The Grand Jury: Sword and Shield
As District Judge for the Southern District of New York,JUDGE IRVING R. KAUFMANpresided over several prominent civil and criminal trials, among them the Rosenberg atom-spy case, the Apalachin conspiracy, and the New Rochelle segregation case. Last September, he was elevated to the United Stales Court of Appeals for the Second Circuit, which includes New York, Connecticut, and Vermont.
BY JUDGE IRVING R. KAUFMAN
No PERSON shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury.” So begins the Fifth Amendment to the federal Constitution, which also protects the individual against compulsory self-incrimination, double jeopardy, and the deprivation of life, liberty, and property without due process of law. Most state constitutions contain similar language, all attesting to the importance placed upon the grand jury by the architects of our government. Yet in recent years the very institution of the grand jury has been under increasingly severe criticism.
There is no lack of provocation for these attacks. In one part of the country, a grand jury hands up a presentment subjecting the private conduct of individuals to scathing attack without an opportunity for retort. In another region, persuasive evidence is apparently ignored by a grand jury because of the racial overtones of the crime charged. Moreover, the criticism is by no means limited to exaggerated reaction to isolated instances. It goes to the very heart of the institution. Lawyers, scholars, and even judges charge that the grand jury is a useless vestige of another age, when the regime was the main enemy of its own people. It is said that the grand jurors themselves have acquiesced in this judgment by becoming mere rubber stamps for the prosecutors’ cases. On the other hand, it is urged that the grand jury is at times guilty of nullifying important legislation because of the local popularity of the criminal or public lethargy to the crime. Other critics point out that the grand jury may occasionally run away on an irresponsible tear, using its tremendous power to muddle the law-enforcement process, not to mention the lives of innocent individuals. Even more basic is the thought that the grand jury is a sport among our legal institutions in that it operates in secret and its members are accountable to no one for their actions. The Sixth Amendment to the federal Constitution assures a “public trial” in criminal cases, yet a grand juror could find himself in contempt of court for divulging the testimony he heard in the grand jury room. Star-chamber proceedings are feared.
All of this criticism has a certain degree of validity. It has led to the abolition of the grand jury in England, the land of its origin, and to the curtailment of the institution in certain of our states. Nevertheless, I believe that the grand jury, with all its acquired flaws, is well worth retaining. Its abolition, even if this could be achieved, could be a serious net loss.
Because the grand jury does its work in secret and because its function is so often misunderstood, it is important that this ancient institution be reviewed in its modern context and that its place in the criminal law be appreciated.
From the time the illegal act is committed, and for a long time after, a criminal case is in the almost untrammeled control of the executive branch of the government. Generally it is the enforcement agency — the local police, the FBI, the Securities and Exchange Commission, or some other investigative agency — which first acts on suspicion of crime.
If at any time the police become satisfied that no crime has been committed, or that further pursuit is impractical, the case aborts.
Because this system is inevitable and rarely abused, few realize the tremendous power it confers upon the police. This becomes apparent enough when the sheriff of a corruptly governed county chooses not to investigate corruption, or when certain ordinances are enforced only against political enemies of a local administration. When the enforcers are satisfied that they have a criminal case, the matter is turned over to another arm of the executive department, the prosecutor. In the federal system he is the United States Attorney, who operates under the Attorney General of the United States. He may take steps to bring the case to court, but he does not have to. If, in his judgment, the suspect’s acts are not in law a crime, or if he believes that it is impossible to secure a verdict of guilty, he, too, has the power to let the matter drop. If he believes that he has a triable criminal case, he will then lay the facts before the grand jury and ask for an indictment.
The federal grand jury, the type with which I am most familiar and to which I will direct most of my attention, is composed of twenty-three persons. For twelve years, I was United States District Judge for the Southern District of New York. In that district, which covers a territory roughly from the lower tip of Manhattan to a point just south of Albany, New York, the grand jurors are selected by public drawing from a jury wheel containing names assembled from the same voter registration lists and other sources which provide trial jurors. The judge presides over this first session and passes upon requests by prospective grand jurors to be excused. Hearteningly, these are few. I have found that business and professional persons are more willing to serve on grand juries than they are to serve on petit, or trial, juries. As a result, the grand juries tend to have a high educational level with concomitant ability to follow complex cases.
