Copyright 2000 Federal News Service, Inc.
Federal News Service
July 27, 2000, Thursday
SECTION: PREPARED TESTIMONY
LENGTH: 3605 words
HEADLINE:
PREPARED TESTIMONY OF SARA SUN BEALE PROFESSOR OF LAW DUKE UNIVERSITY SCHOOL OF
LAW*
BEFORE THE
HOUSE COMMITTEE ON THE JUDICIARY
SUBCOMMITTEE ON THE CONSTITUTION
SUBJECT - CONSTITUTIONAL RIGHTS
AND THE GRAND JURY
BODY: Thank you, Mr.
Chairman, for inviting me to testify regarding constitutional rights and the
grand jury. I would like to focus on the history of the federal grand jury and
general perspectives on proposals to alter the procedures under which federal
grand juries operate.
The history of the grand jury
The English
origins of the grand jury
The modern federal grand jury is the direct
descendant of an English institution whose history can be traced for 900 years.
The accusing or presenting jury--the ancestor of both the modern grand jury and
the trial jury--was formally made a part of English procedure at the Assize of
Clarendon in 1166. Although the grand jury has been praised as an important
safeguard of individual liberty, it originated as a prosecutorial tool designed
to increase criminal prosecutions, enhance the crown's authority, and indirectly
to raise revenues when property owned by persons convicted of crimes was
forfeited to the state. The local presenting jury was summoned and required,
under oath, to report each person who was accused or reputed to have committed a
crime. Beginning in the 13th century the presenting jurors were fined for
misconduct or errors, including the failure to indict or confusing the details
of any crime. This practice, which has been compared to a "grim spelling bee,"
ensured that criminal conduct was disclosed and further augmented the crown's
coffers. The separation of the trial and grand jury functions occurred in the
middle of the 14th century, and by the end of the century the "grande inquest,"
which closely resembled the modern grand jury, had appeared. Although it could
still prefer charges based upon its own knowledge of the crime, the grand jury,
like the trial jury, began to hear witnesses during this period. The practice
also developed of allowing third persons, including servants of the king, to
draft charges that the judge would transmit to the grand jury.
Not until
the end of the 17th century did the grand jury develop its reputation as a body
that not only accused the guilty but also shielded the innocent from unfounded
charges. A sense of the grand jury's independence gradually developed. In 1642
Lord Coke interpreted the provision in the Magna Charta that provided no man
could be taken or imprisoned but by "the law of the land" to guarantee that no
man could be "restrained of liberty, by petition, or suggestion to the king, or
his council, unless it be by indictment or presentment of good, and lawful men."
Although there was no legal impediment to the practice of fining grand jurors
for their refusal to indict, the imposition of such fines in 1667 raised a storm
of protests. The Lord Chief Justice was summoned to the House of Commons, which
resolved that fines and imprisonments of grand jurors were illegal, though the
House of Lords did not concur. Grand juries in London blocked the king's
attempts to prosecute Protestants Stephen Colledge and the Earl of Shaftesbury
for treason. Both grand juries were under considerable pressure to indict. In
the Colledge case the presiding judge required the jury to explain its failure
to indict, and the foreman of the grand jury was subsequently questioned by the
privy council and imprisoned in the Tower. The judge in the Shaftesbury case
gave instructions very favorable to the crown, and told the jury they would be
criminals if they did not indict. He also granted the prosecution's request that
the grand jury hear witnesses in public, rather than in private as was the
custom. Although Shaftesbury was eventually driven into exile and Colledge was
indicted by a grand jury outside of London and ultimately executed, the London
grand juries' refusal to indict in these cases was seen as a demonstration that
the grand jury was a safeguard of English liberty.
The grand jury was
seen as a protection against unfounded or malicious charges, since no one could
be formally charged and held for trial unless a jury of his peers agreed that
there was a sufficient case against him. For example, a book originally
published in 1680 stated that it was the function of the grand jury:
To
preserve the Innocent from the Disgrace and Hazards which ill Men may design to
bring them to, out of Malice, or though Subornation, or other sinister Ends; for
so tender is the Law, of the Reputation and Live of a Man, that it will not
suffer the one to be sullied... and the other indangered by a Trial, until first
the Matter and Evidence against him have been scann'd, examined, and found by a
Grand Jury, upon their Oaths, against him.
