The function of a grand jury is to accuse persons who may be prima facie guilty of an offence, but the institution is also a shield against unfounded and oppressive prosecution. It is a means for lay citizens representative of the community to participate in the administration of justice. It can also make presentments on crime and maladministration in its area. The traditional number of the grand jury is twenty three.
The mode of accusation is by a written statement in solemn form If they find the accusation true (which is usually drawn up in form by the prosecutor or an officer of the court), they write upon the indictment the words "a true bill", which is signed by the foreman of the grand jury, and is presented to the court publicly, and in the presence of all the jurors. If the indictment is not proved to the satisfaction of the grand jury, the word "ignoramus" or "not a true bill" is written upon it by the grand jury, or by their foreman and is then said to be ignored, and the accusation is dismissed as unfounded. When the grand jury return an indictment as a true bill ("billa vera"), the indictment is said to be found and the party stand indicted, and is required to be put upon his trial.
The grand jury only hears evidence on behalf of the prosecution, for the finding of an indictment is only in the nature of an inquiry or accusation, which is afterwards to be tried and determined. However, they ought to be thoroughly persuaded of the truth of the indictment, so far as their evidence goes.
And thus a body of persons brought together for the occasion, and for that only, are placed between the government and the citizen, as a shield against oppression and injury, and to afford a reasonable protection to him (or her) if he be not justly suspected of a crime.
The following documents (generally extracts from larger publications) relate to Grand Juries in England.
Re. Consultation Paper No. 149, "Criminal Law: Consents to Prosecution"
The following advocates restoring Grand Juries in England, particularly for prosecutions which at present require the consent of the Attorney General or other officers.
In response to the Law Commission's invitation for comments on Consultation Paper No. 149, "Criminal Law: Consents to Prosecution", I [T.G. Oswald] would like to submit the following:
INTRODUCTION
The subject of the consultation paper is one of the procedural mechanisms used to control the prosecution process. The proposals by the Law Commission bear upon
(a) private prosecutors
and
(b) state prosecutors lower down the hierarchy than the Law Officers, DPP or the new "Chief Crown Prosecutors", depending on the consent authority.
The Law Commission has examined the consents regime in context. It notes that usually prosecutions are continued by the CPS and the service applies an "evidential test" and a "public interest test". The Law Commission's proposals affect how this vetting takes place. Any consents regime effectively extends this vetting to some private prosecutions. It also controls some state prosecutions by interposing a more appropriate consent authority. The "consent" process also puts more emphasis on the "public interest" element than does a routine CPS decision to proceed.
While the Law Commission's proposals would undoubtedly rationalise the present situation, I believe it can be demonstrated that they can be improved in two important respects:
1. The consent authority for offences in the political (including international) and free expression categories.
2. The vetting of private prosecutions for serious, i.e. indictable, offences in general.
Although different arguments apply in these two areas, there is an underlying consideration which affects both. That is the general public has a direct interest over and above its usual interest in the suppression of crime and the correct identification of the culprits. The public is concerned with free political activity and the free flow of information, which might be inhibited by the deterrent effect of unwarranted prosecutions. In the case of private prosecution, the public may act as prosecutors or potentially be victims of vexatious prosecution.
OUTLINE OF PROPOSALS IN THIS SUBMISSION
Consultation Document References
In this submission, particular reference is made to the following parts of the Law Commission's proposals:
Consent by the Attorney-General, DPP or the new "Chief Crown Prosecutors" for prosecutions of offences:
involving national security or some international element (para. 8.11)
or
directly affecting freedom of expression (para 8.10).
Evidentially weak private prosecution (para. 8.5) or undesirable private prosecutions (paras. 8.2, 8.3, 8.7) of indictable offences in general.
Proposals
In discussing the consent power, the Commission has recognised that it should apply to the CPS as well as private prosecutors. This submission proposes that for prosecutions of offences involving national security or some international element, or directly affecting freedom of expression, the consent power should not be exercised by the above officers, but instead be exercised by a Grand Jury.
Other areas where the Commission proposes consent provisions would not be affected.
The Commission discusses the vetting of private prosecutions in general. It recognises the harm of prosecutions which are evidentially weak or against the public interest. It concludes that the consent regime, in general, should not or cannot directly deal with this problem. This submission proposes to deal with this problem in the case of indictable offences. It highlights the fact that committal proceedings have failed as a method of vetting prosecutions and that their predecessor, the Grand Jury, should be re-instated in the limited area of private prosecutions of indictable offences not subject to the consents regime.
It is proposed that the Grand Jury should act, in the above cases, at the same point in the prosecution process as the point where the CPS decide a prosecution should go to trial. This would probably also be the point where consent powers, if any, are normally exercised.
POLITICAL, NATIONAL SECURITY, INTERNATIONAL AND FREE EXPRESSION OFFENCES
Drawbacks of the Law Commission's Proposals
This category of offences groups two categories used by the Law Commission. This category would logically include common law offences such as Treason, as well as statutory offences which currently include a consent provision.
As was noted by the Commission (para. 5.23 - 52.6) there are strong arguments against the Law Officers having the final say in consenting to such prosecutions. There is great danger of the decision resting on the political views of the governing party or the Law Officers, or even on their narrow interests as the particular persons in power. For example in the Ponting case [1], the government prosecuted a person who undermined their defence against prolonged political attack over the Belgrano affair. Leaving the consent power in the hands of the Law Officers in these cases puts too much reliance on "Chinese walls in the mind of the Attorney-General" and the theory of accountability to Parliament.
The Franks Committee noted that control by the Attorney-General is a safeguard, which has the effect of reducing and not increasing the number of actual prosecutions (Law Commission para. 5.28). But this is only in comparison with an identical statute without the consent provision. As the Commission has noted, one effect of consent powers is to allow the passage of statutes with imprecise and widely termed offences. Indeed the wideness of definitions has been defended in Parliament by reference to accompanying consent provisions. If a statute had to be framed without a consent provision, the offences are very likely to be closely defined and thus fewer prosecutions will arise. Also, if the consent power were given to an independent body or individual, there are likely to be fewer prosecutions, as they would be under much less temptation to defend their own personal positions.