The judge then selects a foreman and his deputy. In the case of a federal trial jury in New York City, the first person selected is automatically the foreman; not so with the grand jury. Because the grand jury has much more initiative, and because the grand jury foreman may question witnesses and control the questioning by other grand jurors, the selection of a proper foreman may set the tone for everything that follows. Most judges try to select as a foreman a person with previous grand jury experience or some other background which fits him for this unusual responsibility. The twenty-three men and women will serve for at least one month, and may serve up to eighteen months in an extended investigation.
The judge now charges the grand jurors, instructing them in general terms on their powers and duties. These are extremely broad. It is the grand jury’s duty to investigate suspected crimes committed within its territorial jurisdiction. Following the charge, the grand jury retires to hear its first case. From now on the jurors will rely heavily upon the guidance of the prosecutor. Ordinarily the grand jury will investigate only suspected crimes brought to its attention by the prosecutor, and will pass upon the filing of the indictments which he prepares. Evidence, witnesses, and documents will ordinarily be brought before the grand jury by subpoena prepared by the prosecutor in the name of the grand jury. It is upon this subpoena power, the ability to compel the attendance of witnesses and the production of records, that much of the grand jury’s effectiveness depends. This is a power which the prosecutor himself lacks.
The prosecutor will begin by briefing the grand jury on the particular crime involved in the case and the law applicable. In a few minutes the grand jury is ready to hear the first of its witnesses. No witness hears the testimony given by any other witness. In fact, no one is permitted in the grand jury room except the jurors, the prosecutor, the witness being interrogated, and a court reporter. None of these persons may divulge what he has heard.
PRESENTING THE EVIDENCE
Someone familiar with courtroom procedure would find much in the grand jury hearing that seemed strange if he failed to keep in mind that this body is not passing on guilt or innocence but only on whether a minimal case has been made out. Leading questions are permitted. There is only one lawyer in the room, and he, the prosecutor, will present only one side of the case. A suspect is almost never called. In the rare instances when a suspect is granted permission to appear, he must do so without counsel. Moreover, television-trial aficionados would miss their favorite objection: “That question is irrelevant, incompetent and immaterial.” So broad is the grand jury’s power to question that rarely is a question genuinely irrelevant.
Naturally, this doctrine cannot be attenuated indefinitely. The grand jury may not subpoena clearly irrelevant documents. Neither may it demand evidence that is privileged, such as communications with one’s lawyer or religious adviser.
But by far the most important limitation on the grand jury’s power to demand answers is imposed by the privilege against self-incrimination, guaranteed by the Fifth Amendment. So complete is this privilege that without special immunity statutes, many important investigations would be entirely frustrated.
Basically, special immunity statutes allow a United States Attorney, with the approval of the Attorney General, to make a choice. If he decides that the story that a particular witness may tell is worth allowing the witness’s own crimes to go unpunished, he can make application to the court to compel the witness to answer all questions. But if he does, that witness can never be prosecuted for the crime under investigation. In the case of state grand juries, immunity statutes are often broad and are frequently invoked. The result is sometimes an “immunity bath,” a situation in which the grand jury finds that it has given up the bird in the hand and is still unable to locate the two in the bush. In the federal system, on the other hand, the immunity statutes are limited to particular types of cases — for example, espionage and narcotics.
Generally the grand jury hearings progress rapidly, with the average case consuming less than thirty minutes. The prosecutor lays out the bare bones of his case. The prosecutor, then the foreman and the individual grand jurors may question the witness — usually a federal investigative agent. The grand jurors may also request that the prosecutor call additional witnesses if they are not satisfied as to a doubtful point.
Sometimes the grand jury embarks on a full investigation. No one knows what the outcome will be. For example, a number of years ago one of the country’s most famous and conservative drug houses was suddenly thrown into receivership. In a single day its bonds fell from 103 to 57, the stock from 7½ to 1¼ The Securities and Exchange Commission ordered an investigation, and for the next eight days, one after another of the federal, state, and local law-enforcement agencies began to investigate this corporation. At first the results were inconclusive. The United States Attorney was not even sure that a crime had been committed, or if so, by whom. The grand jury was impaneled to consider the case. All the facts were presented, and a vast amount of new evidence was unearthed through the use of the grand jury subpoena. This investigation took months to complete. Several hundred witnesses, ninety-one bank accounts, and fifty-seven brokerage accounts were minutely examined before the details of an ingenious multimillion-dollar embezzlement emerged.
