Constitution requires the government
to prosecute by grand jury indictment on all felony charges, but due process
does not require the states to employ a grand jury. Indeed, the Supreme Court
long ago held that in state court a prosecution for capital murder need not be
by indictment if it were prosecuted “by information after examination and
commitment by a magistrate, certifying to the probable guilt of the defendant,
with the right on his part to the aid of counsel, and to the cross examination
of the witnesses produced for the prosecution * * * .”[9]
The grand jury is selected for a limited term, usually six to
eighteen months, depending upon the jurisdiction.[10] It sits in secret, with
its express purpose being to determine whether probable cause exists for the
prosecution of individuals whose cases are referred to them. Some jurisdictions
prosecute all felony cases by grand jury indictment. Others require only the
most serious of crimes to be prosecuted by grand jury indictment. The local
prosecutor acts as advisor to the grand jury,[11] but the grand jury is
independent of the prosecutor and may investigate matters on its own
initiative.[12]
It may even investigate the prosecutor, and grand juries have done so on more
than one occasion.[13] Although the grand jury
has historically been a local institution, within the last several years some
states, including Florida, have created grand juries with statewide
jurisdiction.[14]
A typical grand jury proceeding begins with the summoning of a
venire of potential jurors, from which the judge will draw at random the
specified number of persons required to make up the grand jury. The grand jury
is then sworn and given preliminary instructions by the judge.[15] The officers of the grand
jury typically include a foreperson, a vice foreperson, and a clerk. The
foreperson and vice foreperson should be appointed by the judge,[16] but the judge may defer
to the grand jury to elect their own foreperson. After being sworn and
instructed, the grand jury retires to secret session, where the prosecutor
presents to them whatever cases he deems appropriate. The cases are presented
in the form of live testimony by witnesses and the display of properly
authenticated tangible evidence, photographs, and recordings. After all
evidence is submitted, the prosecutor instructs the grand jury on the law
applicable to the specific case, and retires from the grand jury room to allow
the grand jury to deliberate upon the matter in secret.[17] When the grand jury has
arrived at a conclusion, they summon the prosecutor back into the grand jury
room, and the proper documents, either indictments or no true bills, are
signed. At the conclusion of the session, the grand jury reconvenes in open
court and presents their findings to the judge. If the defendant is in custody,
the indictment is published and the grand jury is excused to be reconvened at
the call of the court. If the defendant is not in custody, the indictment is
sealed and a capias is issued for his arrest. The indictment remains sealed
until the defendant is taken into custody. As a rule, only the elected
prosecutor or his assistants, the court reporter, and the witness may appear
before the grand jury while it is in secret session.[18] Some jurisdictions,
including Florida, allow witnesses appearing before the grand jury to have
their counsel present while they are questioned, but the attorney is only there
as an advisor and cannot interfere in the proceedings.[19] Witnesses have
historically been required to keep their testimony secret,[20] but some jurisdictions
allow for varying degrees of disclosure of grand jury testimony.[21]
Normally the grand jury is satisfied to confine itself to the
consideration of cases presented by the prosecutor, but sometimes the grand
jury takes it upon itself to investigate other matters. More infrequently, the
grand jury engages in activity of questionable wisdom. There once was an
instance where a governor suspended a public official for misconduct despite
the fact that the grand jury had no billed the complaint. The grand jurors
issued a subpoena commanding the governor to appear before them to explain his
actions. He declined. When a grand jury engages in this type of activity, it is
referred to as a “runaway grand jury,”[22] and such a grand jury can
be a real headache for prosecutors who have to deal with them.
Initially the grand jurors will be somewhat wary of the prosecutor
appearing before them, and will tend to question and test the evidence closely.
As the prosecutor gains the grand jurors’ trust, they will become more
comfortable with her, asking fewer questions of the witnesses and being less
critical of the evidence presented. Because grand jury proceedings are
informal, and hearsay evidence is admissible,[23] it is easy for the
prosecutor to make a sloppy presentation. This tendency must be guarded against
vigilantly. Although the rules of evidence may be relaxed, they are not
completely abrogated. As the grand jurors begin to trust the prosecutor, they
may ask factual questions of him rather than of the witnesses. This must be
discouraged. The grand jurors also may sometimes try to deliberate while the
prosecutor is instructing them on the law and may even try to enlist him into
the deliberation process. This also must be discouraged. The indictment should
be a product of the grand jury’s independent deliberation.
