Monday, November 24, 2014


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.

[1] Bennett v. Kalamazoo Circuit Judge,183 Mich. 200, 206, 150 N.W. 141, 144 (1914).

[2] Fla.Stat. § 905.10.

[3] Assize of Clarendon, The Avalon Project. 2007. Yale Law School. 16 March 2007. <>.

[4] Petition of McNair, 324 Pa. 48, 56 n. 1, 187 A. 498, 502 n. 1 (1936).

[5] United States v. Navarro-Vargas, 408 F.3d 1184, 1190-1191 (9th Cir. en banc, 2005).

[6] The Supreme Court Committee on Standard Jury Instructions, Florida Grand Jury

Handbook (2005).

[7] 4 Blackstone’s Commentaries on the Laws of England, *299-*301,The Avalon Project.

2007. Yale Law School. 16 March 2007. <>.

[8] Fla.Stat. § 905.01(1).

[9] Hurtado v. California, 110 U.S. 516, 538, 4 S.Ct. 111, 122 (1884).

[10] Fla.Stat. § 905.01(3).

[11] Fla.Stat. § 905.19.

[12] E.g. Idaho Code § 19-1108.

[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).

[14] Fla.Stat. § 905.33.

[15] Fla.Stat. §§ 905.10, 905.11.

[16] Fla.Stat. §§ 905.08.

[17] Fla.Stat. § 905.19.

[18] Fla.Stat. § 905.17(1).

[19] Fla.Stat. § 905.17(2); Neb.Rev.Stat. § 29-1411(2); Wisconsin Stat.Ann. 968.45(1).

[20] Fla.Stat. § 905.27.

[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).

[22] Tyler v. Polsky, 57 A.D.2d 422, 424, 395 N.Y.S.2d 21, 23 (Sup.Ct.App.Div., New York 1977).

[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).

Tuesday, November 11, 2014


Career prosecutors tend to have a sardonic sense of humor—some might even say they had a warped sense of humor. My wife often reminds me of this fact when, in social situations, I embark upon a story that I find uproariously funny but which tends to shock those uninitiated in criminal trial practice. One manifestation of prosecutor humor is in the area of jargon. Thinking that those outside the field of prosecution might be interested in some of the special terms used by prosecutors, I present the Prosecutor’s Dictionary. [My comments on these definitions will be found in brackets at the end of each definition].

ACCESSORY AFTER THE FACT—What many criminal defendants think their defense lawyer is supposed to be.
[Once when I was a Public Defender I had a client who wanted to give me the names and addresses of the people whom he had hired to give him a false alibi. I told him I didn’t need their addresses, I wasn’t going to suborn perjury for him. “Why not?” he asked, “You’re my lawyer. Isn’t that what you’re supposed to do?” After that discussion I always made sure that my initial client interview included a warning that “I am your advocate, not an accessory after the fact.”]

ACCOMPLICE—Star witness for the prosecution in a conspiracy case.
[When I was prosecuting drug trafficking cases I had a drug trafficker explain to me how easy it was to prosecute such cases. “You just get an indictment and go down to the jail and ask 'Who all wants to get out of jail?' ” I couldn’t convince him that trafficking cases required a little more than that.]

AMERICAN ROULETTE—The jury system.
[Russian roulette is played with revolvers. American roulette is played with jurors, sometimes with the same results. I once got dressed down by a judge for referring to the jury selection process as American roulette. (See the definition of Jury Trial below).]

BEYOND BEYOND A REASONABLE DOUBT—The burden of proof preferred by defense attorneys. This is sometimes referred to as Beyond a Whimsical Doubt.
[There actually IS a burden of proof which is greater than beyond a reasonable doubt. It’s called “proof evident or presumption great,” and it has historically come into play when deciding whether to completely deny bond to someone charged with a capital or life felony.]

CHARGING DECISION—A life changing decision made on the basis of inadequate information.
[One thing that I try to stress with the students in my classes on prosecution is the reality of the decision to charge someone with a crime. You never have all the information you need to make a fully informed decision, but given the time constraints of criminal prosecutions you must make the decision nonetheless. If you wait until all the necessary information was in hand the statute of limitations will have run.]

