In the common law, a grand jury is a type of jury that determines whether there is enough evidence for a trial. Grand juries carry out this duty by examining evidence and issuing indictments, or by investigating alleged crimes and issuing presentments. A grand jury is traditionally larger than and distinguishable from a petit jury, which is used during a trial.

History

The first instance of a grand jury can be traced back to the Assize of Clarendon, an 1166 act of Henry II of England.[1] In fact, Henry's chief effect on the development of the English monarchy was to increase the jurisdiction of the royal courts at the expense of the feudal courts. Itinerant justices on regular circuits were sent out once each year to enforce the "King's Peace." To make this system of royal criminal justice more effective, Henry employed the method of inquest used by William the Conqueror in the Domesday Book. In each shire a body of important men was sworn (jure) to report to the sheriff all crimes committed since the last session of the circuit court. Thus originated the modern grand jury that presents information for an indictment.[2] The grand jury was later recognized by King John in Magna Carta in 1215 on demand of the nobility.[3]

File:Grand jury at Arcadia Hotel fire (LOC).jpg

A grand jury investigating the fire that destroyed the Arcadia Hotel in Boston, Massachusetts in 1913.

In the early decades of the United States grand juries played a major role in public matters. During that period counties followed the traditional practice of requiring all decisions be made by at least twelve of the grand jurors, (e.g., for a twenty-three-person grand jury, twelve people would constitute a bare majority). Any citizen could bring a matter before a grand jury directly, from a public work that needed repair, to the delinquent conduct of a public official, to a complaint of a crime, and grand juries could conduct their own investigations. In that era most criminal prosecutions were conducted by private parties, either a law enforcement officer, a lawyer hired by a crime victim or his family, or even by laymen, who could bring a bill of indictment to the grand jury; if the grand jury found there was sufficient evidence for a trial, that the act was a crime under law, and that the court had jurisdiction, then by returning the indictment to the complainant, it appointed him to exercise the authority of an attorney general, that is, one having a general power of attorney to represent the state in the case. The grand jury served to screen out incompetent or malicious prosecutions.[4] The advent of official public prosecutors in the later decades of the 19th century largely displaced private prosecutions.[5]

Ireland

In Ireland grand juries were active from medieval times in the English-controlled parts of the island, mainly functioning as local government authorities at the county level, as well as having a pre-trial judicial function for serious criminal cases. Members were usually wealthy landowners, farmers and merchants, who selected new members. From 1691 to 1793 Roman Catholics were excluded from membership. They were replaced by democratically-elected County Councils by the Local Government (Ireland) Act 1898.[6]

Today

Grand juries are today virtually unknown outside the United States. England abandoned grand juries in 1933 and instead uses a committal procedure, as do all Australian jurisdictions. In Australia, the State of Victoria maintained, until 2009, provisions for a grand jury in the Crimes Act 1958 under section 354 Indictments, which had been used on rare occasions by individuals to bring other persons to court seeking them to be committed for trial on indictable offenses. New Zealand abolished the grand jury in 1961. Canada finally ended the practice, in 1984, when the Nova Scotia court system abolished it.[7] While all states in the U.S. currently have provisions for Grand Juries,[8] today approximately half of the states employ them[9] and only twenty-two require their use, to varying extents.[10] Most jurisdictions have abolished grand juries, replacing them with the preliminary hearing at which a judge hears evidence concerning the alleged offenses and makes a decision on whether the prosecution can proceed.

A grand jury is meant to be part of the system of checks and balances, preventing a case from going to trial on a prosecutor's bare word. A prosecutor must convince the grand jury, an impartial panel of ordinary citizens, that there exists reasonable suspicion, probable cause, or a prima facie (legally sufficient) case that a crime has been committed. The grand jury can compel witnesses to testify before them. Unlike the trial proceedings, the grand jury's proceedings are secret; the defendant and his or her counsel are generally not present for other witnesses' testimony. A judge is not present either.[11] The grand jury's decision is either a "true bill" (meaning that there is a case to answer), or "no true bill". In the state of Louisiana there is a third option, "By pretermitting entirely the matter investigated". This requires nine of the twelve grand jurors to determine there is not enough evidence presented to determine if a person should or should not be charged with a crime.[12] Jurors typically are drawn from the same pool of citizens as a petit jury, and participate for a specific time period.

