International Standard Book Number: 0-404-09113-X
Manufactured in the United States of America
Birth of the Grand Jury
A Preface to the New Edition of
THE GRAND JURY
NOTE: The numbers in parentheses refer to particular publications in the
"Suggested List of Grand Jury References" which concludes this
Ordinarily it would seem odd to be invited to write a preface to a book
which was first printed 60 years ago, and which has been out of print for many
of those years, but when the subject of a book is 900 years old (give or take a
few decades, depending on the way you count its birthdays), a post-publication
preface doesn't seem quite so peculiar. The purpose of this belated preface is
to set Edwards' classic research into the context of present-day criminal
justice concerns, probably the most important of which is citizen-criminal
justice relations. In addition, the preface is intended as an introduction to
selected grand jury references which were written after Edwards' book was first
In the last decade, the rhetoric — if not the practice — of
politics has been marked by a concern for citizen participation in government
decision-making. And in the case of criminal justice there has been increasing
concern with the way its cumbersome machinery is activated: shall it be
operated only by professionals or shall at least the opportunity exist for
citizens to turn on the power? (41, 42)
While, to many peoples' way of thinking, citizen participation in government
in general, and criminal justice in particular, has been poorly provided for,
the grand jury surely stands as an example of classical attempts to involve
citizens in the administration of criminal justice. In theory, after all, the
grand jury is a publicly constituted panel of a community's citizens whose job
it is to act as an impartial overseer of the criminal justice apparatus. Years
ago citizens could be indicted for a felony only by a grand jury, but that
function in many jurisdictions has since been curtailed or eliminated (9, 44). Initiating felony proceedings through
a panel of citizens was designed as a way of minimizing the mischievous use of
the criminal process. The grand jury also was intended to serve another, often
closely related, purpose: it is a kind of quality control device for local
government, or, to use more homely imagery, it provides a "watchdog"
service for citizens to insure that public services are properly and
effectively provided (32, 33). If it found
that public officials were shorting citizens on the quality and measure of
services their taxes bought, it functioned as a kind of consumers' advocate,
urging an improvement in government and, sometimes, indicting those who
delivered shoddy goods or no goods at all.
The grand jury has not been, certainly, the only institution designed along
these lines. The ombudsman performs some of these duties in Sweden and
elsewhere; legislative investigating committees have often performed such
tasks, and so have various ad hoc citizens organizations through the
years (8, 41, 42). Some
grand jury variants exist which have also provided certain panel-type services,
for example, Michigan's one-man grand jury (43). But he grand
jury concept which interested Edwards is unique, an
"accept-no-substitutes" item which has a much older tradition and
incomparably greater achievements (as well as, perhaps, greater blunders) than
its more recently created competitors.
The book for which this preface is written is an unequalled attempt to
describe, from a legal-institutional point of view, the grand jury as it
existed over 60 years ago among the American states. It is not concerned with
the federal grand jury as a primary focus, nor was it designed as an apology
for the grand jury idea. It was, in brief, an effort to compile legal
information regarding the American grand jury as it existed in the pre-World
War I era. Since the grand jury functions in many places today as it did in
Edwards' life-time, this book is still remarkably useful for criminal justice
students and practitioners, and particularly those who are interested in
evaluating its processes and contributions.
Despite its antiquity (or perhaps because of it, and its crucial location in
the criminal justice system) the grand jury has always been in the center of
controversy. A review of the titles and subtitles in the suggested list of
references indicates the intense range of emotion experienced by its critics
and defenders. The grand jury's future survival in the United States is not
guaranteed by the length of its existence — it was only a few years after
Edwards' book was published that it was virtually eliminated in England, its
birthplace (6), and probably the main reason it has survived
in this country is simply that there are so many states and counties in which
it is institutionally imbedded. Although it is a widespread criminal justice
institution, grand jury students will also find their research efforts
frustrated because it is similar throughout the United States only in its gross
details. To learn what a grand jury is, one must consult statutory law in the
state in which he is interested, or hope to find a compilation of grand jury
law which has already been prepared. Matters of juror selection, resources,
finances, functions, and operating procedures vary greatly by state, to say
nothing of their variation by county.