It is thus apparent that grand jury investigations are not always narrow. Sometimes state grand juries will broadly investigate a type of suspected illegal activity, such as wiretapping, ticket fixing, or municipal graft, with a view to eventual indictment.
Whether the investigation is long or short, broad or narrow, the prosecutor’s job is only to present the evidence. When this has been done, the grand jurors dismiss everyone from the grand jury room and commence their deliberation in secret. Their job is to decide not the guilt or innocence of the suspect but only whether the prosecutor has presented sufficient evidence to permit the case to go on to the next stage, the trial. The judge has instructed them that they must not indict unless “upon the credible evidence which you have heard, absent an explanation by the defendant, you would be willing to convict. . . .”
Sixteen of the grand jurors constitute a quorum. Unless twelve of them believe that the prosecutor has made out a case, a “no true bill” is voted. If twelve believe an indictment is proper, the grand jury votes a “true bill” and subsequently hands the written charge (indictment) to the judge.
At that moment, the secretly suspected becomes the publicly accused, bound to stand trial, with his liberty, and perhaps his life, turning on the decision of a twelve-man trial jury. From this moment, too, the defendant is surrounded by the myriad safeguards subsumed under the phrase “due process.” He need not speak a word in his defense, for the prosecutor carries the burden of proving guilt beyond a reasonable doubt. At trial, rules of evidence will be vigorously applied to exclude hearsay and prejudicial material, and the defendant has a constitutional right to counsel and to present his case. But none of this can change the fact that even if found innocent, he will have been a defendant in a criminal case, a fact that, unfortunately, will not be forgotten by many of the community.
The significance of the handing up of the indictment is reflected in procedural requirements. The document must be handed directly to the judge in open court and in the sight of a quorum of the grand jury. Our bewigged forebears were unwilling to let so important a document out of authorized hands even for a moment. They were concerned lest an enemy of the accused get possession of the indictment and write an additional crime at the bottom of it. In the days when courtrooms were more imposing than they are today, a direct reach between foreman and judge was impossible. and there are preserved in England several long poles with clamps which were used to make sure the passing of the indictment was direct.
WITH a picture of the workings of the modern grand jury in mind, we can now consider some of the criticisms that have been lodged against its functionings.
RUBBER-STAMPING
The grand jury’s function of screening the prosecution’s cases has been solidly established in this country from earliest times. In 1734, William Cosby, a particularly incompetent royal governor of New York, was stung by the attacks upon him carried in the New York Weekly Journal. Cosby had his handpicked chief justice indicate to the grand jury that John Peter Zenger, the paper‘s printer, had committed the crime of seditious libel. The grand jury refused to indict, and repeated its refusal when Cosby tried again several months later. The fact that Zenger was later charged in an information and that he won his acquittal through the heroic efforts of his lawyer, Andrew Hamilton, does not change the fact that for the best part of a year the grand jury stood between a thoroughly ruthless executive and an unjustly accused citizen.
There is little doubt that such cases as Zenger‘s were very much in the minds of the framers of the Fifth Amendment. They probably considered that the grand jury‘s most important function was its job of screening the prosecutor’s cases.
But it is not necessary to go back to Peter Zenger to realize the importance of this function. The power to subject whomsoever the executive wishes to the ordeal of a criminal trial is the power to tyrannize. The grand jury is the people‘s check on that power. However, I am as much concerned with the possibility of sloppy police work and opportunistic prosecution as I am with the possibility of tyranny. Not every police officer is a J. Edgar Hoover, nor is every prosecutor one who believes it is his function not to obtain a conviction but to see that justice is done. If there were no check on the executive’s power to bring citizens to trial, it is quite possible that the litigious tendency, which is unfortunately so prevalent in civil matters, would be imported into the criminal law.
Some power must screen the prosecutor‘s cases. The real question is, does the grand jury accomplish this effectively?
I believe that it does the job, not perfectly, but probably as well or better than it could be done by any other body or person. Those who read rubber-stamping into the fact that indictments are forthcoming in the great majority of cases presented to the grand jury are misinterpreting the evidence.