As regards the Attorney-General's expertise in political, national security, international or free expression matters, it is possible to envisage other individuals or bodies with such expertise. There could be a politically balanced committee of M.P.s, ex-Prime Ministers, or even the Law Lords (who are members of the legislature). However a better approach might be for the Attorney-General to make representations to the consent body, not have the power himself, in these areas.
In the area of offences with an international aspect, there is also great danger in giving the consent power to the Law Officers. Where a particular offence or alleged offence causes great embarrassment to the government or a foreign government, the Attorney-General or the government can come under intense pressure. In the case of T.V. programmes this happens frequently (e.g. "Death of a Princess" affair) and it is only the independence of the broadcasting authorities which allows the proper decision to be taken. It is better that the final say on whether a prosecution is allowable is taken out of the hands of those most exposed to illegitimate foreign pressure.
In the area of free expression, public order cases, etc., there is also a direct conflict between the narrow interests of the people in government and the wider interests of the general public. One sees with every government an aversion to public criticism and a wish to keep secret embarrassing information. If a statute (in this area) is so widely framed that it is not safe to allow anyone to use it without permission, then it is not safe to allow ministers of the day to use it. On the other hand, the Commission rightly points out the danger of unrestricted prosecution of offences in this area.
Proposed Remedy
The Commission has pointed out, that bodies as well as designated officers have consent powers (para. 3.2). While recognising the Commission's arguments for a consent provision (in the areas considered here), to avoid the drawbacks described above, it is proposed that consent should be by an independent body representative of the general public. To accommodate the valid concerns of the authorities, it is proposed that the Law Officers, DPP or Chief Crown Prosecutors should have an influential role in advising such a body.
Such a body is to be found in the common law Grand Jury, which ceased functioning in England in 1933 [2] and was entirely abolished in 1948[3]. Its functions were gradually made redundant by the development of committal proceedings in magistrates courts from 1848[4]. However these proceedings developed into almost a repeat of the trial itself, whereas what was required was a pre-trial vetting to ascertain whether a prosecution should proceed. The whole area of the different degrees of probability for pre-trial vetting and the trial itself has been examined in "Beyond Reasonable Doubt and Probable Cause" by B.J. Shapiro [5].
The Grand Jury was historically an essential prerequisite of almost all prosecutions of indictable offences[6]. Descriptions of it have been appended to this submission in its form in England [7], Rhode Island [8] and Virginia [9]. As stated in the Rhode Island description (II.C), the Grand Jury has the responsibility of investigating charges of crime and, if necessary, returning an indictment which means an accused person becomes a "defendant". In other words, it can be viewed as a body giving consent for a prosecution to begin.
When Grand Juries were abolished in England, Sir William Holdsworth, the eminent legal historian [10] wrote a letter to the Times, appended to this submission [11] which encapsulates the reasons for having a Grand Jury to consent to prosecutions in this area. Essentially, from 1681 when a Grand Jury saved Lord Shaftesbury from a trial for treason, this institution was regarded as especially valuable in protecting people from political prosecutions by the government. This is described in the "People's Panel"[12] as well as, more critically, in "Grand Jury- The Use and Abuse of Political Power"[13]. The institution is of course also specified in the Constitution of the United States, in one of the amendments collectively termed the Bill of Rights. The Fifth Amendment states "No person shall be held to answer for a capital, or otherwise infamous crime, except on presentment or indictment of a Grand Jury, except for cases arising in the land or naval forces, or in the Militia, when in actual service .....".
In England, Grand Jurors for the Assizes were ideally the "best figures in the county" [6], while those at Quarter Sessions had the same qualifications as ordinary jurors, at that time limited to ratepayers. With the subsequent extension of juror qualification, the advancement of education and the democratic spirit of the age, the newly re-established Grand Jury would have to have the same qualifications as trial jurors. This is now the case in the United States.
As a body to vet prosecutions of the offences considered here, the Grand Jury is ideally constituted. Viewed as a body to give consent to prosecutions, it is independent, but nevertheless able to make decisions in the public interest. Being a microcosm of the general public, it can apply considerations of public interest from the general viewpoint, rather than the inevitably biased viewpoint of government officers.
As in Rhode Island, the Grand Jury used in this context should receive advice from the Law Officers and the prosecutor. Indeed one of the criticisms of the Grand Jury in the United States [13] is that it is too often a rubber stamp for the state prosecutors, hence the special provisions in the case of the Grand Jury in Virginia [9]. It would be quite feasible to strike a balance between giving the Law Officers, etc., unfettered power of consent, as at present, and leaving the Grand Jurors to decide entirely on their own.
In "international" cases a Grand Jury would be much less susceptible to undue pressure from foreign governments, while still able to hear all the relevant considerations from the Law Officers. In Freedom of Expression cases, a Grand Jury would be able to reflect the general interest and assess the, possibly illegitimate, grievance complained of by the prospective prosecutor.
Grand Juries are also provided for on a limited basis, although more limited than proposed here, in the State of Victoria (Australia) [14]. As described by Elise Histed in the Journal of Legal History [15], they were introduced by the Judicature Act 1874 and have been used on a very limited number of occasions. It particularly relates to offences either by bodies corporate or where magistrates have aborted the prosecution.
PRIVATE PROSECUTIONS OF INDICTABLE OFFENCES GENERALLY
Comments on the Law Commission's Proposals
The Commission highlights the importance of the right to private prosecution in English Law. For example, in para. 5.5, as "a useful constitutional safeguard against capricious, corrupt or biased failure or refusal of those authorities to prosecute offenders against the criminal law" (quoting Lord Diplock). On the other hand a number of mischiefs and problems arising from unfettered private prosecution have been identified, in para.s 5.9-5.12 and 6.5-6.16.
Essentially there is a need to bring into play outside lay influence on the prosecutorial authorities, without giving free rein to all kinds of private persecution.
Another factor affecting serious, i.e. indictable, offences is that the previous method of formal judicial pre-trial vetting has proved a failure. The Royal Commission on Criminal Procedure[16] and the Royal Commission on Criminal Justice[17] both recommended that full committal hearings be abolished. The latter recommended replacing these in part by still more rigorous scrutiny of cases by the CPS. The RCCJ recognised that the decision to authorise prosecution to proceed should come at a much earlier stage in the process than committal hearings. Other criticisms were that full committal hearings duplicated much of the trial itself, generating much prejudicial publicity and exposing witnesses to intimidation by the defence. The paper exercise now in place ameliorates these problems, but the main vetting responsibility is now thrown on to the CPS's procedures. These of course do not apply to private prosecutors.
