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A grand jury is a jury empowered by law to conduct legal proceedings, investigate potential criminal conduct, and determine whether criminal charges should be brought. A grand jury may subpoena physical evidence or a person to testify. A grand jury is separate from the courts, which do not preside over its functioning.
Originating in England during the Middle Ages, modern examples include grand juries in the United States, and to a lesser extent, Liberia. In Japan, there are citizen Prosecutorial Review Commissions which review cases that have been dropped by the prosecution, but they are not required for an indictment like in the previous two. Grand juries perform both accusatory and investigatory functions. The investigatory functions of grand juries include obtaining and reviewing documents and other evidence, and hearing sworn testimonies of witnesses who appear before it; the accusatory function determines whether there is probable cause to believe that one or more persons committed a particular offense within the jurisdiction of a court. While most grand juries focus on criminal matters, some civil grand juries serve an independent watchdog function. Around the 18th and 19th-century in Ireland and the U.S., grand juries were occasionally formed to pass or approve public policy.
The grand jury (from the French word grand meaning "large") is so named because traditionally it has more jurors than a trial jury, sometimes called a petty or petit jury (from the French word petit meaning "small"). A grand jury in the United States usually has 16 to 23 members, though in Virginia it has fewer members for regular or special grand juries.
The mode of accusation is by a written statement of two types:
No indictment or presentment can be made except by concurrence of at least twelve of the jurors. The grand jury may accuse upon their own knowledge, but it is generally done upon the testimony of witnesses under oath and other evidence heard before them. Grand jury proceedings are, in the first instance, held at the instigation of the government or other prosecutors, and are done ex parte and in secret deliberation. The accused has no knowledge of nor right to interfere with their proceedings.
If they find the accusation credible, 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 foreperson of the grand jury and presented to the court publicly in the presence of all the jurors. If the indictment is not proven to the satisfaction of the grand jury, the word or "not a true bill" is written upon it by the grand jury, or by their foreman and then said to be ignored, and the accusation is dismissed as unfounded; the potential defendant is said to have been "no-billed" by the grand jury. If the grand jury returns an indictment as a true bill ( billa vera), the indictment is said to be founded and the party to stand indicted and required to be put on trial.
Similarly, in 2011, there was a private member's bill in Ontario, Canada which would create citizen grand juries to oversee government institutions. The bill did not make any progress and was not passed. Bill 207, Grand Juries Act, 2011. Legislative Assembly of Ontario, 39th Parliament, Session 2.
From the 17th century until 1898 in Ireland, Grand Juries also functioned as local government authorities:
In the early decades of the United States, grand juries played a major role in public matters. During that period counties followed the traditional practice of requiring all decisions be made by at least 12 of the grand jurors, (e.g., for a 23-person grand jury, 12 people would constitute a bare majority). Most criminal prosecutions were conducted by private parties, either a law enforcement officer, a lawyer hired by a crime victim or his family, or even by laymen. A layman could bring a bill of indictment to the grand jury; if the grand jury found that there was sufficient evidence for a trial, that the act was a crime under law, and that the court had jurisdiction, it would return the indictment to the complainant. The grand jury would then appoint the complaining party to exercise essentially the same authority as a state attorney general has, that is, a general power of attorney to represent the state in the case.
The grand jury served to screen out incompetent or malicious prosecutions. The advent of official public prosecutors in the later decades of the 19th century largely displaced private prosecutions.
In 1974, the second Watergate grand jury indicted seven White House aides, including former Attorney General John Mitchell, and named President Nixon as a "secret, un-indicted, co-conspirator". Despite evading impeachment by resigning from office, Nixon was still required to testify before a grand jury. In 1998, Bill Clinton became the first sitting president required to testify before a grand jury as the subject of an investigation by the Office of Independent Counsel.
While all states have provisions for grand juries as of 2003, today approximately half of the states employ them and 22 states have provision to prevent the abolition of grand juries by legislatures or courts as of 2003. Six states (Oklahoma, Nebraska, New Mexico, North Dakota, Nevada, and Kansas) allow citizens to circulate a petition in order to impanel a grand jury.
An American federal grand jury has from 16 to 23 jurors, with twelve votes usually required to return an indictment. All grand jury proceedings are conducted behind closed doors, without a presiding judge. The prosecutors are tasked with arranging for the appearance of witnesses, as well as drafting the order in which they are called, and take part in the questioning of witnesses. The targets of the grand jury or their lawyers have no right to appear before a grand jury unless they are invited, nor do they have a right to present exculpatory evidence.
