The Grand Jury Origins & Development

...During the final ceremonies the fire was left, and the iron allowed to remain in the embers...

...The rosters of critics and defenders have both been studded with illustrious names over the years...

...The grand jury would be primarily a weapon for the monarch—enforcing his law, whether or not that could aptly be called at any given time "the King's peace...

...Not only did the grand jury 700-800 years ago fail to protect the subject...

...But the grand jury is no longer a forum for hot political and ideological contests...

...if he were accused of a great crime, the stone was suspended deeper, so as to require him to plunge his arm into the water as far as his elbow...

...Four years later, a Boston grand jury indicted British soldiers quartered in the town for offenses against the populace, while at the same time refusing to indict persons charged by the royal authorities with inciting these soldiers to desert...

...The whites gained control of state grand juries, which returned scores of indictments against the so-called "scalawags" and "carpetbagger" public officials...

...Not so in medieval times...

...Almost 200 years later, in 1964, the Supreme Court mentioned that the quoted law had been an unconstitutional invasion of the right of free expression protected by the First Amendment.3 In its time, though, it served to repress and punish many opponents of the Federalist Administration...

...The idea of the Grand Assize (as it was known in Norman French) was to employ a body of knowledgeable local gentry as the King's investigative arm...

...Although many of the indictments were never brought to trial, they were frequently effective in driving carpetbaggers out of the South...

...The royal authorities then prosecuted him by information—a written accusation drawn up by a prosecutor—but the trial jury refused to convict...

...The net situation as of now is that the grand jury continues for the Federal sphere, the Fifth Amendment remaining intact along with the rest of the Bill of Rights...

...On the other side, it is still defended as a safeguard against oppressive prosecutions, although its proponents usually acknowledge its limitations...

...Often they acted on their own initiative in the face of opposition from a district attorney...

...The broad sweep of grand jury activities continued through the Revolution...

...the enemies of the grand jury have included Roscoe Pound, Justice Felix Frankfurter, Raymond Moley, former President and Chief Justice William Howard Taft, and Wayne Morse (while Dean of the Oregon Law School...

...The two men were vocal Protestant opponents of King Charles II's attempt to re-establish the Catholic Church in England...

...All this moves us, of course, toward the central issues of this essay—whether or how the grand jury ought to survive and to be employed...

...Today, in the swirling anonymities of the big cities where grand juries usually sit, it would be a rare (and, indeed, somewhat questionable) case if a grand juror acted on a matter within his or her personal ken, rather than upon knowledge acquired for the first time from testimony and exhibits "presented" by a government lawyer in the grand jury room...

...Federalist judges went so far as to harangue grand juries on the need to elect John Adams as President in 1800, concurrently denouncing Jefferson and branding his supporters as radicals and malcontents...

...any false, scandalous and malicious writing or writings against the government of the United States, or either house of Congress or the President with intent to defame or to bring them, or either of them, into contempt or disrepute...

...Nor were his chances improved by the power and practice of the royal judges to fine and imprison jurors who found a defendant not guilty...

...After removing these officials, the grand jury acted as a committee of public safety and effectively governed the city...

...As a result, in most of the latter jurisdictions the grand jury is resorted to infrequently...

...Shaftesbury fled to Holland, where he remained in exile until his death in 1683...

...they brought their institutions...

...In New York, the grand jury successfully petitioned the Duke of York to grant the colony an elected assembly...

...It was then raised, and, with an invocation to the Diety, given into the naked hand of the accused, who carried it the distance of nine feet, when it was dropped, and the hand bandaged as in the case of the hot water ordeal, to abide the same test...

...Since the district attorney was closely associated with Tweed, the panel acted independently of him, conducting its own investigation and interviewing witnesses without the prosecutor's help...

...The King and his royal prosecutors sought to have them indicted for treason and demanded that the grand jury proceeding be held in public...

...The reaction was predictable: Federal legislation protecting voting and other civil rights was enacted, and sometimes even enforced by Federal grand juries...

...The embroilment of grand juries in politics did not end with Jefferson's election as President in 1800...

...Like most institutions that have survived through the ages, though, the infant grand jury was very different from what it is now...