CIRCUS COURT—Circuit Court. A court of felony jurisdiction. Felony court is also known as Big Court to distinguish it from Little Court, which is a court of misdemeanor jurisdiction.
[Usually court proceedings are extremely dull for everyone except for the lawyers, the victims, and the defendants. At times, however, the odd and unusual occurs. Like the man who slashed his wrists in open court trying to get a continuance. Or the man who hyperventilated, threw up, and passed out when the judge sentenced him to life in prison. Or the defendant who expressed his displeasure with my cross-examination by jumping out of his chair and suckerpunching me. Or the defense attorney who had heart palpitations after his client attacked him in the holding cell behind the courtroom.]

DAMAGE TO OCCUPIED CLOTHING—Aggravated Battery. If the perpetrator uses a firearm, he commits the more serious crime of Shooting into Occupied Clothing.
[Today’s criminal defendant is quite often tomorrow’s victim. This is a relatively frequent occurrence with crimes of violence. Some career criminal defendants can make themselves so unpopular with law enforcement that there is little mourning when they get themselves shot up or cut. I vividly recall one such situation where the prosecutor (who shall remain nameless) opined that the proper penalty in such a case was probation with a special condition of marksmanship lessons.]

DEATH PENALTY—A form of punishment opposed by many thoughtful people and all murderers.

DEGREES OF HOMICIDE—1. Murder in the First Degree; 2. Murder in the Second Degree; 3. Murder in the Third Degree; 4. Manslaughter; 5. Excusable Homicide; 5. Justifiable Homicide; 6. Praiseworthy Homicide.
[Defense attorneys frequently try to persuade juries that their client committed this last degree of homicide. They are often successful.]

FORMER PROSECUTOR—1. Defense Attorney. 2. Talking head on television.
[If I had a nickel for every time some defense attorney told me “I’m a former prosecutor,” I’d be rich.]

FREQUENT FLIER—A revolving door defendant. A career criminal.
[When I first started practicing law, some of my early clients had far more courtroom experience than I did.]

HUNDRED STITCH RULE—If the victim receives a wound requiring fewer than 100 stitches, the crime is a misdemeanor.
[This is a completely fictitious “rule” which I don’t believe was ever actually used by anyone. I do, however, know of one prosecutor’s office in a large metropolitan area which actually did have a “Treated and Released Rule.” If the victim was treated and released at the emergency room, the crime was charged as a misdemeanor.]

JUDGE—a referee in a black dress.
[I had a colleague who was frequently asked why he never tried to get elected or appointed as a judge. He always responded “Because I’d rather be the quarterback than the referee.” Unlike the NFL, however, in the court system referee judges receive much better compensation than prosecutor quarterbacks.]

JURY TRIAL—A system whereby litigants have their cases decided by a group of people who are not smart enough to find a way to evade jury duty.
[I am a big fan of the jury system, but not of the way juries are selected (See definition of American Roulette above). During jury selection attorneys often attempt to eliminate the more intelligent jurors in order to obtain a group who can more easily be manipulated.]

NOLO CONTENDERE—"Not guilty but can’t prove it." A plea entered by someone who does not wish to admit guilt.
[Judges have the discretion to reject nolo contendere pleas, and many do because they think the defendant should admit guilt. When appearing before a judge who refuses to accept nolo contendere pleas, defendants enter Alford Pleas. In an Alford plea the defendant refuses to admit guilt but the judge cannot refuse to accept it.]

NONJURY TRIAL—Slow plea of guilty.
[When I first started practicing law, we’d try a dozen or so cases in a week’s time before the same jury panel. If you were a criminal defendant, you wanted to be tried on Monday, when jurors were most unfamiliar with criminal prosecutions and most likely to acquit. By Thursday, after the panel had become seasoned, acquittals were quite rare. Because judges have far more experience of the system than jurors they are, as a general rule, more likely to convict.]

PRESUMPTION OF INNOCENCE—1. For prosecutors, a rule of evidence. 2. For defense attorneys, the Eleventh Commandment.

PROBATION—A delayed entry program for prison.

SUBSTANDARD ASSISTANCE AGREEMENT—What many defendants think they have entered into when they sign a Substantial Assistance Agreement.