Members of the Foundations of Criminal Justice
Preface by Bruce T. Olson
Edwards, George John, 1875-
The grand jury, an essay awarded the Peter Stephen Duponceau prize by the Law Academy of Philadelphia.
1. Grand jury United States. 2. Grand jury Great Britain. I. Title.
Foundations of Criminal Justice Series.
General Editors: Richard H. Ward and Austin Fowler, John Jay
College of Criminal Justice
Copyright © 1973 by AMS PRESS INC.
All rights reserved. Published in the United States
by AMS Press Inc. 56 East 13th Street, New York, N. Y. 10003
International Standard Book Number: 0-404-09113-X
Manufactured in the United States of America
NOTE: The numbers in parentheses refer to particular publications in the "Suggested List of Grand Jury References" which concludes this preface.
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 published.
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 contemporary value.
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 this preface.
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 inspirational.
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 panel's supporters.
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.
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 audio-visual aids.
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.
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.
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 guidance.
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.
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
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. 471-478.
3. John Kagel, "The California Grand Jury Two Current Problems," California Law Review, Vol. 52, March, 1964, pp. 116-128.
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. 318-329.
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; 295-365.
15. "The Grand Jury Its Investigatory Powers and Limitations," Minnesota Law Review, Vol. 37, June, 1953, pp. 586-607.
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. 436-447.
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.
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.
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).
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, 1957.
44. Richard D. Younger, The People's Panel, Providence, Rhode Island: American History Research Center, Brown University Press, 1963, 250 pp.
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