The Grand Jury Theory & Practice

...But the overwhelming majority of witnesses comply without much trouble, because in reality they have few legal defenses...

...The show is run by the prosecutors—the Federal United States Attorney and his assistants, the local state attorneys (the DAs, solicitors, etc...

...In a busy, densely populated, elaborately organized society—where crime is rife, criminals are tough, many wrongs are mysterious and concealed from laymen —law enforcement is inescapably for professionals...

...It is evident that this extension of the exclusionary rule would seriously impede the grand jury...

...On the state level, the practice is extremely varied...

...The Federal courts and other states take an opposite view...

...But there has been a drift toward a more limited license...

...Should an indicted person, given the trauma of indictment itself, be entitled to defeat the prosecution by showing that the evidence presented to the grand jury was not our work history, favor this position...

...There is curiosity in, but seemingly no evidence for, the speculation that the number 23 is somehow traceable to the ancient Jewish 23-member tribunal known as the Sanhedrin K'tanah, or Lesser Sanhedrin, which served for a number of centuries as an ecclesi astical and secular court until the destruction of the Second Temple in 70 A.D...

...The question of the "competency" of evidence presented to a grand jury has similarly generated some interesting and divergent decisions...

...Formally and technically—albeit in substance only somewhat—the grand jury is an arm and creature of the court...

...These are among our major concerns, and will be taken up in detail later...

...The High Court has never qualified that rule, and in the Federal courts and most states indictments may be based solely on hearsay...

...The standard for determining this is easily stated in two questions: (1) Has a crime been committed...

...Many states prohibit grand jury reports, and those that permit them commonly circumscribe the grand jury's power...

...The Anglo-American rules of evidence, elaborate and finicky beyond any counterparts elsewhere in the world, evolved mainly to regulate adversary proceedings before a trial jury...

...He cannot be compelled to testify or punished for not doing so until a judge enters an order commanding compliance...

...Grand jury subpoenas calling for the production of documents are, as a practical matter, no less difficult to resist...

...Except possibly in egregious cases of grand jury irresponsibility, a trial jury's verdict ought to be test enough of the sufficiency of the evidence...

...A common situation is that of the person summoned by a grand jury who refuses to turn up at all, or, having appeared, refuses to cooperate...

...5) to protect [the] innocent accused who is exonerated from disclosure of the fact that he has been under investigation, and from the expense of standing trial where there was no probability of guilt...

...Nor does a witness have much hope of prevailing when he complains, as many do, that a subpoena is unduly broad or burdensome...

...And Congress has to some considerable extent regulated the bounds of grand jury interrogation...

...The rationale for this was set out in a recent Supreme Court decision...

...This means that the same grand jury witness may be questioned on the basis of evidence obtained in an illegal search of his car, home or person, though that violates the Constitution...

...and in Oregon, Iowa, Montana and Utah, seven are sufficient...

...The prosecutors decide what is to be investigated, who will be brought before the grand jurors and—practically and generally speaking—who should be indicted for what...

...The elementary reasons for it were summarized this way by the Supreme Court: "(1) To prevent the escape of those whose indictment may be contemplated...

...Most of those summoned find it prudent and expedient to respond to questions, although at times, especially when business organizations are interrogated, the process is likely to be one of negotiation and not collision...

...A subpoena for records covering several years may be satisfied, by agreement, with delivery of the files for a substantially shorter period...

...But the heart of the procedure is the objection...

...2) Is there "probable cause" to believe the person being investigated did it...

...There is no adversary...

...Normally, evidence received without objection is not grounds for reversal on appeal...

...innocent citizens would be less safe...

...A witness may keep silent and rely on his Fifth Amendment privilege against self-incrimination, yet that may be overridden by a grant of immunity...

...In deciding whether to extend the exclusionary rule to grand jury proceedings, we must weigh the potential injury to the historic role and functions of the grand jury against the potential benefits of the rule as applied in this context...

...This, in turn, triggers a host of additional questions that occupy the legal profession and produce disparate answers from the courts...

...There may be other objections...

...Privacy, security and reputation would be in steady jeopardy...

...In some cases, the delay might be fatal to the enforcement of the criminal law...

...Questions may be answered in part or rephrased or limited in scope...

...It may be said to be irrelevant, privileged, unduly prejudicial, or otherwise excludable...

...Suppression hearings would halt the orderly progress of an investigation and might necessitate extended litigation of issues only tangentially related to the grand jury's primary objective...

...To answer only briefly, in general the use of some evidence that would have been excluded on objection at a trial is not considered grounds for vitiating an indictment...

...Soon the selection procedure in England became formalized: 24 persons from the country were summoned and 23 of these were picked for service, with a majority needed to "find a true bill...

...In each case it is necessary to decide if the evidence seems sufficient to put the accused through the misery of an indictment and a defense...

...Matters of privilege or of the witness' personal convenience may be resolved informally or compromised...

...Yet like other criteria for what we call "weighing" evidence, the notion of probable cause is not reducible to mechanical tests...