The Law Commission seeks to address this in a number of ways, but in areas where the consent regime does not apply, the primary recommendation appears to be that the CPS should be formally informed of all private prosecutions (6.60). This change would introduce an unstable element. Cases are likely to arise where the CPS's judgement (on what action to take on receipt of this information) is questioned. It is very likely the CPS would gradually become more involved in aborting private prosecutions and these would gradually cease to be initiated. A similar process occurred where civil jury trials became discretionary. The discretion was confined by case law and eventually, what was previously seen as a major right in our constitution, virtually disappeared, almost by stealth.
In order to protect the future of private prosecution, there needs to be a well regulated process of vetting, at least in serious cases, this vetting to be the counterpart of the CPS procedures in state prosecutions. Consent by the Law Officers, DPP or CPS, if it became widespread, would negate the principle behind private prosecution. The vetting procedure, like the prosecution itself, must be in lay hands, in the hands of people not appointed by the executive.
Proposals
To achieve the above, this submission proposes that all private prosecutions of indictable offences, not subject to some other consent procedure, must receive the consent of a Grand Jury.
It is envisaged that the Grand Jury would be a re-establishment of the common law Grand Jury and, as regards its internal procedures, would operate much in the fashion of this institution prior to 1933. The timing of its sessions would need to be revised in order to accommodate the need for consent to prosecution at a convenient time. A number of improvements may be suggested by provisions in various jurisdictions in the United States. The provisions in England [7], Rhode Island [8] and Virginia [9] have been appended to this submission. These describe, in summary form, some of the details pertinent to the operation of Grand Juries. This submission is not, of course, the place to propose detailed procedures, but instead to outline the general principle. The key benefit would be the provision of pre-trial vetting by the general public, where the public interest and evidential sufficiency can be considered from the viewpoint of the public, not the authorities.
As Grand Jury sessions are secret and only evidence on behalf of the prosecution is required, the potential defendant need not be put to the expense of contesting the case at this point. Pre-trial publicity is minimised. Also witnesses can be assessed for credibility before ordinary members of the public, without (at this stage) being exposed to potential intimidation by or in the presence of the defence. This process, to some extent, mirrors pre-trial vetting of witnesses by the police and CPS in state prosecutions.
As with any procedure, its use must be well regulated to prevent abuse. Provisions such as in the Vexatious Indictments Act (quoted by the Commission and by [7]) may be relevant. (This act had its own consents regime). However, as the proposal here applies only to private prosecutions, not the vast majority of prosecutions for indictable offences, most of the criticisms of the 1933 era do not apply. In retrospect, the replacement of the Grand Jury by committal hearings can be seen as a failure (as described above). The main U.S. negative criticism is that the Grand Jury may too often be a rubber stamp for the prosecution; some of the Virginia provisions [9] seek to avoid that. In the context proposed here, this argument has far less weight as private prosecutors do not have the kind of influence that do state prosecutors.
MORE FUNDAMENTAL CONSIDERATIONS
During the last hundred years the role of the jury has greatly diminished in the English legal system. From being the corner stone of the system, its functions are gradually being stripped away until we will reach a stage where its use becomes wholly exceptional. Where an area is "reformed" it always seems that, if the jury is involved, it is either diminished or abolished. Small recent examples include the Treasure Act 1996 or even the Law Commission's recent proposals (report 247) on Aggravated, Exemplary and Restitutionary Damages. Already we have reached a stage where a person eligible for jury service is unlikely to be actually called on during a whole lifetime, although he/she is still likely to know someone who once did serve on a jury.
If we really believe the jury is "the lamp that shows that freedom lives" (Lord Devlin), then whenever incremental reforms are considered, it is necessary to consider additions as well as reductions in the role of the jury. In that way a certain balance will be achieved, so that the institution continues in practice as well as in theory. Interestingly, a number of "think tanks" have recently recommended using juries outside the legal sphere [18, 19], while some local councils have actually used such juries [20]. The government is also considering the use of a "People's Panel". In California, the Grand Jury is now widely used as a check on local government [21, 22] as well as in the criminal justice system. In this climate, it seems a propitious moment to at least stabilise the role of the jury in the legal sphere.
Considering consents to prosecution, it has been shown here that this is a field where the jury has, historically and in other jurisdictions, played a large part. In two particular areas, where the general public has a vital interest and role, it is proposed to reintroduce the jury.
CONCLUSION
While supporting the Commission's general approach, this submission proposes a different form of consent body in two particular areas:
(i) political, national security, international and free expression offences
and
(ii) private prosecution of indictable offences generally, where no other consent provision applies.
In both cases the consent body would be the common law Grand Jury, with modus operandi adapted to the particular circumstances.
The proposal in either area might be adopted on its own, or indeed applied in a more restricted form.
REFERENCES
1. R. v. Ponting[1985] Crim. LR 318
2. Administration of Justice (Miscellaneous Provisions) Act 1933
3. A minor clause in the Administration of Justice (Miscellaneous Provisions) Act 1933 saving Grand Juries for offences relating to officials abroad was repealed in 1948 (Criminal Justice Act).
4. The Jervis Acts, in particular the Indictable Offences Act 1848, codified and greatly expanded the functions of magistrates in pre-trial proceedings.
5. Beyond Reasonable Doubt and Probable Cause, by B.J. Shapiro. University of California Press, 1991.
6. See for example: Commentaries on the Laws of England, Book IV, W. Blackstone.
7. Harris's Principles of the Criminal Law, S.F. Harris, 7th edition, London 1896. Section on Grand Jury appended to this submission.
8 Grand Jury Service - A Handbook of Information for Grand Jurors (Dept. of the Attorney-General, 72 Pine St., Providence, Rhode Island; 1993). Copy appended to this submission.
9. Handbook for Virginia Grand Jurors, Office of the Executive Secretary, Supreme Court of Virginia, 100 North 9th St., Richmond, Virginia 23219.
