Grand Juries The Sword and the Shield

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					Grand Juries: The Sword and the Shield
Susan W. Brenner, NCR Distinguished Professor of Law & Technology, University of Dayton School
of Law, Dayton, Ohio. E-mail:
Professor Brenner is the author of Federal Grand Jury Practice (West, 1996).

The grand jury clause of the Fifth Amendment requires that federal prosecutors use grand juries to
bring charges for serious crimes, i.e., felonies, unless the defendant waives the right to indictment.
Although the Supreme Court held approximately a century and a half ago that the grand jury clause
does not bind the states, which means they are not obliged to use grand juries to bring charges for
serious crimes, nearly every state continues to do so. The persistence of the institution at the state
level suggests there are distinct advantages resulting from the use of grand juries.

Historically, grand juries performed two functions: bringing charges for crimes and investigating both
the possibility that criminal activity had occurred and conditions in the local community. As to the
former, grand juries were known as both "a sword" and "a shield." As a shield, they protected the
individual from official overreaching and abuses of power; indeed, one of the landmarks in jury
independence results from an English grand jury’s refusal to indict individuals identified as enemies of
the king. The grand jurors persisted in their refusal even after being imprisoned, and thereby
established the grand jury as an institution that could protect citizens from unjust charges. Conversely,
grand juries also acted as a sword, seeking out corruption and preferring charges on their own. The
classic example of a grand jury’s acting as a sword is a runaway grand jury in New York in the 1930’s;
the grand jurors ignored prosecutors and embarked upon their own investigation into municipal
corruption. They eventually began cooperating with Thomas E. Dewey, a prosecutor whom they felt
they could trust, and returned indictments against a variety of defendants, including well-known Mafia

“The voice of the community”
As these examples may illustrate, the rationale for employing grand juries is in some senses
analogous to the rationale for using trial jurors; both interject the common sense perspective of the
average man or woman into the criminal justice system. For this reason, the grand jury has been
described as "the voice of the community," in that it interjects a lay perspective into the earliest part of
the criminal justice system, i.e., the investigative and charging processes. When the grand jury
functions as it was intended to, the grand jurors both collaborate with prosecutors and act as a check
on them. As a check, the grand jurors can either decline to bring charges sought by a prosecutor or
decide to bring charges that have not been sought by a prosecutor.

“True bill” or “no true bill”
At common law, and in many states, a grand jury can return charges in either of two ways. One is to
vote on a set of charges submitted by a prosecutor; these charges are contained in a proposed
indictment, and if the grand jurors decide there is probable cause to support the charges, they vote a
"true bill," that is, they vote to return the indictment and initiate a criminal proceeding. If the grand
jurors decide there is not probable cause to support the charges, or that the charges should not be
pursued for other reasons, they vote a "no true bill," which means the indictment is not returned and
no criminal case ensues. In many states, grand juries still have the common law power to charge by
presentment; a presentment is a set of charges brought by a grand jury on its own initiative, not at the
behest of a prosecutor.

Investigative powers
As part of their ability to prefer criminal charges, grand juries have the power to investigate; at
common law, they investigated criminal and civil matters (the conditions of roads and bridges in the
county, say), but the civil investigative aspect of the grand jury has fallen away in many, if not most,
jurisdictions. It does not survive at all in the federal system, and survives in a very minimal form in
most states; in many states, for example, the grand jury’s civil investigative role is limited to monitoring
conditions in the local jail.

The investigative capacity of a grand jury can be a great advantage for prosecutors. The grand jury –
which has also been described as the "Grand Inquisition" – conducts its proceedings in secret and has
the power to subpoena witnesses and physical evidence, i.e., to require that testimony and evidence
be brought before it. The failure to comply with a grand jury subpoena results in one being held in civil
contempt and incarcerated until the witness complies; currently, the record for time served due to civil
contempt is eight years. The Supreme Court has refused to apply the Miranda rule to the grand jury,
so there is no right to counsel and no right to silence when one is subpoenaed by a grand jury.
Witnesses can invoke their Fifth Amendment privilege against self-incrimination (which is much
narrower than the Miranda rule) and any applicable evidentiary privileges as the basis for refusing to
testify or otherwise comply with a grand jury’s demands.

Loss of independence
The most unfortunate aspect of the modern grand jury is that because grand jurors tend to be ignorant
of their role, they fall under the sway of prosecutors and, to use Sol Wachsler’s infamous phrase, are
"willing to indict a ham sandwich" if asked to do so. The secrecy surrounding the role of the grand jury
makes it very much a mystery to the general public; citizens’ only image of jurors comes from media
and news portrayals of trial jurors, and trial jurors are entirely passive. This has subtly changed the
functioning of grand juries over the last century or so, with the result being that they are far less
independent than they used to be. This, in turn, is an unfortunate state of affairs, as it undermines the
purpose of utilizing the "voice of the community."

For more on state and federal grand juries, please visit this website:

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