Runaway grand jury

Occasionally, grand juries go aggressively beyond the control of the prosecuting attorney. When the grand jury does so the situation is called a "runaway" grand jury.[13] Runaway grand juries sometimes happen in government corruption or organized crime cases if the grand jury comes to believe that the prosecutor himself has been improperly influenced. Such cases were common in the 19th century but have become infrequent since the 1930s.[14]

One of the most famous cases was the 1935 Runaway Grand Jury in New York City, which was investigating gambling and mobster Dutch Schultz. Jury members complained in open court that prosecutors were not pursuing obvious leads and hinted that the district attorney was possibly receiving payoffs. Thomas E. Dewey was appointed as an independent prosecutor and would rocket to fame on his prosecutions.[15]

United States

Federal level

Charges involving "capital or infamous crimes" under federal jurisdiction must be presented to a grand jury under the Fifth Amendment to the United States Constitution. This has been interpreted to allow the grand jury to be bypassed for misdemeanor offenses, which can instead be charged by prosecutor's information. Some plea agreements also stipulate that the defendant waives prosecution by indictment. However, the defendant must make this waiver in open court and after being advised of the nature of the charge and of the defendant's rights.[16] The U.S. Attorneys Manual states that prosecutors "must recognize that the grand jury is an independent body, whose functions include not only the investigation of crime and the initiation of criminal prosecution but also the protection of the citizenry from unfounded criminal charges."[17] It is not altogether uncommon for subjects or targets of the grand jury's investigation, particularly in white-collar cases, to request or demand the opportunity to tell the grand jury their side of the story. However, the prosecutor has no legal obligation to permit such witnesses to testify,[18][19] though the Manual warns that a refusal to do so can create the appearance of unfairness.[20] The Federal Rules of Criminal Procedure prescribe that a grand jury must have from sixteen to twenty-three members and that an indictment may issue only if at least 12 jurors concur.[21]

For members of the United States armed forces, an Article 32 hearing is used for a similar purpose.

Special grand jury

A special grand jury is one of two types of grand juries that exist in the U.S. federal system. While a regular grand jury primarily decides whether to bring charges, a special grand jury is called into existence to investigate whether organized crime is occurring in the community in which it sits. This could include, for instance, organized drug activity or organized corruption in government. As provided in Template:Uscsub, the U.S. District Court in every judicial district having more than four million inhabitants must impanel a special grand jury at least once every eighteen months.[22]

State level

Unlike many other provisions of the Bill of Rights, the Supreme Court has ruled that this requirement was not incorporated to apply to state courts via the Fourteenth Amendment, and states therefore may elect not to use grand juries.[23]

County level

In the U.S., the states of Arizona, California, Massachusetts, Minnesota, Nebraska, New Hampshire, New York, Nevada, North Carolina, and Oregon have grand juries at the county level.

In California, each county is required by the state constitution to have at least one grand jury impaneled at all times. Grand juries are governed by Title 4 of the California Penal Code, as well as other more general provisions. In addition, grand juries are not subject to the Brown Act.

Most grand juries are seated on a fiscal cycle, i.e. July through June. Most counties have panels consisting of nineteen jurors, some have as few as eleven jurors, others have as many as twenty-three (see California Penal Code Section 888.2). Jurors are usually selected on a volunteer basis.

These county-level grand juries primarily focus on oversight of government institutions at the county level or lower. Almost any entity that receives public money can be examined by the grand jury, including county government, cities, and special districts. Each panel selects the topics that it wishes to examine each year. A jury is not allowed to continue an oversight from a previous panel. If a jury wishes to look at a subject that a prior jury was examining, it must start its own investigation and independently verify all information. It may use information obtained from the prior jury but this information must be verified before it can be used by the current jury. Upon completing its investigation, the jury may, but is not required to, issue a report detailing its findings and recommendations.

The grand jury is required to publish a minimum of one report containing a minimum of one finding and one recommendation. The published reports are the only public record of the grand jury's work; there is no minority report. Each published report includes a list of those public entities that are required or requested to respond. The format of these responses is dictated by California Penal Code Section 933.05, as is the time span in which they must respond.

County grand juries develop areas to examine by two avenues: juror interests, and public complaints. Complaints filed by the public are kept confidential. The protection of whistleblowers is one of the primary reasons for the confidential nature of the grand jury's work.

Most county grand juries in California do not consider criminal matters, though by law they are able to. The decision of whether or not to present criminal cases to the grand jury is made by the county District Attorney.

Hennepin County, Minnesota (which contains Minneapolis) keeps a grand jury impaneled at all times. Each grand jury serves a term of four months, typically meets one day each week, and focuses almost exclusively on homicide cases.

Circuit grand juries in Kentucky

In Kentucky, grand jurors are empaneled in each county, at the Circuit level (felonies only) for a four-month term (three panels per year). During the trial jury orientation for the given four-month term, the grand jurors are selected from the trial jury pool, although the method of selection is not necessarily random. The meetings are twice a month (however, grand juries in more populous counties generally meet more often), with each meeting usually going through 20-30 cases in a four to five hour period. The indictment rate is about 98-99%; the grand jury can broaden (about 1% of the time) or narrow (about 3% of the time) the counts in the indictment as well. Usually, fifteen or so[clarification needed] grand jurors are required to report to meetings; the hope is that twelve will show to each meeting, which is the number of jurors required to hear cases (extra jurors can leave). It takes nine yes votes to the question of probable cause to sign a true bill of indictment. Fewer than nine yes votes either causes a no true bill or a narrowing of the indictment (depending on the votes per count).