First of all, the vast majority of prosecutors are sufficiently conscientious to screen their own cases. They do not ask for an indictment unless they are convinced that the accused is guilty and reasonably sure that a trial jury will eventually convict. They realize that if a weak case does get by the grand jury, it will probably founder at the trial. The rare prosecutor who is too callous to care that a defendant suffers unnecessarily is probably tenderly solicitous of his conviction record. Thus, it is only in the unusual case that the grand jury’s screening power comes into play. Furthermore, with the grand jury, as with other institutions, the existence of power is more important than its exercise. The power to refuse to indict need be used only often enough to demonstrate that it has not atrophied. This power-in-being automatically eliminates cases brought for improper motives and with no hope of success. The fact that the grand jury rarely refuses to indict may be more of a tribute to its success than evidence of a failure.
NULLIFICATION
The question remains why this admittedly important function must be performed by a group of twenty-three citizens. One well-trained man might do the job as well or better; one well-trained man does do the job in England, on the Continent, and, most of the time, in Michigan. Moreover, it is said that an indicting magistrate, or one-man grand jury, would be less likely to nullify important legislation because of local prejudice.
Critics of the present system point out that the ideal grand jury is a machine, a calculator for weighing the facts. All of the evidence is considered, weighed according to the credibility of its source, and then measured against the standard supplied by the judge in his charge. The answer — true bill or no true bill — should follow automatically, they say, dependent only on the facts in the case, not upon the identity or the state of mind of the trier of those facts. These critics say that the employment of ordinary citizens as sifters of the evidence allows the mores of the time and place to permeate the judicial process. To that extent, they say, we dilute the even-handed justice which is our pride.
There are those who would answer this argument by striking at its major premise. They urge that the grand jurors with their common sense soften the sometimes cruel logic of the law. But I do not favor the grand jury because it reaches less logical results than would be reached by an indicting magistrate. After almost a quarter century of working with criminal juries and grand juries, I am convinced that in a difficult case a body of citizens is likely to reach the correct result.
The grand jury is sometimes deprecated as irresponsible, but it is this very “irresponsibility” which caused the institution to be so cherished by the framers of the Bill of Rights. The grand jury is answerable to no one. Its members are not subject to re-election or reappointment by one man. They owe no political debt to anyone, and when their job is done, they disperse. When a grand juror swears that he will present no one from envy, hatred, or malice; nor shall he leave anyone unpresented from fear, favor, or affection, for reward, gain, or the hope thereof, but shall present all things truly as they shall come to his knowledge, there is every reason to believe that he will fulfill his oath.
Some months ago the people of New York were justly incensed over a series of hit-and-run accidents. At the height of this indignation, a taxicab struck a small girl. The driver stopped, carried the injured child into his cab, and said he would take her to a hospital. Several hours later, the body of the girl was found abandoned beneath a parked car. A howl of rage arose from public and press. When the driver was apprehended, the newspapers pointed out that he might well be guilty of homicide. Evidence was presented to the grand jury, but a homicide indictment was not sought because there was no evidence of that crime. In fact, the grand jury did not even indict for the two less serious crimes charged, but sent the case to the Court of Special Sessions instead. There the driver was charged by information with the two lesser crimes, to which he pleaded guilty. His sentence was thirty days (which he had already served pending trial) and one year, suspended.
The public accepted the judgment of its own representatives without a murmur. I cannot help wondering whether the reaction would have been the same had a decision not to prosecute for homicide not been accepted by a grand jury, but been made solely by an elected or appointed official. It is likely that such an official would have resisted the great pressures upon him. But it is best to minimize the number of times a man is called upon to choose between his honor and his future.
Finally, a decision to indict or not to indict must be more than just. It must be accepted as just by the public. One object of the criminal law is the achievement of a sense of security on the part of the community. As the hit-and-run case demonstrated, there are few cries of “foul” when unpopular decisions are made by grand jurors, selected at random and beholden to no one. The public has great confidence in this honored institution.
Certainly there are occasional cases where a grand jury is swayed by prejudice and so fails to indict. But I do not think that this is really a criticism of the grand jury as such. It is a flaw in our basic system of entrusting citizens with factual decisions in criminal cases, a system very few of us would change.
