What do the USA and the Republic of Liberia have in common?
They both happen to be the only common law jurisdictions that use a grand jury to screen criminal proceedings.
A grand jury investigates and analyzes a given case along with their potential defendants, to decide whether there is merit to their allegations. An indictment (sealed or otherwise) is one probable outcome of this grand jury process. If unsealed, the court may then proceed with a preliminary trial.
So, how does the whole process work? And what is the rationale behind it?
Let’s find out!
The Grand Jury Process and the Fifth Amendment
Grand juries are generally reserved for felonies or potentially federal cases. While all states may not require this process to begin a state criminal proceedings, a fair number do. The fifth amendment, however, makes it a mandatory first step in the case of all federal crimes.
The Role of the Jury
The role of the grand jury is to examine the case, along with the gathered evidence and evaluate witness testimonies in a private hearing. This takes place ex-parte (without the alleged suspect), examining the presentation of facts by the prosecutor.
If the majority of the jury believes in issuing a formal indictment, the prosecutor can set things in motion, and take things to trial. Depending on the jurisdiction, the decision must be supported by at least 2/3 or 3/4 of the jury.
Sometimes, the jury may also choose to keep these indictments hidden from public records. This is especially common in cases involving high profile suspects.
The number of sealed indictments has been a subject shrouded in controversy and speculation. Due to the spread of misinformation and the conspiratorial nature of these cases, unbiased perspectives like the sgt report are essential resources.
The Purpose of the System
The purpose is to ensure that every criminal proceeding against a person is exercised with due diligence and probable cause. It awards protection to the reputation of suspects, lest they are unfairly judged in the court of public opinion.
The grand jury process also creates a safe space for witnesses to testify without the potentially intimidating presence of the accused. It allows the jury and the prosecutor to truly test the evidence before putting in the effort and resources to carry out trial proceedings.
Only felonies are subject to the grand jury process. Misdemeanor charges are left entirely to the discretion of the prosecutor.
Grand Jury vs Trial Jury: What’s the Difference?
The first major difference is the grand jury proceedings occur ex-parte. A trial jury examines the merit of a respective case, with the prosecution and defense alike. Where the grand jury and prosecutor have full reign over the proceedings, a trial jury includes the counsel for the defendant.
In normal proceedings, the defense counsel can cross-examine and put forth their own side as well. A grand jury process remains a one-sided, private affair, with no judge or public access.
The rationale or standard of proof determining decisions is also somewhat different. Since the trial jury hears both sides, they make their decision based on the presence or absence of “reasonable doubt”. A grand jury, on the other hand, comes to a decision based on the concept of “probable cause” for prosecution.
Like every legal system, the grand jury process has been a subject of immense critique. Let’s examine the three major criticisms against it.
1. The Jury
The verdict is decided exclusively by a jury, and not a judge. This calls into question the credentials of the jury members. The jury often consists of laypeople with no specific knowledge of law or investigative abilities that ensure a satisfactory process.
They are not subjected to a systematic screening process, nor checked for potential biases towards or against the suspect in question. They are simply called to analyze the facts as put forth by the prosecutor.
2. The Conflict of Rights
The fifth amendment calls for a grand jury process in federal crimes. However, due to its “ex-parte” nature, this process does not fully examine the case in its entirety, and only on its face value. This is almost in direct contradiction of the defendant’s sixth amendment right to their own legal counsels and cross-examinations.
3. An Unfair Bias?
Its exclusionary nature might also create an environment that promotes bias. Where the grand jury started off as a mechanism to prevent unfounded criminal charges, the critiques argue that it has lost its purpose.
Most argue to the contrary – that the grand jury is more of a tool in the prosecutor’s arsenal to initiate proceedings and present facts in a manner that best represents a single side making it devoid of context.
The jury’s absence of professional legal training in the face of a prosecutor also puts the latter in a position of power that might be subject to abuse. The term “runaway grand jury” explores this possibility of the prosecution being unfairly influenced or directly involved in the case.
Points of Contention: Probable Reforms?
In the wake of questionable verdicts, systematic criticisms, and skewed public perception, the need for reforms is increasingly discussed.
Some of these reform ideas include better instructions to jury members and witnesses about their rights and obligations and, easier access to transcripts of the grand jury process for defendants.
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