From 1945 to 1972, Okinawa was under American administration. Grand jury proceedings were held in the territory from 1963 until 1972. (2015). 9781783479184, Edward Elgar Publications. ISBN 9781783479184 By an ordinance of the civil administration of the Ryukyu Islands promulgated in 1963, grand jury indictment and petit jury trial were assured for criminal defendants in the civil administration courts. This ordinance reflected the concern of the U.S. Supreme CourtU.S. Supreme Court decision: Reid v. Covert, 354 U.S. 1, 77 S.Ct. 1222, 1 L.Ed.2d 1148 (1957) that U.S. civilians tried for crimes abroad under tribunals of U.S. provenance should not be shorn of the protections of the U.S. Bill of Rights. Indeed, the District Court in Washington twice held that the absence of the jury system in the civil administration courts in Okinawa invalidated criminal convictions.District (i.e. federal) court of the District of Columbia decisions: re Nicholson, H.C. 141-61, D.D.C., Nov. 19, 1963, and Ikeda v. McNamara, H.C. 416-62, D.D.C., Oct. 19, 1962Vanoverbeke. Juries in the Japanese Legal System. 2015. pp 105 & 106.
After the court was opened by the crier making proclamation, the names of those summoned to the grand jury were called and they were sworn. They numbered at least 14 and not more than 23. The person presiding (the judge at the assizes, the chairman at the county sessions, the recorder at the borough sessions) gave the charge to the grand jury, i.e. he directed their attention to points in the various cases about to be considered which required explanation.Harris, Principles of the Criminal Law, 3rd Ed, 1884, pp 357 & 358.
The charge having been delivered, the grand jury withdrew to their own room, having received the bills of indictment. The witnesses whose names were endorsed on each bill were sworn as they came to be examined, in the grand jury room, the oath being administered by the foreman, who wrote his initials against the name of the witness on the back of the bill. Only the witnesses for the prosecution were examined, as the function of the grand jury was merely to inquire whether there was sufficient ground to put the accused on trial. If the majority of them (and at least 12) thought that the evidence so adduced made out a sufficient case, the words "a true bill" were endorsed on the back of the bill. If they were of the opposite opinion, the phrase "not a true bill", or the single Latin word ("we do not know" or "we are ignorant (of)"), was endorsed instead and the bill was said to be "ignored" or thrown out. They could find a true bill as to the charge in one count, and ignore that in another; or as to one defendant and not as to another; but they could not, like a petty jury, return a special or conditional finding, or select part of a count as true and reject the other part. When some bills were "found", some of the jurors came out and handed the bills to the clerk of arraigns (in assizes) or clerk of the peace, who announced to the court the name of the prisoner, the charge, and the endorsements of the grand jury. They then retired and considered other bills until all were disposed of; after which they were discharged by the judge, chairman, or recorder.Harris, Principles of the Criminal Law, 3rd Ed, 1884, pp 358 & 359.
If a bill was thrown out, although it could not again be referred to the grand jury during the same assizes or sessions, it could be preferred at subsequent assizes or sessions, but not in respect of the same offense if a petty jury had returned a verdict.Harris, Principles of the Criminal Law, 3rd Ed, 1884, p 359.
Ordinarily, bills of indictment were preferred after there had been an examination before the magistrates. But this need not always take place. With certain exceptions, any person would prefer a bill of indictment against another before the grand jury without any previous inquiry into the truth of the accusation before a magistrate. This right was at one time universal and was often abused. A substantial check was put on this abuse by the Vexatious Indictments Act 1859.22 & 23 Vict. c. 17, s. l. This Act provided that for certain offences which it listed (perjury, libel, etc.), the person presenting such an indictment must be bound by recognizance to prosecute or give evidence against the accused, or alternatively had judicial permission (as specified) so to do.Harris, Principles of the Criminal Law, 3rd Ed, 1884, pp 359 & 360.
If an indictment was found in the absence of the accused, and he/she was not in custody and had not been bound over to appear at assizes or sessions, then process was issued to bring that person into court, as it is contrary to the English law to "try" an indictment in the absence of the accused.Harris, Principles of the Criminal Law, 3rd Ed, 1884, p 361.