The rules are very similar to the federal process; the grand jury only hears from law enforcement personnel, with the exception of property crimes, where store detectives or actual victims of theft or vandalism are called to testify. The only cases brought to the grand jury are those initiated from the Commonwealth's Attorney's office (the prosecutor for felonies). For the vast majority of cases, the grand jurors generally only hear a recitation of facts from the police report, crime laboratory reports, and other documentation generated during the evidence gathering process. Grand jurors can ask factual questions of the witnesses and legal questions of the prosecutors. The ability to broaden or narrow indictments does technically allow for grand juries to open new avenues of investigation, although since it is dependent on prosecutors for facts, this seems very rarely done, if ever. Rules of confidentiality apply to grand jurors, which are similar to the federal rules.

See also

References

  1. Medieval Sourcebook: Assize of Clarendon 1166
  2. The Making of Modern Britain
  3. The Grand Jury
  4. The Grand Jury, George J. Edwards (1906)
  5. If It's Not a Runaway, It's Not a Real Grand Jury, Roger Roots, Creighton L.R., Vol. 33, No. 4, 1999-2000, 821
  6. Chandler, J. A (1993). J. A. Chandler. ed. Local government in liberal democracies: an introductory survey. Routledge. pp. 31. ISBN 9780415088756. http://books.google.com/books?id=0zFCA4BjmiQC&pg=PA31&dq=%22the+grand+juries+continued+until+most+of+their%22&lr=&as_brr=3#v=onepage&q=%22the%20grand%20juries%20continued%20until%20most%20of%20their%22&f=false. Retrieved 2009-08-19.
  7. "Who invented the grand jury?". The Straight Dope. 2006-07-18. http://www.straightdope.com/columns/read/2256/who-invented-the-grand-jury. Retrieved 2010-10-17.
  8. Brenner, Susan; Lori Shaw (2003). "State Grand Juries". University of Dayton School of Law. http://campus.udayton.edu/~grandjur/stategj/stateg.htm. Retrieved 2010-08-02.
  9. "Frequently Asked Questions About the Grand Jury System". American Bar Association. http://www.abanet.org/media/faqjury.html. Retrieved 2007-03-29.
  10. Brenner, Susan; Lori Shaw (2003). "Power to abolish Grand Jury". University of Dayton School of Law. http://campus.udayton.edu/~grandjur/stategj/abolish.htm. Retrieved 2007-03-29.
  11. W. Thomas Dillard, Stephen R. Johnson, and Timothy Lynch (May 13, 2003), A Grand Façade: How the Grand Jury Was Captured by Government, Cato Institute, http://www.cato.org/pubs/pas/pa-476es.html
  12. 16th Judicial District Attorney's Office The Grand Jury Procedure; What action may a grand jury take after hearing evidence in a case? #3. retrieved 2009-01-02
  13. "Runaway" should not be taken pejoratively. In exercising independence from a prosecutor a grand jury is acting according to its prerogative under common law. See The Grand Jury, Hugh Turley, Hyattsville Life and Times, January 2007.
  14. Brenner, Susan; Lori Shaw (2003). "What is a "runaway" grand jury?". University of Dayton School of Law. http://www.udayton.edu/~grandjur/faq/faq8.htm. Retrieved 2007-03-29.
  15. Fighting Organized Crime: Politics, Justice, and the Legacy of Thomas E. Dewey by Mary M. Stolberg [Northeastern (October 5, 1995) ISBN 1-55553-245-4
  16. http://www.law.cornell.edu/rules/frcrmp/Rule7.htm
  17. U.S. Attorneys Manual, http://www.justice.gov/usao/eousa/foia_reading_room/usam/title9/11mcrm.htm#9-11.010
  18. United States v. Leverage Funding System, Inc., 637 F.2d 645 (9th Cir. 1980).
  19. United States v. Gardner, 516 F.2d 334 (7th Cir. 1975).
  20. U.S. Attorneys Manual, http://www.justice.gov/usao/eousa/foia_reading_room/usam/title9/11mcrm.htm#9-11.152
  21. Rule 6, Federal Rules of Criminal Procedure, http://www.law.cornell.edu/rules/frcrmp/Rule6.htm
  22. http://www.justice.gov/usao/eousa/foia_reading_room/usam/title9/crm00158.htm
  23. Hurtado v. California, 110 U.S. 516 (1884) and Hurtado v. California

External links

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