THE
GRAND JURY
A CRITICAL STAGE IN THE CRIMINAL JUSTICE SYSTEM At one time, grand juries functioned as a buffer between the people and the state. Today, they function as a weapon of the prosecution.
T
he grand jury is an independent body of citizens who decide whether an accused must stand trial for a felony. Its origins can be traced to a decree by England’s King Henry II in 1166. It was later guaranteed by King John in Magna Carta of 1215. Four centuries later, it was brought to the American colonies and the first regular grand jury was convened in Massachusetts Bay in 1635. No other nation has grand juries except Liberia, and only half the states in this country still have them. New York is one of them. The grand jury is mandated by the Fifth Amendment to the U.S. Constitution and Article I, § 6 of the New York State Constitution. Both provide that, “No person shall be held to answer for a capital or otherwise infamous crime, unless on ... indictment of a grand jury.” The U.S. Supreme Court said the grand jury “belongs to no branch of the institutional government, serving as a kind of buffer or referee between the government and the people.” Courts convene grand juries, but do not oversee them. A judge is not present. Instead, the prosecutor runs the proceedings.
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The grand jury has two functions. As a sword, the grand jury functions as an investigative arm of prosecutors to gather evidence against a suspect by issuing subpoenas for witnesses and documents. As a shield, grand jurors decide if the government has sufficient evidence for an indictment. A trial jury is called a petit jury because it has 12 members for criminal cases, and as few as 6 for civil cases. Judges and lawyers determine who sits on a petit jury. In contrast, a grand jury has 16 to 23 members selected randomly from the public. Trials are open and anyone can attend, but grand jury proceedings are conducted entirely in secret. With limited exceptions, only the prosecutor, stenographer, and witnesses can be in the presence of grand jurors. The prosecutor selects which witnesses testify and the questions put to them. The prosecutor drafts the indictment and instructs the grand jurors on the law. The prosecutor is not obliged to inform a targeted suspect that a grand jury has been impaneled to indict him. The prosecutor can present constitutionally tainted evidence to grand jurors. The prosecutor is not obliged to inform grand jurors a witness is cooperating with the government in exchange for a deal. A prosecutor is not required to present evidence showing the suspect may be innocent. The prosecutor is not even required to tell grand jurors the targeted suspect wants them to hear specific evidence the suspect insists will exoner-