By the late 1700s the
procedures of the English grand jury closely resembled those of modern federal
grand juries. The grand jurors generally heard testimony and deliberated in
private. Witnesses appeared before the grand jury without counsel, and as a lay
body the grand jury operated informally, without attempting to follow the rules
of evidence. An indictment issued if a majority of the grand jurors concurred.
The American grand jury
The English colonies adopted the system
of instituting criminal charges by the grand jury's accusation, though colonial
grand juries also served other needs in the new settlements. During the
Revolutionary period grand juries played a role in the colonists's opposition to
British rule. Grand jury charges and reports were used for patriotic propaganda,
and grand juries refused to indict colonists for crimes involving resistance to
British authority. For example, three successive grand juries in New York
refused to indict John Peter Zenger for libel, and Massachusetts grand juries
refused to indict the leaders of the Stamp Act rebellion for any offense. On the
other hand, the Boston grand jury actively pursued accusations against the
British soldiers who were quartered in town, indicting them for conduct such as
breaking and entering private homes and waylaying private citizens. Thus royal
prosecutors disliked taking cases to local grand juries, preferring to initiate
charges by a prosecutor's information.
When the new federal and state
governments were constituted, the grand jury was adopted in each jurisdiction.
The founders of these new governments were influenced not only by the role
played by the grand juries during the Revolutionary period, but also by the most
widely read English authorities, who portrayed the grand jury as one of the
principal safeguards of personal liberty in the English legal system. At the
federal level, the original constitution proposed to the states contained no
provision regarding the grand jury. Amendments drafted in Massachusetts (by John
Hancock), New Hampshire and New York proposed guaranteeing indictment by grand
jury. The amendments proposed by James Madison included this guarantee, which
was reworded and adopted as part of the Fifth Amendment. The grand jury clause
of the Fifth Amendment provides: No person shall be held to answer for a
capital, or otherwise infamous crime, unless on presentment or indictment of a
Grand Jury, except in cases arising in the land or naval forces, or in the
Militia, when in actual service in time of War or public danger.
As the
Supreme Court has repeatedly stated, the federal grand jury "was intended to
operate substantially like its English progenitor.
"
The most
remarkable feature of the English grand jury and its American descendants is a
dual function, which has been compared to a shield and a sword. The sword
function--the offensive prosecutorial function--developed first. Functioning as
a prosecutorial tool, the investigative grand jury discovers and attacks
criminal conduct. The grand juries that refused to indict Stephen Colledge, the
Earl of Shaftesbury, John Peter Zenger, and the participants in the Stamp Act
rebellion, performed the defensive or shield function, standing as a protective
bulwark, or shield, between the prosecution and the accused. This is also
referred to as the grand jury's screening function. While it was the grand
jury's screening function that led to its inclusion in the Fifth Amendment, the
new federal grand juries (and those provided for in the state constitutions)
retained their dual nature.
State grand jury practice
By the
middle of the 19th Century, there was considerable debate at the state level
regarding the value and appropriate function of the grand jury. Critics charged
that the grand jury was an expensive and cumbersome relic that had outlived its
usefulness, and there was also concern that the grand jury's inquisitorial
procedures posed a threat to individual liberty.
Although no state has
abolished the grand jury, reformers drafted state constitutional provisions
permitting the initiation of criminal cases by information. In Hurtado v.
California, decided in 1884, the United States Supreme Court upheld a state
conviction initiated by information, holding that neither the Fifth Amendment
nor the Due Process clause of the Fourteenth Amendment required the states to
afford the right to grand jury review before trial. Today, only about one third
of the states require a grand jury indictment to initiate every serious criminal
charge (and a few additional states require an indictment to initiate charges
that could result in a capital sentence or life imprisonment). However, all
states have preserved the investigative function of the grand jury, and in most
states that permit prosecutions to be initiated by information the prosecutor
has the option of initiating the case through the grand jury.
In recent
years the focus in many states has been on the adoption of procedural reforms
intended to provide greater protection for witnesses and targets of grand jury
probes, as well as reforms intended to strengthen the grand jury's defensive or
screening function. Probably the most significant procedural reform has been the
enactment in about one third of the states of provisions that permit witnesses
to bring counsel with them into the grand jury room. A few states have adopted
provisions requiring that witnesses be advised of their rights before they
testify, or advised of the subject of the grand jury's investigation. Some
states afford the accused the right to testify or present evidence before the
grand jury. A number of states regulate the evidence received by the grand jury,
requiring the grand jury to observe some or all of the rules of evidence, and
requiring the prosecution to make the grand jury aware of exculpatory evidence.
