Grand juries are much in the news these days.  What are the essential characteristics of a grand jury?[1]  The grand jury developed as an element of the English Common Law.  As such, it was exported to all the British colonies.  The newly-independent United States preserved the institution in the Fifth Amendment: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury …”

            Despite the name, they are not part of the court system and they are not overseen by any court.  They are an instrument used by the prosecution. 

            A federal grand jury is made up of 16 to 23 members.  Federal law calls for grand jurors to be chosen from the voter rolls to represent a “fair cross section of the community.”  Grand jurors are not screened for bias and the person under investigation cannot challenge potential jurors.  In the election of November 2020, 92.15 percent of the District of Columbia voters cast their ballots for Joe Biden; in New York county (Manhattan), Biden never fell below 69 percent of the vote and most precincts ran for Biden in the 80 percent-plus range; in Fulton County Georgia, Biden won 72 percent of the vote; and in the three southeastern counties of Florida, Biden won 60-80 percent of the vote. 

To issue an indictment, 12 of the 16-23 jurors must agree that the evidence meets the same “probable cause” standard that applies to police officers: “whether at [the moment of arrest] the facts and circumstances within [an officer’s] knowledge and of which they had reasonably trustworthy information [are] sufficient to warrant a prudent [person] in believing that [a suspect] had committed or was committing an offense.”  Actual criminal trials require a unanimous verdict and apply the tougher “beyond a reasonable doubt” standard. 

Grand jury proceedings are not trials, so they are not adversarial in the way that court trials are adversarial.  There is no judge; the prosecutor decides which witnesses to call and what evidence to present; evidence that was obtained illegally and which would not be permitted in a trial, can be presented; the prosecutor is not obligated to reveal exculpatory evidence to the jurors; people appearing before a grand jury do not have a right to have a lawyer present or to cross-examine witnesses. 

It should surprise no one that grand juries almost always follow the recommendation of the prosecutor.  They indict who they are told to indict for the crimes that they are told to charge.  This is the origin of the quote attributed (incorrectly) to New York court of Appeals Judge Sol Wachtler that a district attorney could get a grand jury to “indict a ham sandwich.”[2] 

While the grand jury was a feature of English Common Law spread all around the globe by the British Empire, only two countries still employ the institution: the United States and Liberia. 

Discussion is good.  Informed discussion is better.    

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[1] See: Grand juries in the United States – Wikipedia 

[2] See: Sol Wachtler – Wikipedia  Ah, New York, New York.