Grand jury
A grand jury is a
Originating in England during the Middle Ages,[2] prominent modern examples include grand juries in the United States, and to a lesser extent, Liberia and Japan.[3] Grand juries perform both accusatory and investigatory functions. The investigatory functions of grand juries include obtaining and reviewing documents and other evidence, and hearing sworn testimonies of witnesses who appear before it; the accusatory function determines whether there is probable cause to believe that one or more persons committed a particular offense within the jurisdiction of a court. While most grand juries focus on criminal matters, some civil grand juries serve an independent watchdog function. Around the 18th and 19th-century in Ireland and the U.S., grand juries were occasionally formed to pass or approve public policy.
The grand jury (from the French word grand meaning "large") is so named because traditionally it has more jurors than a trial jury, sometimes called a petty or petit jury (from the French word petit meaning "small").[4] A grand jury in the United States is usually composed of 16 to 23 citizens, though in Virginia it has fewer members for regular or special grand juries.
Purpose
The grand jury has been described as a "shield and sword"[5] that has both an offensive purpose and defensive purpose.[6] It has been called the shield of the people against the power of the crown;[7] though Green says this is a myth.[8] It has been described as the "sword of the people"[9] and as a sword of the crown.[10]
Criminal
The function of a grand jury is to accuse persons who may be guilty of a crime, but the institution is also a shield against unfounded and oppressive prosecution. It is a means for lay citizens, representative of the community, to participate in the administration of justice. It can also make presentments on crime and maladministration in its area. Traditionally, a grand jury consists of 23 members.
The mode of accusation is by a written statement of two types:
- in solemn form (indictment) describing the offense with proper accompaniments of time and circumstances, and certainty of act and person, or
- by a less formal mode, which is usually the spontaneous act of the grand jury, called presentment.[11]
No indictment or presentment can be made except by concurrence of at least twelve of the jurors. The grand jury may accuse upon their own knowledge, but it is generally done upon the testimony of witnesses under oath and other evidence heard before them. Grand jury proceedings are, in the first instance, at the instigation of the government or other prosecutors, and ex parte and in secret deliberation. The accused has no knowledge nor right to interfere with their proceedings.[12]
If they find the accusation true, which is usually drawn up in form by the prosecutor or an officer of the court, they write upon the indictment the words "a true bill" which is signed by the foreperson of the grand jury and presented to the court publicly in the presence of all the jurors. If the indictment is not proven to the satisfaction of the grand jury, the word ignoramus[a] or "not a true bill" is written upon it by the grand jury, or by their foreman and then said to be ignored, and the accusation is dismissed as unfounded; the potential defendant is said to have been "no-billed" by the grand jury. If the grand jury returns an indictment as a true bill (billa vera), the indictment is said to be founded and the party to stand indicted and required to be put on trial.[13]
Watchdog
In Japan, the Prosecutorial Review Commission is made up of 11 randomly selected citizens, is appointed to a six-month term, and its primary purpose is examining cases prosecutors have chosen not to continue prosecuting.[3] It has therefore been perceived as a way to combat misfeasance in public officials.[14] This is similar to civil grand juries in U.S. states like California.[3]
Legislative
Many early grand juries in the U.S. had quasi-legislative functions like passing legislation or approving taxes or expenditures.[15]
From the 17th century until 1898 in Ireland, Grand Juries also functioned as local government authorities:[16]
They fixed the salaries of public officers; they regulated prisons and houses of correction; they levied funds for the support of hospitals; they made and repaired roads and bridges, and they framed accounts of the expenses incurred in these matters... They determined what public works should be undertaken — what price should be paid for them, and who were the individuals that should undertake them, and be responsible for their completion. They settled the amount of the local taxation of the county, and, under their direction, it was levied from the actual occupiers of the land.[17]
Present-day use
United States
At the time of the founding of the United States, a grand jury indictment was required for almost all prosecutions and juries rendered the final verdict of almost all criminal and civil cases.[18] The Fifth Amendment to the Constitution of the United States reads, "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury ..."
