III. Grand Juries

• Library: The Rights of the Accused under the Sixth Amendment (ABA) (2016 Ed.)

III. Grand Juries A. Historical Basis

The grand jury, "the voice of the community," has been an integral part of the English and American criminal justice systems for centuries.²⁶ Historically, only prominent landowners and other important individuals throughout the community served on this panel and were asked to share their opinions about the potential viability of cases brought before the jury.²⁷ Grand juries have traditionally been seen as a part of the governmental checks and balances system,²⁸ helping to prevent cases from going to trial solely on the word of government officials.²⁹ The Fifth Amendment of the U.S. Constitution includes a grand jury indictment clause: "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury." As noted previously, this provision is not included in the incorporation doctrine of the Fourteenth Amendment, and as result states are not required to utilize grand juries when attempting to bring criminal charges against an individual.³⁰

B. Composition and Selection

In both federal and state jurisdictions, the charging grand jury decides whether there is probable cause to believe that a crime has occurred and whether there is probable cause to believe that the persons identified by the prosecutor or by the investigation have committed that crime. Grand juries, unlike trial juries, do not usually convene on a daily basis. Regular grand juries typically sit for a set term; in the federal system the period is eighteen months, but a court can extend this time for an additional six months.³¹ The Jury Selection and Service Act requires grand jurors in the federal system to be selected at random from a "fair cross-section" of the local community in which the court convenes.³² Any list, such as those involving voter registration, motor vehicle licenses, or public utility users, can be utilized to select prospective grand jurors. State and federal grand jury systems automatically excuse certain individuals from serving, among them people over or under a certain age, people who have to care for ill or otherwise incapacitated dependents, and those who serve in public safety professions. Other individuals can be excused if they are able to convince the court that serving would be a hardship, either because of work commitments or family obligations.³³

The Federal Rules of Criminal Procedure establish that a grand jury must comprise between sixteen and twenty-three members and most states have similar requirements.³⁴ The issuance of an indictment requires the approval of the majority of jurors.³⁵

C. The Process

Once a grand jury has been charged and sworn in, it is the responsibility of the government to present relevant evidence upon which the grand jury can decide if a crime has been committed and a particular individual committed it. If so convinced, the jurors can then issue an indictment.³⁶ The Supreme Court has made clear that the grand jury must be allowed to come to conclusions about the existence of probable cause without outside influence.³⁷ After considering all of the evidence made available to them, both testimonial and tangible, jurors may vote to "return" an indictment if there is probable cause to believe a crime has been committed, thus beginning the criminal...