A grand jury is a type of jury that determines whether a criminal indictment will issue. Currently, only the United States retains grand juries, although some other common law jurisdictions formerly employed them, and most other jurisdictions employ some other type of preliminary hearing. In Ireland, they also functioned as local government authorities.
A grand jury is so named because it has a greater number of jurors than a trial jury (also known as a French: petit (meaning small) jury).
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In Australia, the State of Victoria maintained, until 2009, provisions for a grand jury in the Crimes Act 1958 under section 354 Indictments, which had been used on rare occasions by individuals to bring other persons to court seeking them to be committed for trial on indictable offenses.
Grand juries were once common across Canada and old courthouses with the two jury boxes necessary to accommodate the 24 jurors of a grand jury can still be seen.[1] The practice gradually disappeared in Canada over the course of the twentieth century, ultimately being abolished in 1984 when the Nova Scotia courts formally ended the practice.[2]
The first instance of a grand jury can be traced back to the Assize of Clarendon, an 1166 act of Henry II of England.[3] In fact, Henry's chief effect on the development of the English monarchy was to increase the jurisdiction of the royal courts at the expense of the feudal courts. Itinerant justices on regular circuits were sent out once each year to enforce the "King's Peace". To make this system of royal criminal justice more effective, Henry employed the method of inquest used by William the Conqueror in the Domesday Book. In each shire a body of important men was sworn (juré) to report to the sheriff all crimes committed since the last session of the circuit court. Thus originated the modern grand jury that presents information for an indictment.[4] The grand jury was later recognized by King John in Magna Carta in 1215 on demand of the nobility.[5]
England abandoned grand juries in 1933 and instead uses a committal procedure.
In Ireland, grand juries were active during the Lordship of Ireland in parts of the island under the control of the English government - The Pale. They mainly functioned as local government authorities at the county level, as well as having a pre-trial judicial function for serious criminal cases. Members were the local payers of rates, who selected new members. They were usually wealthy "country gentlemen" (i.e. landowners, farmers and merchants):
“A country gentleman as a member of a Grand Jury...levied the local taxes, appointed the nephews of his old friends to collect them, and spent them when they were gathered in. He controlled the boards of guardians and appointed the dispensary doctors, regulated the diet of paupers, inflicted fines and administered the law at petty sessions.”[6]
From 1691 to 1793, Dissenters and Roman Catholics were excluded from membership. They were replaced by democratically-elected County Councils by the Local Government (Ireland) Act 1898.[7]
New Zealand abolished the grand jury in 1961.[2]
In the early decades of the United States grand juries played a major role in public matters. During that period counties followed the traditional practice of requiring all decisions be made by at least twelve of the grand jurors, (e.g., for a twenty-three-person grand jury, twelve people would constitute a bare majority). Any citizen could bring a matter before a grand jury directly, from a public work that needed repair, to the delinquent conduct of a public official, to a complaint of a crime, and grand juries could conduct their own investigations. In that era most criminal prosecutions were conducted by private parties, either a law enforcement officer, a lawyer hired by a crime victim or his family, or even by laymen. A layman could bring a bill of indictment to the grand jury; if the grand jury found there was sufficient evidence for a trial, that the act was a crime under law, and that the court had jurisdiction, it would return the indictment to the complainant. The grand jury would then appoint the complaining party to exercise the authority of an attorney general, that is, one having a general power of attorney to represent the state in the case. The grand jury served to screen out incompetent or malicious prosecutions.[8] The advent of official public prosecutors in the later decades of the 19th century largely displaced private prosecutions.[9]
While all states in the U.S. currently have provisions for Grand Juries,[10] today approximately half of the states employ them[11] and only twenty-two require their use, to varying extents.[12]
The Fifth Amendment to the United States Constitution provides that "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger . . . ."[13] Rule 6 of the Federal Rules of Criminal Procedure governs grand juries. It requires grand juries to be composed of 16 to 23 members and that 12 members must concur in an indictment.[14] A grand jury is instructed to return an indictment if the probable cause standard has been met. The grand jury's decision is either a "true bill" (resulting in an "indictment"), or "no true bill".
The grand jury right may be waived, including by plea agreement. A valid waiver must be made in open court and after the defendant has been advised of the nature of the charge and of the defendant's rights.[15]
The grand jury can compel a witness to testify. The target of a grand jury investigation has no right to testify or put on a defense before the grand jury.[16][17] The U.S. Attorney's Manual anticipates the possibility of allowing investigatory targets to testify.[18]
Grand jury proceedings are secret. A judge is not present during the grand jury's deliberations.[19]
Misdemeanors are not presented to a grand jury, and are instead charged by prosecutor's "information." In the United States armed forces, an Article 32 hearing is used for a similar purpose.
The U.S. Attorneys Manual states that prosecutors "must recognize that the grand jury is an independent body, whose functions include not only the investigation of crime and the initiation of criminal prosecution but also the protection of the citizenry from unfounded criminal charges."[20]
A "special grand jury" is one of two types of grand juries that exist in the U.S. federal system. While a regular grand jury primarily decides whether to bring charges, a special grand jury is called into existence to investigate whether organized crime is occurring in the community in which it sits. This could include, for instance, organized drug activity or organized corruption in government. As provided in , the U.S. District Court in every judicial district having more than four million inhabitants must impanel a special grand jury at least once every eighteen months.[21]
The grand jury clause of the Fifth Amendment has not been incorporated against the U.S. states.[22] As a matter of state law, the states of Arizona, California, Idaho, Illinois, Massachusetts, Minnesota, Nebraska, New Hampshire, New York, Nevada, North Carolina, New Jersey, New Mexico, Ohio, Oregon, South Carolina, Tennessee, and Virginia employ some form of grand jury.
