THE GRAND JURY
The grand jury is the means by which people who volunteer from every walk of life work within the judicial system to ensure that the institutions of government are responsive and fair to those who are governed. It also protects minorities or unpopular persons from persecution or prosecution for improper purposes. The grand jury concept has a long history and has adapted throughout the centuries to meet the needs and conditions of each time period.
Grand juries perform two primary roles. One is to evaluate the validity of charges being brought by a prosecutor, if the charges are not reviewed by a judge, to ensure that they are not frivolous or ungrounded. The other is to inquire into, and investigate if necessary, the operations of local government agencies and officials to ensure that activities are valid and services are efficiently and legally provided. In both instances, the secrecy of the grand jury's deliberations is a common thread that ensures independent and objective consideration of facts brought before it.
History of the Grand Jury: Before American Development
Some historians believe that the earliest versions of the grand jury existed in Athens, where the Greeks used citizen groups to develop accusations. Others find traces of the concept in all the Teutonic peoples, including early Anglo-Saxons. For example, the concept was employed in the early Scandinavian countries. Evidence also exists that the early French developed the "King's Audit" involving citizens who were sworn and required to provide fiscal information related to the operation of the kingdom.
However, most commentators believe that the grand jury arose as an institution in England. In the first millennium, English individuals prosecuted criminals, with the king personally involved in the system. Under the Doom Law of Anglo-Saxon King Aethelred (980-1016), a dozen landowners were appointed to investigate alleged crimes. In 1166, King Henry II established a system of local informers (twelve men from every one hundred) to identify those who were "suspected of" various crimes. If the suspects survived their "trials by ordeal", they paid fines to the King. However, the "informers" were fined if they failed to indict any suspect, or even enough suspects. After 1188, they became tax collectors as well, and after the reign of Henry III, they were charged with looking into the condition and maintenance of public works.
The Magna Carta, signed by King John in 1215, did not mention the grand jury specifically, but did establish various procedures to ensure fairness in the dispensation of justice. Thereafter, until the mid-1300's, the 12-man juries served both to present indictments and also to rule on the validity of charges. During Edward III's reign, from 1312-1377, the 12 individuals were replaced by 24 knights, called "le grande inquest", and the 12 became a "petit jury" responsible only for declaring innocent or guilty verdicts.
Ultimately, in the 1600's, the English grand jury developed as a process to determine whether there was probable cause to believe that an accused individual was guilty of a crime. Grand juries reached their English pinnacle of citizen protectors in 1681, when they refused to indict enemies of King Charles II for alleged crimes. (Ironically, English laws establishing grand juries were repealed in 1933.)
History of the Grand Jury: Early American Development
The use of juries in earliest colonial history was limited. In the New Haven colony, for example, religious beliefs resulted in the residents eliminating trial by jury because there was no reference to juries in the laws of Moses. However, procedures similar to grand juries were used to hear criminal charges of larceny (Boston, 1644), holding a disorderly meeting (Plymouth, 1651), and witchcraft (Pennsylvania, 1683).
In the early 1600's, colonial representatives of the English monarchs made laws and prosecuted violators. The first grand juries recommended civil charges against those crown agents, thus establishing themselves as representatives of the governed, similar to grand juries today. The first grand juries also looked into government misconduct or neglect. For example, the first colonial grand jury, established in Massachusetts in 1635, "presented" town officials for neglecting to repair stocks, as well as considering cases of murder, robbery and spousal abuse.
Other early grand juries performed a variety of administrative functions, including audits of county funds (New Jersey), inspections of public buildings (Carolinas), and review of taxes and public works (Virginia). Virginia grand juries also investigated whether each family planted two acres of corn per person.