In the early decades of the United States, grand juries played a major role in public matters. During that period counties followed the traditional practice of requiring all decisions be made by at least 12 of the grand jurors, (e.g., for a 23-person grand jury, 12 people would constitute a bare majority).[19] Most criminal prosecutions were conducted by private parties, either a law enforcement officer, a lawyer hired by a crime victim or his family, or even by laymen. A layman could bring a bill of indictment to the grand jury; if the grand jury found that there was sufficient evidence for a trial, that the act was a crime under law, and that the court had jurisdiction, it would return the indictment to the complainant. The grand jury would then appoint the complaining party to exercise essentially the same authority as a state attorney general has, that is, a general power of attorney to represent the state in the case.[19]
The grand jury served to screen out incompetent or malicious prosecutions.[20] The advent of official public prosecutors in the later decades of the 19th century largely displaced private prosecutions.[21]
In 1974, the second Watergate grand jury indicted seven White House aides,
While all states have provisions for grand juries as of 2003,[25] today approximately half of the states employ them[26] and 22 states have provision to prevent the abolition of grand juries by legislatures or courts as of 2003.[27] Six states (Oklahoma, Nebraska, New Mexico, North Dakota, Nevada, and Kansas) allow citizens to circulate a petition in order to impanel a grand jury.[28]
An American federal grand jury has from 16 to 23 jurors, with twelve votes usually required to return an indictment. All grand jury proceedings are conducted behind closed doors, without a presiding judge. The prosecutors are tasked with arranging for the appearance of witnesses, as well as drafting the order in which they are called, and take part in the questioning of witnesses.[29] The targets of the grand jury or their lawyers have no right to appear before a grand jury unless they are invited, nor do they have a right to present exculpatory evidence.[29]
Japan
After World War II, under the influence of the Allies, Japan passed the Prosecutorial Review Commission Law on July 12, 1948, which created the Kensatsu Shinsakai (or Prosecutorial Review Commission (PRC) system), analogous to the grand jury system in the United States.[30] Until 2009 the PCR's recommendations were not binding, and were only regarded as advisory.[31] A survey conducted by the Japanese Cabinet Office in October 1990 showed that 68.8% of surveyed Japanese citizens were not familiar with the PRC system.[31][relevant?] On May 21, 2009, the Japanese government introduced new legislation which would make the PRC's decisions binding. A PRC is made up of 11 randomly selected citizens, is appointed to a six-month term, and its primary purpose is examining cases prosecutors have chosen not to continue prosecuting.[3] It has therefore been perceived as a way to combat misfeasance in public officials.[14]
From 1945 to 1972
Liberia
Grand juries in Liberia were included in section 7 of article 1 of the constitution of 1847.[36][37] By article 21 of the Constitution of Liberia,[38] 'No person shall be held to answer for a capital or infamous crime except in cases of impeachment, cases arising in the Armed Forces and petty offenses, unless upon indictment by a Grand Jury". For example, the national Port Authority's managing director was indicted by the Monteserrado County Grand Jury in July 2015, on charges of economic sabotage, theft of property and criminal conspiracy.[39] It is one of the only remaining countries using a grand jury.[40]
History
Origins
Richard Helmholz traces the Grand Jury's origins to the
England and Wales
The sheriff of every county was required to return to every
After the court was opened by the crier making proclamation, the names of those summoned to the grand jury were called and they were sworn. They numbered at least 14 and not more than 23. The person presiding (the judge at the assizes, the chairman at the county sessions, the recorder at the borough sessions) gave the charge to the grand jury, i.e. he directed their attention to points in the various cases about to be considered which required explanation.[45]