10. Author of the monumental "History of English Law", 12 vols. 1922-38. Vinerian Prof.of English Law at Oxford, 1922-44.
11. Letter of 11th July 1933, appended to this submission.
12. The People's Panel, by R.D. Younger, Providence, Rhode Island, Brown Univ.Press, 1963.
13. The Grand Jury - The Use and Abuse of Political Power, L.D. Clark, New York, Quadrangle/N.Y.Times Book Co., 1974.
14. Crimes Act 1958, s. 354 (Laws of the State of Victoria as at 20 Nov. 1997)
15. Journal of Legal History 1987, Sept (8) No. 2.
16. Royal Commission of Criminal Procedure, 1981, Cmnd 8092.
17. Royal Commission of Criminal Justice, 1993, Cmnd 2263.
18. Citizens Juries, by J. Stewart, E. Kendall and A. Coote (Institute for Public Policy Research, 1994)
19. Back to Greece: the Scope for Direct Democracy, by A.Adonis and G.Mulgan in Demos Quarterly issue 3/1994 (Demos 1994)
20. Lewisham Listens, Internet URL: http://www.lewisham.gov.uk/events/listens/
21. Report of the Grand Jury of Ventura County (Ventura County Superior Court, 800 S. Victoria Avenue, Ventura , CA 93009; 1st July 1996)
22. Government and Penal Codes of the State of California
APPENDICES
HANDBOOK FOR VIRGINIA GRAND JURORS
TABLE OF CONTENTS
PART I - NATURE OF THE GRAND JURY
1. Types....................................................... 1
2. Function of a Regular Grand Jury............................ 1
3. Function of a Special Grand Jury............................ 1
4. Importance of the Grand Jury................................ 1
5. Origin...................................................... 2
6. The Preliminary Criminal Process............................ 2
a. Initial Proceedings....................................... 2
b. Bills of Indictment....................................... 3
c. Misdemeanors.............................................. 3
PART II - THE REGULAR GRAND JURY
7. Qualifications.............................................. 3
8. Selection, Summons, Size.................................... 3
9. Exemptions and Excuses...................................... 4
10. First Appearance in Court.................................. 4
11. Oath....................................................... 4
12. Charge by the Court........................................ 5
13. Procedure in the Jury Room................................. 5
a. Quorum.................................................... 5
b. Hearing Witnesses......................................... 5
c. Witness Refusal to Testify................................ 6
d. Accused as a Witness...................................... 6
14. Determination to Indict or Not.............................. 6
15. Finding of Indictment....................................... 7
16. Special Findings, If Any.................................... 7
17. Return of Indictment........................................ 7
18. The Commonwealth's Attorney................................. 7
19. Secrecy..................................................... 8
20. Protection of Grand Jurors.................................. 8
21. Practical Suggestions....................................... 8
22. Compensation................................................ 9
PART III - THE SPECIAL GRAND JURY
23. Function of a Special Grand Jury........................... 10
24. Characteristics............................................ 10
25. Scope of Investigation..................................... 10
26. Convening.................................................. 11
27. The Commonwealth's Attorney................................ 11
28. Special Counsel............................................ 12
29. Special Investigative Personnel............................ 12
30. Court Reporter............................................. 12
31. Subpoena Power............................................. 12
32. Warnings Given to a Witness................................ 12
33. Counsel for the Witness.................................... 13
34. Oath of Witness............................................ 13
35. Examination of Witness..................................... 13
36. Witness Refusal to Testify................................. 13
37. Deliberation............................................... 14
38. Findings................................................... 14
39. Report..................................................... 14
40. Transcript, Notes, etc..................................... 15
41. Filing of Report........................................... 15
42. Secrecy.................................................... 15
43. Compensation............................................... 15
FOREWORD
This handbook is intended for citizens who have been selected as members of the Grand Jury and are about to report to the court to perform their duties. It does not purport to be a complete statement of the law affecting the Grand Jury and its work. The court itself is the sole authority in its charge to the Grand Jury and in any later instructions, as to these governing principles of law. This handbook merely attempts to give a Grand Juror an understanding of the general nature of his functions, with some practical suggestions as to how best he can carry them out.
In order that each Grand Juror may perform his or her duties as intelligently and efficiently as possible, it is suggested that the contents of this handbook be studied carefully before the term of service begins. Also, this handbook should be kept available for ready reference during the period of service.
1. NATURE OF THE GRAND JURY
1. Types
There are two types of Grand Juries - Regular and Special. A Regular Grand Jury is convened at each term of the Circuit Court of each city and county, to attend to the usual matters needing Grand Jury action. On infrequent occasions a court will convene a Special Grand Jury to investigate some particular matter.
2. Function of a Regular Grand Jury
A regular Grand Jury is composed of from five to seven citizens of a city or county, summoned by the Circuit Court of that city or county, to consider bills of indictment and to hear witnesses and determine whether there is probable cause to believe that a person accused of having committed a serious crime did commit the crime and should stand trial at a later date.
The Grand Jury does not hear both sides of the case and does not determine the guilt or innocence of the accused person. This is determined by a "petit (trial) jury" if and when the accused is tried later. The Grand Jury only determines whether there is probable cause that the accused committed the crime and should stand trial.
3. Function of a Special Grand Jury
A Special Grand Jury is composed of from seven to eleven citizens of a city or county, summoned by a Circuit Court to investigate and report upon any condition which tends to promote criminal activity in the community or by any governmental authority, agencies, or the officials thereof.
If a majority of the regular grand jurors so request, and if the judge finds probable cause to believe that a crime has been committed which should be investigated by a special grand jury, a special grand jury must be empanelled to be composed of the grand jurors so requesting and willing and such additional members as are necessary. If a minority so requests, a Special Grand Jury may be empanelled.
The function and duties of a Special Grand Jury are set forth in detail in Part III of this Handbook.
4. Importance of the Grand Jury
As Harlan Fiske Stone, late Chief Justice of the United States Supreme Court, said:
Jury service is one of the highest duties of citizenship, for by it the citizen participates in the administration of justice between man and man and between government and the individual.
1
In time of peace a citizen can perform no higher public duty than that of Grand Jury service. No body of citizens exercises public functions more vital to the administration of law and order.
