Institution Of 'Grand Jury' In USA

  • Institution Of Grand Jury In USA

    While the American Nation awaits the decision of the Supreme Court in the challenge to a Mississippi law restricting abortion rights in the case of Dobbs Vs. Jackson Women's Health Organization and the possibility of reversal of the historic case of Roe Vs Wade; in a relatively small yet, significant development the District Attorney of Manhattan, Cyrus Vance, has convened a...

    While the American Nation awaits the decision of the Supreme Court in the challenge to a Mississippi law restricting abortion rights in the case of Dobbs Vs. Jackson Women's Health Organization and the possibility of reversal of the historic case of Roe Vs Wade; in a relatively small yet, significant development the District Attorney of Manhattan, Cyrus Vance, has convened a grand jury proceeding against former President Donald Trump, and his company for potential financial misconduct. It appears that pursuant to the decision of the American Supreme Court in the case stylized as Trump Vs. Vance decided on 9.7.2020 rejecting, the claim of former president Donald Trump for immunity from complying with the requirements of a subpoena (i.e. Summons) issued by the office of the District Attorney of Manhattan, New York State, in the proposed grand jury investigation the U.S. grand jury system has come into sharper focus.

    The practice of trial by jury traces its origins to Ancient Greece. Athenian history records that Socrates, the great Greek philosopher was condemned to death by a jury of 500 men. However, the jury system in an organized form started functioning in England in the 12th Century under King Henry II and was further developed by his son King John. Subsequently, the Magna Carta gave statutory recognition to the system of jury trial by advocating the practice of "the lawful judgment of his peers".

    In its present form the United States of America and Liberia are the only two countries of the world which follow the Jury System. Presently, in USA there are two types of juries serving different and distinct functions i.e. Petit jury or trial jury and the other Grand Jury. The 5th Amendment to the Constitution of America 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…". Thus, for all Federal Crimes a person has to be indicted by a Grand Jury before he could be tried. A Grand Jury, unlike a Petit Jury does not determine the innocence or guilt of a person but it only determines on the basis of available material (depositions, evidence etc.) if a "probable cause" exists for charging or indicting the person so as to put him on trial. In other words, the Grand Jury does not perform an adjudicatory role but rather an investigative and accusatory role.

    In USA the Federal Rules of Criminal Procedure ("Federal Rules") govern the procedure for Grand Jury proceedings. Title III Rule 6 of the Federal Rules provide for summoning/appointment of a Grand Jury whenever public interest so requires. A Grand Jury must have 16-23 members with enough legally qualified persons.

    The institution of grand jury had come to hold a significant place in American criminal justice system. Also known as the "people's panel," the grand jury is empowered to determine whether there is probable cause to indict individuals on serious criminal charges.

    Like individuals summoned to serve on a jury during a criminal trial (a court jury), the grand jurors serve to bring the perspective of ordinary citizens into the criminal justice system. However, a grand jury plays a substantially different role, and under different procedure and conditions, than does a trial jury.

    In a grand jury proceeding, judges, accused's, defense lawyers and the public are not present. Potential accused persons who learn of a grand jury probe may ask to appear as witnesses, and a defense lawyer can attend only the accused's testimony and cannot raise objections, ask questions, or address the grand jury or participate in the proceedings in any manner. Rules of evidence are much less stringent, allowing the grand jury to see evidence/material that might not be admissible at trial.

    Further, a grand jury doesn't decide on the ultimate guilt or innocence of any accused, and it operates in complete secrecy. In fact, unauthorized disclosure of grand jury proceedings is illegal, and is punishable under the law. The legislative intention behind providing for such punishment appears to be to encourage candid testimony, shield witnesses from retaliation, and protect the reputation of persons who are investigated but not indicted.

    In practice, prosecutors, who present the evidence and explain the law to grand jury members, mostly succeed in persuading grand juries to hand up indictments. In legal circles, therefore, there's a saying that a skilled prosecutor can persuade a grand jury to "indict a ham sandwich". This however, is not true in many cases.

    While the main purpose of grand juries thus is to hear evidence presented by a prosecutor against specific individuals and decide whether there are adequate grounds for filing criminal charges, they can occasionally perform other functions. For example, federal special-purpose grand juries are sometimes empaneled for wide-ranging investigations of such subjects as government corruption or organized crime.