...A presentment is an accusation drawn by a grand jury on its own...

...Our own inclinations, perhaps affected by object that the information to be elicited is forbidden...

...The very notion of the grand jury as beneficent for a free society would be subverted by a band of amateurs engaged in sleuthing, summoning, indicting or not indicting as their "independent" and untutored judgment might dictate...

...Because the grand jury does not finally adjudicate guilt or innocence, it has traditionally been allowed to pursue its investigative and accusatorial functions unimpeded by the evidentiary and procedural restrictions applicable to a criminal trial...

...It is impossible, therefore, to generalize about the number of citizens who constitute a grand jury or the number of grand jurors whose concurrence is necessary for an indictment...

...This is most apparent when its powers are questioned or resisted...

...Secrecy is a dark notion with Americans, usually for splendid reasons...

...In the Federal courts the procedure is uniform...

...How and why the number 23 was settled upon is a short story, mostly because no one is really sure...

...Yet these would be the extraordinary cases...

...only a small handful of states allow the presence of counsel in the grand jury room...

...The probable result would be "protracted interruption of grand jury proceedings,' effectively transforming them into preliminary trials on the merits...

...Finally, as a rule, grand jury reports may be disclosed only with court approval...

...In the most famous of these, Judge John J. Sirica upheld the power of the Watergate grand jury to issue a report regarding the conduct of then President Nixon, as well as a recommendation that it be forwarded to the House Judiciary Committee for use in the impeachment inquiry...

...For the moment, let us tarry awhile longer over the daily operation of the institution...

...One state, Tennessee, has a unique approach: The grand jury is composed of 12 citizens and the 12 must agree before an indictment may be found...

...While most applications for such orders are granted, this is a point where the grand jury's powers are tested...

...Yet, for the most part the subject of investigation has no right to testify before the grand jury unless subpoenaed to appear...

...As a rule, a defendant may not successfully complain that an indictment is defective because unconstitutionally obtained or tainted evidence was presented to the grand jury...

...It is also important that grand juries be adequately educated and sensitized to their powers to ask questions, to be enlightened, to instigate on occasion, and to say no...

...Under the Omnibus Crime Control and Safe Streets Act of 1968, evidence obtained by illegal electronic surveillance may not be presented to a grand jury...

...Some lower courts have held, for example, that where the grand jurors are misled into believing that they are getting firsthand testimony rather than hearsay, the deception will cause an indictment to be so defective that a conviction based upon it will be set aside...

...Until very recently, Federal grand juries were not thought to be empowered to issue such documents, but a few judges have now ruled that in certain circumstances they are permis-sable...

...Obviously, the prospective defendant's version of the facts could be highly relevant...

...The setting is not one where the rules of evidence familiarly operate...

...8 The grand jury may not force a witness to answer questions or produce records that violate his Fifth Amendment right of silence, however, unless immunity is granted...

...With regard to counsel, generally the witness is prohibited from having his lawyer accompany him when he testifies before the grand jury...

...The grand jury is a body of 23 citizens empowered to operate with a quorum of 16, and 12 votes are required to return an indictment...

...Speaking for the majority, Mr...

...Justice Lewis F. Powell Jr...

...Where all the evidence would be technically inadmissible, the situation is more complicated...

...3) to prevent subornation of perjury or tampering with the witnesses who may testify before [the] grand jury and later appear at the trial of those indicted by it...

...The procedure of ques-tion-and-answer testimony is designed to afford an opportunity for the opposing lawyer to rise up and sufficient to indict...

...A witness may not refuse to answer questions because he feels they are irrelevant to an inquiry, since the grand jury is permitted to rove broadly and (at least in Federal court) need not specify precisely what it is pursuing...

...The Man in Charge For all such things, for the routine business of the investigatory machine, the court is an absentee landlord...

...Thus, a grand jury witness may not be asked questions based upon information obtained as a result of unlawful bugging or wiretapping...

...Indictments are also generally not subject to attack because the grand jury has not heard all the evidence bearing on the crime...

...In the grand jury room there is nobody to object...

...True, the grand jury may refuse to indict, and its decision is unreviewable—except that the prosecutor is empowered to present the same evidence to another grand jury and try once more to obtain an indictment...

...in others the range is anywhere from four to nine...

...looked to the grand jury's historical role...

...Sophisticated criminals would be safe...

...Practice differs between the Federal and state courts, and then again among the several states...

...As for the number of votes needed to return an indictment, some states adhere to the Federal rale of 12...

...In 1956, the Supreme Court held that an indictment resting wholly on hearsay evidence was valid...

...Although the topic of fair grand jury procedure is vital, the immediate problem is whether a person under investigation should be indicted...

...Irrespective of their numerical composition, all grand juries have a common function: to determine if there is sufficient evidence to warrant putting the subject of an investigation on trial, where the question of guilt or innocence can be determined...

...In a celebrated case, the court upheld a subpoena for a company's records covering a 20-year period, despite the fact that merely gathering the materials to meet an earlier subpoena, covering 10 years, had kept 26 men at work for two months.5 Moreover, it is expensive, and it may be (or seem) risky, to fight the grand jury...