The Grand Jury is both a sword and a shield of justice-a sword, because it is a terror of criminals; a shield, because it is a protection of the innocent against unjust prosecution. No one can be prosecuted for a felony except on an indictment by a Grand Jury. With its extensive powers, a Grand Jury must be motivated by the highest sense of justice, for otherwise it might find indictments not supported by the evidence and thus become a source of oppression to our citizens, or on the other hand, it might dismiss charges against those who should be prosecuted.
5. Origin
The Grand Jury had its origin more than seven centuries ago, in England, from which, in large part, this country inherited its legal system. Many legal historians trace its origin to events in the reign of Henry II and to one of the articles of the Constitution of Clarendon in 1164. It was recognized in Magna Carta granted by King John at the demand of the people in 1215. One of its earliest functions was to protect citizens from despotic abuse of power by the king; its other function was to report those suspected of having committed criminal offenses.
These two functions are carried forward today in the work of the Grand Jury, and its importance in controlling the start of prosecutions for serious crimes is recognized in both the Constitution of the United States and the Constitution of Virginia.
6. Preliminary Criminal Process
(a) Initial Proceedings. A person suspected of having committed a crime is usually arrested and charged in a written accusation called a Warrant or Summons.
Crimes of a serious nature are classified as "felonies", which are punishable by confinement in the penitentiary. Crimes of a less serious nature are classified as "misdemeanors", and are punishable by confinement in jail for a period not to exceed twelve months and/or by a fine not to exceed $1,000.
A person held on a Warrant is brought to trial in a District Court. The trial is conducted before a judge without a jury. (1) If the judge determines that the accused is not guilty of any criminal offense, he or she dismisses the case. (2) If the judge determines that the accused is guilty of a misdemeanor only, the judge will assess the punishment. (3) If, however,
2
the judge determines that a felony may be involved, the judge will certify (send) the case to the Circuit Court for presentation to a Regular Grand Jury to determine whether there is probable cause to believe that a felony has been committed by the accused person. This procedure is used because a District Court has no authority to try a person for a felony.
The District judge will fix the terms on which the accused may be released on bail while waiting for action on the case in the Circuit Court.
(b) Bills of Indictment. After a case has been certified to the Circuit Court, the Commonwealth's Attorney will prepare a written document called a "bill of indictment", in which the accused is charged in a legal and formal manner, with having committed a specified felony.
As will be described in greater detail later in this handbook, it is this "bill of indictment" that the Regular Grand Jury considers to determine if probable cause exists to require that the person accused stand trial at a later date in the Circuit Court.
(c) Misdemeanors. A Grand Jury usually does not deal with minor crimes (misdemeanors) nor with traffic offenses. Prosecution of these offenses usually is begun by the police or the Commonwealth's Attorney on a Warrant or a Summons. Indeed, were this not so, a Grand Jury would be so overloaded with the volume of such complaints that it could not perform its more important duties.
II. THE REGULAR GRAND JURY
7. Qualifications
A Grand Juror must have been a resident of Virginia for at least one year and a citizen of the city or county in which he or she is to serve for at least six months, and must be "eighteen years of age or older, of honesty, intelligence and good demeanor and suitable in all respects to serve" as a Grand Juror.
8. Selection; Summons; Size
Each year the judge of the Circuit Court of each city and county selects at least sixty and not more than one hundred and twenty citizens from the city or county to serve as Grand Jurors during that year.
Not more than twenty days before the beginning of the term of court, the Clerk of the Circuit Court selects from the Grand Jury list, not less than five nor more than seven persons to serve as Grand Jurors for that term of court.
The Clerk directs the sheriff to summon the persons
3
selected to appear at the court on the first day of the term to serve as Grand Jurors for that term.
9. Exemptions and Excuses
Any person who has legal custody of a child sixteen years of age or younger or of a person having a mental or physical impairment requiring continuous care during normal court hours, must be excused from jury service upon request.
If you are exempt from jury service for either of the foregoing reasons or, if you have some other good reason to be excused from Grand Jury service, you should contact the judge of the Circuit Court to which you have been summoned immediately and in person (or if the judge is not available, contact the Clerk of that Court). DO NOT WAIT UNTIL THE DAY TO WHICH YOU HAVE BEEN SUMMONED, because if you are excused, this may cause serious inconvenience to the court and a delay in the administration of justice while another Grand Juror is procured.
Your service as a Grand Juror ordinarily will require only part of one day. In view of the high privilege of service as a Grand Juror and of the importance of the public service rendered, you should not ask to be excused unless it is absolutely necessary.
10. First Appearance in Court
You will report for service at the courtroom of the Circuit Court to which you have been summoned on the date and at the hour stated in the summons.
The Clerk of the Circuit Court will call your name and you will take your place in the jury box (the name applied to the area at which jury chairs are located).
The judge will appoint one of you to be Foreman (your presiding officer). The Foreman will then be sworn in under an oath that states your important powers and responsibilities. The remaining members of the Grand Jury are then sworn to observe the conditions of the same oath.
11. Oath
The oath taken by each Grand Juror is as follows:
You shall diligently inquire, and true presentment make, of all such matters as may be given you in charge, or come to your knowledge, touching the present service. You shall present no person through prejudice or ill will, nor leave any unpresented through fear or favor, but in all your presentments you shall present the truth, the whole truth, and nothing but the truth. So help you God.
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To "diligently inquire" means to make an honest and earnest consideration of all the circumstances involved in the matter, and a common sense decision based upon the facts.
Your oath requires you to be impartial (fair to both sides)-the foundation of justice and equality.
The requirement for "truthfulness" is a pledge of honesty in the performance of your duties.
If you follow the conditions of your Oath of Office, you will have met your full requirement as a member of the Grand Jury, and you will have performed your responsibilities in accordance with the law.
12. Charge by the Court
After you have been sworn, the judge will address you formally, and in greater detail, as to how you are to perform your duties and responsibilities. This address is called "The Charge to the Grand Jury." This Charge, plus any other instructions given to you by the judge, together with your Oath, are your controlling guides. After receiving the Charge to the Grand Jury, you will be escorted to the Grand Jury Room, where you will receive the bills of indictment you are to consider, and you will hear witnesses in the cases brought to your attention.