In the Colonies, grand juries were considering criminal accusations and investigating government officials and activities, but with a populist view. Grand jurors included popular leaders such as Paul Revere and John Hancock's brother. These grand juries played a critical role in the pre-Revolutionary period: for example, three grand juries refused to indict John Peter Zenger, whose newspaper criticized the royal governor's actions in New York (he ultimately was prosecuted by the provincial attorney, defended by Alexander Hamilton, and acquitted). Grand juries also denounced arbitrary royal intrusions on citizens' rights, refused to indict the leaders against the Stamp Act of 1765, and refused to bring libel charges against the editors of the Boston Gazette in 1766.
After the Revolutionary War ended, the new federal constitution did not include a grand jury. Early American leaders such as John Hancock and James Madison objected. Thereafter, the grand jury was included in the Bill of Rights, as part of the Fifth Amendment, which states, "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a 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..."
From then, until today, the federal grand jury remains an integral part of the justice system, used by federal prosecutors for a variety of potential crimes. In 1801, a federal grand jury indicted Colonel Aaron Burr for treason. Most recently, federal grand juries considered allegations related to the Oklahoma City and New York Trade Center bombings, President Clinton's conduct both before and during his term of office, and the recent claims of wrong-doing by former California Insurance Commissioner Chuck Quackenbush and some associates.
History of the Grand Jury: Adaptation by the States
As the various states were admitted to the Union and adopted their legal and operating procedures, almost every one initially included some reliance on grand juries for either (or both) review of criminal indictments or inquiries into government activities. Some states' grand juries were very active in administrative affairs, even including recommending new laws. Others carried out investigations of government officials; one Tennessee grand jury indicted the entire state court of appeals and another opposed a judge's reappointment on the grounds of "mental imbecility".
Throughout this state-by-state development, the underlying concept remained the same: ordinary citizens, neighbors, and others on grand juries were a necessary part of government to ensure that public prosecutors were not swayed by personal or political prejudices, and that government officials efficiently and effectively performed their jobs.
Since the mid-1800's, grand juries have been criticized as ineffective or out-of-date by a number of reformers because they were slow, lacked expertise, and on other grounds. Others criticized the "star chamber" atmosphere of secret hearings without customary due process rights. However, these complaints were offset by effective grand jury investigations, including those of the Boss Tweed ring in New York City (1971) and racketeering charges brought by a grand jury assisted by Thomas Dewey in the 1930's. Since the nineteenth century, various minor and major changes have been made in grand jury selection, procedures, and qualifications, often resulting in fairer and more efficient jury operations.
The Grand Jury's Role in Criminal Prosecutions
Although the American grand jury originally was conceived as a protector of ordinary citizens by other ordinary citizens, the fairness of its criminal operations has been questioned by various commentators and judges. U.S. Supreme Court Justice William Douglas stated, "It is, indeed, common knowledge that the Grand Jury, having been conceived as a bulwark between the citizen and the Government, is now a tool of the Executive." Some even have referred to it as a "rubber stamp" for prosecutors.
In the criminal system, the California constitution and laws provide that felony prosecutions are initiated only after a determination that there is "probable cause" to believe that specific individuals committed specific crimes. This is done either by an "information" presented for examination and approval by a judge, or by indictment after a grand jury hearing and vote. In either case, the purpose of the objective review is to prevent overzealous prosecutors from unjustified, groundless, or unfair prosecutions when "probable cause" does not exist.
The grand jury operates without providing many fundamental rights common in court hearings and trials. For example, the defendant has neither the right to present evidence to the grand jury or cross-examine the witnesses against him or her. Only the prosecutor may present evidence, and the defendant has no right to counsel, even if required to testify. Even judges generally are excluded, leaving the grand jurors to rely on the prosecutor for all information. One early study indicated that 95% of all cases brought to the grand jury resulted in indictments, raising questions about the value of this review because the grand jury is not able to adequately evaluate the evidence presented only by the district attorney.
The Grand Jury's Role in Civil Investigations
The role of the grand jury in civil investigations presents an interesting twist: the original (English) grand juries served to aid the government in finding and prosecuting private citizens' misdeeds; now, these juries investigate and accuse public figures, defending individual citizens' rights and expectations. Grand juries, both federal and state, may investigate criminal activity or non-criminal activities. In California, for example, the grand jury can investigate any activity by a public official (other than a judge) which violates a state law, and many other activities, as long as they occur within the county of the grand jury.