THE RUNAWAY GRAND JURY
The importance of the grand jury’s role in screening cases stems from the fact that it is generally the first nonexecutive power to review criminal cases. Here it serves as the people’s shield against unfair accusations. However, its unique position may also require that it be a sword against the unjustified refusal of an executive to prosecute. If the executive refuses to initiate criminal proceedings against wrongdoers, the grand jury may. The local district attorney who expects a grand jury tamely to confine itself to handling indictments in a few major cases may suddenly find that his own office is under searching investigation by that same body.
Occasionally we still read of such runaway grand juries. Sometimes they perform a valuable service; sometimes they merely represent twentythree good citizens momentarily carried away by power. Sometimes the runaways must be restrained. In a fairly recent case in the West, one grand jury got completely out of hand. The federal district judge sitting in the district concluded that the jurors’ attacks on privacy had overstepped decent bounds. He decided that justice required the dismissal of the grand jury.
Runaway grand juries are faced with immense procedural difficulties. Modern investigation is a job for professionals, and when the grand jury takes off on its own, it cuts loose from the investigatory agencies which are its eyes and ears. Unless it somehow obtains facts, counsel, and a staff, substantial investigations are likely to be hopeless. Furthermore, its zeal may cause it to cut away from the restraints which bind all responsible investigators.
THE PRESENTMENT
A more serious problem, however, arises when a grand jury is active and vocal but does not indict. We recall that more than two years ago a New York state grand jury began an investigation of television quiz shows. In the course of fifty-nine session days covering a nine-month period, the grand jurors heard two hundred witnesses. It soon became clear to the panel that a shabby trick had been played upon the viewing public. It became equally clear that, aside from possible perjury, no crime had been committed. The grand jury decided that in lieu of an indictment it would hand up a presentment, or a report setting out its findings and its conclusions. It was hoped that the report would become a matter of public record, and public opinion might be expected to mete out its own punishment. Anticipating such a report, counsel representing certain television interests, the obvious subjects of such a report, sought to submit memoranda of law in opposition to its filing. Soon four bar associations, the Citizens Union, the Civil Liberties Union, two grand jury associations, and the district attorney’s office had joined in an argument that vividly delineated the most controversial question involving grand juries. Should these bodies be permitted to inform the public upon immoral and undesirable conduct of private citizens where there is no evidence of the commission of a crime by these citizens?
Before the case could be decided, a congressional committee had laid bare the facts of the television quiz scandals. The public was justifiably incensed and eager for further details on how it had been duped. Nevertheless, a judge presiding in the court where the grand jury had been impaneled eschewed the easy solution. He suppressed the report. More recently, the highest court of New York has reaffirmed that grand juries may not report on misconduct if they do not indict.
Those who oppose presentments of the quizshow type point out that numerous judges have used the term “foul blow” to describe this kind of presentment. They point out that any report issued by a grand jury is armored with tremendous prestige. For most people, no number of fine legal distinctions between accusation and conviction will change the fact that the person named has been accused by a public body whose primary function is to indict for “infamous” crimes. Since there will be no trial, the victim is deprived of a forum for answering the charges made against him. He does not have even the military officer’s alternative of demanding a court-martial. Moreover, the secrecy of the grand jury proceedings is an insurmountable obstacle. The accused man has no way of knowing the real nature of the evidence against him. The result can be devastating.
Several years ago a federal grand jury handed up a report on the alleged Communist affiliation of certain labor leaders. During the hearing, witnesses were questioned as to their views on religion, God, baptism, their particular religious beliefs, the length of adherence to them, atheism, and agnosticism. The labor leaders had invoked the Fifth Amendment when questioned about non-Communist affidavits which they had filed, and the grand jury concluded that the affidavits were thus not “worth the paper they are written on.”No names were used, but on the day the report was handed up, the newspapers carried the names of thirteen labor leaders who had testified before that particular grand jury. A federal judge concluded that the names had been deliberately leaked, whether officially or unofficially. It is doubtful whether even the expunging of this report by a judge could have repaired any damage already done.