13. Procedure in the Jury Room
(a) Quorum. A Regular Grand Jury consists of not less than five members. At least four must concur (agree) in returning "A True Bill" on an indictment.
Should an emergency arise necessitating the absence of a Grand Juror, the Grand Jury should cease deliberations while this fact is reported to the judge.
Business of the Grand Jury should be conducted only when all members are present in the jury room. If it is necessary for a member to be temporarily abesent, a recess should be declared by the Foreman until the member rejoins the group.
(b) Hearing Witnesses. The bills of indictment you are to consider will be delivered to you. It is your duty to determine if probable cause exists to require the person accused of a crime in a bill of indictment to stand trial. You will determine this from the testimony of witnesses.
The names of available witnesses in a given case will appear on the bill of indictment. These witnesses will have been sworn by the judge to tell the truth while they are in the jury room. You will notify the judge when you are ready to call a witness.
If any person who is not listed on the bill of indictment, or is listed but not called to testify by the Grand Jury, wants to testify he or she must obtain permission from the judge. Even then, the Grand Jury may refuse to hear this testimony unless the judge orders that it be heard.
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Witnesses should be examined one at a time. There is no set manner in which a witness is examined. One appropriate way is for the Foreman to ask the witness to tell what he or she knows about the charge against the accused, after which questions may be asked of the witness by any member of the Grand Jury if additional testimony is desired.
All questioning should not show any viewpoint on the part of the questioner.
It is not necessary to call or hear every witness listed on the bill of indictment, to approve it ("A True Bill"). It is only necessary to hear as many (one or more) as it takes to satisfy four members of the Grand Jury that probable cause exists to require the party accused to stand trial.
On the other hand, a bill of indictment should not be disapproved("Not a True Bill"), unless every witness listed on the bill of indictment, who is available has been examined.
(c) Witness Refusal to Testify. If a witness refuses to answer a question, the Grand Jury should not press the question or attempt on its own to compel an answer. The reason for the refusal by the witness may involve the technical issue of whether the question asked violates this witness's constitutional privilege against self-incrimination. If the jury desires to press the matter further, the question should be written out on a sheet of paper, a recess declared, and the matter reported to the judge orally in open court, whereupon the judge will determine if the witness is compelled to answer.
(d) Accused as a Witness. The accused person named in the bill of indictment will not be listed as a witness, nor will any witnesses favorable to him probably be listed. This is because the Grand Jury does not determine the guilt or innocence of the accused, but only determines whether the testimony of the witnesses produced by the State establishes probable cause to require the accused to stand trial.
If an accused desires to testify, he or she must obtain permission from the judge, who will tell the accused of the privilege against self-incrimination. And even if the judge permits him or her to testify, the Grand Jury may refuse to hear the testimony unless it is ordered to do so by the judge.
14. Determination to Indict or Not
As has been repeatedly stated, the Grand Jury does not sit to determine the guilt or innocence of the accused. The function of the Grand Jury is to determine whether there is probable cause to require him to stand trial.
Only members of the Grand Jury are in the jury room while it is deliberating and voting.
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When the Grand Jury has heard all necessary or available witnesses in a given case, the Foreman will ask the members to discuss and vote on the question of whether or not "A True Bill" should be found on the charge. Every Grand Juror may now comment on the sufficiency of the evidence and express an opinion on the matter.
After each member who desires to speak has been heard, the Foreman will call for a formal vote to find out if there are the required number of four affirmative (yes) votes.
15. Finding of Indictment
An indictment may be found "A True Bill", only upon the affirmative vote of four or more members of the Grand Jury.
If there are enough affirmative votes in favor of finding an indictment, the Foreman will endorse (write) the phrase "A True Bill" on the back of the bill of indictment and sign it.
If there are insufficient affirmative votes, the Foreman will endorse the phrase "Not a True Bill" and sign it.
16. Special Findings, If Any
After all the bills of indictment have been considered, the judge will ask if any memberof the GrandJury believes that a Special Grand Jury should be called to investigate any condition which tends to promote criminal activity in the community or by any governmental authority, agency or official.
This power should be used with extreme caution, because it can be a weapon of oppression. It should not be used upon gossip or rumor. On the other hand, if there is a rational basis to believe that any such condition exists the Regular Grand Jury should report its view to the judge.
17. Return of Indictment
After all of the bills of indictment have been considered and the Grand Jury has determined if it wants to report on any special matter, it will inform the judge that it has ended its deliberations. It will then present its findings in open court. This will be done by the Clerk of the court reading the names of the accused persons and, after each name, reading the words "A True Bill" or "Not a True Bill" as endorsed on the indictment by the Foreman of the Grand Jury.
18. The Commonwealth's Attorney
To keep the Grand Jury free from any pressure from the State, Virginia makes it illegal for any attorney representing the State to appear before the Grand Jury except as a witness.
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If, however, members of the Grand Jury have questions about their duties, they may ask the Commonwealth's Attorney for advice.
Except for these two cases, if a Commonwealth's Attorney appears in the Grand Jury Room while the Grand Jury is there, any indictment returned "A True Bill" by the Grand Jury is invalid (no good). Therefore, while a Grand Jury may request the appearance of the Commonwealth's Attorney to testify as a witness or to explain some principle of law about the discharge of their duties, they cannot seek his advice as to whether they should return an indictment as "A True Bill. " If a Grand Jury finds that it is in need of advice as to its duties but doesn't know if it can invite the Commonwealth's Attorney into the Grand Jury Room to explain, it should notify the judge that it desires further instructions, and it will receive such instructions in open court.
19. Secrecy
The law provides that "every member of a regular or special grand jury must keep secret all proceedings which occurred during sessions of the grand jury."
The importance of secrecy of Grand Jury proceedings is because,
1.Secrecy protects Grand Jurors from being subjected to pressure by persons who may be interested in the outcome of Grand Jury action. 2.Secrecy may prevent the escape of persons against whom an indictment is under consideration. 3.Secrecy encourages witnesses to speak the truth freely before the Grand Jury. 4.Secrecy as to what witnesses testified to before the Grand Jury prevents the witnesses from being tampered with between that time and the time they testify at the trial of the accused.
