What does a Grand Jury do?

Grand juries frequently appear in headlines for significant federal cases. This is due to the Fifth Amendment of the United States Constitution, which includes the statement, 'No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury.'

But what exactly is a grand jury? And why do they play such an important role?

WHAT IS A GRAND JURY?

A grand jury is often referred to as the "sword and the shield" of the judicial system. The 'shield' refers to the role of a grand jury in protecting individuals by preventing politically driven or weak cases from reaching trial.

The 'sword' symbolizes the grand jury’s extensive investigative powers. They have the authority to issue subpoenas, requiring witnesses to testify under oath (except when the Fifth Amendment’s more famous clause applies) and to compel the production of essential documents. This means that appearing before a grand jury doesn’t automatically imply a crime has been committed or that an indictment will follow; it may simply be part of the investigation process.

Grand jury proceedings are kept confidential. No judges are present, and the only attorney typically in the room is the prosecutor. This secrecy helps ensure that witnesses are more willing to testify, and for the defendant, it prevents harm from unfounded accusations that the grand jury might ultimately dismiss.

SO WHERE DID THIS UNUSUAL JURY COME FROM?

Historians argue whether the Assize of Clarendon was a groundbreaking document or just a formalization of an existing tradition [PDF]. Regardless, in 1166, King Henry II of England introduced the Assize of Clarendon, which required a group of 'lawful men' to periodically report to the King’s justices on individuals they believed had recently committed robbery, theft, or murder in the area (this would later be extended to other crimes). According to the Assize, 'he who shall be found through the oath of the aforesaid persons to have been charged or published [as a criminal] ... shall be taken and shall go to the ordeal of water.'

Often seen as an early form of a neighborhood watch, historians recognize this assize for separating the indictment and trial processes [PDF], a key development for the modern grand jury.

In 1215, the same year the Magna Carta was signed, the Fourth Lateran Council of Pope Innocent III decreed that priests could no longer offer blessings during trials by ordeal, prompting a major shift in England’s legal system.

With the decline of trials by ordeal, the idea of trial by jury began to take shape. It soon became clear that it was problematic for the same group of people to both accuse and convict someone, so the responsibilities were divided into two separate juries: one for accusation and one for trial [PDF]. In 1368, Edward III formalized the grand jury system, establishing the grand jury as the 'sword.'

The defining moment for the 'shield' came in the 1680s, during the trials of the Earl of Shaftesbury and Stephen Colledge. Shaftesbury and Colledge had been working to prevent the Catholic James (who would later become King James II) from taking the throne by persuading King Charles II to recognize one of his illegitimate Protestant sons. In retaliation, King Charles II dissolved Parliament, arrested Shaftesbury and Colledge, and charged them with treason.

The London grand jury, however, composed of individuals sympathetic to Shaftesbury’s cause, refused to indict either of the men. The foreman of Colledge’s grand jury was even imprisoned in the Tower of London (though some argue this was for an unrelated offense). This case marked a turning point, illustrating that the grand jury could challenge the king and prevent even a trial. The grand jury was emerging as a powerful counterbalance to government power. Unfortunately, King Charles II moved Colledge’s trial to Oxford, where a more favorable grand jury convicted him, and Colledge was executed while Shaftesbury fled the country.

The grand jury remained part of English law until it was largely phased out in 1933 and fully abolished in 1948. However, the grand jury continued to be a fixture in one of England’s former colonies...

THE GRAND JURY IN COLONIAL AMERICA

The American equivalent of the Shaftesbury/Colledge case occurred in the 1730s with Peter Zenger. Zenger was the printer for The New York Weekly Journal, which published articles critical of New York Governor William Cosby. Cosby decided to arrest Zenger on charges of seditious libel, but two separate grand juries refused to issue an indictment. Cosby then tried to bypass the grand jury through another legal process, but ultimately, the trial jury also declined to convict Zenger of seditious libel.

Both the efforts to prosecute someone solely for publishing a newspaper and the attempts to circumvent the grand jury's decision infuriated the colonists. While the case didn’t set a formal precedent, it reinforced the colonists' growing support for an independent press and an autonomous grand jury.

The grand jury soon became a tool wielded by the colonists against unpopular British laws. Grand juries effectively rendered the law of seditious libel meaningless in the colonies, and a Boston grand jury even refused to indict those responsible for the Stamp Act riots. Other disliked laws were similarly unenforceable [PDF]. Grand juries were increasingly seen as a vital safeguard in the judicial system, a check against tyrannical governance. As a result, when drafting the Bill of Rights, they were naturally included.

THE GRAND JURY IN AMERICA

In the United States, grand juries gained such a reputation for independence that the term “runaway grand jury” was coined to describe those that ignored the prosecutor’s directions. One of the most dramatic instances of the grand jury's investigative powers occurred in Minnesota. In 1902, Minneapolis Mayor Albert Alonzo Ames was widely seen as corrupt, yet no one dared challenge him or his 'gang' until Hovey Clarke was named foreman of a grand jury. A 1903 article in McClure’s Magazine describes Clarke as saying, “[Clarke] did not want to be a grand juryman, he did not want to be a foreman; but since he was both, he wanted to accomplish something.”

What Clarke accomplished was bringing down the corrupt mayor. He managed to win over his grand jury, and when the prosecutor refused to act against Ames, Clarke dismissed him. Clarke then wielded the grand jury’s power to hire private detectives. The first team of detectives were careless and spoke openly with police, but while they were under surveillance, Clarke recruited a second team of detectives to carry out the actual investigation. He even took it upon himself to visit the jail to speak with criminals in an effort to get someone to cooperate. The case drew national attention and illustrated the power of the grand jury (although Ames, after evading capture, being convicted, and having the conviction overturned, would eventually go free).

Although most states still have grand juries today, their use differs significantly. Their role in federal cases as both a sword and shield, as guaranteed by the Fifth Amendment, remains the most notable aspect of their function.

In recent years, however, there has been growing criticism that the grand jury’s ‘sword’ power has been overextended, while its ‘shield’ role has diminished. As a result, many argue that today’s grand jury often acts as little more than a rubber stamp for prosecutors.

In Hawaii, a solution to this issue has been implemented with the establishment of the Grand Jury Legal Advisor (GJLA), also known as the Grand Jury Counsel. Traditionally, grand juries operate with only the prosecution's lawyer present, which can create a potential conflict of interest, as the prosecutor is both offering legal advice and seeking an indictment. The GJLA's role is to enhance the ‘shield’ aspect of the grand jury by providing them with an independent advisor to inform them of their rights and powers. Thaddeus Hoffmeister from the University of Dayton explains, “the GJLA strengthens the traditional role of the grand jury as a shield against unwarranted government accusations while still permitting grand jurors, prosecutors, and witnesses to perform their long-established functions.” [PDF]

This marks another milestone in the ongoing evolution of the modern grand jury system.