Probable cause revisited.

• Author: Ortman, William
• Position: II. A History of Charging Standards A. The Founders' Charging Standards 4. Understanding the Founders through Conclusion, with footnotes, p. 538-568

4. Understanding the Founders

   A crucial question remains: Why did many American jurists gravitate towards the Whigs' view and reject the probable cause standard? The political logic of the Exclusion Crisis, after all, no longer held. Unlike John Somers and Henry Care, the American judges did not insist on a strict charging standard in order to protect their allies from political prosecutions. (155) We must look elsewhere for explanation. In two ways, the strict charging standard many Founding-era judges favored was a good fit with the criminal justice and political conditions of their time.

   First, it makes sense that the Founding generation, with its deep-seated anxiety about concentrations of power, would share the Whigs' emphasis on constraining the prosecutorial function. (156) To the Founders, the "great problem to be solved" in "design[ing] governance institutions" was the "excessive concentration of political power." (157) At least some Founding-era judges understood the unrestrained power to initiate criminal prosecution as an example of excessively concentrated political power. Thus Justice Wilson, in his 1790 grand jury charge, argued that:

   The executive power, of prosecuting crimes and offences, might be dangerous and destructive, if exercised solely by Judges occasionally appointed, or appointed during pleasure, for that purpose. To prevent this, two precautions are used.... [One] is, that a double barrier--a presentment, as well as a trial by jury--is placed between the liberty and security of the citizen, and the power and exertions of administration. (158) Chief Justice Kinsey of New Jersey made a similar point in rejecting a probable cause standard:

   The truth is, as I believe, this doctrine [of probable cause] has been broached in times not remarkable for true notions of liberty; Times in which the courts were filled with judges holding their offices at the will and pleasure of the crown, which they too often followed with a shameful partiality, as well as an unrelenting severity against which innocence seldom afforded any security, or by which guilt too often escaped with impunity. (159) The Founding-era judges' embrace of a strict charging standard may be explained, in part, by their demand for constraints on the delegation of prosecutorial power.

   Second, although Founding-era judges did not say so explicitly, their insistence that grand jurors be certain of a suspect's guilt may also reflect the trial system then in place. I have noted that a strict charging standard will be attractive when an adjudicative system does not otherwise provide adequate certainty that the people it punishes are guilty. (160) As Lawrence Friedman explains, at the beginning of the nineteenth century, trials "rarely lasted a day, and most were probably much shorter." (161) It would hardly be surprising if judges (privately) questioned the reliability of such trials. They were too politic to do so openly, but allusions in grand jury charges to the "risk" of public trial suggest that part of the impetus for a strict charging standard may have been weakness elsewhere in the adjudicative process. (162)

   2. Probable Cause Triumphant: The Nineteenth and Twentieth Centuries

      Leaving the eighteenth century, the Whig/Wilson view of the criminal charging standard seems settled. Yet by the middle of the twentieth century, it had all but disappeared, replaced by the "probable cause" standard so dreaded by Justice Wilson and many of his contemporaries. This Subpart traces the postFounding history of the criminal charging standard into the twentieth century. Because the basic story has been told before, (163) my aim is less to describe what happened than to suggest an explanation as to why.

      The Whig/Wilson charging standard stood for about the first threequarters of the nineteenth century. (164) If anything, it grew more entrenched. Treatise writers joined judges in rejecting probable cause as a charging standard. (165) Judges, meanwhile, made the Founders' approach more sophisticated by formulating what Barbara Shapiro labels the "prima facie" standard, pursuant to which a grand jury should indict only if the government's evidence would, unless contradicted or explained by the defendant, warrant a conviction. (166) Chief Justice Lamuel Shaw of Massachusetts gave an early "prima facie" charge in 1832. (167) The evidence before the grand jury, he explained, "must be of such a nature, that if it stood alone, uncontradicted and uncontrolled by any defensive matter, it would be sufficient to justify a conviction on trial." (168) Similar descriptions of the prima facie standard can be found in nineteenth-century legal opinions, (169) grand jury charges, (170) and a manual for grand jurors in New York. (171)

