The Grand Jury Impaneling & Indicting
FRANKEL, MARVIN E. & NAFTALIS, GARY P.
IMPANELING & INDICTING Before taking up the controversies surrounding the grand jury, we think it would be useful to picture it in operation. The secrecy requirements preclude any description of...
...Prosecutors present evidence...
...In the Southern District of New York, although regrettably not in every district, the assistant United States attorney informs the jurors of two other things: first, that if a witness exercises the Fifth Amendment privilege to refuse to answer questions because of possible self-incrimination, no inference of guilt should be drawn...
...The first is the regular grand jury chosen monthly that passes on a great quantity and variety of criminal matters...
...Conversely, there is a good chance that those able and willing to serve will include too large a percentage of people who are retired or otherwise without competing interests...
...Neither shall you leave anyone unpresented for fear, favor or affection, gain, reward or hope thereof, but you shall present all things truly, as they come to your knowledge, according to the best of your understanding...
...Still others make their selection after consultation with the assistant United States attorney...
...Courthouse at Foley Square, after everyone summoned for jury service has convened in a large assembly room seating about 180 people, the jury clerk calls approximately 100 people from the multitude as prospective grand jurors...
...Other judges select the first two grand jurors they see for the organizational roles...
...It is not the pattern in the Manhattan Federal court...
...And their members are drawn from the same "pool" of citizens gathered to supply trial juries...
...At this point the entire grand jury, in the company of the prosecutor, proceeds to a designated courtroom to file the indictment by handing it up to a judge...
...Usually on the first Tuesday morning of each month in the U.S...
...Once the testimony has been heard, the prosecutor draws up a formal indictment and presents it to the grand jury for consideration...
...Predictably, many of the people selected will have compelling reasons (business, family, health) for being excused...
...It is not simply for reasons of efficiency that the prosecutor does the questioning rather than the juror...
...The Swearing-in With the leadership settled, we are ready for the traditional oaths, administered by the clerk of the court...
...Having declaimed at the grand jury, the judge departs, leaving the group in the custody of a United States marshal, who escorts them to one of the grand jury rooms...
...The second is the so-called additional grand jury that deals with lengthy and complex investigations...
...Three kinds of grand juries sit in the Southern District of New York...
...The foreperson signs the indictment plus another document called a "true bill," recording the number of jurors who voted to indict...
...Usually, at the first call nobody responds...
...For uninteresting reasons that relate to the organization and division of the court's business, another judge will probably turn up at this point to complete the judicial midwifing, including the choosing of a foreperson and deputy foreperson...
...The foreperson, or in his or her absence, the deputy, has several special tasks: to sign indictments, to swear in witnesses, to arrange absences of jury members on particular days, to give directions (most often with the prosecutor's advice) to witnesses about such matters as answering a question or returning on a given day for further testimony or producing certain records...
...By 11:00 a.m...
...Unlike a trial jury, a grand jury usually reaches its decision in a few minutes and generally goes along with the prosecutor's recommendation...
...the purging is likely to be completed, leaving the group of 23 about to be born as a grand jury...
...Then the other grand jurors take their oath: "You and each of you do solemnly swear that the same oath which your foreman has taken on his part, you and each of you shall well and truly observe and keep on your part...
...There is a danger that many of those best fitted by wit and energy will be most clearly entitled to be excused...
...Not surprisingly, the juror almost invariably complies...
...grand juries vote...
...The Chief Judge, as part of his administrative duties, or sometimes a colleague, proceeds to purge the prospective jurors by listening individually to those who wish to be excused...
...After checking to see that the papers are in proper form, the judge accepts the indictment, which becomes a matter of public record, and the true bill, which does not...
...Technically, it has a legal life of 18 months...
...In addition, he informs the panel that a grand juror must be a United States citizen...
...Since "representativeness" is desired, purging is an early time of troubles...
...This still obtains in places around the country...
...All the names are placed in a drum, and 23 are pulled by the clerk for seating...
...indictments are filed...
...When that is completed, the witness is temporarily excused and the prosecutor asks the grand jurors if they have any questions...
...This presentation, akin to an opening statement by a trial lawyer, is not transcribed...
...The next step, in the inelegant argot of the courthouse, is the "purging" of the grand jury panel...
...A secretary is selected whose duties are taking attendance as well as recording the name of each witness, the matters heard by the jury and every indictment duly voted...
...The assistant also questions the panel to ascertain whether any of them have physical infirmities, such as poor vision or hearing, that would render them unable to serve as competent finders of fact...
...All of which you shall keep secret...
...In a sort of mini-summation that is not made a part of the record, he explains why the evidence constitutes a violation of law...
...Now more or less random selection is thought to be the wisest course...
...It does serve for as long as 18 months, but meets only one or two mornings a week...
...at least 18 years of age, and (in this case) a resident of the geographical area encompassed by the Southern District of New York...
...Since we are most intimately acquainted with the United States District Court for the Southern District of New York —the Federal trial court at Foley Square that has jurisdiction over Federal offenses in Manhattan, the Bronx and several other New York counties ranging upstate toward Albany—this will be our model...
...A regular grand jury's work concludes after a month of daily sessions, when it is replaced by a newly selected regular grand jury...
...It may be argued that the foreperson and deputy should seem to possess a measure of administrative and leadership talent...
...How long they do sit, like so many other decisions involving the institution, is exclusively determined by the prosecutor...
