While we await Donald Trump’s grand jury results, I wonder about the controversy surrounding the process itself. What is controversial? We know a grand jury determines if criminal charges should be brought. However, we often overlook its role in protecting the innocent. Should the rules be changed? Here’s more.
In the real olden days, the king of England or his representatives charged you with a crime and then, if the charges were serious (like felonies), you were tried in an assize, like a circuit court.
The problem with assizes was the trials. There was the popular trial by ordeal (fire, water, “God will help the innocent”), trial by battle (a judiciary sanctioned duel where the righteous prevail) or trail by oath (compurgation), meaning take an oath and get 12 of your friends to swear they believe you.
So, in those days, a defendant could die from the trial, guilty or not.
A reform occurred in 1166. After the Assize of Clarendon, Henry II decreed there should be trial by jury, a concept promulgated by William the Conqueror, although it didn’t immediately catch on. It coexisted with the other forms of trial until as late as 1819, when trial by combat was eliminated.
Today, there are two types of juries. A petit, or trial, jury of six to 12 citizens deciding the accused’s guilt or innocence, and the grand jury (16 to 23 citizens) determining whether there is “probable cause” to determine if a person should be tried in the first place.
Grand juries operate in secret, in accordance with the federal Rules of Criminal Procedure, so an unindicted person would not be held to ridicule. It also makes it more conducive for witnesses to voluntarily testify and lessens the risk that a potential defendant will flee or unlawfully influence jurors.
Interestingly, no judge is present in the grand jury because the defendant is not on trial. The grand jury, in fact, is not even considered part of the judiciary. Only the prosecutor is present to present evidence to grand jurors, and they determine if there should be a trial. Our fellow citizens accuse, not the government.
Because the defendant is not on trial, they have no right to present their case or even be informed of the proceedings, in most instances. Remember, they’re not accused until the grand jury accuses them.
Additionally, while transcripts are kept, the defendant doesn’t get access to them. If charged, the defendant is to refute only what’s presented at trial.
What’s wrong with that?
The biggest criticism is, unlike in regular trials, jurors may not be screened for bias. It’s also not proven that they have sufficient legal understanding, as they are led by the prosecutor who drafts charges and decides which witnesses to call.
Further, the targets or their lawyers have no right to appear unless invited, and they do not have a right to present adverse evidence. Again, it’s not a trial.
And targets do not have a right to counsel if invited to appear, nor do they have a right to confront and cross-examine witnesses.
The American Bar Association has opined that grand juries have largely lost their role in protecting citizens from unfounded accusations and have become a mere rubber stamp for the prosecution, without adequate safeguards.
In fact, only the United States and Liberia use grand juries today. Other common-law jurisdictions employ preliminary hearings, where the prosecutor goes before a judge who makes the determination if the case should be tried. Currently, all states have provisions for grand juries but only about half of the states use them.
Although the Fifth Amendment to the Constitution says, “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury,” should changes be made to protect the innocent more fairly?
Tom Crouser is a business consultant living in Mink Shoals. Reach him at tom
@crouser.com and follow
@TomCrouser on Twitter. Also connect via Facebook and LinkedIn.