...Thus, in the early years of the United States, with the Fifth Amendment and the grand jury emplaced in the Constitution, the bitter struggles between the Federalists (George Washington, John Adams, Alexander Hamilton and company) and Thomas Jefferson's Republicans exploded regularly during grand jury proceedings...

...Accusation by the Grand Assize was followed by "trial" in the form of ordeal—a harrowing process offering slender chance of vindication...

...Protest Panels As relations between the American colonies and Great Britain became increasingly tense, grand juries became a means of protesting abuses by the Crown's emissaries...

...In the U.S...

...In New York City, an extensive grand jury probe toppled the notorious Boss Tweed and his cronies...

...The panel resisted, exercising its power to question the witnesses in private without the presence of the royal prosecutors, and after hearing the evidence refused to indict...

...The ordeal of the morsel, accompanied by similar ceremonials, was undergone by the accused undertaking to swallow a piece of barley bread, or a piece of cheese, of the weight of an ounce...

...Like most substantial institutions of any age, the grand jury has always had friends and detractors...

...After that, the impact of local political sentiment could be seen in the spotty enforcement of the Law, persistently denounced by abolitionist leaders and the press...

...As early as 1859, Michigan became the first state to eliminate the stipulation that criminal prosecutions must be initiated by a grand jury...

...but if it had festered, he was held guilty...

...In New York City, a grand jury publicly warned three newspapers, including the New York News and the Brooklyn Eagle, that they were encouraging the rebels...

...Dramatic, sometimes violent confrontations between grand juries and prosecutors, politicians, legislatures, even within the grand juries themselves, became largely things of the past by about the 1930s...

...its accusing voice was far closer to condemnation than the contemporary indictment...

...As in the Shaftesbury and Colledge cases, the grand jury refused to indict...

...The development can be traced to several factors...

...To begin with, the custom of hearing witnesses in private enabled the panel to withstand pressure from the Crown and its representatives...

...Colonial New York grand juries engaged in such legislative functions as ordering dispensers of alcoholic beverages to provide lodging for their patrons...

...In San Francisco, a grand jury indicted the mayor and named a new reform mayor to run the city...

...Before communion, however, the accused was adjured by the Father, Son and Holy Ghost, by the Christian religion which he professed, by the only-begotten Son, by the Holy Trinity, by the Holy Gospels, and by the holy relics, not to partake of the communion if he was guilty...

...Henry II, in promulgating the Assize of Clarendon, was not in the least concerned with creating a shield for the citizen in his dealings with the State...

...These judicial incitements bore no relation to the relatively private charges of judges to grand juries that are customary today...

...As in the mother country, colonial grand juries undertook to protect the individual from oppression...

...the jurors more often than not responded by indicting pro-Southern citizens and important officials of the Confederacy...

...The supporters, finally defeated, were less numerous but could boast the great legal historian W. S. Holdsworth and a few other august traditionalists...

...When a grand jury threatened to indict the City of Boston for not keeping the streets in safe condition, the Town Meeting reacted by repairing the streets rather than hiring a lawyer to defend it in a criminal prosecution...

...During the Reconstruction period, the grand jury served as a principal weapon of Southern whites in their struggle against Radical Republicans and Negro rights...

...This public criticism was followed by Federal action banning these newspapers from the mails because of disloyalty...

...In the North, grand juries were rarely concerned with the slavery question until 1850, when passage of the Fugitive Slave Law made assisting runaway slaves a criminal offense...

...The case was re-presented to a specially selected grand jury in Jefferson's native Virginia, and Burr was indicted...

...In 1765, a Boston panel refused to indict those who had led riots against the Stamp Act...

...Antiwar publications felt the wrath of patriotic grand jurors...

...or to excite against them, or either of them, the hatred of the good people of the United States...

...The English colonists, meanwhile, not only brought their language to the new world...

...In some instances, the calls to arms were sounded by the grand jurors themselves...

...The Colledge and Shaftesbury cases have been generally hailed as marking the grand jury's initial assertion of its role as a shield for the innocent against malicious and oppressive prosecution...

...in which the water was asked to cast forth the accused if guilty, and to receive him into its depths if innocent...

...In the North, many judges defined treason very broadly in their addresses to the grand juries...

...it returned a true bill, and Colledge was convicted and executed...

...By the middle of the 14th century, English procedures had improved to the point where the accused could strike from the trial jury any member of the grand jury that had indicted him...