State grand juries-but not federal grand juries-can investigate any non-criminal activity and report and make recommendations based on the results of the investigation. These investigations commonly include reviewing the operation and condition of jails and prisons, investigating the conduct of local public officials, and other similar matters of public health, safety, and welfare. The results of these investigations may be criminal charges, recommendations for new laws, or merely reports to the public identifying problems but proposing no specific solutions.
California Grand Juries: An Overview
Grand Juries are impaneled in every county in California. Article I, §23 of the California Constitution states: "a grand jury shall be drawn and summoned at least once a year in each county." Depending on a county's population, a specified number of citizens ranging from 11 to 23 in each of California's 58 counties are empowered to investigate and report on various activities of county and city government. The rules governing the makeup, organization, powers and duties of grand juries in California are found in the California Penal Code §888-939. Recent changes in the Penal Code (§904.6, 1991) permit any county to have an additional grand jury at the discretion of the presiding judge of the superior court.
The statutes permit some variation in the manner and time of selection of jurors and require only that the term of service be for one year and coincide with the County's fiscal year. Qualifications for grand jurors are outlined in Penal Code § 893. This section requires the prospective grand juror be at least 18 years old, in possession of their natural faculties and have sufficient knowledge of the English language. In Sacramento County, each grand jury begins its term July 1 and ends its service June 30 of the following year. Throughout the State, prospective grand jurors in each county are chosen through a lengthy process that includes application, screening by the jury commissioner from Department of Motor Vehicle Records and nomination of interested persons by Superior Court Judges. A thorough background check is made on all interested persons and list of qualified candidates is submitted to the judges for review and approval. Since some members of the existing grand jury may be carried over for a second term, the number of names drawn will equal those needed to provide a grand jury of 19 members. (The law allows for a grand jury of 23 in counties with greater than four million population and for 11 members in counties with less than 20,000 population. (Penal Code §888.2))
California Grand Juries: Investigation of Complaints and Accusations
The grand jury also is likely to receive a number of citizen complaints, many of which involve operations of county or city agencies or special districts. Whether the complaint is civil or criminal, rules of secrecy apply, and during the course of its investigation, the grand jury may not divulge the subject or methods of inquiry. The subject of the investigation and the methods of inquiry are only revealed when the final report is published. Privileged or confidential material is not included in the grand jury reports. Thus the names of those questioned and facts that might lead to the identity of a person who provided information to the grand jury are not released.
(1) The failure to act where duty requires an act; or
(1) The improper or doing of an act that a person might lawfully do; or
(1) The performance of an act that is positively unlawful or wrong; or
Duties of the Grand Jury: Government Watchdog
In California today, provisions of the Penal Code to require the grand jury:
(1) Investigate and report on the accounts, records, operations, and functions of district, city and county government and public officials (Penal Code § 925 & 925a); It may also inquire into the affairs of joint powers agencies located in the county.
The grand jury may investigate or inquire into county matters of civil concern, such as the needs of county officers, including the abolition or creation of offices and the equipment for, or the method or system of performing the duties of the several offices.
(1) free access, at reasonable times, to public prisons;
Note: The grand jury has no authority to investigate the courts or the acts or omissions of any judge or judicial employee.
Duties of the Grand Jury: Criminal Indictments
The California Constitution permits criminal trial on the basis of indictment by a grand jury or by information after the district attorney recommends prosecution and a judge agrees that facts exist which warrant prosecution. In addition, under § 917 of the Penal Code, "the grand jury may inquire into all public offenses committed or triable within the county, and present them to the court by indictment." In actual practice, grand juries seldom initiate such inquiries; rather, such offenses are generally brought to the grand jury by the district attorney, who asks for and generally receives an indictment, upon presentation of adequate facts.