The grand jury's functions were gradually made redundant by the development of committal proceedings in magistrates' courts from 1848 onward when the (three) Jervis Acts,See "Indictable Offences Act 1848" (11 and 12 Vict c. 42); title: "An Act to facilitate the Performance of the Duties of Justices of the Peace out of Sessions within England and Wales with respect to Persons charged with indictable Offences". such as the Justices Protection Act 1848, codified and greatly expanded the functions of magistrates in pre-trial proceedings; these proceedings developed into almost a repeat of the trial itself. In 1933, the grand jury ceased to function in England, under the Administration of Justice (Miscellaneous Provisions) Act 1933 and was entirely abolished in 1948, when a clause from 1933 saving grand juries for offences relating to officials abroad was repealed by the Criminal Justice Act 1948.Kenny's Outlines of Criminal Law, 18th Ed, p 578"The Grand Jury in England's Past and America's Present: Part I" 162 Justice of the Peace 839 at 842 (24 October 1998)
The first Scottish grand jury under this Act met at Edinburgh on 10 October 1748 to take cognisance of the charges against such rebels as had not surrendered, following the Jacobite rising of 1745.Buchanan and Aikman. The History of Scotland. 1829. vol 6. p 597.
An account of its first use in Scotland illustrates the institution's characteristics. It consisted of 23 good and lawful men, chosen out of 48 who were summoned: 24 from the county of Edinburgh (Midlothian), 12 from Haddington (East Lothian) and 12 from Linlithgow (West Lothian). The court consisted of three judges from the High Court of Justiciary (Scotland's highest criminal court), of whom Tinwald (Justice Clerk) was elected preses (presiding member). under the seal of the court and signed by the clerk were executed on a great number of persons in different shires, requiring them to appear as witnesses under the penalty of £100 each. The preses named Sir John Inglis of Cramond as Foreman of the Grand Jury, who was sworn first in the English manner by kissing the book; the others followed three at a time; after which Lord Tinwald, addressing the jurors, informed them that the power Lord Advocate possessed before the union, of prosecuting any person for high treason, who appeared guilty on a precognition taken of the facts, being now done away, power was lodged with them, a grand jury, 12 of whom behoved to concur before a true bill could be found. An indictment was then preferred in court and the witnesses endorsed on it were called over and sworn; on which the jury retired to the exchequer chambers and the witnesses were conducted to a room near it, whence they were called to be examined separately. Two solicitors for the crown were present at the examination but no one else; and after they had finished and the sense of the jury was collected, the indictment was returned a "true bill", if the charges were found proved, or "" if doubtful. The proceedings continued for a week, in which time, out of 55 bills, 42 were sustained and 13 dismissed.
Distinct from their public works function, as property owners they also were qualified to sit on criminal juries hearing Jury trial, as well as having a pre-trial judicial function for serious criminal cases. Many of them also sat as magistrates judging the less serious cases. They were usually wealthy "country gentlemen" (i.e. landowners, landed gentry, farmers and merchants):
From 1691 to 1793, and Protestants who were not members of Church of Ireland were excluded from membership. The concentration of power and wealth in a few families caused resentment over time. The system of local government started to become more representative from the passing of the Municipal Corporations (Ireland) Act 1840. A divergence of opinions can be seen in the House of Commons debate on 8 March 1861 led by Isaac Butt. Grand juries were eventually replaced by democratically elected county councils by the Local Government (Ireland) Act 1898, as regards their administrative functions.
After the formation of Irish Free State, grand juries were abolished by section 27 of the Courts of Justice Act 1924, 23 The Journal of Criminal Law 137 and 138 but they persisted in Northern Ireland until abolished by the Grand Jury (Abolition) Act (Northern Ireland) 1969 of the Parliament of Northern Ireland in 1969.Acts of the Northern Ireland Parliament, 1969 c.15
Old courthouses with the two jury boxes necessary to accommodate the 24 jurors of a grand jury can still be seen. The grand jury would evaluate charges and return what was called a "true bill (of indictment)" if the charges were to proceed.Phillips Cables Ltd. v. United Steelworkers of America, Local 7276 (Nicolosi grievance), 1974 O.L.A.A. No. 13, at para. 15. or a verdict of nolle prosequi if not. The practice gradually disappeared in Canada over the course of the twentieth century, after being the subject of extended discussions late in the 19th. Quebec abolished grand juries in 1933. It was ultimately abolished in 1984 when the Nova Scotia courts formally ended the practice.
In the present day, probable cause is determined by a judge in the preliminary hearing. In many circumstances, the attorney general can skip the preliminary hearing and have the case go directly to trial if it is in the interests of public safety.
In South Australia and Western Australia, grand juries existed for longer periods of time. In South Australia, the first grand jury sat on 13 May 1837, but they were abolished in 1852. In Western Australia, by the Grand Jury Abolition Act Amendment Act 1883 (WA), grand juries were abolished (section 4: A Grand Jury shall not be summoned for the Supreme Court of Western Australia, nor for any General Quarter Sessions for the said Colony). This 1883 abolition Act was itself abolished by the Criminal Procedure and Appeals (Consequential and Other Provisions) Act 2004 (section 5: The Grand Jury Abolition Act Amendment Act 1883 is repealed).
