TESTIMONY OF

SARA SUN BEALE

PROFESSOR OF LAW

DUKE UNIVERSITY SCHOOL OF LAW⁽¹⁾

BEFORE THE SUBCOMMITTEE ON THE CONSTITUTION

COMMITTEE ON THE JUDICIARY

UNITED STATES HOUSE OF REPRESENTATIVES

CONSTITUTIONAL RIGHTS AND THE GRAND JURY

JULY 27, 2000

Thank you, Mr. Chairman, for inviting me to testify regarding constitutional rights and the grand jury. I would like to focus on the history of the federal grand jury and general perspectives on proposals to alter the procedures under which federal grand juries operate.

The history of the grand jury⁽²⁾

The English origins of the grand jury

The modern federal grand jury is the direct descendant of an English institution whose history can be traced for 900 years. The accusing or presenting jury--the ancestor of both the modern grand jury and the trial jury--was formally made a part of English procedure at the Assize of Clarendon in 1166.⁽³⁾

Although the grand jury has been praised as an important safeguard of individual liberty, it originated as a prosecutorial tool designed to increase criminal prosecutions, enhance the crown's authority, and indirectly to raise revenues when property owned by persons convicted of crimes was forfeited to the state. The local presenting jury was summoned and required, under oath, to report each person who was accused or reputed to have committed a crime. Beginning in the 13th century the presenting jurors were fined for misconduct or errors, including the failure to indict or confusing the details of any crime. This practice, which has been compared to a "grim spelling bee,"⁽⁴⁾ ensured that criminal conduct was disclosed and further augmented the crown's coffers.⁽⁵⁾

The separation of the trial and grand jury functions occurred in the middle of the 14th century,⁽⁶⁾ and by the end of the century the "grande inquest," which closely resembled the modern grand jury, had appeared. Although it could still prefer charges based upon its own knowledge of the crime, the grand jury, like the trial jury, began to hear witnesses during this period.⁽⁷⁾ The practice also developed of allowing third persons, including servants of the king, to draft charges that the judge would transmit to the grand jury.

Not until the end of the 17th century did the grand jury develop its reputation as a body that not only accused the guilty but also shielded the innocent from unfounded charges. A sense of the grand jury's independence gradually developed. In 1642 Lord Coke interpreted the provision in the Magna Charta that provided no man could be taken or imprisoned but by "the law of the land" to guarantee that no man could be "restrained of liberty, by petition, or suggestion to the king, or his council, unless it be by indictment or presentment of good, and lawful men."⁽⁸⁾ Although there was no legal impediment to the practice of fining grand jurors for their refusal to indict, the imposition of such fines in 1667 raised a storm of protests. The Lord Chief Justice was summoned to the House of Commons, which resolved that fines and imprisonments of grand jurors were illegal, though the House of Lords did not concur. Grand juries in London blocked the king's attempts to prosecute Protestants Stephen Colledge and the Earl of Shaftesbury for treason. Both grand juries were under considerable pressure to indict. In the Colledge case the presiding judge required the jury to explain its failure to indict, and the foreman of the grand jury was subsequently questioned by the privy council and imprisoned in the Tower. The judge in the Shaftesbury case gave instructions very favorable to the crown, and told the jury they would be criminals if they did not indict. He also granted the prosecution's request that the grand jury hear witnesses in public, rather than in private as was the custom. Although Shaftesbury was eventually driven into exile and Colledge was indicted by a grand jury outside of London and ultimately executed, the London grand juries' refusal to indict in these cases was seen as a demonstration that the grand jury was a safeguard of English liberty.

The grand jury was seen as a protection against unfounded or malicious charges, since no one could be formally charged and held for trial unless a jury of his peers agreed that there was a sufficient case against him. For example, a book originally published in 1680 stated that it was the function of the grand jury:

To preserve the Innocent from the Disgrace and Hazards which ill Men may design to bring them to, out of Malice, or through Subornation, or other sinister Ends; for so tender is the Law, of the Reputation and Life of a Man, that it will not suffer the one to be sullied . . . and the other indangered by a Trial, until first the Matter and Evidence against him have been scann'd, examined, and found by a Grand Jury, upon their Oaths, against him.⁽⁹⁾

By the late 1700s the procedures of the English grand jury closely resembled those of modern federal grand juries. The grand jurors generally heard testimony and deliberated in private. Witnesses appeared before the grand jury without counsel, and as a lay body the grand jury operated informally, without attempting to follow the rules of evidence. An indictment issued if a majority of the grand jurors concurred.