    Noticeably, unlike with a trial, a grand jury proceeding is interactive. The grand jurors can ask questions to the witnesses and the prosecutor. This is conversely very different than with a trial/court jury in which the only interaction between the parties and the jurors occurs during jury selection. The grand jury also has a "mercy function."This means that the grand jury can choose to dismiss a case even if they believe the evidence proves the defendant's guilt. A trial/court jury is not allowed to do this. A grand jury can indict a person without them even knowing they are under investigation. However, if a person gives written notice to the prosecutor that he would like to testify in the proceeding, he must be allowed to do so, or the indictment gets dismissed with leave to represent.

    In substance, a grand jury in legal parlance is basically a mechanism for collection of evidence and weighing and shifting the same. While doing so a grand jury is competent to compel the production of documents and record statements on oath by issuing subpoenas (similar to summons issued by Indian Courts). The function of a grand jury is a unique amalgam of both accusatory and investigatory exercises. It is composed of ordinary lay citizens who examine a set of evidence put forth by a prosecutor in a criminal investigation. Unlike a 'trial jury' which is also referred to as a 'petite jury' which participates in a criminal trial in a court of law and returns a finding of 'guilt' or 'innocence" grand jury is not competent to do so. Matters referred to a grand jury are always handled behind closed doors and are secretive in nature. On the basis of the evidence collected the grand jury in exercise of its accusatory function determines whether there is 'probable cause' to believe that one or more persons have committed a certain offence. The mode of accusation is by written statements in solemn form called (indictment) describing the offence with necessary details as to the time, and circumstances or in the alternative by a less formal method which is called 'presentment'. While in the case of a trial jury the rule of unanimity is required for pronouncing an accused guilty, in case of an indictment or presentment by a grand jury, no such rule of unanimity is required and only a simple majority or special majority is sufficient.

    The system of grand jury however, acts both as a sword as well as a shield. When a grand jury finds the accusation true, the same is usually drawn up in form of a bill by the prosecutor or an officer of the court, who writes upon the indictment the words "a true bill" and the same is presented to the court in the presence of all the jurors. In its role as a shield against a malicious and frivolous indictment and when it finds the allegations without any basis and not proven to the satisfaction of the grand jury the word 'Ignoramus" or 'not a true bill' is written upon it and the accusation is dismissed. Unlike a court proceeding with a trial jury the benefit of a lawyer is not given to the accused in a grand jury proceeding.

    It also needs mentioning that while most common law jurisdictions and even the counties of its origin, i.e., Europe have done away with the practice of grand jury and some of them have substituted it by a system of "preliminary hearing" which is held in open court with the assistance of a lawyer to the accused, in USA both the jury systems have continued to stay. Added to the fact that in the recent past the grand jury's theoretical function against the abuse of executive powers has been appreciated during the Watergate crisis and the White Water scandal and the Rose Law Firm scandal forcing president Nixon and president Clinton to testify before the grand jury the American Supreme Court has also held that executive privilege do not apply to grand jury subpoenas (i.e. summons to appear and testify). The system of grand jury has thus received judicial acceptance and recognition. A grand jury indictment however, is only a finding and has no binding effect on the final outcome of a case in a court of competent jurisdiction.

    Grand Jury functioning in the various states for violations of state laws in USA however, have been different. Under the American Constitutional System the various states have their respective constitutions. It is only in 25 states that the system of grand jury has been incorporated into the respective Constitutions. For instance, in the State of New York, the New York State Constitution in Article I Section 6 recognizes the requirements of a grand jury. Incidentally, the present grand jury convened by Cyrus Vance will be governed by the provisions of the New York State Constitution and the Criminal Procedure Rules of the State of New York, in as much as it is related to violations of Tax Laws of the State of New York.

    The composition of grand jury in different states for violations of state laws in USA are different. The required majority for returning an indictment is also different. In some states like New York "hearsay evidence' is not allowed to be taken in to consideration.

    There are criticisms afloat in USA that a grand jury procedure has sometimes been misused to cause delays in the investigation for extraneous political considerations and needs to be scrapped. Be that as it may, the American Constitution being a 'rigid' Constitution with a federal form of government and a difficult amendment procedure the same cannot be easily amended so as to do away with the 5th amendment provision.

    Views are personal 

    Jana Kalyan Das is a Senior Advocate at the Supreme Court of India. Sandeep Devashish Das and Ninad Dogra are Advocates-On-Record at the Supreme Court of India.

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