The Australian state of Victoria maintained, until 2009, provisions for a grand jury in the Crimes Act 1958 under section 354 indictments, which had been used on rare occasions by individuals to bring other persons to court seeking them to be committed for trial on indictable offences. Grand juries were introduced by the Judicature Act 1874 and have been used on a very limited number of occasions. Their function in Victoria particularly relates to alleged offences either by bodies corporate or where magistrates have aborted the prosecution.
Jury trial was brought into practical operation in 1828 and the 1831 Ordinance 84 laid down that criminal cases would be heard by a panel of nine, selected from males aged between 21 and 60, owning or renting property to a value of £1.17s (37 shillings) per annum or having liability for taxes of 30 shillings in Cape Town and 20 shillings outside the town. Black (i.e. non-white) jurors were not entirely excluded and sat occasionally.Kahn, E., South African Law Journal (1991), pp.672–87; SALJ (1992), pp.87–111, 307–318, 666–679; SALJ (1993), pp.322–337. This is not to imply, however, that juries did not operate in an oppressive manner towards the Black African and Asian residents of the Cape, whose participation in the jury lists was, in any event, severely limited by the property qualification. The property qualification was amended in 1831 and 1861 and, experimentally, a grand jury came into operation.
The grand jury was established for Cape Town alone. Cape Law Journal, 10 Cape L.J. p.216 (1893) It met quarterly. In 1842 it was recorded that it served a district of 50,000 inhabitants and in one quarterly session there were six presentments (1 homicide, 2 assaults, 1 robbery, 1 theft, 1 fraud).
As elsewhere, the judge could use his charge to the grand jury to bring matters of concern to him to the attention of the public and the government. In May 1879 Mr. Justice Fitzpatrick, returning from circuit in the northern and western parts of Cape Colony, gave a charge to the grand jury at the Criminal Sessions at Cape Town, in which, after congratulating them upon the lightness of the calendar, he observed there were indications in the country of a growing mutual bad feeling between the races, etc. This was reported in the Cape Argus and was a subject of a question to the government in the House of Commons in London.
The grand jury continued in operation until 1885, by which time the Cape was under responsible government, when it was abolished by Act 17 of 1885 of the Cape Parliament.
The jury law of 1791 created an eight-man jury d'accusation in each arrondissement (a subdivision of the departement) and a 12-man jury de jugement in each departement. In each arrondissement the procureur-syndic drew up a list of 30 jurors from the electoral roll every three months for the jury d'accusation. There was no public prosecutor or juge d'instruction. Instead the police or private citizens could bring a complaint to the Justice of the Peace established in each canton (a subdivision of the arrondissement). This magistrate interrogated the accused to determine whether grounds for prosecution existed and if so sent the case to the directeur du jury (the director of the jury d'accusation), who was one of the arrondissement's civil court judges, and who served in the post for six months on a rotating basis. He decided whether to dismiss the charges or, if not, whether the case was a delict (misdemeanour) or a crime (felony, i.e. imprisonable for 2 years or more). Délits went to the tribunal de police correctionnelle of the arrondissement, while for crimes the directeur de jury convoked the jury d'accusation of the arrondissement, in order to get an indictment. The directeur du jury drew up the bill of indictment ( acte d'accusation) summarising the charges to be presented to the jury d'accusation. The directeur made a presentation to the jury in the absence of the accused and the jury heard the witnesses. The jury then decided by majority vote whether there were sufficient grounds for the case to go to the tribunal criminel of the departement. Between 1792 and 1795 there was no property qualification for jurors.
The functions of the jury d’accusation were prescribed in the law of 1791 passed by the Constituent Assembly and were maintained and re-enacted in the Code des Délits et des Peines of 3 Brumaire, Year 4 (25 October 1795) and this was the operative law until it was abolished in 1808. Special jury and special grand juries were originally defined in law, for cases thought to require more qualified jurors, but these were abolished in Year 8 (1799).
Governor Kennedy (1852–1854) was concerned that jurors were frustrating government policy by being biased in certain cases; in particular he felt that liberated Africans on the grand jury would never convict another liberated African on charges of owning or importing slaves. He promulgated the Ordinance of 29 November 1853 which abolished the grand jury.House of Commons. Reports from Committees, Vol 5, Session 7 Feb-6 Jul 1865 Opposition was immediately mounted in Freetown. A public meeting launched a petition with 550 names to the Colonial Secretary in London, and the opposition declared that the Kennedy ordinance was a reproach upon the loyalty of the community. Grand juries have been considered one colonial body representative of local opinion and the Colonial Secretary's support for Kennedy upholding the abolition inspired a round of agitation for a local voice in government decision-making.
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