A Staff Report from the Straight Dope Science Advisory Board

Who invented the grand jury?

July 18, 2006

Dear Cecil,

With the flap in San Francisco over the grand jury indictments of the police chief and a lot of his top staff, I'm wondering about the origins and history of grand juries. Is this a U.S. invention? Who originally thought this would be a good idea and how did they get it past the politicians?

SDSTAFF Gfactor and SDSTAFF Bricker reply:

In the U.S. Supreme Court case Costello v. United States, 350 U.S. 359 (1956), Justice Black answered your question: "The grand jury is an English institution, brought to this country by the early colonists and incorporated in the Constitution by the Founders." According to the opinion, the purpose of the English grand jury was "to provide a fair method for instituting criminal proceedings against persons believed to have committed crimes." Grand jurors were summoned from the body of the people and weren't hampered by strict rules of procedure or evidence. Grand jurors could act on their own knowledge and were free to indict on such information as they saw fit. Those are the basics. But who first came up with the idea?

It all started with the Assize of Clarendon. As Mark Kadish writes in a 1996 law review article on grand juries:

In twelfth-century England, criminal charges were prosecuted essentially by individuals, with the king acting as "a super-privileged individual." The king was thus personally involved in the medieval criminal justice system. With the promulgation of the Assize of Clarendon in 1166, King Henry II established a system of local informers (twelve men from every hundred or four men from every village) to tell him who was suspected of "murder, robbery, larceny, or harbouring criminals." The king's system, which superseded baronial and ecclesiastical jurisdiction, made the king the beneficiary of the fines and forfeitures that attended the accusations.

So Justice Black wasn't describing the original purpose of the grand jury, but rather the grand jury as it evolved over time.

The twelve-person body became a twenty-four-person grand jury during the reign of Edward III (1312-1377). Kadish says:

the twelve men were superseded by twenty-four knights chosen by the county sheriff, who had authority for beginning a prosecution. The knights were called 'le grande inquest.'" The 12-member jury no longer had accusatorial jurisdiction, but it became the "petit jury," which was responsible for rendering verdict of guilty or innocent in capital cases.

Eventually the grand jury took on a protective function. Frederick Hafetz and John Pellettieri (1999) describe a watershed case in that respect:

In 1681 … Charles II sought to indict for treason Anthony Ashley Cooper, the First Earl of Shaftesbury, and Stephen Colledge, one of his followers. At this point in English history, Charles II had the twin prime objectives of strengthening his absolute rule over England and bringing England back within the realm of the Catholic Church. Shaftesbury and Colledge were vehement opponents. As the strength of the opposition grew, Charles II attempted to quell it through the institution of grand jury proceedings. At his insistence, strong pressure was put on grand juries convened in London to indict the two for treason. When a grand jury refused to indict Colledge, the foreman was arrested and sent to the Tower of London. Prosecutors then reconvened a grand jury in Oxford. There, the populace was more amenable to the royalist cause. Jurors indicted Colledge, whereupon he was subjected to a trial, found guilty and later executed.

After Shaftesbury and Colledge, people saw the grand jury as a shield against unfair prosecution. What had begun as an accusatorial body also took on investigative functions. These new roles followed grand juries to the American colonies. According to Kadish:

unlike its English progenitor, the American grand jury originally began, not as an arm of the executive, but as a defense against monarchy. It established a screen between accusations and convictions and initiated prosecutions of corrupt agents of the government. Therefore, the English progenitor upon which the American grand jury was modeled was the more enlightened protective grand jury of the 1600s.

It took a while before grand juries made it across the Atlantic. Initially the colonies used "Assistants." Assistants, acting as magistrates, were authorized by the English monarchy to make laws, accuse suspects, and sit in judgment of criminals. The colonists had no control over the Assistants, and the Assistants took full advantage — when grand juries were implemented in America in 1635, Kadish reports, some Assistants were among the first indicted. From the start American grand juries assumed an oversight function. They called attention to the deficiencies of local government and other municipal concerns. Charleston grand juries, for example, complained that "selling liquor to sailors and Negroes produced riots," according to Richard Younger in The People's Panel: The Grand Jury in the United States, 1634-1941. Younger says juries complained about "the failures of constables and magistrates to enforce the Sabbath observance laws, disorderly behavior of the town watch, and neglect of officials to regulate the town markets properly." They also suggested civic reforms like more watchmen, better lighting, and even establishment of a fire company.

Beginning in the mid-1800s, Younger notes, many states began to abolish or curtail grand juries on the grounds that increased safeguards of defendants' rights at other stages of the judicial process had rendered them superfluous.  The crusade against grand juries had begun in England at the urging of reformer Jeremy Bentham around 1821. The American movement "assumed almost epidemic proportions" after the Civil War but never succeeded in doing away with grand juries altogether. The English movement was slower but surer — the English grand jury was whittled away and finally abolished in 1933, although no grand juries were seated after 1917. A similar movement began in Canada in 1860, although Canadian grand juries didn't become extinct until Nova Scotia became the last province to abolish them in 1984.

Today, grand juries are unknown outside the U.S. and are far from universal here. Federal grand juries are enshrined in the Constitution, but in 1972 the Supreme Court declared in Alexander v. Louisiana that the federal requirement didn't apply to the states. States that have abolished grand juries typically require that criminal prosecutions begin with a preliminary hearing at which a judge decides whether there is sufficient cause to proceed. Interestingly, two states that no longer use grand juries to indict, Connecticut and Pennsylvania, retain them for investigations. Since the grand jury has the power to subpoena witnesses and documents and require testimony under oath, it remains a powerful investigative tool.