The American grand jury

The English colonies adopted the system of instituting criminal charges by the grand jury's accusation,⁽¹⁰⁾ though colonial grand juries also served other needs in the new settlements.⁽¹¹⁾ During the Revolutionary period grand juries played a role in the colonists's opposition to British rule. Grand jury charges and reports were used for patriotic propaganda, and grand juries refused to indict colonists for crimes involving resistance to British authority.⁽¹²⁾ For example, three successive grand juries in New York refused to indict John Peter Zenger for libel,⁽¹³⁾ and Massachusetts grand juries refused to indict the leaders of the Stamp Act rebellion for any offense. On the other hand, the Boston grand jury actively pursued accusations against the British soldiers who were quartered in town, indicting them for conduct such as breaking and entering private homes and waylaying private citizens. Thus royal prosecutors disliked taking cases to local grand juries, preferring to initiate charges by a prosecutor's information.

When the new federal and state governments were constituted, the grand jury was adopted in each jurisdiction. The founders of these new governments were influenced not only by the role played by the grand juries during the Revolutionary period, but also by the most widely read English authorities, who portrayed the grand jury as one of the principal safeguards of personal liberty in the English legal system. At the federal level, the original constitution proposed to the states contained no provision regarding the grand jury. Amendments drafted in Massachusetts (by John Hancock), New Hampshire and New York proposed guaranteeing indictment by grand jury. The amendments proposed by James Madison included this guarantee, which was reworded and adopted as part of the Fifth Amendment. The grand jury clause of the Fifth Amendment provides:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger.

As te Supreme Court has repeatedly stated, the federal grand jury "was intended to operate substantially like its English progenitor."⁽¹⁴⁾

The most remarkable feature of the English grand jury and its American descendants is a dual function, which has been compared to a shield and a sword. The sword function--the offensive prosecutorial function--developed first. Functioning as a prosecutorial tool, the investigative grand jury discovers and attacks criminal conduct. The grand juries that refused to indict Stephen Colledge, the Earl of Shaftesbury, John Peter Zenger, and the participants in the Stamp Act rebellion, performed the defensive or shield function, standing as a protective bulwark, or shield, between the prosecution and the accused. This is also referred to as the grand jury's screening function. While it was the grand jury's screening function that led to its inclusion in the Fifth Amendment, the new federal grand juries (and those provided for in the state constitutions) retained their dual nature.

State grand jury practice

By the middle of the 19th Century, there was considerable debate at the state level regarding the value and appropriate function of the grand jury. Critics charged that the grand jury was an expensive and cumbersome relic that had outlived its usefulness, and there was also concern that the grand jury's inquisitorial procedures posed a threat to individual liberty.

Although no state has abolished the grand jury, reformers drafted state constitutional provisions permitting the initiation of criminal cases by information. In Hurtado v. California,⁽¹⁵⁾ decided in 1884, the United States Supreme Court upheld a state conviction initiated by information, holding that neither the Fifth Amendment nor the Due Process clause of the Fourteenth Amendment required the states to afford the right to grand jury review before trial. Today, only about one third of the states require a grand jury indictment to initiate every serious criminal charge (and a few additional states require an indictment to initiate charges that could result in a capital sentence or life imprisonment).⁽¹⁶⁾ However, all states have preserved the investigative function of the grand jury, and in most states that permit prosecutions to be initiated by information the prosecutor has the option of initiating the case through the grand jury.

In recent years the focus in many states has been on the adoption of procedural reforms intended to provide grater protection for witnesses and targets of grand jury probes, as well as reforms intended to strengthen the grand jury's defensive or screening function. Probably the most significant procedural reform has been the enactment in about one third of the states of provisions that permit witnesses to bring counsel with them into the grand jury room.⁽¹⁷⁾ A few states have adopted provisions requiring that witnesses be advised of their rights before they testify,⁽¹⁸⁾ or advised of the subject of the grand jury's investigation.⁽¹⁹⁾ Some states afford the accused the right to testify or present evidence before the grand jury.⁽²⁰⁾ A number of states regulate the evidence received by the grand jury, requiring the grand jury to observe some or all of the rules of evidence,⁽²¹⁾ and requiring the prosecution to make the grand jury aware of exculpatory evidence.⁽²²⁾ In order to prevent the grand jury from being used for harassment, several states have imposed limits on the number of times the prosecution may seek an indictment against an individual for a particular offense if a previous grand jury has voted not to indict that person.⁽²³⁾ Grand jury procedure in these states diverges from the procedure in the federal courts, which more closely follow the procedures of the English and colonial grand juries, and the original federal grand juries that were modeled upon them.