The California constitution requires each county to have at least one grand jury impaneled at all times. Grand juries are governed by Title 4 and Title 5 of the California Penal Code, as well as Government Code 3060 [2] and other more general provisions. In addition, grand juries are not subject to the Brown Act.
Most grand juries are seated on a fiscal cycle, i.e. July through June. Most counties have panels consisting of nineteen jurors, some have as few as eleven jurors, others have as many as twenty-three (see California Penal Code Section 888.2). Due to the length of service grand jurors are usually selected on a volunteer basis.
These county-level grand juries primarily focus on oversight of government institutions at the county level or lower. Almost any entity that receives public money can be examined by the grand jury, including county government, cities, and special districts. Each panel selects the topics that 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 that 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.
The grand jury is required to publish a minimum of one report containing a minimum of one finding and one recommendation. The published reports are 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 that are required or requested to respond. The format of these responses is dictated by California Penal Code Section 933.05, as is the time span in which they must respond.
County 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.
Most county grand juries in California do not consider criminal matters, though by law they are required to (Penal Code 914.1) [3]. In addition, a decision to present criminal cases to the grand jury may be made by the county District Attorney.
In Kentucky, grand jurors are empaneled in each county, at the Circuit level (felonies only) for a four-month term (three panels per year). During the trial jury orientation for the given four-month term, the grand jurors are selected from the trial jury pool, although the method of selection is not necessarily random. The meetings are twice a month (however, grand juries in more populous counties generally meet more often), with each meeting usually going through 20-30 cases in a four to five hour period. The indictment rate is about 98-99%; the grand jury can broaden (about 1% of the time) or narrow (about 3% of the time) the counts in the indictment as well. Usually, fifteen or so grand jurors are required to report to meetings; the hope is that twelve will show to each meeting, which is the number of jurors required to hear cases (extra jurors can leave). It takes nine yes votes to the question of probable cause to sign a true bill of indictment. Fewer than nine yes votes either causes a no true bill or a narrowing of the indictment (depending on the votes per count).
The rules are very similar to the federal process; the grand jury only hears from law enforcement personnel, with the exception of property crimes, where store detectives or actual victims of theft or vandalism are called to testify. The only cases brought to the grand jury are those initiated from the Commonwealth's Attorney's office (the prosecutor for felonies). For the vast majority of cases, the grand jurors generally only hear a recitation of facts from the police report, crime laboratory reports, and other documentation generated during the evidence gathering process. Grand jurors can ask factual questions of the witnesses and legal questions of the prosecutors. The ability to broaden or narrow indictments does technically allow for grand juries to open new avenues of investigation, although since it is dependent on prosecutors for facts, this is very rarely done. Rules of confidentiality apply to grand jurors, which are similar to the federal rules.
In the state of Louisiana there is a third option, "By pretermitting entirely the matter investigated". This requires nine of the twelve grand jurors to determine there is not enough evidence presented to determine if a person should or should not be charged with a crime.[23]
Hennepin County, Minnesota (which contains Minneapolis) keeps a grand jury impaneled at all times. Each grand jury serves a term of four months, typically meets one day each week, and focuses almost exclusively on homicide cases.
The Commonwealth of Virginia requires that all felonies be presented to a grand jury either directly or, more often, after certification following a preliminary hearing in General District Court. Grand juries are a part of the Commonwealth's circuit court system and they meet at the beginning of each court term.
The most persistent criticism of grand juries is that jurors are not a representative sampling of the community, and are not qualified for jury service, in that they do not possess a satisfactory ability to ask pertinent questions, or sufficient understanding of local government and the concept of due process.[24] Unlike potential jurors in regular trials, grand jurors are not screened for bias or other improper factors. They are rarely read any instruction on the law, as this is not a requirement; their job is only to judge on what the prosecutor produced. The prosecutor drafts the charges and decides which witnesses to call.[11] The prosecutor is not obliged to present evidence in favor of those being investigated. Grand jury witnesses have no right to have a lawyer or family in the room, and can be charged with holding the court in contempt (punishable with incarceration for the remaining term of the grand jury) if they refuse to appear before the jury[25] and all evidence is presented by a prosecutor in a cloak of secrecy, as the prosecutor, grand jurors, and the grand jury stenographer are prohibited from disclosing what happened before the grand jury, unless ordered to do so in a judicial proceeding.[11]
After a grand jury was commissioned to investigate whistleblowers organization WikiLeaks, grand juries have been accused of being used as an intimidation and persecution mechanism against whistleblowers and anti-war activists.[26]
Occasionally, grand juries go aggressively beyond the control of the prosecuting attorney. When the grand jury does so the situation is called a "runaway" grand jury.[27] 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. Such cases were common in the 19th century but have become infrequent since the 1930s.[28]
The 1935 Runaway Grand Jury in New York City was investigating gambling and mobster Dutch Schultz when jury members complained in open court that prosecutors were not pursuing obvious leads and hinted that the district attorney was possibly receiving payoffs. Thomas E. Dewey was appointed as an independent prosecutor.[29]
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