The charge having been delivered, the grand jury withdrew to their own room, having received the bills of indictment. The witnesses whose names were endorsed on each bill were sworn as they came to be examined, in the grand jury room, the oath being administered by the foreman, who wrote his initials against the name of the witness on the back of the bill. Only the witnesses for the prosecution were examined, as the function of the grand jury was merely to inquire whether there was sufficient ground to put the accused on trial. If the majority of them (and at least 12) thought that the evidence so adduced made out a sufficient case, the words "a true bill" were endorsed on the back of the bill. If they were of the opposite opinion, the phrase "not a true bill", or the single Latin word ignoramus ("we do not know" or "we are ignorant (of)"), was endorsed instead and the bill was said to be "ignored" or thrown out. They could find a true bill as to the charge in one count, and ignore that in another; or as to one defendant and not as to another; but they could not, like a petty jury, return a special or conditional finding, or select part of a count as true and reject the other part. When some bills were "found", some of the jurors came out and handed the bills to the clerk of arraigns (in assizes) or clerk of the peace, who announced to the court the name of the prisoner, the charge, and the endorsements of the grand jury. They then retired and considered other bills until all were disposed of; after which they were discharged by the judge, chairman, or recorder.[46]
If a bill was thrown out, although it could not again be referred to the grand jury during the same assizes or sessions, it could be preferred at subsequent assizes or sessions, but not in respect of the same offense if a petty jury had returned a verdict.[47]
Ordinarily, bills of indictment were preferred after there had been an examination before the
If an indictment was found in the absence of the accused, and he/she was not in custody and had not been bound over to appear at assizes or sessions, then process was issued to bring that person into court, as it is contrary to the English law to "try" an indictment in the absence of the accused.[50]
The grand jury's functions were gradually made redundant by the development of committal proceedings in magistrates' courts from 1848 onward when the (three) Jervis Acts,[51] such as the Justices Protection Act 1848, codified and greatly expanded the functions of magistrates in pre-trial proceedings; these proceedings developed into almost a repeat of the trial itself. In 1933 the grand jury ceased to function in England, under the Administration of Justice (Miscellaneous Provisions) Act 1933[52] and was entirely abolished in 1948, when a clause from 1933 saving grand juries for offences relating to officials abroad was repealed by the Criminal Justice Act 1948.[53][54]
Scotland
The grand jury was introduced in
The first Scottish grand jury under this Act met at Edinburgh on 10 October 1748 to take cognisance of the charges against such rebels as had not surrendered, following the Jacobite rising of 1745.[58]
An account of its first use in Scotland illustrates the institution's characteristics. It consisted of 23 good and lawful men, chosen out of 48 who were summoned: 24 from the county of
Ireland
In Ireland, grand juries were active from the Middle Ages during the Lordship of Ireland in parts of the island under the control of the English government (The Pale), that was followed by the Kingdom of Ireland in 1542. They mainly functioned as local government authorities at the county level. The system was so-called as the grand jurors had to present their public works proposals and budgets in court for official sanction by a judge. Grand jurors were usually the largest local payers of rates, and therefore tended to be the larger landlords, and on retiring they selected new members from the same background.[citation needed]
Distinct from their public works function, as property owners they also were qualified to sit on criminal juries hearing trials by jury, as well as having a pre-trial judicial function for serious criminal cases. Many of them also sat as magistrates judging the less serious cases.[citation needed]
They were usually wealthy "country gentlemen" (i.e. landowners, landed gentry, farmers and merchants):
A country gentleman as a member of a Grand Jury... levied the local taxes, appointed the nephews of his old friends to collect them, and spent them when they were gathered in. He controlled the boards of guardians and appointed the dispensary doctors, regulated the diet of paupers, inflicted fines and administered the law at petty sessions.[60]
From 1691 to 1793,
