While the world waits for the Ferguson Grand Jury decision to be announced…..
The Constitution intended the grand jury to stand between the prosecutor and the ordinary citizen – it was supposed to protect against hasty, malicious and oppressive prosecution. Most legal scholars agree that the grand jury has not been true to its original purpose. These days grand juries are frequently considered to be the rubber stamp of the prosecution.
“This great institution of the past has long ceased to be the guardian of the people for which purpose it was created at Runnymede. Today it is but a convenient tool for the prosecutor — too often used solely for publicity. Any experienced prosecutor will admit that he can indict anybody for almost anything before any grand jury.” U.S. v. Mara 410 U.S. 19, 23 (1973)
Whether or not modern grand juries fill the role the Constitution intended it to they are here to stay. The power of the grand jury to investigate is extremely broad. Witnesses testify before the grand jury and the grand jury can ask those witnesses almost limitless questions. The only limits on the questions the grand jury can ask is when the answer is privileged. Even basic evidentiary rules do not apply such as relevancy.
Grand jury subpoenas do have to have a minimum of relevancy but the standard is pretty low. Subpoenas cannot be issued to harass witnesses or to gather evidence for pending criminal cases.
Grand jury proceedings are secret. No judge is present; the proceedings are led by a prosecutor. Court reporters transcribe the proceedings, the records are sealed. The case for such secrecy was unanimously upheld by in Douglas Oil Co. of Cal. v. Petrol Stops Northwest 441 US 211 (1979). (1979). Writing for the Court Justice Powell wrote that “if preindictment proceedings were made public, many prospective witnesses would be hesitant to come forward voluntarily”; “witnesses who appeared before the grand jury would be less likely to testify fully and frankly”; and “there also would be the risk that those about to be indicted would flee, or would try to influence individual grand jurors”. Further, “persons who are accused but exonerated by the grand jury [should] not be held up to public ridicule”.
There is no right to counsel in grand jury proceeding. If a witness is testifying before the grand jury they can have a lawyer in the hallway but not in the grand jury room. The person being investigated has no right to have their lawyer or any other representative present. Depending on the jurisdiction the prosecutor has little to no burden to tell the jury about evidence which tends to suggest the person is innocent. That means evidence that might persuade the grand jury not to indict a person may not be presented to the grand jury [although this rule varies greatly depending on the jurisdiction].
The grand jury’s deliberations are in secret. Grand juries are not a representative sampling of the community and are not qualified for jury service. There is no process to determine if they possess the ability to ask pertinent questions, or if they understand and appreciate the concept of due process. Unlike potential jurors in regular trials, grand jurors are not screened for bias or other improper factors. They are rarely read any instruction on the law, as this is not a requirement; their job is only to judge on what the prosecutor produced. The prosecutor drafts the charges and decides which witnesses to call.