The secrecy, lack of oversight, and disregard for the rules of evidence do not serve justice.
Grand juries originated in 12th-century England to prosecute criminals; in the 20th century, England abolished them. Other members of the former British Empire—Scotland, Wales, New Zealand, Ireland, Australia, and Canada—have done the same, but not the United States. As demonstrated in the Michael Brown and Eric Garner cases, today’s state criminal grand juries serve no useful purpose and make a mockery of justice; they should be abolished. There is nothing grand about grand juries.
The Fifth Amendment to the U.S. Constitution, adopted in 1791, includes a grand jury clause that 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.” All federal capital crimes and federal crimes punishable by imprisonment for more than one year must therefore be presented to a federal grand jury, unless the accused waives this right. The federal grand jury does not determine whether the accused is guilty; rather, it decides if there is “probable cause” to believe that the accused has committed a crime. By codifying the grand jury in the Fifth Amendment, the framers intended to protect people “
against hasty, malicious and oppressive prosecution.” On the
state level, things are different.
In state courts, judges preside over probable cause hearings called preliminary examinations. These “prelims” are open to the public, and they are adversarial. Witnesses are questioned and cross-examined by prosecutors and defense attorneys, all of whom must abide by the rules of evidence.
About half of the states have both prelims and criminal grand juries. In these states, it is in the sole discretion of prosecutors whether to hold prelims or to convene grand juries. Unlike prelims, criminal grand jury proceedings are not adversarial. No judges or defense attorneys participate. The rules of evidence do not apply; there are no cross-examinations of witnesses, and there are no objections. How prosecutors explain the law to the jurors and what prosecutors say about the evidence are subject to no oversight. And the proceedings are shrouded in secrecy.
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