...It may be hearsay (as where the witness proposes to declare that X told him the defendant shot the victim, but without X being present to be cross-examined...

...A witness opposing a subpoena must (unless there is some applicable privilege) establish that the documents being sought "can have no conceivable relevance to any legitimate object of investigation by the Federal grand jury"4—a burden of persuasion that is difficult to understand exactly, let alone sustain to a court's satisfaction...

...So it is not profitable to mourn the grand jury's "loss" of independence...

...Permitting witnesses to invoke the exclusionary rule before a grand jury would precipitate adjudication of issues hitherto reserved for the trial on the merits and would delay and disrupt grand jury proceedings...

...6 In contemporary experience, the effort to enforce secrecy is too frequently defeated by "leaks...

...Grand Jury Reports A sketch of grand jury activity would not be complete without some reference to their reports, often erroneously called "presentments...

...It may "run away" and explore on its own, or at least initiate lines or areas of inquiry...

...But such limitations are narrow and specific: Where a statute does not exist, inquiry is permitted...

...The regular work of the ordinary grand jury is secret and unnoticed...

...Day in and day out, the grand jury affirms what the prosecutor calls upon it to affirm—investigating as it is led, ignoring what it is never advised to notice, failing to indict or indicting as the prosecutor "submits" that it should...

...2) to insure the utmost freedom to the grand jury in its deliberations, and to prevent persons subject to indictment or their friends from importuning the grand jurors...

...But there is, as we shall see, considerable pressure to extend this practice...

...In Virginia as few as five persons constitute a grand jury...

...4) to encourage free and untrammeled disclosures by persons who have information with re-spect to the commission of crimes...

...That means fairly ready access to the grand jury's minutes, where they exist, to test the sufficiency of the evidence...

...Not surprisingly, the somewhat technical, sometimes complex, occasionally arcane language of indictments is drafted by the prosecutors and handed to the grand jury foreman or forelady for the signature almost invariably affixed...

...It may order the prosecutor to draft an indictment—but cannot compel him to sign it, an act necessary for an indictment to be valid...

...An independent grand jury would be intolerable...

...And where a defendant wishes (after indictment, naturally) to see what went on before the grand jury, the claims for secrecy have tended to be pushed by prosecutors beyond the fair limits of their logic...

...Upon the finding of such a wrong, the balking witness will be sustained, the grand jury successfully defied...

...Some state courts answer this pretty much in the affirmative (the phrase "pretty much" identifying limits more refined than we need to care about here...

...Once indicted, these courts hold, a defendant is adequately protected by the requirement of proof beyond a reasonable doubt before a unanimous trial jury may convict...

...Holdsworth records that the Grand Assize of 1166 was made up of 12 neighborhood knights...

...It may be found, say, that the grand jury is seeking to violate a privilege of the witness or to pursue leads obtained by illegal electronic surveillance...

...It could not more than rarely be otherwise...

...Nor may the grand jury violate any other valid privilege of the witness...

...Consequently, while hearsay may still serve as the basis for an indictment, it has been held that the prosecutor may not mislead the grand jury into thinking it is receiving better evidence.7 Questions have also arisen when the grand jury has used evidence more profoundly illicit than hearsay, such as the results of illegal wiretaps or material improperly seized in lawless searches...

...This practice remained as the common law rule.* In the states all kinds of numerical combinations and permutations exist, but nowhere does the maximum number of grand jurors exceed 23...

...in Indiana and South Dakota, only six...

...Reports are usually denunciations of people or organizations, frequently government officials or agencies, in situations where the grand jury finds things badly out of joint, but concludes that an indictment is not permitted or justified...

...But the secrecy of the grand jury is basically a good idea, as abused and perverted as it often is...

...Grand juries are generally prohibited from commenting on purely private activity, and reports criticizing publicly elected officials tend to be allowed only where statutory authority exists...

...The opinion concluded: "In sum, we believe that allowing a grand jury witness to invoke the exclusionary rule would unduly interfere with the effective and expeditious discharge of the grand jury's duties...

...It is not thought right or necessary, either prior to or after a conviction, to run a further trial of the grand jury's decision to indict...

...The defendant's remedy is to have this evidence excluded at trial...

...or State Attorneys General and their staffs...

...In addition, the Organized Crime Control Act of 1970 provides that special organized crime grand juries have the power to publish reports at the completion of their terms on certain kinds of noncriminal misconduct by appointed public officials or employees...

...Is it wrong, then, for the grand jury to consider "incompetent" evidence as a basis for indicting...

...The meaningful issues relate to the nature and character of the leadership, the presence or absence of safeguards and countervailing powers, and the nature of the authority formally invested in the grand jury...

...Then, before the force of the government may be duly exerted, it is necessary to go to a judge for a ruling...

...Neither does the prospective defendant usually have a right to compel the grand jury to hear witnesses who may testify favorably for his cause...