GRAND JURIES — What are They, and What is Their Purpose? — by Iwusthe Driver

Grand Juries are suddenly in the news.  Texas Governor Rick Perry has recently been indicted by a Grand Jury.  And in Ferguson, Missouri, anxious residents are waiting to see if a Grand Jury will indict Officer Darren Wilson for his shooting of Michael Brown.  As previously reported in another Post Article, the demise of California State Sentator Leland Yee occurred after he was indicted by a California grand jury for corruption.

What is 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 twelve of the grand jurors, (e.g., for a twenty-three-person grand jury, twelve people would constitute a bare majority). Any citizen could bring a matter before a grand jury directly, from a public work that needed repair, to the delinquent conduct of a public official, to a complaint of a crime, and grand juries could conduct their own investigations. In that era 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 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 the authority of an attorney general, that is, one having a general power of attorney to represent the state in the case. The grand jury served to screen out incompetent or malicious prosecutions.The advent of official public prosecutors in the later decades of the 19th century largely displaced private prosecutions.

While all states currently have provisions for grand juries, today approximately half of the states employ themand twenty-two require their use, to varying extents.

Federal Grand Juries

In the federal legal system, the grand jury is used to decide whether someone should be charged (“indicted”) for a serious crime. The grand jury hears evidence presented by the prosecutor: the U.S. Attorney. The grand jury uses subpoenas to gather this evidence. It can subpoena documents, physical evidence, and witnesses to testify. The “special” federal grand jury, created in 1970, can be used to investigate “possible” organized criminal activity rather than a specific crime.  The legal system in many states also include grand juries, but in some states it is optional whether whether criminal prosecutions are initiated by grand jury indictment, or by a complaint by the District Attorney and preliminary hearing before a judge, which is considered an expedited process.  On the other hand, grand juries may also help eliminate “over-charging” and selective prosecution that often occurs when when prosecutors are left to their own devices.

How is a Grand Jury Different Than a Trial Jury?

Unlike the “petit” jury, which is used to determine guilt in a trial, a grand jury consists of 16 to 23 jurors who are not screened for bias. The purpose of the grand jury is not to determine guilt or innocence, but to decide whether there is probable cause to prosecute someone for a felony crime. The grand jury operates in secrecy and the normal rules of evidence do not apply. Although rules vary from state to state, in many cases, prosecutors run the  proceedings and no judge is present. Defense lawyers are not allowed to be present in the grand jury room and cannot present evidence, but may be available outside the room to consult with witnesses. The prosecutor and the grand jury members may not reveal what occurred in the grand jury room and witnesses cannot obtain a transcript of their testimony.

Concerns about Grand Juries

Because of their broad subpoena powers and secretive nature, at times grand juries have been used by the government to gather information on political movements and to disrupt those movements by causing fear and mistrust. The grand jury lends itself to being used for improper political investigation due in part to the prosecutor’s ability to question witnesses without regard for rules that prohibit irrelevant, unreliable or unlawfully obtained evidence. Those called before the grand jury may be compelled to answer any question, even those relating to lawful personal and political activities. That information has been used by the government as a basis to conduct further surveillance and disruption of political dissent. When used against political movements, the grand jury causes fear and mistrust because persons who refuse to answer questions about their First Amendment political activities, friends and associates may be jailed for the life of the grand jury: up to 18 months. If a witness asserts their Fifth Amendment right to remain silent, they may be forced to accept immunity or go to jail for contempt. Even a witness who attempts to cooperate can be jailed if minor inconsistencies are found in their testimony. Such a perjury charge may stand even when the grand jury fails to hand down any indictment for what it was ostensibly investigating.

Growing Push for Grand Jury Reform & Use

On the other hand, in some quarters there are growing complaints that because of selective enforcement, and cover-ups by law enforcement and prosecution, grand juries may offer the only opportunity to present evidence of certain wrong-doing, including public corruption, to any body that may actually do anything about it.  There is a growing concern that government oversight agencies do very little to police public corruption, and there is a growing need of independent citizen review, including the type of review that grand juries can offer.  Consequently, there is a growing call to reform and overhaul the grand jury system and to use it more effectively to address the needs and purposes for which the system was originally established.

Grand Juries in Utah

Although the Utah State Constitution provides for a grand jury function, it is a practice that has become almost entirely abandoned in the state of Utah.  And perhaps that is one of the reasons there seems to be a growing amount of public corruption.  At this point, a panel of judges convenes just once every three years in each judicial district in the state to hearing testimony to determine whether or not a grand jury should be convened.  Because of how the panels are conducted, grand juries are seldom convened, and the practice has little effect.

For that reason, as reported in a Salt Lake Tribune article in January, 2014, there is a growing push, even among the state’s prosecutors for an overhaul of the Utah grand jury system, to make it more effective.  (See www.sltrib.com/sltrib/news/57390648-78/grand-jury-prosecutors-state.html.csp)

What Difference a Grand Jury Might Make In Millard County

At this point, given the current situation, it seems that Millard County may be ripe for the effective use of a grand jury to both investigate and take further action.  It has been argued that there are no effective checks and balances in Millard County Government and little, if any accountability.  Because independent outside review seldom occurs unless it is requested by the parties involved in county government (which appears to have virtually never occurred in this case) grand jury review would appear to be an appropriate option.