Grand jury

A grand jury is a type of a jury, in the common law legal system, which determines if there is enough evidence for a trial. Grand juries carry out this duty by examining evidence presented to them by a prosecutor and issuing indictments, or by investigating alleged crimes and issuing presentments. A grand jury is traditionally larger and distinguishable from a petit jury, which is used during a trial. As a body of qualified individuals who hear complaints of an offense and ascertain if there is prima-facie evidence for an indictment, society sees the value of a judgment by one's peers and recognizes the rationality and maturity of man and his quest to make a valuable contribution beyond himself to his community and world.

History

The first grand jury was held in England in 1166. The grand jury was recognized by King John in the Magna Carta in 1215 on demand of the people. Its roots stretch back as early as 997 C.E., when an Anglo-Saxon king, Ethelred the Unready, charged an investigative body of his reign that it should go about its duty by accusing no innocent person, and sheltering no guilty one. [1]

Today

Grand juries are today virtually unknown outside the United States. The United Kingdom abandoned grand juries in 1933 and instead uses a committal procedure, as do all Australian jurisdictions. In Australia, although the State of Victoria maintains provisions for a grand jury in the Crimes Act 1958 under section 354 Indictments, it has been used on rare occasions by individuals to bring other persons to court seeking them to be committed for trial on indictable offences. New Zealand abolished the grand jury in 1961. Canada abolished it in the 1970s. Today approximately half of the states in the U.S. employ them, and only twenty-two require their use, to varying extents. 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 part of the system of checks and balances, preventing a case from going to trial on a prosecutor's bare word. The grand jury, as an impartial panel of ordinary citizens, must first decide whether there exists reasonable suspicion or probable cause to believe that a crime has been committed. The grand jury can compel witnesses to testify before them. Unlike the trial itself, the grand jury's proceedings are secret; the defendant and his or her counsel are generally not present for other witnesses' testimony. The grand jury's decision is either a "true bill" (meaning that there is a case to answer) or "no true bill". Jurors typically are drawn from the same pool of citizens as a petit jury, and participate for a specific time period.

Types of Grand Juries

Federal grand juries

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 permit bypass of the grand jury for misdemeanor offenses, which can be charged by prosecutor's information.

State grand juries

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

Civil grand juries

California and Nevada have what are known as civil grand juries. In California, each county is required by the state constitution to have at least one grand jury empaneled at all times. Most grand juries are seated on a fiscal cycle, i.e. July-June. Most counties have panels consisting of 19 jurors, some have as few as 11 jurors. All actions by a grand jury require a two-thirds vote. Jurors are usually selected on a volunteer basis.

These county level grand juries primarily focus on oversight of government institutions at the county level and lower. Almost any entity which receives public money can be examined by the grand jury, including county government, cities, and special districts. Each panel selects the topics which 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 which 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. This report is 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 which are required or requested to respond. The format of these responses is dictated by law, as is the time span in which they must respond.

Civil 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.

The law governing grand juries may differ in Nevada.

Legal aspects of the grand jury

A grand jury is part of the system of checks and balances, preventing a case from going to trial on a prosecutor's bare word. The grand jury, as an impartial panel of ordinary citizens, must first decide whether there exists reasonable cause or probable cause to believe that a crime has been committed. The grand jury can compel witnesses to testify before them. Unlike the trial itself, the grand jury's proceedings are secret; the defendant and his or her counsel are generally not present for other witnesses' testimony. The grand jury's decision is either a "true bill," (meaning that there is a case to answer), or "no true bill." Jurors typically are drawn from the same pool of citizens as a petit jury, and participate for a specific time period.

Grand juries are today unknown outside the United States. The United Kingdom abandoned grand juries in 1933 and instead uses a committal procedure, as do all Australian jurisdictions. New Zealand abolished the grand jury in 1961. Canada abolished it in the 1970s. Today fewer than half of the states in the U.S. employ them. 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.

