Essay Read by Constituting America Founder, Janine Turner
The principle of requiring grand jury indictment prior to trial for a capital or other infamous crime has a long and somewhat checkered history in American and English jurisprudence. Today, the primary task of a grand jury is to determine whether there is sufficient cause to bind over an accused criminal for trial. If so, this jury composed of private citizens issues a “true bill” of indictment or a “presentment.” Presumably, the primary purpose of this process is to screen out weak or frivolous accusations to protect the innocent from the ordeal of a trial. But that was not the original function of the grand jury. When the grand jury indictment process began with the Assize of Clarendon in 1126, King Henry II established a proceeding in which a collection of freemen would assemble to pass a preliminary judgment on the guilt of the accused. If the grand jury failed to issue an indictment, the jurors were subject to heavy fines. If they did indict, the accused was often subject not to a trial by a jury of his peers, but to trial by ordeal, which normally did not end well for the accused. Over the years, grand juries gained some measure of independence from the prosecution and from the Crown, and their indictments were not construed as determinations of guilt.[i]
The practice of grand juries in colonial America was crucial to not only the administration of justice but also to the political resistance to British rule. In several instances, colonial grand juries refused to invite criminal suspects accused by the royal governors and attorneys general of the colony. In what is probably the most famous colonial press freedom trial, a printer, John Peter Zenger, was accused of seditious libel by the New York governor William Cosby, but two grand juries refused to indict him. Cosby ultimately used an alternate legal device, an “information” accusing Zenger of the crime and binding him over for trial. A petit or trial jury acquitted Zenger, demonstrating the independence of the courts and the importance that private citizens can have when they participate in a legal proceeding.[ii]
Grand juries also carried out some investigative functions, sometimes acting more or less independently of government officers. Sometimes grand juries investigated civil offenses and even oversaw the administration of government services. At a time when government was small and not particularly professional, grand juries took on functions that today would be considered work for civil servants.
By the time of the American Revolution, many grand juries were regularly refusing to indict colonists who resisted British rule, even in instances in which there was more than enough evidence to bind them over for trial. Grand juries also became more inclined to indict British soldiers and administrators who were thought to have committed crime.
After independence, the Framers of the United States Constitution sought to include a guarantee that anyone accused of a capital or otherwise infamous crime would first have the case examined by a grand jury, with limited exceptions for military personnel during times of war or insurrection. The protection was included in the Fifth Amendment, which also contains protection against self-incrimination and violations of due process. No longer could anyone accused of a federal crime be brought to federal court under an “information” sworn by a federal officer. They must first face a grand jury made up of private citizens.[iii]
Throughout American history grand juries have come to be known as tools of prosecutors, even though they are not formally part of any prosecutorial office. A very high percentage of cases brought to grand juries result in indictments, and the process under which the grand jury works is much different from that of a trial jury. Defendants do not have a right to counsel or the opportunity to cross-examine witnesses. Prosecutors have no obligation to share exculpatory evidence with the accused. Indictments by grand juries do not require a unanimous vote of their members. The proceedings of a federal grand jury are not open to the public, and testimony and evidence presented there are kept secret. In rare cases, judges may order the release of grand jury evidence, but those are limited by Rule 6(e) of the Federal Rules of Criminal Procedure and by the USA PATRIOT Act in some cases involving terrorist threats. Some federal circuit courts of appeals have ruled that judges have some inherent authority to unseal records from grand jury proceedings, even in situations where the exceptions listed in Rule 6(e) do not apply, but other circuits disagree. The secrecy requirements are generally justified as a means of protecting the reputations of innocent parties.[iv]
Most states make use of grand juries, although a few do not. In those states, criminal defendants are bound over for trial through the use of an “information” (i.e., a sworn statement by a competent public officer testifying that there is probable cause to believe the accused is guilty of a crime). In the case of Hurtado v. California, the United States Supreme Court ruled that California’s failure to rely upon a grand jury indictment in a capital case did not violate the Fourteenth Amendment’s due process clause.[v] Most provisions of the federal Bill of Rights have been incorporated by the due process clause, but the grand jury indictment requirement has not. This may be explained by the common criticisms of the procedures used in grand jury proceedings. Nonetheless, many observers believe that this requirement should be incorporated. Grand juries are one of the primary ways in which private citizens participate in the justice system. In many cases, grand juries may be the only juries criminal defendants will ever face, since so many cases result in plea bargains that are accepted by a judge without empaneling a jury. If grand juries are not used, the accused may never have an opportunity to have their case considered by any collection of private citizens.[vi]
James C. Clinger, Ph.D., is an emeritus professor of political science at Murray State University. His teaching and research has focused on state and local government, public administration, regulatory policy, and political economy. His forthcoming co-edited book is entitled Local Government Administration in Small Town America.
[i] Fouts, Gregory T. 2004. “Reading the Jurors Their Rights: The Continuing Question of Grand Jury Independence.” Indiana Law Journal 79 (1): 323–44.
[iii] Gonzalez-Rivas, Rebecca. 2020. “An Institution ‘at Arm’s Length’: Reconsidering Supervisory Power over the Federal Grand Jury.” University of Chicago Law Review 87 (6): 1647–95.
[iv] Beale, Sara Sun, and James E. Felman. 2002. “The Consequences of Enlisting Federal Grand Juries in the War on Terrorism: Assessing the Usa Patriot Act’s Changes to Grand Jury Secrecy.” Harvard Journal of Law & Public Policy 25 (2): 699-720.
[v] 110 U.S. 516 (1884)
[vi] Frey, Robert W. 2022. “Incorporation, Fundamental Rights, and the Grand Jury: Hurtado v. California Reconsidered.” Virginia Law Review 108 (7): 1613–56.