20. Protection of Grand Jurors
The Grand Jury is an independent body answerable to no one except the judge. No inquiry may be made to learn what a Grand Juror said or how he or she voted. The secrecy surrounding Grand Jury proceedings is one of the major sources of this protection. The law gives Grand Jurors complete immunity for official acts within their authority as Grand Jurors, regardless of the result of an indictment found by the Grand Jury.
21. Practical Suggestions
Witnesses summoned to testify before the Grand Jury are present frequently at personal, business or official inconvenience.
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They sometimes come from a distance. Police officers often are called on their "off hours. " It is important, therefore, that the business of the Grand Jury be carried on in an expeditious manner-not too slow but not too fast. Some cases may require only one witness and take only a few minutes; others will require much more attention.
The following suggestions are offered to assist you in carrying out your duties in a fair and expeditious manner.
Pay close attention to the testimony of the witnesses. The reputation or freedom of someone depends on what is being told.
Be courteous to the witnesses and do not cut off their testimony unless it becomes needlessly repetitious.
Listen to the opinions of your fellow jurors, but do not be a rubber stamp. On the other hand, do not try to monopolize the hearing or the deliberations. Be independent, but not stubborn.
Express your opinion, but don't be dictatorial. You may try to persuade other jurors, but do not try to force them to change their minds. After all, they may be right and you may be wrong.
Each juror is entitled to be satisfied with the evidence before being called upon to vote. Although your mind may be made up, if others wish to pursue the matter further, do not try to shut off additional testimony or deliberation.
Do not keep silent when the case is under discussion, and then begin to talk about it after the vote is taken.
Do not discuss cases with your fellow Grand Jurors outside the jury room.
Maintain dignity in the proceedings at all times. Moderation and reason, rather than emotion and passion, lead to justice.
22. Compensation
The State does not compensate (pay) Grand Jurors in proportion to the valuable service they render. There are several reasons for this. One thing to be avoided is the so-called "professional juror"-a person, usually unemployed, who welcomes (and sometimes even solicits) jury duty solely for the compensation and with little or no regard for civic responsibility. Another thing is the cost to the taxpayer. When one recalls that Grand Juries meet in every city and county in the State from four to twelve times a year, it is readily seen that a large expense could result.
While the State hopes that Grand Jurors will serve as a matter of public pride and civic duty, it does not want Grand Jury duty to be a financial cost to the Grand Juror. The law provides for the compensation of Grand Jurors for each day of attendance, and mileage allowances for travel to and from
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court. The amount of this compensation is changed from time to time by action of the General Assembly. Each Grand Juror should report attendance and mileage to the Clerk of Court.
III. THE SPECIAL GRAND JURY
23. Function of a Special Grand Jury
As has been set out in Section 3, a Special Grand Jury is composed of from seven to eleven citizens of a city or county, selected by the Circuit Court and summoned to investigate any condition which tends to promote criminal activity in the community or by any governmental authority, agency or official.
The Special Grand Jury, composed entirely of private citizens, is the one non-political body with legal authority to make such investigations.
24. Characteristics
While the function and powers of the Special Grand Jury and those of the Regular Grand Jury differ, many of the observations made earlier concerning the Regular Grand Juty are applicable to the Special Grand Jury. Some of these are its Importance (see Section 4); Origin (see Section 5); Qualifications (see Section 7); Oath (see Section I 1); Secrecy (see Section 19); Protection (see Section 20); and Practical Suggestions (see Section 21). Other similarities will be noted later herein.
25. Scope of Investigation
The responsibility of a Special Grand Jury ordinarily will be to investigate a narrow special condition believed to exist in the community. On the one hand, its duty is to make a full and complete investigation and report on that condition; on the other hand, it is not convened to go on a fishing expedition with respect to other possible illegal conditions which may exist. If during the course of its authorized investigation, some other illegal condition comes to light which the Special Grand Jurors feel needs investigation, the Special Grand Jury should call attention to it in its report.
The investigation is to ascertain whether alleged criminal or corrupt conditions exist under present law. The investigation is not to determine if the law is good or bad, or if it needs to be changed. It is possible, indeed, that as a result of the investigation, the law may need to be changed, but that is a legislative matter and a conclusion for the General Assembly of Virginia to make.
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There are no time limitations on an investigation by a Special Grand Jury. The complexity of the condition being investigated will dictate the length of time needed.
26. Convening
Any citizen or group of citizens may ask the Circuit Court of a city or county to convene a Special Grand Jury. Frequently, the Commonwealth's Attorney will make the request. Also, as noted in Sections 3 and 18, the request may come from a Regular Grand Jury.
If the judge of the Circuit Court decides that a Special Grand Jury should be convened, he or she will select the names of those to serve, and they will be summoned to appear at a specified time. What was said in Section 9 regarding Exemptions and Excuses from Grand Jury duty is the same for Special Grand Jury service.
On the day appointed, the Judge will swear in the Special Grand Jury and will then charge it with the subject it is to investigate. The Judge will appoint onc of those selected to serve as Foreman.
The Special Grand Jury is now ready to begin its work.
27. The Commonwealth's Attorney
If the Special Grand Jury was convened at the request of the Attorney for the Commonwealth, he may be present at all times during the investigatory stage of the proceedings. If the Special Grand Jury was convened at the request of someone else, the Attorney for the Commonwealth may be present only if requested by the Special Grand Jury.
In either event, if the Attorney for the Commonwealth is present, he or she may question witnesses only if the Special Grand Jury requests or consents to such questioning.
The Attorney for the Commonwealth shall not be present, however, at any time while the Special Grand Jury is discussing or evaluating the testimony of a witness among themselves or while the Special Grand Jury is deliberating in order to reach a decision or prcpare its report. However, he or she may be present during this period if legal advice is requested by the Special Grand Jury. While giving legal advice, the Grand Jurors should not permit the Commonwealth's Attorney to join in any determination by them of the weight to be given to the testimony of a witness.
The foregoing limitations are in the law to insure the complete independence of the Special Grand Jury and to protect it against any undue influence from an official of the Commonwealth.
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28. Special Counsel
At the request of the Special Grand Jury the judge may appoint special counsel to assist it in its work.
29. Special Investigative Personnel
The Special Grand Jury may call upon any state or local agency or officer to assist it in its investigation. The type of condition being investigated, will dictate the type of investigative personnel needed. If required, the Special Grand Jury may request the judge to provide other specialized personnel to assist it in the investigation.