Perspectives on proposals to alter grand jury procedures

Various groups have proposed revamping the procedures under which federal grand juries operate in order to adopt the reforms already in place in a number of states. Two of the more prominent examples are the Model Grand Jury Act proposed in 1982 by the American Bar Association and the Bill of Rights proposed this year by the National Association of Criminal Defense Lawyers' Commission to Reform the Grand Jury. Publicity surrounding the Whitewater grand jury convened by Independent Counsel Kenneth Starr has also focused public attention on the procedures followed in grand jury proceedings, and the potential for abuse.

In considering proposals to amend the procedures under which federal grand juries operate, I would urge the Committee to keep the following points in mind:

1. Fundamental changes in the legal system have occurred since the development of the English, colonial, and early federal grand juries, and it is entirely appropriate to assess whether these developments warrant changes in grand jury procedures.

Many of the reform proposals are premised on the insight that the contemporary prosecutor has unprecedented access to, and ability to influence, the grand jury. It is important to note that this change in the prosecutor's role is only one aspect of a more comprehensive change in the criminal justice process, which has become highly professionalized, formal, and adversarial.

By way of illustration, consider the changes in the trial process. For example, in the mid 1700s the records of the Old Bailey reveal that a single judge conducted 16 trials before two juries in less than three days.⁽²⁴⁾ Of 171 criminal trials in the Old Bailey during that period, the participation of counsel can be documented in only 12 cases, and the records reveal only 2 cases in which counsel for both the prosecution and the defense appeared.⁽²⁵⁾ It was generally understood that the witnesses could present their testimony without the aid of counsel, subject to cross-examination by the trial judge and by the defendant.⁽²⁶⁾ Although counsel, if available, could cross-examine witnesses, counsel were not permitted to address the jury.⁽²⁷⁾ The defendant was not permitted to give sworn testimony, but he or she could make an unsworn statement and cross examine witnesses.⁽²⁸⁾ At this time, the relative informality of the trial process was on a par with the relative informality of the grand jury. Moreover, given the dispatch with which trials occurred, there was no great incentive to create a system of plea bargaining, and virtually all cases went to trial.⁽²⁹⁾

In contrast, today's trial is much more formal, adversarial, and professionalized. The prosecution is uniformly represented by counsel, and the defendant is entitled to appointed counsel in all serious cases if he or she cannot afford to employ counsel. The rules of evidence as well as constitutional rules of exclusion are followed. On the other hand, only a small fraction of cases go to trial. More than 90% of federal criminal cases are resolved by a guilty plea entered to obtain sentencing concessions, and this percentage has been increasing under the Sentencing Guidelines.⁽³⁰⁾

Many of these changes appear to provide support for proposals to revamp grand jury procedure. Whereas counsel for both the prosecution and the defense played almost no role at the time the traditional grand jury procedures developed, they now play a central role in criminal proceedings. The prosecutor orchestrates the gand jury proceedings, and many observers believe that this has endangered the grand jury's independence and its ability to serve as a real check on the prosecution, and that it places unrepresented witnesses at an unfair disadvantage. Similarly, the formalization of the trial process raises the question whether the informality of the grand jury process remains appropriate, or whether the grand jury should also, to the extent possible, conform to the rules of evidence and observe the constitutional exclusionary rules. Finally, the phenomenal increase in the number of cases resolved by guilty plea means that in more than 93% of the cases the prosecution's evidence will not be reviewed after an indictment issues.

Although these fundamental changes in the criminal justice system support a reappraisal of grand jury procedures, some additional points should be kept in mind.

First, the investigative function of the grand jury, especially in the federal system, is more crucial now than it was at the time of the drafting of the Fifth Amendment, largely because of changes in the nature of the federal caseload. The principal charges tried in the Old Bailey in the mid 1700s--when the grand jury's traditional procedures were established--were common law offenses: homicide, burglary, robbery, various forms of theft, and receiving stolen goods.⁽³¹⁾ The proof in these cases was simple and easily presented. It typically consisted of the testimony of the victim, bystanders, co-felons who confessed, or pawnbrokers who received stolen goods from the accused.⁽³²⁾ In these cases, the grand jury was serving mainly its screening function.⁽³³⁾ In contrast, the contemporary federal caseload includes white collar offenses, consensual crimes (such as drug and gambling offenses, money laundering, and bribery), and organizational crimes that often sweep over both state and national boundaries. These crimes are difficult to detect and prove, and the procedures and investigative authority of the federal grand jury--its authority to subpoena witnesses to testify and produce evidence and to immunize witnesses while operating in secrecy--are critical. Given the nature of the federal caseload, the investigative grand jury plays an especially important role in federal practice.