...But useful answers to those ultimate questions require that we have some serious understanding of what the institution is and does in its current incarnation...

...But the grand juries, besides serving as the initiators of prosecutions, acted in several of the colonies as spokesmen for the people, sounding-boards for their leaders, and vehicles for complaints against officialdom...

...then the accused was brought into the church, where mass was chanted, followed by the communion...

...In addition, the failure of trial juries to protect the accused because the Crown was empowered to fine and imprison jurors who had the temerity to say "not guilty" left a vacuum for the grand jury to fill...

...Where state panels found nothing amiss, Federal grand juries indicted Southern whites for fraud and intimidation...

...In the case of the cold-water ordeal, a fast of three days' duration was first submitted to in the presence of a priest...

...they were given wide circulation by the press and added fuel to the revolutionary fire...

...The Sedition Act of 1789 made it a crime, punishable by a $5,000 fine and five years in prison, "if any person shall write, print, utter or publish...

...Similar examples of political divisions affecting grand jury proceedings were to appear shortly before and through the Civil War...

...If it now appeared that the wound had healed, the accused was deemed innocent...

...About this time, too, the grand jury established the still existing practice of hearing the testimony of witnesses in private...

...The Grand Assize was established to enable the King to wrest the administration of justice from the Church and the feudal barons...

...Obviously, a defendant did not have bright prospects of prevailing before the very same panel that had just indicted him...

...During the Civil War, grand juries played political roles reminiscent of those adopted in the Revolution...

...Like any agency of government, the grand jury throughout its history reflected the character and the tensions of its political environment...

...It has been assailed as inefficient, an obstruction, a pointless rubber stamp for the prosecutor...

...2 In 1215, the Lateran Council abolished trial by ordeal and assigned the grand jury the role of trial jury as well...

...Communion having been partaken, adjuratio aquae was made by the priest...

...In Annapolis, grand jury protests against corruption and incompetence forced the City Council to meet regularly and be more responsive to the people's needs...

...in others, the sparks came from patriotic oratory by the presiding judges in their charges to the grand jury...

...Drawn from the rural neighborhoods where they sat, the grand jurors of old were themselves primary sources of evidence, reporting and acting on things they knew first-hand or had heard, including rumors and gossip...

...Long before Watergate, grand juries took the lead in battling political corruption...

...This partisan use of grand juries did not stop with the indictment of Republican critics...

...Other states, particularly those more recently admitted, have followed Michigan's lead...

...Among the numerous opponents in England were Jeremy Bentham and Robert Peel...

...In the ante-bellum period, grand juries in the South, acting vigorously to uphold the practice of slavery, returned indictments against abolitionist leaders and newspapers...

...A Legal Shield The notion of the grand jury as a protector against unfounded charges and oppressive government was a long time in coming...

...The Central Issue The one argument that goes on unabated after nearly 200 years, and is central for the present discussion, concerns the utility and desirability of the institution itself...

...In this country there has been a discernible trend toward its non-use...

...The most celebrated instance, although by no means the only one, was the 1743 case of John Peter Zenger...

...In legal theory an indicted defendant is "presumed to be innocent" and receives his "day in court" before a separate trial jury...

...among the states, 22 require a grand jury indictment in felony cases, three require it only when the crime is punishable by death or life imprisonment, and in the other 25 a prosecutor launching a criminal case may elect whether to seek an indictment or to simply file an information...

...Grand jurors in the colonies inspected and reported on the condition of public roads, the performance of public officials, and the expenditure of public funds...

...It is held up, too, as a better tool of investigation than any of the substitutes that might be chosen for this indispensable task...

...Another difference is reflected in the relative subservience of the original grand jury to the King and his judges...

...if he swam, he was pronounced guilty...

...Federalist judges, the law-and-order people of their time, lectured grand jurors on the need for vigorous enforcement of Federalist statutes, including the ill-famed Alien and Sedition Acts...

...In a small portent of the civil rights struggle of the 1960s, state and Federal grand juries would occasionally reach different conclusions when dealing with the same facts...

...They spoke out on the evils of the Alien and Sedition laws and emphasized the importance of the grand jury as a barrier against unjust prosecutions...