      Shapiro sees the prima facie standard as a new and distinct approach to charging, which brought together for the first time an "institutional element"--the fact that the grand jury heard only the government's evidence--with an "epistemological element"--the idea that the grand jury should be convinced of the defendant's guilt. (172) Shapiro's view makes sense given her sources. (173) But it is apparent from the grand jury charges discussed in Part II.A above that the prima facie standard is continuous with, and even foreshadowed by, the approach taken by many Founding-era judges. As we have seen, Founding-era judges justified a strict charging standard in part on the grounds that the grand jury saw only one side of a case. (174)

      The high-water mark for the Whig/Wilson charging standard came in 1872, when Justice Stephen Johnson Field told a federal grand jury in California that although "[fjormerly, it was held that an indictment might be found if evidence were produced sufficient to render the truth of the charge probable," a "different and a more just and merciful rule now prevails." (175) As such, Field instructed:

      To justify the finding of an indictment, you must be convinced, so far as the evidence before you goes, that the accused is guilty--in other words, you ought not to find an indictment unless, in your judgment, the evidence before you, unexplained and uncontradicted, would warrant a conviction by a petit jury. (176) Field's charge became the definitive statement of the prima facie standard. (177)

      Even by 1872, however, the charging standard had begun to shift in the direction of probable cause. The change came most quickly to information charging. Thus far, I have considered only one mechanism for bringing a criminal charge: the grand jury indictment. Starting with Michigan in 1859, states began experimenting with charging by prosecutor's information. (178) Nineteenth-century reformers criticized the cost and inefficiency of grand jury proceedings, as well as their secrecy. (179) Information charging enabled prosecutors to commence criminal cases without securing an indictment from a grand jury. (180) Procedures varied from jurisdiction to jurisdiction, but as a general rule, when a prosecution was commenced by information, a magistrate reviewed the sufficiency of the government's allegations at a preliminary hearing. (181) In information states, magistrates thus took over the grand jury's screening function. (182)

      Before information charging began, preliminary hearings existed to test the lawfulness of arrests. (183) When jurisdictions added the review of informations to the preliminary hearing's agenda, they had to choose a standard. They could use the probable cause standard applicable to arrest, or they could use the prima facie standard, which, at least in the earliest days of information charging, still dominated the grand jury context. They overwhelmingly chose probable cause. (184) In Michigan, for example, an 1862 court ruling held that judges would review informations under the probable cause standard set forth in a statute providing for review of arrests. (185) Likewise, when the United States Supreme Court approved California's information charging system in Hurtado v. California, it noted that California law provided for "examination and commitment by a magistrate, certifying to the probable guilt of the defendant." (186)

      Shapiro argues that in the context of information charging, probable cause emerged as the governing standard "without anyone giving it serious thought simply because it [was] the standard in place for preliminary hearings." (187) Consistent with Shapiro's explanation, I am aware of no contemporaneous debate about what charging standard should apply to informations. This includes the state legislative fights over bills to authorize information charging. (188) The proponents of these bills had many complaints about grand juries and grand jurors--a Michigan legislative committee report, for instance, contended that "[t]he grand jury is irresponsible as well as absolute in the exercise of its powers." (189) Yet the strict charging standard does not seem to have been among the complaints. (190) The absence of legislative, judicial, or scholarly attention to the charging standard during the adoption of information charging is remarkable. To many Founding-era judges, the charging standard was critically important. But by the middle and latter parts of the nineteenth century, criminal justice reformers changed it, seemingly without noticing.

      While many states shifted to information charging, the grand jury system remained in place in the federal courts and other states. Here the changeover to probable cause was slow and messy. In the late nineteenth century and the first half of the twentieth century, a mounting number of opinions, (191) grand jury charges, (192) academic commentaries, (193) and grand jury handbooks (194) announced that a grand jury needed only probable cause to return an indictment. By 1932, an article in the Yale Law Journal could maintain that probable cause was the "catch phrase" for the grand jury's standard. (195) Even the Supreme Court mentioned (in dicta) that...