In order to prevent the grand jury from being used for harassment, several
states have imposed limits on the number of times the prosecution may seek an
indictment against an individual for a particular offense if a previous grand
jury has voted not to indict that person. Grand jury procedure in these states
diverges from the procedure in the federal courts, which more closely follow the
procedures of the English and colonial grand juries, and the original federal
grand juries that were modeled upon them.
Perspectives on proposals to
alter grand jury procedures
Various groups have proposed revamping the
procedures under which federal grand juries operate in order to adopt the
reforms already in place in a number of states. Two of the more prominent
examples are the Model Grand Jury Act proposed in 1982 by the American Bar
Association and the Bill of Rights proposed this year by the National
Association of Criminal Defense Lawyers' Commission to Reform the Grand Jury.
Publicity surrounding the Whitewater grand jury convened by Independent Counsel
Kenneth Starr has also focused public attention on the procedures followed in
grand jury proceedings, and the potential for abuse.
In considering
proposals to amend the procedures under which federal grand juries operate, I
would urge the Committee to keep the following points in mind:
1.
Fundamental changes in the legal system have occurred since the development of
the English, colonial, and early federal grand juries, and it is entirely
appropriate to assess whether these developments warrant changes in grand jury
procedures.
Many of the reform proposals are premised on the insight
that the contemporary prosecutor has unprecedented access to, and ability to
influence, the grand jury. It is important to note that this change in the
prosecutor's role is only one aspect of a more comprehensive change in the
criminal justice process, which has become highly professionalized, formal, and
adversarial.
By way of illustration, consider the changes in the trial
process. For example, in the mid 1700s the records of the Old Bailey reveal that
a single judge conducted 16 trials before two juries in less than three days. Of
171 criminal trials in the Old Bailey during that period, the participation of
counsel can be documented in only 12 cases, and the records reveal only 2 cases
in which counsel for both the prosecution and the defense appeared. It was
generally understood that the witnesses could present their testimony without
the aid of counsel, subject to cross-examination by the trial judge and by the
defendant. Although counsel, if available, could cross-examine witnesses,
counsel were not permitted to address the jury. The defendant was not permitted
to give sworn testimony, but he or she could make an unsworn statement and cross
examine witnesses. At this time, the relative informality of the trial process
was on a par with the relative informality of the grand jury. Morever, given the
dispatch with which trials occurred, there was no great incentive to create a
system of plea bargaining, and virtually all cases went to trial.
In
contrast, today's trial is much more formal, adversarial, and professionalized.
The prosecution is uniformly represented by counsel, and the defendant is
entitled to appointed counsel in all serious cases if he or she cannot afford to
employ counsel. The rules of evidence as well as constitutional rules of
exclusion are followed. On the other hand, only a small fraction of cases go to
trial. More than 90% of federal criminal cases are resolved by a guilty plea
entered to obtain sentencing concessions, and this percentage has been
increasing under the Sentencing Guidelines.
Many of these changes appear
to provide support for proposals to revamp grand jury procedure. Whereas counsel
for both the prosecution and the defense played almost no role at the time the
traditional grand jury procedures developed, they now play a central role in
criminal proceedings. The prosecutor orchestrates the grand jury proceedings,
and many observers believe that this has endangered the grand jury's
independence and its ability to serve as a real check on the prosecution, and
that it places unrepresented witnesses at an unfair disadvantage. Similarly, the
formalization of the trial process raises the question whether the informality
of the grand jury process remains appropriate, or whether the grand jury should
also, to the extent possible, conform to the rules of evidence and observe the
constitutional exclusionary rules. Finally, the phenomenal increase in the
number of cases resolved by guilty plea means that in more than 93% of the cases
the prosecution's evidence will not be reviewed after an indictment issues.
Although these fundamental changes in the criminal justice system
support a reappraisal of grand jury procedures, some additional points should be
kept in mind.