...His training serves to prevent the introduction of prejudicial matter that might taint the grand jury proceedings, or at least inject notes of unfairness...
...You shall present no one from envy, hatred or malice...
...None employ standardized personnel selection techniques...
...As we noted earlier, few grand juries function for their full statutory terms...
...in practice, it sits for only four continuous weeks, subject to recall to complete an investigation...
...Should he feel that a question is either improper or irrelevant, he will try to persuade the juror who proposed it to desist...
...The third is the special grand jury created by the Organized Crime Control Act of 1970, which may sit for as long as 36 months...
...able to speak, read and write English...
...So help you God...
...As persons are excused, the names of possible replacements are taken from the drum...
...The cumbersome business of having the grand jury file the indictment en masse is a holdover from common law doctrine that made it a prerequisite for the validity of an indictment...
...It is probably about noon on our Tuesday morning...
...The charge, as we have mentioned, has at various times and places been a call for particular action, a stump speech for special causes of the law and against special kinds of wrongdoing, and a species of inspirational oratory...
...Some pressure to adapt in this way may be exerted by the judge's reminders of the public need and the public interest...
...It does not happen that 23 hands are raised...
...The balance is redressed to a degree by those whose sense of community or curiosity persuades them to adjust their busy schedules so that they can serve...
...The instructions conclude with details about the grand jury's schedule...
...But the role of grand juror is not filled most effectively by a morose draftee, and the earnestly unwilling are likely to be excused...
...The jurors are also told they have the right to ask questions, but that as a matter of procedure, these questions should be presented to the prosecutor, who will do the asking on their behalf...
...Active and intelligent people are liable to have jobs that don't allow comfortably for the absences required by grand jury service...
...The process continues for the life of the panel...
...Whether those chosen are wholly satisfactory is impossible to say...
...This done, the judge "charges'" the newly impaneled grand jury...
...On occasion this is an emotional exhortation to the grand jurors to indict...
...The ordinary, garden-variety Federal criminal case often does not involve more than a single grand jury session...
...A criminal prosecution has been initiated...
...Upon reporting to begin hearing evidence, the grand jury is told what kind of case it will be taking up and what witnesses will testify...
...In the case of additional and special grand juries impaneled to conduct specified investigations, such as the Watergate grand jury, their actual service ends when their investigations are concluded...
...The foreperson and deputy are sworn first, like this: "You, as foreman [forelady] and deputy foreman [forelady] of this grand inquest, for the body of the Southern District of New York, do solemnly swear that, you shall diligently inquire and true presentment make of all such matters and things as shall be given to you in charge...
...At the same time, because the role of foreperson or deputy is not much sought after, many judges (including the present co-author) have found it agreeable and fair to invite volunteers...
...So help you God...
...Should there be a need for him to testify in the future, the foreperson directs him to reappear for interrogation on a specified date generally set by the prosecutor...
...That fairly accurately describes the normal workings of a grand jury...
...Despite their differences, the selection process for all three types varies very little...
...Here, although details and style naturally depend upon each judge, the charge is an outline of the history and functions, an introduction to the duties, and a reminder of the responsibilities of the grand jury...
...Not long ago, retired (white) stockbrokers and middle-management corporation types were most likely to become grand jury forepersons...
...More recent learning maintains that the failure to follow this ceremony will not nullify the indictment, but here, as elsewhere, rigid adherence to precedent is thought to be the better part of legal wisdom...
...This group is taken to an available courtroom, where an assistant United States attorney briefly explains the nature of grand juries and the service expected from the members of the grand jury that is about to be created...
...and have no record of felony convictions...
...Following an awkward minute or two, hands go up and the selection is made...
...It should perhaps be added that only about seven or eight "existing" grand juries are actively hearing evidence at any given moment...
...The prosecutor then departs and the grand jury deliberates in private...
...The Witnesses The witness is then called, and after the foreperson swears him in, the assistant United States attorney conducts the interrogation...
...The secrecy requirements preclude any description of "actual" proceedings, but we can work through all the steps...
...Yet the timing and circumstances of their selection, plus the fact that they are not expected in truth to lead or command, make for a fairly perfunctory process...
...Finally, the foreperson has a general duty to maintain order and decorum in the grand jury room...
...When the witness finishes his testimony, he is excused by the foreperson...
...After distributing a handbook describing the history and duties of the grand jury (often repetitious of the judge's charge), the marshal turns the grand jurors over to the assistant United States attorney who will conduct the investigation...
...The panel will now take its place among as many as 25 grand juries functioning simultaneously in the Southern District of New York...
...One can expect, too, some particular admonition about secrecy and its importance both to protect the innocent and to help in apprehending the guilty...
...In any event, the people who step forward tend to be comfortably various with respect to race, sex, occupation, income, and related indices of special concern...
...Laws that are presumably applicable to the facts are also read and explained...
...The witness is recalled and the agreed questions suggested by the grand jury are put to him by the prosecutor...
...second, that if the grand jury is presented with hearsay testimony, it has a right to insist the prosecution produce the witnesses having first-hand knowledge...
...Some ask whether any on the panel have prior jury service...
...The assistant United States attorney explains that the quorum requirement is 16, that the number necessary to vote an indictment is 12, and that the only people allowed in the grand jury room besides the jurors themselves are the prosecutor, the witnesses and the stenographer (in New York the full proceedings are transcribed...
Vol. 58 • November 1975 • No. 22
