Grand jury

“ He charged him with contempt for refusing to answer. We reversed the conviction, saying,
'It would be very strange if our system of law permitted a judge to act as a grand jury and then try the very persons accused as a result of his investigations. Perhaps no State has ever forced a defendant to accept grand jurors as proper trial jurors to pass on charges growing out of their hearings. A single 'judge-grand jury' is even more a part of the accusatory process than an ordinary lay grand juror. ”

“ Were the ruling of the court below allowed to stand, the mere challenge, in effect, of the regularity of a grand jury's proceedings would cast upon the government the affirmative duty of proving such regularity. Nothing could be more destructive of the workings of our grand jury system or more hostile to its historic status. ”

“ An accused is not entitled to a hearing before a grand jury, nor to present evidence, nor to be represented by counsel; and a grand jury may act secretly-a procedure normally abhorrent to due process. In this country as in England of old, the grand jury is convened as a body of laymen, free from technical rules, acting in secret, pledged in indict no one because of prejudice and to free no one because of special favor. ”

“ A grand jury, generally composed of twelve or more men selected from ordinary citizens, is brought together every term of court. They sit in a room by themselves and hear evidence as to the commission of offenses. They have no power to find a man guilty or not guilty. Their power and their duty is to decide whether the evidence brought before them is sufficient to justify putting the accused man on trial for the offense. They hear the witnesses for the State or government. The defendant is not brought before them personally, nor is he represented in any way. ”

“ On direct review.-Assume that a man is indicted, and held for trial in a state court, by a grand jury from which members of his race have been systematically excluded. Assume further that the State requires any objection to the composition of the grand jury to be raised prior to the verdict, that no such objection is made, and that the defendant seeks to raise the point for the first time on appeal from his conviction. ”

“ If he err by discharging the prisoner, he knows that it may let a guilty man go free, untried. If he err by committing him for trial, he knows that, if innocent, the jury are quite sure to acquit him. He acts also in public. The whole community knows or may know the proofs before him, and will hold him to account accordingly. On the other hand, in the grand jury room all is secret. The prosecuting attorney, if admitted, does not remain while the jurors are deliberating over their decision. No one outside knows who may vote for and who against the return of an indictment. ”

“ As these decisions correctly recognize, this Court’s decision in Branzburg turned on the unique and vital role of the grand jury in our criminal justice system. As the Court observed in Branzburg:
The prevailing constitutional view of the newsman’s privilege is very much rooted in the ancient role of the grand jury that has the dual function of determining if there is probable cause to believe that a crime has been committed and of protecting citizens against unfounded criminal prosecutions. ”

“ And though the powers of a judge even when acting as a one-man grand jury may be, as Michigan holds, judicial in their nature, [11] the due process clause may apply with one effect on the judge's grand jury investigation, but with quite a different effect when the judge-grand jury suddenly makes a witness before it a defendant in a contempt case.
Here we are concerned, not with petitioner's rights as a witness in a secret grand jury session, but with his rights as a defendant in a contempt proceeding. ”

“ In this country, from the popular character of our institutions, there has seldom been any contest between the government and the citizen which required the existence of the grand jury as a protection against oppressive action of the government. ”

“ But it is our duty as well as the state's to see to it that throughout the procedure for bringing him to justice he shall enjoy the protection which the Constitution guarantees. Where, as in this case, timely objection has laid bare a discrimination in the selection of grand jurors, the conviction cannot stand because the Constitution prohibits the procedure by which it was obtained.'
A grand jury serves a high function. ”

“ The use of objections to the composition of juries is lately so much resorted to for purposes of delay, however, and the spectacle of a defendant putting the grand jury on trial before he can be tried for a crime is so discrediting to the administration of justice, that it is time to examine the basis for the practice. ”

“ But if the grand jury is to exist at all, it must be constituted, and required to act, in accordance with the law. The indictment is invalid if there be on the grand jury one who has not the proper qualification to sit, or if an unauthorized person be present, or if the evidence is not legally sufficient. ”

“ The first class is entitled to have an impartial and unbiased grand jury; the second is not. The four judges who wanted to reverse this conviction could see no reason, nor can I, for saying that one charged with crime and in jail or on bail should be entitled to an unprejudiced grand jury but one who happened not to be already held for grand jury action could validly be indicted by a biased and prejudiced grand jury. ”

“ Such grand juries must stay in session long enough to allow for the unusually long time required to build an organized crime case. The possibility of arbitrary termination of a grand jury by supervisory judges constitutes a danger to successful completion of an investigation. ”

