Grand jury

Grand jury. A grand jury is a legal body empowered to conduct official proceedings to investigate potential criminal conduct and determine whether criminal charges should be brought. It operates in secret, functioning as a check on prosecutorial power, and its roots trace back to English law. While a cornerstone of the federal system and many states in the United States, its use has diminished or been abolished in other common law jurisdictions, such as England and Wales and Canada.

Function and purpose

The primary function is to assess evidence presented by a prosecutor to determine if there is probable cause to believe an individual committed a crime, resulting in an indictment. It serves as a critical buffer between the state and the citizen, preventing unfounded prosecutions. Grand juries also possess broad investigative powers, including the authority to subpoena documents and compel testimony from witnesses. This power has been used in high-profile investigations involving figures from Enron to Bill Clinton.

Composition and selection

Grand juries are typically composed of a larger number of citizens than a petit jury, often ranging from 16 to 23 members in the federal system. Prospective jurors are randomly selected from voter registration or driver's license lists, similar to trial juries. The selection process, or voir dire, is generally less rigorous than for a trial jury, as the grand jury's role is investigatory rather than adjudicative of guilt. Grand jurors serve for a set term, which can be months, to consider multiple cases presented by officials like the United States Attorney.

Proceedings and secrecy

Proceedings are conducted in strict secrecy, closed to the public, the defendant, and their defense attorney. This rule is intended to protect the reputation of unindicted subjects, encourage witness candor, and prevent flight by targets. The prosecutor presents evidence, which can include testimony from witnesses like FBI agents or experts, and instructs the grand jury on applicable law. Only the jurors, the prosecutor, a court reporter, and sometimes an interpreter are present, with violations of secrecy potentially constituting contempt of court.

Historical origins and development

The grand jury originated in England under the Assize of Clarendon in 1166, issued by Henry II. It initially served a communal accusatory function, evolving into a protective body against monarchical abuse, notably during the reign of King John before the Magna Carta. It was incorporated into English common law and transported to the American colonies, where it was used to oppose British authority, as in the case against John Peter Zenger. Its role was enshrined in the Fifth Amendment to the United States Constitution.

Comparison with preliminary hearing

A key alternative is the preliminary hearing, a public court proceeding where a judge determines probable cause after hearing arguments from both the prosecution and the defense. Unlike the grand jury system, the defendant has the right to be present, represented by counsel, and to cross-examine witnesses. States like California use preliminary hearings for most felonies, while the federal system and states like New York rely heavily on grand juries, particularly for serious crimes.

Criticisms and reform debates

Critics argue the process is a mere "rubber stamp" for prosecutors, citing extremely high indictment rates, and that its secrecy can mask abuse. High-profile cases, such as the decisions not to indict police officers in the deaths of Eric Garner in New York City and Michael Brown in Ferguson, Missouri, have fueled public debate. Reform proposals range from abolishing it in favor of preliminary hearings, to allowing defense counsel in the room, to requiring judges to instruct jurors on their independence, as suggested by legal scholars and the American Bar Association.