Many changes in grand jury statutes have occurred since Edwards' book was
first published. The New York grand jury system, particularly the grand juries
in and around New York City, have experienced the most tension, possibly, of
any grand jury system in America (7). Being most active, it
follows that they have been most controversial, therefore they have changed
considerably in terms of their statutory foundations in the past 60 years, but
since the general structure of American grand juries elsewhere has probably not
changed nearly so much, Edwards' book still remains a work of practical and
While Edwards provides some useful historical material, there are several
aspects of the grand jury's history which bear emphasis, especially for the
reader who is not very familiar with its development. First, grand jury
commentaries have been directed at the grand jury's indictment function; its
watchdog function is remarked, if at all, almost as an afterthought. Edwards'
work is similarly oriented. To learn more about the watchdog function the
reader is advised to undertake additional reading in one of the
watchdog-oriented references in the list of suggested readings which concludes
A second problem is that the grand jury leaves, necessarily, few records of
its achievements, therefore it is an extremely difficult institution to
evaluate. Nevertheless, the present writer several years ago attempted to
evaluate the watchdog function of the California grand jury (17, 33), having collected for a three year
period hard-to-find grand jury annual reports. Since most juries produce a
limited number of annual reports (in some cases as few as 10-20), within
several days after their publication they have become what librarians call
"ephemera" — occasional, informal documents which (while often
important to individual scholars) are published in limited numbers and
unsystematically distributed. In the course of collecting grand jury reports it
became apparent that while they are legally public reports, they can be
effectively converted into secret documents if their distribution is left to a
less-than-enthusiastic public official.
Third, it is important to understand that however a given grand jury system
behaves today, it is not clear why grand juries were originally conceived.
There are two basic views regarding their birth. One theory holds that they
were created as an adjunct of royal power, that is, as pawns of the monarch to
do his bidding in the far reaches of the realm. In a sense, contemporary
criticism that the grand jury is a "rubber-stamp" for the prosecutor
is related to this view. A second theory is that grand juries developed as
instruments to resist, or moderate, centralized political power. As this
preface is being written The People's Coalition For Peace and Justice
(PCPJ) is organizing a series of People's grand juries which, in their own
unofficial way, are aimed at opposing what they perceive as established power.
It is difficult to say which theory of grand jury development is correct;
perhaps the grand jury did begin as an adjunct of royal power, but its general
line of development, particularly in the last three hundred years, has included
definite anti-establishment episodes. In 1681, for example, the city of London
grand jury refused to indict, to the Crown's displeasure, two people for
treason: these refusals to acknowledge the Crown's power are thought by some
historians to be high points in the grand jury's strain toward autonomy (44). Younger's book will be of interest to those who are curious
about the grand jury's liberation activities. Even the most "now"
oriented should find this historical record impressive, perhaps even
Still another reality in grand jury history is the longstanding body of
criticism aimed at it by its enemies. The criticism varies in intensity: some
critics seem to believe that the panel is so flawed that it should be
completely eliminated while others call for minor adjustments or reforms in its
organization or functions. Some criticism turns on somewhat obscure legal
issues while some is concerned with major matters, quite apparent even to the
Most of the criticisms involve two basic issues relating to the lack —
or apparent lack — of due process in in its procedures, and the lay
character of the panel. Both issues apply to both the indictment and the
watchdog function. Since the suggested list of readings provides the reader
with adequate references for exploring various grand jury criticisms in detail,
no attempt will be made here to review them, except to say that both categories
of defects (due process and the panel's lay character) can be remedied. More
than enough suggestions to improve the panel have accumulated over the years,
but even in the face of these possibilities there still remains a particularly
stubborn category of critic who would abolish the grand jury; i.e., those (21) who advocate a form of government completely in the hands of
"professionals." In governing a polity of this kind there exists no
room for malinformed and/or merely "clumsy" citizens.
Not too many years ago, it seemed to some that the drift of community
development was toward a form of technocracy, the highest official in the city
being, perhaps, the city manager rather than an elected mayor, commissioners,
or councilmen. Today there is considerable skepticism as to whether this would
be desirable. More than ever "power to the people" seems on the
ascendant as a civic virtue category.