Preliminary hearing

Within some criminal justice systems, a preliminary hearing (evidentiary hearing, often abbreviated verbally as a "prelim") is a proceeding, after a criminal complaint has been filed by the prosecutor, to determine whether, and to what extent, criminal charges and civil cause of actions will be heard (by a court), what evidence will be admitted, and what else must be done (before a case can proceed). At such a hearing, the defendant may be assisted by counsel, indeed in many jurisdictions there is a right to counsel at the preliminary hearing. In the U.S., since it represents the initiation of "adversarial judicial proceedings", the indigent suspect's right to appointed counsel attaches at this point. See Moore v. Illinois, 434 U.S. 220, beginning at "The State candidly concedes that ..." (1977).[2] Contrast this with some jurisdictions in the United States, where a person may be charged, instead, by seeking a "true bill of indictment" before a grand jury; where counsel is not normally permitted. The conduct of the preliminary hearing as well as the specific rules regarding the admissibility of evidence vary from jurisdiction to jurisdiction. Should the court decide that there is probable cause, a formal charging instrument (called the Information) will issue; and the prosecution will continue. If the court should find that there is no probable cause, then typically the prosecution will cease. However, many jurisdictions allow the prosecution to seek a new preliminary hearing, or even seek a bill of indictment from a grand jury.

Committal procedure

In law, a committal procedure is the process by which a defendant is charged with a serious offence under the criminal justice systems of all common law jurisdictions outside the United States. The committal procedure, sometimes known as a preliminary hearing, replaces the earlier grand jury process.

In most jurisdictions criminal offences fall into one of three groups:

There are less serious (summary) offences which are usually heard without a jury by a magistrate. These are roughly equivalent to the older category of misdemeanors (terminology which is now obsolete in most non-U.S. jurisdictions).

There are intermediate offences which are indictable (equivalent to an old-style felony) but which can be heard summarily. For instance, theft is usually a serious offence. If however the charge is that the defendant stole a packet of biscuits worth only a very small amount, it would probably be heard by a magistrate.

Finally, there are serious matters which must be dealt with in the higher courts, usually before a jury. When one is charged with an offence of the third type, a preliminary hearing is first held by a magistrate to determine whether there is sufficient evidence to warrant committing the defendant for trial. That is, whether there is sufficient evidence such that a properly instructed jury could (not would) find the defendant guilty. It is a very low-level test, although stricter than the grand jury proceure. The majority of committal proceedings result in a committal to trial.

Grand jury and society

Some argue that the grand jury is unjust as the defendant is not represented by counsel and/or does not have the right to call witnesses. Intended to serve as a check on prosecutors, the opportunity it presents them to compel testimony can in fact prove useful in building up the case they will present at the final trial.

In practice, a grand jury rarely acts in a manner contrary to the wishes of the prosecutor. Judge Sol Wachtler, the disbarred former Chief Judge of New York State, was quoted as saying, "A grand jury would indict a ham sandwich."[3] As such, many jurisdictions in the United States have replaced the formality of a grand jury with a procedure in which the prosecutor can issue charges by filing an information (also known as an accusation) which is followed by a preliminary hearing before a Judge at which both the defendant and his or her counsel are present. New York State itself has amended procedures govern the formation of grand juries such that grand jurors are no longer required to have previous jury experience.

In some rare instances, the grand jury does break with the prosecutor. It can even exclude the prosecutor from its meetings and subpoena witnesses and issue indictments on its own. This is called a "runaway grand jury." 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. They were common in the 19th century but have become rare since the 1930s.[4]

In all U.S. jurisdictions retaining the grand jury, the defendant has the right under the Fifth Amendment not to give self-incriminating testimony. However, the prosecutor can call the defendant to testify and require the defendant to assert the right on a question-by-question basis, which is prohibited in jury trials unless the defendant has voluntarily testified on his own behalf. Other evidentiary rules applicable to trials (such as the hearsay rule) are generally not applicable to grand jury proceedings.