30. Court Reporter
A court reporter will record and transcribe all oral testimony given by witnesses before the Special Grand Jury. The transcript is for the sole use of the Special Grand Jury and its contents must not be revealed by anyone.
In a lengthy investigation it would be difficult to rememberexactly whatearlier witnesses said, so it is appropriate for the Special Grand Jury to have a transcript (written record) of all testimony available to which it may refer during iater stages of its work.
31. Subpoena Power
The Special Grand Jury may have a summons issued ordering a person to appear before it to testify and to produce specified records, papers and documents for examination by the Special Grand Jury. Any desired papers or records must be described with reasonable accuracy in the summons. The Special Grand Jury is not engaged in a witch hunt or a fishing expedition hoping that a document may turn up; it must have a reasonable belief that a particular record, paper or document does, in fact, exist.
When a summons is desired, the Special Grand Jury may notify the Clerk of the Circuit Court, giving the Clerk the name (and address if known) of the person to be summoned, the date and hour set for his appearance, and if papers are desired, a description of them.
32. Warnings Given to a Witness
Before witnesses testify they must be advised by the Special Grand Jury Foreman that:
the witnesses do not have to answer any questions nor produce any evidence that would tend to incriminate them; and the witnesses may hire their own counsel and have them present while they testify; and
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the witnesses may be called upon later to testify in any case that may result from the investigation and report of the Special Grand Jury.
33. Counsel for the Witness
Witnesses appearing before a Special Grand Jury have the right to have counsel of their own present when testifying. Such counsel shall have the right to consult with and advise the witness during the examination, but the counsel does not have the right to conduct an examination of his or her own witness, unless, the Special Grand Jury requests or permits it.
34. Oath of Witness
After the witness has been given the warnings set forth in Section 31, the Foreman will administer the following oath to the witness: (an affirmative answer is required)
Do you solemnly swear (or affirm) that the evidence you are about to give before the Grand Jury is the truth, the whole truth, and nothing but the truth, so help you God"
35. Examination of Witness
If the Special Grand Jury was convened at the request of the Commonwealth's Attorney, he or she will have a list of the witnesses to present. It would be appropriate, therefore, for the Special Grand Jury to invite the Commonwealth's Attorney to examine these witnesses. After this examination, members of the Special Grand Jury should then ask any further questions of the witness that are appropriate.
If the Special Grand Jury was convened at the request of someone other than the Commonwealth's Attorney, the Special Grand Jury may still ask the Commonwealth's Attorney to be present and conduct the examination, or the Special Grand Jury may request the judge to designate special counsel to assist it and to conduct the examination, or the Special Grand Jury may conduct the examination itself without aid of counsel.
If examination of a witness leads the Special Grand Jury to believe that the testimony of other witnesses may be desirable, a request for a summons for such other witnesses should be made to the Clerk of the Circuit Court as specified in Section 31 of this Handbook.
Questioning of the witness should not indicate any viewpoint on the part of the questioner.
36. Witness Refusal to Testify
If a witness refuses to answer a question, reference is
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hereby made to Section 13 (c) of this Handbook for procedure to be followcd by the Special Grand Jury.
37. Deliberation
After all witnesses have been heard, the Special Grand Jury is now ready to deliberate and make its findings on the matter submitted to it by the court. Only the members of the Special Grand Jury are to be present during this stage of the proceeding, unless at intervals the Special Grand Jury desires the temporary presence of the Commonwealth's Attorney or Special Counsel to advise it on some legal matter.
Again it should be emphasized that the Special Grand Jury has been convened to investigate and report its findings on some specific isolated condition believed to exist in the community. Its findings and recommendations, if any, should relate specifically to the subject committed to it. It is not involved in a general moral crusade.
The Special Grand Jury does not return indictments charging individuals with a crime. The Special Grand Jury may indeed find that a person has committed a criminal offense, and if so, it is appropriate for the Special Grand Jury to so report, with or without a recommendation that he or she be prosecuted. In any event, it is the duty of the Commonwealth's Attorney, after the Report of the Special Grand Jury, to determine whether a prosecution should begin, and if so, to present a bill of indictment to a Regular Grand Jury.
38. Findings
Findings should be findings of facts which the Special Grand Jury reasonably believes to exist. It is entirely possible that several or many of such facts are to be considered by the Special Grand Jury and that a vote needs to be taken on each such fact. A majority vote in the affirmative on each such fact is necessary to include it in the Report the Special Grand Jury will make to the court.
While no particular procedure need be followed, one way to proceed would be for individual members to submit to the Foreman such findings as he or she may think appropriate, and then the Foreman (or some member designated by him) could prepare a list of the proposed findings, following which a vote should be taken on each such proposed finding.
39. Report
At the end of its deliberation the Special Grand Jury must prepare a written Report of its findings, including any recommendations it may believe appropriate. This Report, will be the finding of the majority of the Special Grand Jury.
The Court Reporter may be used to prepare the Report.
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Members who do not agree with the findings of the majority may file a minority report on any finding with which they disagree.
When the Special Grand Jury is ready to file its Report, it should be dated and signed by the Foreman.
40. Transcript, Notes, etc.
After the Special Grand Jury has completed its use of the transcripts prepared for it by the Court Reporter, the Foreman must direct the Court Reporter to tum over to him or her all of the notes, tapes or records from which the transcripts were made. The Foreman shall then place the transcripts, notes, tapes and records, in a container and seal it. The date on which the Report is filed should then be placed on the sealed container.
41. Filing of Report
When the Special Grand Jury is ready to make its Report, it should notify the judge, and in open court hand in its Report and the sealed container.
42. Secrecy
It is highly important that the members of the Special Grand Jury should not reveal any of their proceedings nor any contents of their Report. Publication of the Report itself is a matter for the court.
43. Compensation
See section 22.
CONCLUSION
Membership on a Grand Jury, Regular or Special, is a high honor. Your service is of great value to your fellow citizens and your time is devoted to one of the most worthy of causes: justice.
It is hoped that this Handbook will make your work easier, more understandable, and more pleasant.
Individuals with disabilities needing special accommodations should call 804-786-6455 for assistance.
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