The Grand Jury
This introduction is under construction. Come again for a more complete
That a treatise on the Grand Jury written in 1906 should still be considered
authoritative by the legal scholars who republished it in 1973, and that is
being republished online in 1999, deserves some comment. It is not just that
Edwards wrote such a great treatise in 1906, but that no one has written a
better one since. A lot has happened with grand juries in the United States
during the intervening 93 years, and most of it has been bad.
Like most authors of legal treatises, Edwards tends to be more descriptive
of the state of jurisprudence at the time of writing, rather than critical of
it, although he sometimes offers criticism. But we can already see the seeds of
the decay of grand jury jurisprudence in what he writes in 1906. At that time
it might have been said by prosecutors in some jurisdictions that they could
"indict a ham sandwich", but not yet in almost all jurisdictions. Nor
had grand juries been often used as tools of oppression, as they were used in
the 1950s, during the "red scare".
In this introduction, we will briefly examine some of the problems with the
ways the grand jury is being used, and misused, today.
Compliance with constitutions.
In the United States the grand jury is a constitutional matter. The Fifth
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; ...
Many of the states have similar provisions in their constitutions. Some do
not, and many of those have abandoned the grand jury, as Edwards discusses.
There are two main problems. The first is whether the Fourteenth
Amendment incorporated all of the Bill of Rights, and any other rights
recognized by the Constitution, or only some of them, and if so, did it
incorporate the protection of the grand jury. If it did, then many states are
in serious noncompliance with the national Constitution, putting all their
criminal prosecutions at risk of being overturned and retried. I have written
elsewhere of the case for complete
The second is whether the current law and practice concerning the
grand jury is in compliance with the national Constitution and with state
constitutions where it has not been eliminated. The Constitution allows a
certain measure of regulation of legal practices, but not to the extent that
they deviate from the essential elements or threaten the basic protections
offered by the grand jury in 1791 when the Fifth Amendment was adopted. This
means we must identify what the essential elements are, and then decide whether
all those elements are properly functioning in the grand juries of a particular
jurisdiction. And to do that we need to examine how the grand jury functioned
in 1791, when it was essentially incorporated and frozen into constitutional
jurisprudence, as was the civil and procedural common law up to that point in
Undue influence of public prosecutors.
Although it seems like a strange idea to most people today, it is useful to
understand that at the time of the adoption of the Constitution there were no
public prosecutors in the United States. Criminal prosecutions were done using
private prosecutors, either paid for by the victims of the crime or their
heirs, or by attorneys selected from a pool on a rotating basis, the way many
indigent accused are defended today. Because the workload became too great to
impose the costs of it on private attorneys, the institution of the public
prosecutor was introduced in the latter decades of the 19th Century, and
the use of a private prosecutor has declined to the point that many
judges are not even aware of the possibility of such a thing.
One of the results of this has been that in most jurisdictions the public
prosecutor is given a preferential role in submitting bills to the grand jury,
and to managing the proceedings of it, something that is supposed to rest on
the consent of the grand jury itself. Moreover, he is sometimes given de facto
control over access to the grand jury by the public, although such access is
supposed to be under the control of the judge. The result is that, whereas
during the Founding Era members of the public could easily submit petitions to
the grand jury, often directly, for indictment or presentment, such petitions
are now channeled through the public prosecutor and the grand jury is isolated
from any matters the public prosecutor disapproves.
Undue influence of judges.
Lack of adequate instruction for grand jurors.
From reading handbooks offered to grand jurors or the charges made to them
one can discern that such materials provide little guidance beyond the most
basic elements, leaving most grand jurors uninformed about their proper duties
and powers. In times past this kind of instruction was unneeded, as grand jury
elements were a matter of general knowledge. However, that is no longer the
case today. Unless a grand jury happens to empanel an individual who knows the
law on the subject of grand juries, and can persuade the others to follow his
lead, it is likely to never venture into those areas for which it is most
needed. It should also be noted that in many jurisdictions the selection of
grand jurors is not random, and that in such jurisdictions persons
knowledgeable about the law are generally excluded.
Excessive workloads used to manipulate grand juries.
Two of the traditional strictures of the state grand jury is that it be
organized on the basis of a county, and that only one grand jury may be
empaneled at a time, thus requiring it to handle the entire caseload of the
county, something that, for many urban counties, where most people live today,
the workload is so great that the grand jurors don't have time to examine most
of the cases on their merits, and therefore tend to follow the recommendations
of the public prosecutor.
The grand jury was designed for a place and time where the workload was not
so great, and one of the measures needed to reform the grand jury system in
most urban jurisdictions is to either divide the county into political
subdivisions, such as precincts, and empanel a grand jury for each such
subdivision, or to empanel more than one at a time, and devise a method of
assigning cases to each, probably on a random basis.
Failure of grand juries to investigate high-level wrongdoing.
The classic dilemma for a grand jury is what does it do when its
investigations uncover criminal wrongdoing, sufficient for an indictment, by
the prosecutor or the presiding judge. While grand juries are supposed to be
"independent", in fact they are largely under the control of those
two offices, and their independence would be severely tested if they brought an
indictment against either of them, or for that matter, against their political
allies. This means that in any consideration of grand jury reform, we have to
enable the grand jury to go after anyone, even the prosecutor and judge,
without interference by either.
Public education about grand jury duties and procedures.
Proposals for reform.
We have already indicated some reform measures. Now we need to compile them
into a coherent program of reform, recognizing that many of the proposals may
not "reform" the grand jury in the direction favored by some
Part I | Text Version |