After the formation of Irish Free State, grand juries were abolished by section 27 of the Courts of Justice Act 1924,[63] but they persisted in Northern Ireland until abolished by the Grand Jury (Abolition) Act (Northern Ireland) 1969 of the Parliament of Northern Ireland in 1969.[64]
Canada
Grand juries were once common across Canada. The institution of British civil government in 1749 at
Old courthouses with the two jury boxes necessary to accommodate the 24 jurors of a grand jury can still be seen.[70] The grand jury would evaluate charges and return what was called a "true bill (of indictment)" if the charges were to proceed.[71] or a verdict of nolle prosequi if not.[69] The practice gradually disappeared in Canada over the course of the twentieth century, after being the subject of extended discussions late in the 19th.[69] It was ultimately abolished in 1984 when the Nova Scotia courts formally ended the practice.[68][72]
Australia
The grand jury existed in
In South Australia and Western Australia, grand juries existed for longer periods of time.[75] In South Australia, the first grand jury sat on 13 May 1837, but they were abolished in 1852. In Western Australia, by the Grand Jury Abolition Act Amendment Act 1883 (WA), grand juries were abolished (section 4: A Grand Jury shall not be summoned for the Supreme Court of Western Australia, nor for any General Quarter Sessions for the said Colony).[76] This 1883 abolition Act was itself abolished by the Criminal Procedure and Appeals (Consequential and Other Provisions) Act 2004 (section 5: The Grand Jury Abolition Act Amendment Act 1883 is repealed).
The Australian state of
New Zealand
New Zealand abolished grand juries in 1961 and special juries in 1981.[78]
Cape Colony
Jury trial was brought into practical operation in 1828 and the 1831 Ordinance 84 laid down that criminal cases would be heard by a panel of nine, selected from males aged between 21 and 60, owning or renting property to a value of £1.17s (37 shillings) per annum or having liability for taxes of 30 shillings in Cape Town and 20 shillings outside the town. Black (i.e. non-white) jurors were not entirely excluded and sat occasionally.[80] This is not to imply, however, that juries did not operate in an oppressive manner towards the Black African and Asian residents of the Cape, whose participation in the jury lists was, in any event, severely limited by the property qualification.[81] The property qualification was amended in 1831 and 1861 and, experimentally, a grand jury came into operation.
The grand jury was established for Cape Town alone.[82] It met quarterly. In 1842 it was recorded that it served a district of 50,000 inhabitants and in one quarterly session there were six presentments (1 homicide, 2 assaults, 1 robbery, 1 theft, 1 fraud).[83]
As elsewhere, the judge could use his charge to the grand jury to bring matters of concern to him to the attention of the public and the government.[84] In May 1879 Mr. Justice Fitzpatrick, returning from circuit in the northern and western parts of Cape Colony, gave a charge to the grand jury at the Criminal Sessions at Cape Town, in which, after congratulating them upon the lightness of the calendar, he observed there were indications in the country of a growing mutual bad feeling between the races, etc. This was reported in the Cape Argus and was a subject of a question to the government in the House of Commons in London.[85]
The grand jury continued in operation until 1885, by which time the Cape was under responsible government, when it was abolished by Act 17 of 1885[86] of the Cape Parliament.
France
Grand juries were established in France in 1791 under the name jury d'accusation, but they were abolished with the introduction of the Code of Criminal Instruction in 1808.[87]
The jury law of 1791 created an eight-man jury d'accusation in each
The functions of the jury d’accusation were prescribed in the law of 1791 passed by the
Sierra Leone
Under the administration of the
See also
- Blue-ribbon committee
- Examining magistrate
- Immunity from prosecution
- Sortition
Notes
- Latin, ignoramus literally means "we are ignorant of" or "we do not know" – in the context of a Grand Jury it effectively means "we do not know of any reason why this person should be indicted on these charges". This use of ignoramus long predates its more common English meaning of an ignorant person or dunce.[citation needed]
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- ^ "Frequently Asked Questions About the Grand Jury System". American Bar Association. Archived from the original on 24 April 2011. Retrieved 11 May 2011.