“ Having considered the procedures traditionally followed by executive and legislative investigating agencies, we think it would be profitable at this point to discuss the oldest and, perhaps, the best known of all investigative bodies, the grand jury. It has never been considered necessary to grant a witness summoned before the grand jury the right to refuse to testify merely because he did not have access to the identity and testimony of prior witnesses. ”

“ He is not entitled to set limits to the investigation that the grand jury may conduct. The Fifth Amendment and the statutes relative to the organization of grand juries recognize such a jury as being possessed of the same powers that pertained to its British prototype, and in our system examination of witnesses by a grand jury need not be preceded by a formal charge against a particular individual. ”

“ As a means of constitutional protection in times of monarchical aggression this practice had no doubt a great value, but in the present day, when few offenders are tried without a preliminary inquiry by justices, the functions of a grand jury are of secondary importance, and the jurors’ time is perhaps needlessly occupied. The institution of the grand jury prevented the crown in the days of its great power from removing a person whom it wished to get rid of from among his neighbours, and placing him on trial in a strange place where the influence of the crown was greater. ”

“ There is every reason to believe that our constitutional grand jury was intended to operate substantially like its English progenitor. The basic purpose of the English grand jury was to provide a fair method for instituting criminal proceedings against persons believed to have committed crimes.' (Italics added.) ”

“ The Court has the right to excuse a juror if he is not on the assessment roll. The Supreme Court has decided that a man has the right to be investigated by a Grand Jury of nineteen men who are qualified according to the statute and none others. It is not necessary to take for grand jurors the nineteen whose names are first drawn from the box. ”

“ A single juror's dissent is generally enough to prevent conviction. A trial jury on which one of the defendant's race has no chance to sit may not have the substance, and cannot have the appearance, of impartiality, especially when the accused is a Negro and the alleged victim is not.
The grand jury is a very different institution. ”

“ N.Y. Penal Law § 2447, governing the procedure for conferring statutory immunity, provides that in the case of a grand jury, the grand jury must be 'expressly requested' by the prosecutor to order the witness to answer and the grand jury must give that order ”

“ We have seen a judge charge the grand jury, that, in case of conflict between the law of God and the statutes made by men, the people must "obey both." Then we have seen an attempt made by the government to get a partial jury, who should not represent the country, but should have prejudices against the prisoner at the bar. We have seen a man selected as foreman of the jury who had previously, and before witnesses, declared that all the persons engaged in the case which was to come before him, "ought to be hung." ”

“ Whatever occurs, then, in regard to the constitution of the grand jury, is really a matter of very little importance to the defendant. It is fairly to be supposed that if one grand jury, made up in good faith, has found an indictment, another grand jury, upon the same testimony, would find another indictment ”

“ United States, supra, established that a grand jury as an arm of the court has available to it another course to vindicate its authority over a lawlessly recalcitrant witness. Appeal may be made to the court under whose aegis the grand jury sits to have the witness ordered to answer the grand jury's inquiries in the judge's physical presence, so that the court's persuasive exertion to induce obedience, and its power summarily to commit for contempt should its authority be ignored, may be brought to bear upon him. ”

“ So valuable is this inquisitorial power of the grand jury that, in states where felonies may be prosecuted by information as well as indictment, the power is ordinarily reserved to courts of impaneling grand juries for the investigation of riots, frauds, and nuisances, and other cases where it is impracticable to ascertain in advance the names of the persons implicated. ”

“ For example, Lumpkin stated that all objections to the impaneling of the grand jury should be made by challenge to the array before the indictment is found, where the illegality is known, or, if not known, by plea in abatement to the indictment; objections to 'certain jurors' on the trial jury should be raised by a challenge to the juror when put upon the defendant. ”

“ Applying the assumed qualified privilege to the facts necessitated an evaluation by the lower courts of information concerning the full scope and breadth of the ongoing grand jury investigation. Although the government took the position that it was not legally required to do so, it provided the district court with a detailed description of the progress of the investigation, including extensive references to sensitive and classified grand jury information, such as the identities of witnesses, the substance of grand jury testimony, and the strategy or direction of the investigation. ”

“ Every judge in a criminal case is required to charge the jury in form or substance somewhat as follows: "The defendant is presumed to be innocent until that presumption is removed by competent evidence"... "This presumption is his property, remaining with him throughout the trial and until rebutted by the verdict of the jury."... "The jury has no right to consider the fact that the defendant stands at the bar accused of a crime by an indictment found by the grand jury." ”

“ There are cases, undoubtedly, which admit of a different consideration, and in which the objection to the grand jury may be taken at any time. These are where the whole proceeding of forming the panel is void; as where the jury is not a jury of the court or term in which the indictment is found, or has been selected by persons having no authority whatever to select them ”