Prosecutors are scared of grand juries, for they can go after the prosecutor! BUT, if you are a charismatic person, perhaps you can manipulate the grand jury to do a lot for you, a rubber stamp if you will, and let the grand jury take any political/public heat.
Grand Juries were started by Henry II in the 12th century (around 1166). They have gone thru 3 evolutions. Started as a way for king to take power from church, then evolved where the people used them to take power from the king (a due process instrument; written into our Constitution), and now they have become largely a prosecutorial tool, a crime control instrument.
1. Called usually by prosecutors.
2. Suspects are not notified in advance of the hearing nor of the purpose of hearing.
3. Grand juries meet in secret and seal their work.
4. Majority vote of the grand jury quorum (quorum is usually defined as a majority so in a grand jury of 16, 9 have to show up and 5 have to vote the is probable cause) relative to probable cause is all that is needed VS. in a petit jury, need a unanimous vote of all jurors at beyond reasonable doubt (if all 12 not present, then a mis-trial or an alternate steps in)
5. Can indict the same person on same charges over and over and not be sued for malicious prosecution. Grand juries are basically immune from any type of criminal or civil liability.
6. No right for the suspect to hear and respond to charges.
7. No right for the suspect to hear evidence against them.
8. No right for the suspects' attorney to be present to hear the accussors' testimony (ie., grand jury meets in secret).
9. No right for the suspect to confront and cross-examine that evidence/witnesses/accussors.
10. Suspects may be called in to testify/be questioned, and yet have no right to have an attorney present during that testimony.
NOTE - CAN the grand jury allow the suspect to listen, cross, have an attorney; CAN a state grant more rights? Yes, can go above the line. Just can't go below the line.
11. No right suspects to present witnesses or evidence on their own behalf (ie., only answer questions asked, no right for elaboration or explanation)
12. Grand jury can literally go on a fishing expedition and without any cause subpoenea witnesses and basically:
a. force them to testify or be held in contempt
b. force them to bring in evidence or be held in contempt
Police can't do this, on either count. Police need probable cause to get evidence VIA a warrant, and if the case has focused on a suspect, the police can't question them without an attorney present, and as we have already noted, there is no right to counsel during a grand jury investigation. This violates Escobedo (right to counsel at point of focus) and Minnick (once ask for an attorney all questioning is to stop - case specific, see also McNeal v. Wisconsin).
The Grand Jury can literally go on a fishing expedition and tell people to come in and testify even if they don't know for sure if the person is involved, and they can tell you to bring things in even if they are not sure that you have it (ie., they lack probable cause), and hold you in contempt if you don't. This gives tremendous power to the Grand Jury, more power than the police have. Contemporary example - the Jon Bennet Ramsey case. The police are stuck, so they are asking for a Grand Jury to be called into session so it can, with its increased power, force some testimony and get some evidence. Some additional thoughts on point #12.
a. You can't refuse to answer question on the basis of a general right to privacy (Clinton thought about trying this but opted out).
b. You can choose to remain quiet out of a concern over self-incrimination. The Grand Jury can't violate your 5th amendment rights and force you to testify against yourself. So, in other words, you can plead the 5th before a Grand Jury. The way to do this is to give your name and then take the 5th, and literally say no more.
c. If you do choose to talk even just a little, be careful, for an apparently innocuous fact may be considered "incriminating" if it provides a lead to other evidence or if it circumstancially corroborates other evidence already available to the Grand Jury.
d. Another reason to be quiet up front is that once a line of questioning has begun and you have answered a few questions, you can't suddenly decide to stop answering. You can't choose to answer some questions and not others along a line of inquiry. Disclosure of any incriminating fact waives the privilege as to the details of those facts. (Unlike a consent search scenario)
e. Suppose you plead the 5th, but the Grand Jury would really like to hear from you. They can in essence force testimony by granting you immunity. If you fail to testify now, once granted immunity, you could be held in contempt and jailed. Quick review, there are two types of immunity:
l. transactional - narrow; immunity given only for this one act in question AND if Grand Jury/police can derive
evidence from an independent source, can still go after you.
2. use - go for this one; testimonial and derivative use immunity; if given this, nothing the witness testifies to may be
used against them directly, nor can they use your testimony as a lead to find other evidence against you.
Some more thoughts on this immunized, grand jury witness. When a reluctant witness is subpoenaed to the Grand Jury, asserts their 5th amendment privilege, and is subsequently given testimonial and derivative use immunity, the witness often wants to avoid helping the investigation if at all possible.
a. Helping a prosecutor/grand jury investigate one's co-conspirators in a white collar crime is not likely to enhance the witness's social or financial standing.
b. Helping a prosecutor/grand jury investigate one's co-conspirators in an organized crime investigation will likely shorten the witness's life expectancy (ala Sam Giancana case in Chicago in mid-l970s; was being called to testify at a Grand Jury and was killed).
