Grand Jury

Background

The grand jury functions both to assist the prosecutor and to limit the prosecutor's discretion to take cases to trial. In part because these roles are in tension, and in part because grand jury proceedings and records are not public, far less is known about grand juries than about any other institution in the criminal justice process. The existing information, however, leads some commentators to say that grand juries are too effective in compelling the production of evidence and that they should be abolished.

England, where the grand jury first developed some 800 years ago, abolished it by an act of Parliament in 1933. Grand juries have never played a role outside the Anglo-American legal world.

Grand Jury Functions

The screening function, the “shield” against unjust prosecutions, is formally performed in every case, because before the grand jury can issue an indictment, it must find probable cause to believe that the defendant has committed the crime with which he or she is charged. If the grand jury does not find probable cause, the case is dismissed, although federal prosecutors can refile the same case and seek to persuade a different grand jury that there is sufficient evidence of the defendant's guilt.

Grand juries are selected in much the same way as trial juries: The names of citizens are drawn from those who own property, register to vote, or hold a driver's license. But grand juries function quite differently from trial juries. The grand jury can stay in session for as long as two years, usually meeting only one day a week, and can screen hundreds of cases. Trial juries decide guilt or innocence in a single case and must find proof beyond a reasonable doubt—a much higher standard than probable cause—before it can rule against the defendant. Federal grand juries consist of twenty-three members and can return an indictment by majority vote, while the trial jury consists of twelve members and must reach a unanimous verdict.

The only participants in the process who are in the grand jury room are the grand jurors, the prosecutor, and the witness. There is no judge, and more important, [Page 798][Page 799]no defendant or defense lawyer to argue the other side of the case. Grand jurors, but not trial jurors, are permitted to ask questions of the witnesses and to discuss the case with the prosecutor. The proceedings are secret, the records are sealed, and no official report is ever made as to why the grand jury chose to indict or not to indict—although in political cases “leaks” are frequent.

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