Grand Jury

• Author: Jeffrey Lehman, Shirelle Phelps

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A panel of citizens that is convened by a court to decide whether it is appropriate for the government to indict (proceed with a prosecution against) someone suspected of a crime.

An American institution since the colonial days, the grand jury has long played an important role in CRIMINAL LAW. The FIFTH AMENDMENT to the U.S. Constitution says that a person suspected of a federal crime cannot be tried until a grand jury has determined that there is enough reason to charge the person. Review by a grand jury is meant to protect suspects from inappropriate prosecution by the government, since grand jurors are drawn from the general population. It has been criticized at times as failing to serve its purpose.

The grand jury system originated in twelfth-century England, when King HENRY II enacted the Assize of Clarendon in order to take control of the courts from the Catholic Church and local nobility. The proclamation said that a person could not be tried as a criminal unless a certain number of local citizens appeared in court to accuse him or her of specific crimes. This group of citizens, known as the grand assize, was very powerful: it had the authority to identify suspects, present evidence personally held by individual jurors, and determine whether to make an accusation. Trial was by ordeal, so accusation meant that conviction was very likely. (Trial by ordeal involved subjecting the defendant to some physical test to determine guilt or innocence. For example, in ordeal by water, a suspect was thrown into deep water: if he or she floated, the verdict was guilty; if the suspect sank, the verdict was innocent.)

The grand assize was not designed to protect suspects, and it changed very little over the next five hundred years. Then, in 1681, its reputation began to evolve. An English grand jury denied King Charles II's wish for a public hearing in the cases of two Protestants accused of TREASON for opposing his attempts to reestablish the Catholic Church. The grand jury held a private session and refused to indict the two suspects. This gave the grand jury new respect as a means of protection against government bullying (although ultimately in those particular cases, the king found a different grand jury willing to indict the suspects).

After this small act of rebellion, the grand jury became known as a potential protector of people facing baseless or politically motivated

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prosecution. The early colonists brought this concept to America, and by 1683, all colonies had some type of grand jury system in place. Over the next century, grand juries became more sympathetic to those who resisted British rule. In 1765, for example, a Boston grand jury refused to indict leaders of protests against the STAMP ACT, a demonstration of resistance to colonialism.

The grand jury was considered important enough to be incorporated into the U.S. Constitution, and has remained largely unchanged. Grand juries are used in the federal and most state courts. Federal grand juries use a standard set of rules. States are free to formulate their own pretrial requirements, and they vary greatly in the number of grand jurors they seat, the limits they place on the deliberations of those jurors, and whether a grand jury is used at all. Federal courts use a grand jury that consists of 23 citizens but can operate with a quorum of 16. Twelve jurors' votes are required for an indictment. States use a grand jury consisting of as few as five but no more than 23 members. Grand juries are chosen from lists of qualified state residents of legal age, who have not been convicted of a crime, and who are not biased against the subject of the investigation.

Hearsay Evidence: Admissible before a Grand Jury?

The RULES OF EVIDENCE prohibit the introduction of most HEARSAY evidence in a criminal trial. (Hearsay is evidence given by a person concerning what someone else said outside of court.) However, when Frank Costello, alias Francisco Castaglia, a notorious ORGANIZED CRIME figure of the 1940s and 1950s, argued that his conviction for federal income TAX EVASION should be overturned because the grand jury that indicted him heard only hearsay evidence, the Supreme Court rejected his claim (Costello v. United States, 350 U.S. 359, 76 S. Ct. 406, 100 L. Ed. 397 [1956]).

Prior to his trial, Costello asked to inspect the grand jury record. He claimed there could have been no legal or competent evidence before the grand jury that indicted him. The judge refused the request. At trial, Costello's attorneys established that three investigating officers were the only witnesses to testify before the grand jury. These officers summarized the vast amount of evidence compiled by their investigation and introduced computations showing, if correct, that Costello had received far greater income than he had reported. Their summaries clearly constituted hearsay, since the three officers had no firsthand knowledge of the transactions upon which their computations were based. Therefore, Costello alleged a violation of the FIFTH AMENDMENT, and asked that hearsay evidence be barred from grand jury proceedings.

Justice HUGO L. BLACK, in his majority opinion, rejected these claims, noting that "neither the Fifth Amendment nor any other constitutional provision prescribes the kind of evidence upon which...