Thus, the witness and the grand jury will engage in the a little game of poker. The witness wants to help the investigation as little as possible, but also must avoid committing perjury and getting a contempt citation by refusing to answer questions after have been immunized. In such situations, the witness will typically testify to facts they believe that the grand jury/prosecution already knows, while denying or claiming no knowledge of facts about which they believe the grand jury/prosecutor cannot prove.
13. There is a formal document prepared by the grand jury outlining the reasons it did whatit did, but the suspect has no right to see the formal/written report and to see the reasons for the decision
14. No real appellate procedure per se; cannot really appeal the indictment the Grand Jury back to the Grand Jury, cannot ask them to reconsider.
So in review, ways in which a grand jury functions as a crime control mechanism:
l - typically called by a prosecutor
2 - not notified in advance of the hearing and its purpose
3 - meet in secret and seal their work.
4 - majority vote of the grand jury quorum relative to probable cause is all that is needed.
5 - can indict the same person on same charges over and over and not be sued for malicious prosecution/grand juries are basically immune from any type of criminal or civil liability.
6 - No right for the suspect to hear and respond to charges.
7 - No right for the suspect to hear evidence against them.
8 - No right for the suspects' attorney to be present to hear the accussors' testimony (ie., grand jury meets in secret).
9 - No right for the suspect to confront and cross-examine that evidence/witnesses/accussors.
10 - Suspects may be called in to testify/be questioned, and yet have no right to have an attorney present during that testimony.
11 - no right for suspects to present witnesses or evidence on their own behalf (ie., answer only the questions asked, no right for elaboration or explanation)
12 - can subpoena witnesses and force them into the grand jury room; held in contempt if don't come
13 - if witnesses plead the 5th, can in essence force the reluctant witness to testify by granting them immunity and holding them in contempt if they subsequently don't testify
14 - can subpoena evidence without probable cause and hold persons in contempt if they don't produce the evidence
15 - there is a formal document prepared by the grand jury outlining the reasons it did whatit did, but the suspect has no right to see the formal/written report and to see the reasons for the decision
16 - no formal appellate procedure per se; cannot really appeal the indictment the Grand Jury back to the Grand Jury, cannot ask them to reconsider.
True, grand juries only indict and don't convict, but I would argue that an indictment affects your standing in a community, your ability to do business, affext your life, limb and property, but there are few 5th amendment rights given. Consider those rights and compare them with the grand jury proceeding as we have just outlined it:
l - notified in advance of the hearing and its purpose NO
2 - right to counsel
a. NO when testify
b. NO when accussors testify
3 - right to hear and respond to charges NO
4 - right to confront and cross-examine witnesses/evidence/sccussors NO
5 - freedom from self-incrimination YES, legally, but if granted immunity, may incriminate yourself with co-conspirators who may never do business with you again or may even kill you to protect themselves or out of revenge; freedom from legal self-incrimination, but not from social self-incrimination
6 - right to presnet evidence in your own behalf NO
7 - right to a formal ruling from facts on the record YES, but cannot see that record
8 - right to an appellate procedure; NO, not really, cannot appeal the indictment to the Grand Jury and ask them to reconsider. Some checks and balances in place, but no real appeal per se. The checks and balances:
a. motion to quash the indictment made to the court that authorized the grand jury being called; judge in a closed door setting will look at grand jury info and
determine if probable cause was/is present
b. if the indictment is the same as a complaint, then:
l. the defense can ask for a preliminary hearing and get a change to hear and cross-examine and hopefully convince the judge there is no probable cause
2. if the case if bound over, enter a plea in abatement and have another judge/panel of judges review the prelim bind over and get it thrown out
c. the trial is a check and balance to some degree; been indicted, but then could be vindicated at trial and found innocent; sue the prosecutor/grand jury for
being indicted? Not totally, but for all intents and purposes grand juries are immune from civil liability for handing down an indictment
So there is one closed door check and balance option (motion to quash), two open door check and balance options in states where indictment and complaint have the same power (prelim and plea in abatement proceeding), and an open door check and balance option in all states (the trial)
The grand jury meets in secret, it is a closed hearing with little real check and balance on their legal actions. To me, it runs counter to the American premise of open justice, of checks and balances, and flies in the face of several powerful pieces of court precident regrading the right to counsel (Escobedo, Minnick). The trial is a check of sorts, but the Grand Jury via its indictment can hurt and destroy, with but a semblance of due process.
REMEMBER - could some states give some of these rights? Yes, absolutely, states can give more rights than required, but these are the minimum legal rights.
Final thought - the irony of it all. While proposed initially in 1166 AD as a way to take power from the church and give it to the executive branch/the King, by the 1500/1600s, the grand jury had evolved to become a way to involve citizens in the prosecution process and to protect citizens from the abuses of the executive branch/the king. It had become a due process entity, and precisely for that reason it was embraced by our founding fathers, who were of course anti-king and pro due process. But now, some 400 years later, the grand jury has continued its evolution to become a crime control instrument once again, an instrument of the state, of the executive branch prosecutor/king, like it was in 1166 when Henry II originally created the grand jury to give the executive branch, the king, more power. In this context, we have gone full cycle. (3 evolutions)