An example of a grand jury investigation

CIA leak grand jury investigation (rel CIA leak scandal sometimes called the "Valerie Plame affair") is an ongoing federal inquiry "into the alleged unauthorized disclosure of a Central Intelligence Agency (CIA) employee's identity," a possible violation of criminal statutes, including the Intelligence Identities Protection Act of 1982, and Title 18, United States Code, Section 793. The CIA leak scandal refers to a dispute stemming from allegations that one or more White House officials revealed Valerie Plame Wilson’s under cover status.

The first grand jury

On October 31, 2003, a grand jury was sworn in and began taking testimony. A complete list of witnesses to testify there is not known, in part because Fitzgerald has conducted his investigation with much more discretion than previous presidential investigations.

Some individuals have acknowledged giving testimony, including White House Press Secretary Scott McClellan, Deputy Press Secretary Claire Buchan, former press secretary Ari Fleischer, former special advisor to the president Karen Hughes, former White House communications aide Adam Levine, former advisor to the Vice President Mary Matalin, and former Secretary of State Colin Powell.

Fitzgerald interviewed both Vice President Dick Cheney and President George W. Bush but not separately and not under oath.

Legal filings by Special Counsel Patrick Fitzgerald contain many pages blanked out for security reasons, leading some observers to speculate that Fitzgerald has pursued the extent to which national security was compromised by Plame's identity being revealed.

In March 2004, the Special Counsel subpoenaed the telephone records of Air Force One.

The second grand jury

The first grand jury's term expired on October 28, the day it indicted Libby. On November 18, 2005, Fitzgerald submitted new court papers indicating that he would use a new grand jury to assist him in his ongoing investigation. The use of a new grand jury could indicate that additional evidence or charges are coming, but experienced federal prosecutors cautioned against reading too much into Fitzgerald's disclosure:

"It could just mean that the prosecutor needs the powers of the grand jury" to further his investigation and make a final determination whether to charge, said Dan French, a former federal prosecutor now representing a witness in the inquiry.

"One of the greatest powers of the grand jury is the ability to subpoena witnesses … and Fitzgerald may want that authority to pursue additional questions," French said. He might also need subpoenas to obtain documents, telephone records and executive branch agency security logs.

After a six week break, special prosecutor Patrick J. Fitzgerald presented information to a new grand jury on December 8, 2005.^[5]

Verdict after a trial

After deliberating for ten days, the jury rendered its verdict at noon on March 6, 2007. It convicted Libby on four of the five counts against him — two counts of perjury, one count of obstructing justice in a grand jury investigation, and one of the two counts of making false statements to federal investigators — and acquitted him on one count of making false statements.

Footnotes

References

ISBN links support NWE through referral fees

• Coppolo, George, Grand juries and legislative investigations, Harford: Connecticut General Assembly, Ofice of Legislative Research, 2000. OCLC 156908991
• Morrow, Calvin M., Statewide grand juries, Raleigh, NC: Committee on the Office of Attorney General, 1977. OCLC 3271750
• New England School of Law, From grand slams to grand juries: performance-enhancing drug use in sports: symposium, Boston, MA: New England School of Law, 2006. OCLC 70908287

External links

• Grand Jury FAQ from the American Bar Association Retrieved September 27, 2007.
• Grand Juries and Government Harassment of Activists Retrieved September 27, 2007.
• The California Grand Jurors' Association Retrieved September 27, 2007.
• "Federal Grand Jury", a website from a professor at the University of Dayton Retrieved September 27, 2007.
• An organization devoted to Grand Jury reform Retrieved September 27, 2007.
• More on Grand Jury reform, from the National Association of Criminal Defense Lawyers Retrieved September 27, 2007.
• [6] National Public Radio, "How Federal Grand Juries Work" Retrieved September 27, 2007.
• Grand juror handbooks from the court system:
  • Virginia Retrieved September 27, 2007.
  • Hennepin County (Minnesota) Retrieved September 27, 2007.
  • Illinois Retrieved September 27, 2007.
• Gottlieb, Bruce, "Who Is a Grand Jury?", Slate (magazine), 5 August 1998. Retrieved September 27, 2007.
• Who invented the grand jury? from the Straight Dope Retrieved September 27, 2007.

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