3. Inquisitorial Nature
of Grand Jury. A grand jury is an
inquisitorial proceeding, not an adversarial proceeding. The prosecution should
be as satisfied by a no bill as by an indictment. Before the filing of formal
charges, there is nothing to advocate for or against. There is only a decision
to be made–should the defendant stand trial? At this stage of the proceeding,
you are a judge, not an advocate. You as a guardian of the public trust should
carefully weigh and evaluate this decision. A no file decision is not a loss.
The duty to decline to file improper charges weighs every bit as heavy as the
duty to file proper charges. Even in jurisdictions where only first degree
murder cases need be prosecuted by indictment, it is desirable to have all
homicide cases reviewed by a grand jury. We have not far to look to find the
wisdom of this policy. Twenty one citizens picked at random off the street
usually have better judgment about whether homicide charges should be filed
than do prosecutors. If a grand jury does not want to indict, the prosecutor is
wasting his time if by going ahead and informing against the defendant. Such
cases seldom result in a conviction at trial. Some may wonder why a grand jury
has better judgment than a prosecutor whether charges should be filed. The
persuasiveness of a case is ultimately decided, not by lawyers, but by juries.
A grand jury is a jury. A prosecutor is not. A grand jury will react to a case
much as a petit jury will.
Critics of the grand jury system frequently to chant the mantra
that a good prosecutor can talk a grand jury into indicting a ham sandwich.
That may be true, but after the ham sandwich is indicted, it must be convicted.
Indicting the ham sandwich leads inevitably to a courtroom confrontation in
which the ham sandwich is defended by a lawyer. No one, not even a prosecutor,
enjoys being embarrassed in public. Anyone with enough brainpower to get
through law school should realize that indicting a ham sandwich will inevitably
lead to embarrassment. A grand jury no billing a case behind closed doors
should be preferable to getting embarrassed in open court with the TV cameras
rolling and the newspaper reporters taking copious notes. If the defendant is
going to go free, she should go free at the earliest possible moment. In a best
case scenario, he’s never arrested. Second best, the case is no billed by the
grand jury or no filed by the prosecutor. Worst case, he’s acquitted after a
protracted, highly publicized jury trial, his defense costs are taxed to the
county, the arresting officer is sued for false arrest, the complaining witness
is sued for malicious prosecution, and the prosecutor receives universal
criticism for being an incompetent as a prelude to being voted out of office.
Is a good prosecutor going to ask a grand jury to indict a ham sandwich? Not a
good one. A good prosecutor facilitates the grand jury’s traditional role as a
shield for the innocent. A good prosecutor gives the grand jury every scrap of
available evidence which tends to negate the guilt of the accused. A good
prosecutor tells a grand jury when the evidence does not warrant an indictment
and recommends to them that they not indict.
[3] Assize
of Clarendon, The Avalon Project. 2007. Yale Law School. 16 March 2007. <http://www.yale.edu/lawweb/avalon/medieval/assizecl.htm>.
[7] 4 Blackstone’s Commentaries on the Laws of
England, *299-*301,The Avalon Project.
2007. Yale Law School. 16 March 2007. <http:www.yale.edu/lawweb/avalon/blackstone/bk4ch23.htm>.
[13] Bennett v. Kalamazoo Circuit Judge, 183 Mich. 200, 150 N.W. 141 (1914); ex parte
Jones
County Grand Jury,
705 So.2d 1308 (Miss. 1997).
[21] E.g.
Alaska R.Crim.P. 6(l) (No obligation of secrecy imposed upon witnesses); Miss.Code 1972, § 13-7-25 (Defendant has right to
transcript of recorded grand jury testimony); N.H. State Sup.Ct.R. 52(6) (Testimony may be
disclosed on a showing of “particularized need”); North Dakota Century Code 29-10.1-30 subd.
4(Witnesses may not disclose their testimony until indictment filed and accused in custody); Rhode
Island Gen. Laws 1956, § 12-11.1-5.1 (Witnesses free to disclose their testimony); West’s
Rev.Code Wash.Ann. § 10.27.090(5) (Testimony may be disclosed to the witness upon
proper application, and to the defendant upon a showing of good cause to prevent injustice).
[23] E.g.
Ala.R.Evid. 1101(b)(2); Oregon Rev.Stat. 132.320 (some forms of hearsay but not others); State v. O’Daniel, 62 Hawaii 518, 523
n.3, 616 P.2d 1383, 1388 (1980) (hearsay admissible, but discouraged).