According to the California Grand jurors Association, the district attorney much more frequently bypasses the grand jury and uses the process known as a preliminary hearing. A 1954 survey of California district attorneys listed the following factors as influential in the decision to seek a grand jury indictment rather than using the preliminary hearing: (1) high public interest in the case; (2) the fact that a preliminary hearing would take more time than a grand jury hearing; (3) the necessity for calling children or witnesses who would be subject to cross-examination at a preliminary hearing; (4) the existence of a weak or doubtful case which the district attorney wishes to test; (5) cases involving malfeasance in office; and (6) the fact that witnesses are in a state prison.
A more recent study adds the following reasons for using the grand jury: (1) cases where the defendant cannot be located and the time limit under the statute of limitations is about to expire, (2) where the secrecy of the grand jury may allow defendants to be charged and taken into custody before they can pose potential danger to a witness's safety or flee from the jurisdiction, (3) the need to protect the identity of undercover agents, and (4) the ability to test a witness before a jury.
From 1978 until 1990, grand juries were seldom used for indictments. A California Supreme Court ruling required holding preliminary hearings even if grand jury indictments were obtained. In 1990, a constitutional amendment made significant alterations in California criminal law and court procedures, including a provision that defendants were not entitled to preliminary hearings if indicted by a grand jury. As noted above, recent statutes (Penal Code § 904.6) give district attorneys the option of using special grand juries chosen from the regular jury pool to handle criminal cases and thus ensure indictment by those who represent a cross section of the community. Although the law allows criminal indictments to be brought by a grand jury, in practice, the District Attorney generally prefers to use the speedier preliminary hearing process.
Grand Jury: Reports
State Law requires that each grand jury submit a final report of its findings and recommendations to the presiding judge of the Superior Court. In addition to the mandated reports on financial audits and the condition of adult and juvenile detention facilities, recent Sacramento County grand jury Reports have covered such topics as the Public Library Authority, Child Protective Services, Crime Lab Staffing, County Employee Evaluations, and Inappropriate Use of Funds at a Special District.
A report, just as an accusation or an indictment, must be approved by at least 12 of the 19 grand jurors (15 if it is a 23 member jury). With so many possible investigations and a term limited to a single year, it is necessary for each grand jury to make hard decisions as to what it wishes to undertake during the term. Except for mandated duties to report on the financial condition of the county and on the conditions of county jails, the grand jury has great discretion in determining its agenda.
Most grand juries divide into committees for conducting investigations and for writing reports, but there seems to be a wide variation between counties as to the number and structure of committees; it is up to each grand jury to determine its own method of operation within the parameters of the law.
Government agencies that are the subject of reports are required by law to respond to specific grand jury findings and recommendations. However, the grand jury has no enforcement power, and the agencies are under no legal obligation to carry out the recommendations. While some recommendations are ignored, others are followed, particularly those that suggest greater efficiency for operations and that do not require the expenditure of large sums of money. Grand jury criticisms of public officials and agencies frequently attract press attention, bringing greater community awareness of what is happening in public agencies. Many grand jurors believe that public officials tend to be more accountable when they know an impartial; outside body is looking over their collective shoulders.
The California Grand Jurors Association (CGJA) (www.cgja.org), a statewide organization of former grand jurors has begun a program of identifying and indexing grand jury reports in each county with the hope of establishing a state archive of annual reports. The State Library also maintains an archive of grand jury reports from all counties. CGJA also monitors and occasionally proposes or endorses proposed laws to conserve and improve the grand jury as an important institution of local government. It offers services to those grand juries that may request advice and help in preparing informational manuals and in providing orientation for incoming jurors. Some members of the CGJA now provide orientation programs for those counties that request this service.
While surrounded by secrecy before publication, grand jury reports become public documents when signed by the grand jury foreman and approved by the grand jury's advisory judge. Copies are sent: to all targeted government agencies, to interested officials, to public and private groups and individuals and to the press. At the end of the year, bound or loose-leaf copies of all reports are placed in all public libraries.
Sacramento County Grand Jury