...In Minneapolis, a grand jury hired its own private detectives and amassed evidence sufficient to indict the mayor and cause the chief of police to resign...

...The panels functioned as both patriotic organs and propaganda agencies, adopting resolutions condemning Great Britain and urging the people to support the struggle for freedom...

...It was not until 1681, some 500 years after the Assize of Clarendon, that the function made its first significant appearance in the cases of Anthony, Earl of Shaftesbury, and Stephen Colledge...

...Incidentally, despite the landmark nature of their cases, events did not end happily for Shaftesbury and Colledge...

...In recent years, people of libertarian bent have found it an ironic item for the Bill of Rights, complaining that it is used to harass the unpopular, to chill free expression, to trap unwary witnesses on contrived perjury charges, and to oppress those summoned to its secret chambers...

...Subsequently, the Crown abolished this newly created assembly and the grand jury expanded its powers accordingly...

...Whatever the Founders believed, the grand jury has not been the object of uniform admiration...

...Other issues of magnitude—for example, the struggle of Mormon polygamists against the prevailing commitment to monogamy, the conflict between big business and the newly developing labor unions, and the early vendettas of this century against "foreign radicalism"—all sounded echoes in grand jury proceedings...

...The hand of the accused was then bandaged, and at the end of three days the bandage was removed...

...In Boston, grand juries mobilized public opinion behind movements for improved public administration...

...At the same time, Southern white grand juries refused to indict members of the Ku Klux Klan and others who intimidated blacks, and they made no attempt to enforce the laws granting suffrage...

...In Philadelphia, a grand jury initiated a program of resistance to British rule: It denounced the use of the Tea Tax to pay the salaries of British officials, promoted a boycott of British goods, and called for collective action with the other colonies for redress of grievances...

...But he was eventually acquitted, and students have continued to question whether there was sufficient evidence to justify the prosecution in the first place...

...A New York newspaper publisher, Zenger had criticized the colony's Governor, who sought to have him prosecuted for criminal libel...

...Federalist judges took leadership roles in pressing grand juries to indict Republican spokesmen, especially newspaper publishers who were critical of the government...

...Backing the institution have been such notables as Justice Hugo L. Black, Frank Hogan, Estes Kefau-ver, Thomas E. Dewey, and a number of grand jurors' associations?perhaps the most famous and vocal being the Grand Jury Association of New York County, which, whether this is a portent or not, went out of business in 1971...

...Undaunted by the grand jury's refusal to indict Colledge, the King had the case presented again to a different grand jury in the more friendly town of Oxford...

...After these ceremonies, the accused was stripped, kissed the book and the cross, was sprinkled with holy water, and then cast into the depths...

...If he sank, he was adjudged not guilty...

...if he succeeded without serious difficulty, he was deemed innocent, but if he choked and grew black in the face, he was adjudged guilty...

...Finally, the new role of the grand jury was enhanced by the discontinuance of the practice of judges cross-examining grand jurors about their findings...

...In the most famous incident of the Republican chapter, Jefferson's Administration sought to have his political enemy, Aaron Burr, prosecuted for treason...

...If the accuser elected for the accused the trial by hot water, the water was placed in a vessel and heated to the highest degree...

...With the Federalists controlling the judiciary, Republican responses were not much heard in the Federal courts...

...But Jeffersonian judges on state benches were vocal in opposition...

...Zenger's name is remembered today mainly for his role in the struggle for free expression...

...The glory is sufficient, however, for sharing with his anonymous fellow citizens on the grand and trial juries...

...A historian has provided this description of the four species of ordeal—cold water, hot water, hot iron, and morsel: "Each was undergone after the most solemn religious ceremonial...

...Then, if the party were accused of an inferior crime, he plunged his arm into the water as far as the wrist, and brought forth a stone suspended by a cord...

...England, whence it came, abolished it in 1933...

...Two grand juries refused to indict...

...Similar religious ceremonies were performed in the other forms of ordeal...

...Judges in their charges assailed the enemy and encouraged support of the fighting...

...If trial by hot iron was elected, a piece of hot iron weighing either one or three pounds, according to the nature of the crime charged, was heated under the direction of men standing by, whose duty it was to see that a proper heat was obtained and kept until the time for the test had nearly arrived...

...Prayers, reading of the Scriptures, intercessions and benedictions followed...