If one takes the position that, bad as it may be from time to time, the
grand jury is basically sound in its conception, then it is possible to salvage
a future for the panel. Again, it is hard to generalize, given its great
variability in structure and function, about possible grand jury reforms, but
the following proposals are among those one encounters most often.
Grand Juror Selection
The most persistent grand jury criticism is that it is not a true
cross-section of the community (18, 20). In
terms of sampling theory, the grand jury, as it is ordinarily impanelled, is
undoubtedly systematically biased. Not all the bias arises out of a deliberate
attempt to "stack the deck," although this sometimes may be
attempted. A more important controlling factor is that the qualities which
insure that a panel will be effective are not equally distributed throughout a
community's population. For example, some understanding of local government,
the concept of due process, how to function effectively as a committee member,
and the motivation and ability to ask pertinent questions are not found in
equal proportions among all socio-economic statuses. On the other hand, these
abilities are also found in other locales than the Chamber of Commerce or the
League of Women Voters, and those who draw exclusively on such groups expose
the panel to criticism which has at times endangered its existence.
What needs to be done, of course, is insure that all well qualified citizens
(their politics, race, religion, and association memberships notwithstanding)
have an equal chance of being selected for grand jury service. For some reason,
when this fact is brought to the attention of those who impanel grand juries,
lengthy explanations are given why it is economically not feasible to prepare a
scientifically designed sampling frame, but anyone experienced in survey design
knows that this is not the case; in fact if one knows where to look there often
exist ready-made, inexpensive, and very well-designed citizen random samples in
most communities. And even if people who are not previously prepared for jury
service are selected, it is possible to provide well prepared objective
training materials which could overcome the inexperience handicap in a few
days. Perhaps it is time to refer the juror-quality problem to educational
technologists who could solve it with programmed instruction techniques and
Still another possibility is to have a certain number of grand jurors from
an out-going grand jury serve an in-coming grand jury as tutors or "role
models." Other solutions to the problem are proposed in some of the
publications in the suggested list of grand jury references.
Length of Grand Jury Service
Some American grand juries sit for only a few days or weeks, some sit for 3
to 6 months, and others, as in California, serve an entire year. The minimum
length of time in my opinion, should be six months, and there are no doubt many
who would argue that at least a year is required for effective grand jury
service. The issue would not be as crucial as it now is if an objective juror
training program were provided and if panels were allowed to retain their own
staffs — for example, investigators and auditors. Still, some will object
that a professional staff is contrary to the intended citizens' nature of the
panel; however, the staff could exist as a kind of closely-controlled
secretariat, with no authority to initiate inquiries of its own, and operating
within clearly delineated boundaries under the direct supervision of the panel.
Grand Jury Role
Most of the weaknesses in the grand jury system stem from the fact that its
role is unclear. Grand juror self-conceptions are vague, sometimes
contradictory (33). In the study the writer conducted in
California, grand jury legislation was found in a half-dozen different codes,
to say nothing of role-requirements and restrictions as formulated in case law,
Attorney General opinions, and instructions which panels received from District
Attorneys, County Counsels, and Superior Court Judges (34,
37, 38). The problem of role ambiguity
could be overcome by unifying grand jury law in one location in the statutes
and explaining these laws simply and clearly during training sessions mentioned
above. This is often not done, or done very poorly. Unfortunately not all grand
juries are equally well advised, although some receive careful instructions and
A leading grand jury controversy revolves around what it may say — and
not say — in its final reports. This issue very nearly cost the New York
grand jury its life some years back, but subsequent legislation seems to have
alleviated the problem (7). Other American grand juries would
welcome a clear-cut statement about what can appear in their final reports and
what liability grand jurors may bear for improperly drafted final reports. The
Grand Jury Association of New York, Inc. has been instrumental in aiding New
York grand juries in regularizing their reporting procedures, as well as many
other activities, and this Association's experience is available as a sound
model for report power reform, as well as many other improvements.
Grand Jury Procedure
Among the leading issues regarding due process aspects of grand jury
proceedings, particularly with regard to its indictment function, is the matter
of secrecy (8). The problem could probably be minimized if
the issue of accessibility to defense counsel could be worked out, as it
certainly needs to be, but, in general, an effective watchdog role is not
dependent on secrecy. Probably what is more important for the watchdog role is
a well developed tradition of openness and citizen accessibility, which is
somewhat antithetical to a tradition of secrecy. In any case there are a number
of solutions to the secrecy problem in the list of references which follows;
therefore, it is not necessarily a fatal defect.