First, the investigative function of the grand jury,
especially in the federal system, is more crucial now than it was at the time of
the drafting of the Fifth Amendment, largely because of changes in the nature of
the federal caseload. The principal charges tried in the Old Bailey in the mid
1700s--when the grand jury's traditional procedures were established--were
common law offenses: homicide, burglary, robbery, various forms of theft, and
receiving stolen goods. The proof in these cases was simple and easily
presented. It typically consisted of the testimony of the victim, bystanders,
co-felons who confessed, or pawn brokers who received stolen goods from the
accused. In these cases, the grand jury was serving mainly its screening
function. In contrast, the contemporary federal caseload includes white collar
offenses, consensual crimes (such as drug and gambling offenses, money
laundering, and bribery), and organizational crimes that often sweep over both
state and national boundaries. These crimes are difficult to detect and prove,
and the procedures and investigative authority of the federal grand jury--its
authority to subpoena witnesses to testify and produce evidence and to immunize
witnesses while operating in secrecy--are critical.
Given the nature of
the federal caseload, the investigative grand jury plays an especially important
role in federal practice.
Second, experience in the states is not
necessarily a perfect predictor of the impact procedural changes will have in
the federal system. As a general matter, the crimes prosecuted in the state
courts correspond much more closely to the common law offenses than do the
federal cases. State dockets focus heavily on crimes of violence, property
offenses, and other crimes that depend less critically upon the resources of an
investigative grand jury. Moreover, at present the state prosecutors have the
option in many situations of referring a case to federal officials, and they
frequently do so when state procedures are deemed too onerous, or the state
procedures do not provide needed investigative tools. In this sense, the
availability of the federal grand jury currently serves as an escape valve for
the states. For example, federal officials frequently use the unfettered power
of the investigative grand jury to delve into cases involving organized
criminality, where state law enforcement efforts have sometimes proven
ineffective.
Thus the propriety of
reforms should be
judged in the context of both the changes in the
criminal
justice system that may call for greater protections to witnesses and
targets, and the enhanced need for an effective investigative tool to root out
modern criminality. Let me give just one illustration, the proposal to allow
counsel to accompany a witness into the grand jury room. Proponents of allowing
counsel to accompany a witness point out that an unrepresented witness is at a
disadvantage when being questioned by the prosecutor, and may inadvertently
waive her rights. (Moreover, allowing counsel within the grand jury room may
even improve the efficiency of the proceedings, because the witness will not
have to leave the grand jury room to consult with counsel). Nonetheless, this
proposal is not unproblematic, at least in one important class of cases in the
federal system, those involving organized criminality. Here, the concern is that
allowing the counsel to accompany each witness will provide the targets of the
investigation with much greater and more precise information about the course of
the grand jury's investigation and the information available to the government,
as a result of joint defense agreements. To be sure, the witness could relay
information to counsel outside of the grand jury room, but that information
would not be as complete as would be available if counsel had been present.
Providing the targets with more precise and complete information at this stage
could allow them to thwart the investigation and might endanger witnesses.
Moreover, in these circumstances a witness may not be as cooperative or
forthcoming as he might in counsel's absence. In addressing the proposal to
permit counsel to accompany witnesses inside the grand jury room, consideration
should be given to this issue to determine how frequently such a situation might
occur, how seriously it might impair certain types of investigation, and whether
any additional changes (such as changes in the standards or procedures for
disqualification of counsel) might be warranted.
2. The fundamental
challenge in developing procedures to enhance the grand jury's screening
function is to adapt these procedures to the preliminary stage at which the
grand jury operates, and to its unique inquisitorial character. The adversarial
trial is the most refined screening device developed in the United States legal
system. Grand jury procedures cannot reasonably replicate all aspects of trial
procedure, both because the grand jury is intended to be a preliminary screening
device serving a different function than the trial, and because the secret
inquisitorial character of the grand jury is its defining characteristic. If the
grand jury operated in open court under the supervision of the trial judge, and
it allowed the defense to participate fully in an adversarial proceeding, it
would no longer in any real sense be a grand jury. It would at that point more
closely resemble the trial, or the preliminary hearing, or some hybrid of the
two. On the other hand, as noted above, it is no longer the case that most or
all of the cases presented to the grand jury will be presented at trial, and
receive full adversarial testing. This change may warrant some greater degree of
scrutiny at the grand jury stage (or the addition of a requirement for a
preliminary examination).
This principle provides a basis for examining
some of the reforms that have been proposed, including the requirement that the
grand jury observe the rules of evidence and the exclusionary rule, the
requirement that the grand jury be presented with exculpatory evidence, and the
requirement that the accused be permitted to testify before the grand jury or
designate evidence to be presented to the grand jury.
END
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