Guest Essayist: Allison R. Hayward, Vice President of Policy at the Center for Competitive Politics

The Right to a Grand Jury

The grand jury occupies a unique place in our justice system.  It does not prosecute, but the power of a federal prosecutor depends on the grand jury.  It does not judge, but it can expose or shield defendants from judgment.  It can protect citizens against baseless prosecution, but the reasons for its decisions are shrouded in secrecy.  The grand jury originated in medieval and monarchist England, remained important enough at the Founding for the Framers to enshrine it in the Fifth Amendment, but today grand juries are only employed in the United States.

A grand jury consists of 16 to 23 members.  The United States attorney (the prosecutor in federal criminal cases) presents evidence to the grand jury for them to determine whether there is “probable cause” to believe that an individual has committed a felony and should be put on trial. If the grand jury decides there is enough evidence, it will issue an indictment against the defendant.

The grand jury conducts its work in secret. Jurors cannot be required to explain to anyone, even the courts, why the proceeded in a case. Ideally, secrecy protects against a defendant fleeing the jurisdiction.  It allows for free deliberations without threat or pressure from outside.   It also discourages witness tampering.   And finally, if the jury finds probable cause is lacking, the accused individual suffers no loss of reputation.

Grand juries possess broad powers of inquiry. They have subpoena power, and can compel testimony by providing immunity.  At the same time, their proceedings are not adversarial.  The jury is not assessing the guilt or innocence of any person.

As the Supreme Court stated, ”it is axiomatic that the grand jury sits … to assess whether there is adequate basis for bringing a criminal charge.” U.S. v. Williams, 504 U.S. at 51.

The insular quality to grand juries has provoked criticism.  Because the prosecutor is the one official present during deliberations, critics complain that grand juries can become a rubber stamp — aiding unscrupulous or ambitious prosecutors, who may be pursuing interests hostile to the administration of justice.  While the grand jury is enshrined in the Constitution, Congress has the power to amend the rules by which juries are run.  For instance, Congress could require prosecutors to present any evidence exonerating a defendant, give a defendant the right to appear before the jury, or guarantee a counsel’s assistance for any defendant or target of an investigation.

Allison Hayward graduated from Stanford University with degrees in political science and economics, and received her law degree from the University of California, Davis.  She clerked for Judge Danny J. Boggs of the United States Court of Appeals for the Sixth Circuit.  Hayward is Chairman of the Federalist Society’s Free Speech and Election Law Practice Group. She also serves on the Board of the Office of Congressional Ethics.  She is an active member of the California and Washington, D.C. bars, and she is a certified FINRA arbitrator.

March 14, 2012 

Essay #18 

2 replies
  1. Marc W. Stauffer
    Marc W. Stauffer says:

    Although I have never served on a Grand Jury, I have had several friends and family members that have. From what I have learned, it would seem to me that this helps keep the DA in check and allows community members to help provide guidance to the prosecutor…avoiding the costly expense of prosecuting cases that their is insufficient evidence to win.

  2. Ralph T. Howarth, Jr.
    Ralph T. Howarth, Jr. says:

    Under the Common Law, the Grand Jury was the classical device that kept the king from throwing anyone in jail that he wishes.

    Remarkably, the 5th Amendment Grand Jury is one of the rights of the Bill of Rights that has not yet been incorporated into state affected rights like, say, the First Amendment. The rules Congress makes on federal prosecutors do not apply yet to state prosecutors applying state laws to state courts. This makes the Doctrine of Incorporation inconsistent and spurious as it has been where the federal Bill of Rights have been slowly incorporated on state agents and even private citizens but there is no ratification rhyme or reason to explain why some rights do affect state actors while other rights do not.


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