Grand Jury Reform Now

Photo Credit: Jamelle Bouie
Photo Credit: Jamelle Bouie

It has been said that a prosecutor can indict a ham sandwich or let a guilty person go free.  Prosecutors can use the Grand Jury as an intimidating discovery tool or manipulate facts to fit a crime no one understands.

No one talks about grand jury reform until the eyes of the world watch the American criminal justice system at work as they did last week during the Michael Brown case.

Under the Fifth Amendment to the U.S. Constitution, “[n]o person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury.” Whether the grand jury system still functions as the Founding Fathers intended is currently the subject of intense debate.

Prior to the Michael Brown case, many Americans were likely unfamiliar with grand jury process. However, the jury’s decision not to indict Officer Darren Wilson and the resulting civil unrest has placed intense scrutiny on the bedrock of our criminal justice system. Critics of the decision argue that the grand jury operated outside the public view, received too much evidence, and was swayed by the prosecutor’s decision not to recommend specific charges.

Calls to reform the grand jury system are not unique to the Michael Brown case. However, in most cases, critics have argued that grand juries too easily return indictments. “A good prosecutor could get a grand jury to indict a ham sandwich,” they argue.

Groups, including the National Association of Criminal Defense Lawyers (NACDL), maintain that the grand jury no longer protects citizens from unfounded charges, government overreaching, and miscarriages of justice. Like Michael Brown supporters they argue that the grand jury operates too far outside the supervision of the court and, therefore, is frequently swayed by the bias of the prosecution.

Here is a summary of how the Grand Jury works:

The Role of the Grand Jury

Unlike a regular criminal jury, a grand jury does not determine guilt or innocence, but only whether there is probable cause to believe that the person being investigated committed a crime. To make this determination, the grand jury will hear evidence presented by prosecutors that a crime has been committed and can also request documents via a grand jury subpoena.

If the grand jury finds probable cause to exist against a person suspected of having committed the crime, then it will return an indictment. An indictment is an official written document setting forth the criminal charges.

The Composition of the Grand Jury

Federal grand juries are composed of between 16 and 23 individuals. At least 16 jurors (called a quorum) must be present for a grand jury to be able to conduct official business, such as considering whether charges should be brought against someone or investigating criminal activity.

Federal and New Jersey state law requires that a grand jury be selected at random from a fair cross-section of the community in which the grand jury convenes. To accomplish this, the names of prospective grand jurors are drawn at random from lists of registered voters, lists of actual voters, or other sources when necessary. The goal is for jurors to represent a cross-section of the community, without regard to race, gender, national origin, age, or political affiliation.

Secrecy of the Grand Jury

Grand jury proceedings must be conducted in secret. Therefore, the law only allows certain authorized persons to be present in the grand jury room while evidence is being presented. This generally only includes the grand jury, the government attorney, the witness under examination, and the court reporter. Witnesses, even though they may be the targets of the grand jury investigation, are not permitted to have a lawyer accompany them in the grand jury room. They may, however, request to leave the grand jury room to consult with his or her attorney.

Donald Scarinci is a managing partner at Lyndhurst, N.J. based law firm Scarinci Hollenbeck.  He is also the editor of the Constitutional Law Reporter and Government and Law blogs.


Grand Jury Reform Now