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- ^ a b "Federal Grand Jury Secrecy: Legal Principles and Implications for Congressional Oversight" (PDF). Congressional Research Service. 10 January 2019. Archived (PDF) from the original on 29 March 2019. Retrieved 15 January 2020.
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- ^ "The Making Of Modern Britain: Medieval Politics, Economics, Religion, And Learning". www.history-world.org. Archived from the original on 14 July 2012.
{{cite web}}
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- ^ Harris, Principles of the Criminal Law, 3rd Ed, 1884, p 357.
- ^ Harris, Principles of the Criminal Law, 3rd Ed, 1884, pp 357 & 358.
- ^ Harris, Principles of the Criminal Law, 3rd Ed, 1884, pp 358 & 359.
- ^ Harris, Principles of the Criminal Law, 3rd Ed, 1884, p 359.
- ^ 22 & 23 Vict. c. 17, s. l.
- ^ Harris, Principles of the Criminal Law, 3rd Ed, 1884, pp 359 & 360.
- ^ Harris, Principles of the Criminal Law, 3rd Ed, 1884, p 361.
- ^ See "Indictable Offences Act 1848" (11 and 12 Vict c. 42); title: "An Act to facilitate the Performance of the Duties of Justices of the Peace out of Sessions within England and Wales with respect to Persons charged with indictable Offences".
- ^ "Administration of Justice (Miscellaneous Provisions) Act 1933". Legislation.gov.uk.
- ^ Kenny's Outlines of Criminal Law, 18th Ed, p 578
- ^ "The Grand Jury in England's Past and America's Present: Part I" 162 Justice of the Peace 839 at 842 (24 October 1998)
- ^ "Scotland" in Jury. Encyclopaedia Britannica. 11th Ed.
- ^ Treason Act, 1708 (7 Ann c 21)
- ^ Treason Act 1945 (c. 44), section 2(2) and Schedule.
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- ^ Aikman, James; Buchanan, George (1829). The History of Scotland : translated from the Latin of George Buchanan with notes and a continuation to the present time. Vol. 6. Edinburgh: Thomas Ireland. p. 597.
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- ^ a b c Parker, Nancy (1995). "Swift Justice and the Decline of the Criminal Trial Jury: The Dynamics of Law and Authority in Victoria, BC 1858–1905". In Flaherty, David H.; McLaren, John; Foster, Hamar (eds.). Essays in the History of Canadian Law: The Legal History of British Columbia and the Yukon. University of Toronto Press.
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- ^ Phillips Cables Ltd. v. United Steelworkers of America, Local 7276 (Nicolosi grievance), [1974] O.L.A.A. No. 13, at para. 15.
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- .
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- ^ Wilkes, Charles (1845). Narrative of the U.S. Exploring Expedition. Vol. V. Philadelphia: Lea & Blanchard. p. 426.
- ^ Edwards, George J. (1906). "Part IV: How The Grand Jury Transacts Business and its Relation To The Court". The Grand Jury. Philadelphia: George T. Bisel Co. p. 124.
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{{cite book}}
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- ^ Forsyth, William (1878). History of Trial by Jury. New York City: Cockcroft. p. 297.
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- ^ Oudot, Charles-François (1845). Théorie du Jury. Paris: Joubert. p. 327.
- ^ "Loi Belge du 15 Mai 1838 Relative au Jury Expliquée". Archives de Droit et de Legislation, Tome 5, 2nd Semestre (in French). Bruxelles. 1841. p. 83.
- ^ George, Claude (1904). The Rise of British West Africa: Comprising the Early History of the Colony of Sierra Leone, Gambia, Lagos, Gold Coast, etc. London: Houlston & Sons. pp. 146–147, 171.
- ^ ISBN 9780802074027.
- ^ House of Commons. Reports from Committees, Vol 5, Session 7 Feb-6 Jul 1865
External links
- Gfactor and Bricker (17 July 2006). "Who invented the grand jury?". The Straight Dope.