The grand jury represents a long-cherished civic virtue: the desirability of
citizens being able to influence the shape and workings of representative
government. The grand jury idea in the present era of centralizing power had
been criticized as an anachronism in the United States, which seemed, until
recently, to tend toward a rule-by-professional era. To some extent, then, the
field of tension around the grand jury has been generated from the perennial
clash between the citizenry and the professional subculture, notably the legal
profession. By no means, however, are all lawyers opposed to the grand jury.
Many have worked very hard in a scholarly way to defend it (28). But some of its troubles are self-generated, as when it
permits itself to be the captive of a special interest group, or ignores
due-process in its proceedings. Nevertheless, with all its faults, it is the
writer's view that its basic conception and structure are sound and need only
to be modified according to what we have learned about its failures and
victories in its nine hundred year history for it to surpass its own best
times, and, indeed, out-distance any other institution (ombudsman, police
review board, citizens' advisory committees, etc.) which have been proposed in
recent years (17).
Bruce T. Olson University of Tulsa
Analysis and Criticism of the Grand Jury
1. Melvin P. Antell, "The Modern Grand Jury: Benighted
Super-government," American Bar Association Journal, Vol. 51,
February, 1965, pp. 153-156.
2. Peter M. Brown, "Ten Reasons Why The Grand Jury in
New York Should Be Retained and Strengthened," The Record, The
Association of the Bar of the City of New York, Vol. 22, June 1967, pp.
3. John Kagel, "The California Grand Jury — Two
Current Problems," California Law Review, Vol. 52, March, 1964, pp.
4. Thomas E. Dewey, "Grand Jury 'The Bulwark of
Justice,' " The Panel, May, 1941.
5. Clifford E. Elias, "The Grand Jury System in
Massachusetts: A Survey," Suffolk University Law Review, Vol. 2,
Spring, 1968, pp. 201-227.
6. Nathan T. Elliff, "Notes on the Abolition of the
English Grand Jury," The Journal of Criminal Law and Criminology,
Vol. 39, May-June, 1938.
7. Grand Jury Association of New York County, Inc., The
People's Big Stick, New York: Grand Jury Association of New York County,
Inc. 1964, 30 pp.
8. "The Grand Jury as an Investigatory Body,"
Harvard Law Review, Vol. 74, January, 1961, pp. 590-605.
9. Harold W. Kennedy and James W. Briggs, "Historical
and Legal Aspects of the California Grand Jury System," California Law
Review, Vol. 43, March, 1955, pp. 251-267.
10. Paul James, "Grand Jury System," Journal
of the State Bar of California, Vol. 39, March-April, 1964, pp. 255-267.
11. Irving R. Kaufman, "The Grand Jury: Sword and
Shield," The Atlantic, April, 1962, pp. 54-60.
12. Theodore M. Kranitz, "The Grand Jury: Past,
Present, No Future, "Missouri Law Review, Vol. 24, 1959, pp.
13. Edward Lindsey, "Functions of the Grand
Jury," Journal of the American Institute of Criminal Law and
Criminology, Vol. iv., May, 1913 — March, 1914, pp. 171-175.
14. Wayne Morse, "A Survey of the Grand Jury
System," Oregon Law Review, Vol. 19, 1931, pp. 101-159; 217-257;
15. "The Grand Jury — Its Investigatory Powers
and Limitations," Minnesota Law Review, Vol. 37, June, 1953, pp.
16. John Oliver, "The Grand Jury: An Effort to Get a
Dragon Out of Its Cave," Washington University Law Quarterly, Vol.
1962, April 1962, pp. 166-190.
17. Bruce T. Olson, "Ombudsman on the West Coast: An
Analysis and Evaluation of the Watchdog Function of The California Grand
Jury," Police, November-December, 1967, pp. 12-20.
18. Patricia Mar, "California Grand Jury: Vestige of
Aristocracy," Pacific Law Journal, Vol. 1, January 1970, pp. 36-64.
