Grand Jury Incorporation

I would be interested to hear from attorneys or scholars in criminal law about the following: Is there any policy argument in favor of using a grand jury indictment instead of an information to charge defendants? The only one that I can think of is that using grand juries allows more citizens to participate in the criminal justice system. But are there any others?

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7 Responses

  1. jay says:

    Check out The Grand Jury Considered From an Historical, Political and Legal Standpoint, and the Law and Practice Relating thereto by George John Edwards. He does a good job of laying out the arguments in favor.

  2. Joe says:

    Continual problem with comments — often don’t see comments even if there is a number in the little counter — one counter was over 10 and no comments shown.

    There is “one” comment supposedly here (other than mine, if it shows up), but I don’t see it. I would be interested in the answer. Meanwhile, I recently saw reference to various flaws in the system.

  3. Arthur says:

    View from a litigator who also served on a grand jury, in a state where they are are required for all felony indictments: There is a benefit in requiring prosecutors to get approval from the boss before initiating a prosecution that will deprive someone of their liberty. And there is more benefit in reminding prosecutors that the boss is The People, not the guy in the corner office or the judge (both of whom have been working with the prosecutor for years, probably like them, and aren’t inclined to closely review routine cases . A prosecutor has to get the case together, think through whether they really have adequate evidence and how to explain it in plain English, if they have to present it to a grand jury.

    The grand jury I was on probably voted down about 1% of all cases, and another 1-2% were withdrawn by the prosecutor after jurors asked questions they couldn’t answer. Most in both categories were probably ultimately approved for prosecution. The real effect, which can’t be measured, is whether they worked harder to prepare cases than they would have if only the repeat players looked things over.

    ALso, 99% or so of cases plead, so this is the only jury almost all of the defendants will ever get. I vote for keeping it.

    • Brett Bellmore says:

      But, if we’re going to keep it, we should get rid of the “mushroom” aspect, and restore the power of the grand jury to do its own investigating, rather than just being spoon fed by the prosecutor.

  4. Arthur says:

    From a former grand juror (also a lawyer, not in criminal practice) in a state where all felony indictments must come from the grand jury: I think it had some value in requiring the prosecutors to show that there was a case. Just being there required the prosecutor to put together the evidence and explain it. And it reminds them that they work for the people, not for the DA. The jury was much more representative of the county racially, ethnically, educationally, and demographically than the prosecutor’s office could be. About 99% of criminal cases plead out, so the grand jury is the only jury involved in almost every case.

    I also suspect that the existence of the grand jury explains why the prosecutors didn’t bring any marijuana cases under 50 pounds or so, and didn’t bring any drug cases for anything close to personal consumption amounts, even though felonies could have been charged..

    And the the two or three times we rejected a case, and the four of five where the case fell apart during the presentation and was withdrawn, did represent justice in the view of the jurors. These were about 1-2% of the cases. A few others we indicted for a lesser charge than the prosecutor wanted.

  5. Joe says:

    Are there cases that might be accepted by a grand jury that would not be accepted by the alternative routes? That is, in practice, does the “indict a ham sandwich” stereotype hurt the defendant in certain cases here while an alternative method might avoid that?

  6. AnonProf says:

    Former prosecutor here. A GJ provides a venue for apolitical charging decisions. DAs often must tangle with the issue of the appearance of bias in charging police, for instance. If the DA charges the officer, she is anti-police. If she does not, she is in the pocket of the police department. Although the GJ does not eliminate all repercussions, at least it can be said that “the public” made the decision.