Reports concerning inefficient, incompetent public officials stand on a somewhat different footing. Some states apparently grant their grand juries the power to investigate the conduct of public officers and to report on malfeasance falling short of a crime. The New Jersey Supreme Court, for instance, last year upheld such a right. This practice is defended on historical grounds and on the need for good government. It is contended that the public interest requires that officials must accept a certain degree of loss of privacy. Furthermore, many of these reports are careful to criticize a condition but avoid naming names.
On the other side is the argument that this very need for good government should deter us from making public service forbiddingly disagreeable. Officials, too, are entitled to fair play.
A few years ago in Florida, a dispute arose as to the handling of an incompetent’s estate. Somehow the matter came to the attention of the grand jury, which proceeded to “investigate” and to report on the action of a circuit judge. The report purported to tell “what happens to helpless old people
who seek the protection of Judge -’s Court.”
The grand jury concluded that the judge should resign. Must an official submit to unanswerable accusations of this kind at the price of his office? The Florida Supreme Court answered this question in a ringing opinion.
For the future guidance of the grand juries of this state, we repeat the admonition . . . that a grand jury will not be permitted to single out persons in civil or official positions to impugn their motives, or . . . hold them to scorn or criticism. . . . Neither will they be permitted to speak of the general qualifications or moral fitness of one to hold an office or position.
While such general attacks on public officials are rightly to be condemned, there remains the question of a report on general conditions which the grand jury encounters in the course of its investigations of indictable crime.
For example, a New York judge once recalled a report which had been handed up to him some years previously. Without vituperation the grand jury had pointed out that a type of school run by the city had outlived its usefulness. As a result of this one report, the taxpayers were saved millions of dollars. Would the general interest have been served if this report had been automatically suppressed because it did not charge a crime? Perhaps there is a compromise. Where the grand jury uncovers a condition which it believes requires remedial legislation, there should be orderly machinery for making a secret report to the appropriate body of the legislature. The report would remain forever sealed, but it could be used by the legislature as a basis for its own investigations. If the legislators then wished to draw the public’s attention to the condition, they might. Proponents of this plan point out that when a congressional committee makes a charge, the political careers of its members stand surety for some standard of fair play. This is a safeguard entirely absent in the case of the grand jury.
SECRECY
The secrecy surrounding the grand jury proceeding is admittedly designed to aid the jury in carrying out its law-enforcement duties. Witnesses at grand jury hearings are more likely to talk freely if they are assured that their testimony will not be made public. Moreover, it is a practical necessity that the subject of a grand jury investigation remain secret. If a suspect has advance notice that he is under investigation, not only can he seek to put pressure on the grand jury directly or to intimidate witnesses, but he can destroy documentary evidence, and, if palpably guilty, flee. The secrecy of its proceedings also protects the grand jury from public hysteria, either for or against indictment. So much is obvious. But we often lose sight of the fact that the total secrecy of the grand jury room is also a valid protection to the accused. We have seen that the grand jury hears only evidence against the suspected. Some of this evidence is hearsay; all of it is usually damaging; and the accused is not represented by counsel. If an indictment is returned, it is undesirable that this testimony, some of it inadmissible at trial, yet carrying the prestige of the grand jury, be made known to prospective jurors or to the public. Even if the accused proves his innocence at trial, his reputation will thus have suffered additional besmirching.
More important, however, is the position of a person investigated but not indicted. He will never have the opportunity to rebut the charges made against him, if the secrecy has been lifted, in any forum comparable to a courtroom. The witness before the grand jury may have been mistaken or untruthful. This is all the more likely since the grand jury had refused to indict. But revelation of these charges would nevertheless deal a blow to an innocent reputation. Yet the knowledge that a grand jury was investigating may seriously harm the individual’s good name. Many would choose not to invest through a stockbroker who had been under a grand jury investigation for allegedly defrauding investors, although
he was not indicted. In balance, it appears that secrecy of the grand jury proceedings is desirable and necessary, both from the standpoint of effective law enforcement and protection of individual reputations.
The grand jury operates as a check upon the executive in an area wherein few checks occur other than the ballot. Occasionally it acts as a prod to unwilling officials. It can save a man from embarrassment and unmerited punishment, and it can, by being lax, inflict both. But, whether used as a sword or a shield, it is an implement of the public, the unofficial, nongovernmental public. It is the citizen’s personal entry into government and justice. As such it has its justification, and because it is such, it should be retained.