19. "Survey of the Grand Jury System," Portia
Law Journal, Vol. 3, Fall, 1967, pp. 70-108.
20. Blair Paltridge, "The Exposers Exposed,"
The San Francisco Bay Guardian, Vol. 3, December 24, 1968, pp. 1, 2; 12.
21. Juanita Sayer, "The Grand Jury: Useless Relic of
the Past," Frontier, Vol. 16, February, 1965.
22. "Jury Selection in California," Stanford
Law Review, Vol. 5, 1952, pp. 247-273.
23. August Vollmer, "Vestigial Organ: The Diminishing
Effectiveness of the Grand Jury and the Preliminary Hearing as Aids to Justice,
"State Government, Vol. 7, May 1934.
24. John P. Vukasin Jr., "The Grand Jury,"
Journal of the State Bar of California, Vol. 34, July-August, 1959, pp.
25. Lewis Poindexter Watts Jr., "Grand Jury: Sleeping
Watchdog or Expensive Antique?" North Carolina Law Review, Vol. 37,
April, 1959, pp. 291-315.
26. Noah Weinstein and William J. Shaw, "Grand Jury
Reports — A Safeguard of Democracy," Washington University Law
Quarterly, April, 1962, Vol. 1962, pp. 191-207.
27. James P. Whyte, "Is the Grand Jury
Necessary?" Virginia Law Review, Vol. 45, 1959, pp. 461-491.
28. Cornelius W. Wickersham, "The Grand Jury: Weapon
Against Crime and Corruption," American Bar Association Journal,
Vol. 51, December, 1965, pp. 1157-1161.
29. "Some Aspects of the California Grand Jury
System," Stanford Law Review, Vol. 8, July, 1956, pp. 631-651.
Grand Jury Reference Materials
Bibliographies and Theses
30. Irene Appum, "The Grand Jury in England: A Brief
Bibliography," Madison, Wisconsin: Legislative Reference Library, 1963.
31. American Judicature Society, "A Selected
Bibliography on Grand Juries" (Chicago: American Judicature Society, May
27, 1963), 2 pp. (mimeographed).
32. Frederick Holladay Harris Jr., "The Role of the
Grand Jury in North Carolina," Unpublished Master's thesis, The University
of North Carolina, Chapel Hill, 1942.
33. Bruce T. Olson, "The California Grand Jury: An
Analysis and Evaluation of Its Watchdog Function," Unpublished Master's
thesis, The University of California, Berkeley, California, 1966.
Handbooks and Manuals
34. American Bar Association, State Grand Jury
Handbook, St. Paul, Minnesota: West Publishing Co., n.d., 24.
35. Norman A. Crandell and Robert C. Cantey, Handbook
for Grand Jurors of Georgia Institute of Law and Government, 1961, 37 pp.
36. Grand Jury Association of New York County, Inc.,
Manual for Jurors in the City of New York. New York: Grand Jury
Association of New York, Inc., 1957, 83 pp.
37. San Diego Grand Jury, The California Grand Jury
Guide, San Diego: 1943, reprinted 1961, 24 pp.
38. Judge Joseph A. Wapner, Charge to Grand Jury,
Los Angeles: January 21, 1964, 35 pp.
39. Lena M. Craig, The Grand Jury in Kentucky,
Frankfort, Kentucky: Legislative Research Commission, June, 1967, pp. 22.
40. State of California, Assembly Committee on Governmental
Efficiency and Economy, "Recommended Legislation Relative to County Grand
Juries in California," 1968, 5 pp. (mimeographed).
Works Concerning Citizens' Groups, the Ombudsman,
the One Man Grand Jury, and the Grand Jury in America
41. Lorin Peterson, The Day of the Mugwump, New
York: Random House, 1961, 366 pp.
42. Donald C. Rowat, ed.. The Ombudsman: Citizens
Defender, London: George Allen and Unwin, Ltd., 1965, 341 pp.
43. Robert C. Scigliano, The Michigan One Man Grand
Jury, East Lansing: Michigan State University, Govermental Research Bureau,
44. Richard D. Younger, The People's Panel,
Providence, Rhode Island: American History Research Center, Brown University
Press, 1963, 250 pp.