The Grand Jury


Jon Roland

This introduction is under construction. Come again for a more complete version.


That a treatise on the Grand Jury written in 1906 should still be considered authoritative by the legal scholars who republished it in 1973, and that is being republished online in 1999, deserves some comment. It is not just that Edwards wrote such a great treatise in 1906, but that no one has written a better one since. A lot has happened with grand juries in the United States during the intervening 93 years, and most of it has been bad.

Like most authors of legal treatises, Edwards tends to be more descriptive of the state of jurisprudence at the time of writing, rather than critical of it, although he sometimes offers criticism. But we can already see the seeds of the decay of grand jury jurisprudence in what he writes in 1906. At that time it might have been said by prosecutors in some jurisdictions that they could "indict a ham sandwich", but not yet in almost all jurisdictions. Nor had grand juries been often used as tools of oppression, as they were used in the 1950s, during the "red scare".

In this introduction, we will briefly examine some of the problems with the ways the grand jury is being used, and misused, today.

Compliance with constitutions.

In the United States the grand jury is a constitutional matter. The Fifth Amendment states:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of war or public danger; ...

Many of the states have similar provisions in their constitutions. Some do not, and many of those have abandoned the grand jury, as Edwards discusses.

There are two main problems. The first is whether the Fourteenth Amendment incorporated all of the Bill of Rights, and any other rights recognized by the Constitution, or only some of them, and if so, did it incorporate the protection of the grand jury. If it did, then many states are in serious noncompliance with the national Constitution, putting all their criminal prosecutions at risk of being overturned and retried. I have written elsewhere of the case for complete incorporation.

The second is whether the current law and practice concerning the grand jury is in compliance with the national Constitution and with state constitutions where it has not been eliminated. The Constitution allows a certain measure of regulation of legal practices, but not to the extent that they deviate from the essential elements or threaten the basic protections offered by the grand jury in 1791 when the Fifth Amendment was adopted. This means we must identify what the essential elements are, and then decide whether all those elements are properly functioning in the grand juries of a particular jurisdiction. And to do that we need to examine how the grand jury functioned in 1791, when it was essentially incorporated and frozen into constitutional jurisprudence, as was the civil and procedural common law up to that point in time.

Undue influence of public prosecutors.

Although it seems like a strange idea to most people today, it is useful to understand that at the time of the adoption of the Constitution there were no public prosecutors in the United States. Criminal prosecutions were done using private prosecutors, either paid for by the victims of the crime or their heirs, or by attorneys selected from a pool on a rotating basis, the way many indigent accused are defended today. Because the workload became too great to impose the costs of it on private attorneys, the institution of the public prosecutor was introduced in the latter decades of the 19th Century, and the use of a private prosecutor has declined to the point that many judges are not even aware of the possibility of such a thing.

One of the results of this has been that in most jurisdictions the public prosecutor is given a preferential role in submitting bills to the grand jury, and to managing the proceedings of it, something that is supposed to rest on the consent of the grand jury itself. Moreover, he is sometimes given de facto control over access to the grand jury by the public, although such access is supposed to be under the control of the judge. The result is that, whereas during the Founding Era members of the public could easily submit petitions to the grand jury, often directly, for indictment or presentment, such petitions are now channeled through the public prosecutor and the grand jury is isolated from any matters the public prosecutor disapproves.

Undue influence of judges.

Lack of adequate instruction for grand jurors.

From reading handbooks offered to grand jurors or the charges made to them one can discern that such materials provide little guidance beyond the most basic elements, leaving most grand jurors uninformed about their proper duties and powers. In times past this kind of instruction was unneeded, as grand jury elements were a matter of general knowledge. However, that is no longer the case today. Unless a grand jury happens to empanel an individual who knows the law on the subject of grand juries, and can persuade the others to follow his lead, it is likely to never venture into those areas for which it is most needed. It should also be noted that in many jurisdictions the selection of grand jurors is not random, and that in such jurisdictions persons knowledgeable about the law are generally excluded.

Excessive workloads used to manipulate grand juries.

Two of the traditional strictures of the state grand jury is that it be organized on the basis of a county, and that only one grand jury may be empaneled at a time, thus requiring it to handle the entire caseload of the county, something that, for many urban counties, where most people live today, the workload is so great that the grand jurors don't have time to examine most of the cases on their merits, and therefore tend to follow the recommendations of the public prosecutor.

The grand jury was designed for a place and time where the workload was not so great, and one of the measures needed to reform the grand jury system in most urban jurisdictions is to either divide the county into political subdivisions, such as precincts, and empanel a grand jury for each such subdivision, or to empanel more than one at a time, and devise a method of assigning cases to each, probably on a random basis.

Failure of grand juries to investigate high-level wrongdoing.

The classic dilemma for a grand jury is what does it do when its investigations uncover criminal wrongdoing, sufficient for an indictment, by the prosecutor or the presiding judge. While grand juries are supposed to be "independent", in fact they are largely under the control of those two offices, and their independence would be severely tested if they brought an indictment against either of them, or for that matter, against their political allies. This means that in any consideration of grand jury reform, we have to enable the grand jury to go after anyone, even the prosecutor and judge, without interference by either.

Public education about grand jury duties and procedures.

Proposals for reform.

We have already indicated some reform measures. Now we need to compile them into a coherent program of reform, recognizing that many of the proposals may not "reform" the grand jury in the direction favored by some factions.

Part I | Text Version | Contents