Grand jury practices vary widely among states that still use them. In some states, the investigating grand jury is limited in scope to matters brought to its attention by a prosecutor. In others, the grand jury can investigate any crime within its jurisdiction, typically the county in which the grand jury was empanelled. Most states also provide for a "state grand jury" or "special grand jury" with the power to investigate statewide criminal activity. Some state grand juries are responsible for non-criminal matters. Georgia grand juries hear requests for revisions in county boundaries, report on conditions at local jails, and evaluate the conduct of the medical examiner's office. Grand juries in Florida and Texas monitor elections. Alaska grand juries are charged with inquiring into any matter that concerns public welfare or safety.

Grand jury procedure in criminal cases is different from what you might expect. The target of a grand jury investigation who chooses to testify isn't entitled to a lawyer during questioning. The grand jury's decision doesn't have to be unanimous — either a simple majority or some supermajority is sufficient. A grand jury need only find "probable cause" to return an indictment, not the more rigorous "beyond a reasonable doubt" standard we're used to at criminal trials.

Because grand juries are generally composed of ordinary citizens with no special training or experience in the law, they usually follow the lead of the prosecutor assigned to them. The classic complaint of defendants' attorneys is that grand jurors would indict a ham sandwich if the prosecutor asked them to. But they don't always do as the prosecutor wishes, as Jeannene Pacific, the district attorney in Jones County, Mississippi, discovered.  Ms. Pacific became the target of her own grand jury when it sought to investigate over $35,000 paid by the county's Worthless Check Unit to Pacific and her staff as "salary supplements." Alarmed, Pacific asked the local court to forbid the grand jury's actions. Although the local court did so, the Mississippi Supreme Court ruled that the grand jury had the power to investigate:

The grand jury must be free to pursue its investigations unhindered by external influence or supervision so long as it does not trench on the legitimate rights of any witness called before it. The court generally cannot limit the grand jury, its legitimate investigation, interfere with its investigatory function, control the nature of its investigation, prohibit consideration of offenses within any particular class of crimes, stay its proceedings, dismiss a matter, or do various other things.

Ms. Pacific and her assistant eventually repaid over $30,000.

In the federal system, the grand jury remains an absolute requirement; all prosecutions for felonies (crimes punishable by imprisonment in a penitentiary) must be initiated by grand jury indictment unless the accused waives that right. Federal grand juries don't have independent investigatory powers; they're limited to matters brought before them by prosecutors. Rule 6(a)(1) of the Federal Rules of Criminal Procedure (FRCP) sets the size of a federal grand jury at no less than sixteen nor more than twenty-three people. Rule 6(e) imposes secrecy on grand jurors. That serves several functions — it protects the reputation of anyone who is investigated but not ultimately indicted; it encourages reluctant witnesses because their words won't reach the targets of the investigation; it protects witnesses and evidence from tampering or undue influence; and it reduces the possibility that the targets of the investigation will flee before indictment.

Even though today's grand juries may lack the independence that once briefly protected Stephen Colledge from Charles II's royal wrath, they still arguably serve as a useful speed-bump on the road to criminal conviction, forcing prosecutors to disclose their evidence well before the defense must make any showing. San Francisco police chief Earl Sanders no doubt appreciates such advantages — six months after he was indicted, the charges were dropped and he was declared "factually innocent," a finding that permitted him to have his fingerprints, mug shot and booking sheet from the arrest destroyed.

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Staff Reports are written by the Straight Dope Science Advisory Board, Cecil's online auxiliary. Though the SDSAB does its best, these columns are edited by Ed Zotti, not Cecil, so accuracywise you'd better keep your fingers crossed.

References

Alexander v. Louisiana, 405 U.S. 625 (1972) (states not constitutionally required to use grand juries): http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=405&invol=625

Brenner, Susan, "Grand Jury Origins," University of Dayton School of Law: http://www.udayton.edu/~grandjur/feedback/feedba19.htm

Brenner, Susan, "Grand Jury History," University of Dayton School of Law: http://www.udayton.edu/~grandjur/links/gjhistory.htm

Costello v. United States, 350 U.S. 359 (1956): http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=350&invol=359

Edwards, George, "The Grand Jury: An Essay," reprinted at http://www.constitution.org/gje/gj_00.htm

Ex Parte Jones County Grand Jury, 705 So. 2d 1308 (Miss. 1997)

Green v. United States, 356 U.S. 165 (1958) (only crimes punishable by imprisonment in penitentiary are infamous under Fifth Amendment): http://supreme.justia.com/us/356/165/case.html

Hafetz, Frederick and Pellettieri, John, "Time to Reform the Grand Jury," Champion Magazine, January/February 1999:  http://www.nacdl.org/public.nsf/ChampionArticles/19990112?OpenDocument

"How Federal Grand Juries Work," NPR.org: http://www.npr.org/templates/story/story.php?storyId=4975837

Kadish, Mark, "Behind The Locked Door Of An American Grand Jury: Its History, Its Secrecy, And Its Process," 24 Fla. St. U. L. Rev. 1 (1996): http://www.law.fsu.edu/journals/lawreview/frames/241/kaditxt.html#FNR21

Schwartz, Helene, "Demythologizing the Historic Role of the Grand Jury," 10 Am. Crim. L. Rev. 701, 703 (1972)

Younger, Richard, "The People's Panel: The Grand Jury In The United States, 1634-1941" (1963): http://www.amazon.com/gp/product/B0007DV6XK/sr=8-1/qid=1143517819/ref=sr_1_1/104-0149305-6898367?redirect=true&%5Fencoding=UTF8

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