Second, experience in the states is not necessarily a perfect predictor of the impact procedural changes will have in the federal system. As a general matter, the crimes prosecuted in the state courts correspond much more closely to the common law offenses than do the federal cases. State dockets focus heavily on crimes of violence, property offenses, and other crimes that depend less critically upon the resources of an investigative grand jury. Moreover, at present the state prosecutors have the option in many situations of referring a case to federal officials, and they frequently do so when state procedures are deemed too onerous, or the state procedures do not provide needed investigative tools.⁽³⁴⁾ In this sense, the availability of the federal grand jury currently serves as an escape valve for the states. For example, federal officials frequently use the unfettered power of the investigative grand jury to delve into cases involving organized criminality, where state law enforcement efforts have sometimes proven ineffective.

Thus the propriety of reforms should be judged in the context of both the changes in the criminal justice system that may call for greater protections to witnesses and targets, and the enhanced need for an effective investigative tool to root out modern criminality. Let me give just one illustration, the proposal to allow counsel to accompany a witness into the grand jury room. Proponents of allowing counsel to accompany a witness point out that an unrepresented witness is at a disadvantage when being questioned by the prosecutor, and may inadvertently waive her rights. (Moreover, allowing counsel within the grand jury room may even improve the efficiency of the proceedings, because the witness will not have to leave the grand jury room to consult with counsel.) Nonetheless, this proposal is not unproblematic, at least in one important class of cases in the federal system, those involving organized criminality. Here, the concern is that allowing the counsel to accompany each witness will provide the targets of the investigation with much greater and more precise information about the course of the grand jury's investigation and the information available to the government, as a result of joint defense agreements. To be sure, the witness could relay information to counsel outside of the grand jury room, but that information would not be as complete as would be available if counsel had been present. Providing the targets with more precise and complete information at this stage could allow them to thwart the investigation and might endanger witnesses. Moreover, in these circumstances a witness may not be as cooperative or forthcoming as he might in counsel's absence. In addressing the proposal to permit counsel to accompany witnesses inside the grand jury room, consideration should be given to this issue to determine how frequently such a situation might occur, how seriously it might impair certain types of investigation, and whether any additional changes (such as changes in the standards or procedures for disqualification of counsel) might be warranted.

2. The fundamental challenge in developing procedures to enhance the grand jury's screening function is to adapt these procedures to the preliminary stage at which the grand jury operates, and to its unique inquisitorial character. The adversarial trial is the most refined screening device developed in the United States legal system. Grand jury procedures cannot reasonably replicate all aspects of trial procedure, both because the grand jury is intended to be a preliminary screening device serving a different function than the trial, and because the secret inquisitorial character of the grand jury is its defining characteristic. If the grand jury operated in open court under the supervision of the trial judge, and it allowed the defense to participate fully in an adversarial proceeding, it would no longer in any real sense be a grand jury. It would at that point more closely resemble the trial, or the preliminary hearing, or some hybrid of the two. On the other hand, as noted above, it is no longer the case that most or all of the cases presented to the grand jury will be presented at trial, and receive full adversarial testing. This change may warrant some greater degree of scrutiny at the grand jury stage (or the addition of a requirement for a preliminary examination).

This principle provides a basis for examining some of the reforms that have been proposed, including the requirement that the grand jury observe the rules of evidence and the exclusionary rule, the requirement that the grand jury be presented with exculpatory evidence, and the requirement that the accused be permitted to testify before the grand jury or designate evidence to be presented to the grand jury.

1. Address: P.O. BOX 90360, Durham, N.C. 27708-0360. Telephone: 919-613-7091. Compliance with House Rule XI, clause 2(g)(4): I have had no federal grant, contract, or subcontract within the past two fiscal years, nor do I represent any entity with a federal grant, contract, or subcontract.

2. This discussion is drawn from chapter 1 of Sara Sun Beale, William C. Bryson, James E. Felman, & Michael J. Elston, Grand Jury Law and Practice (2nd ed. 1997).

3. The presenting jury was not a trier of fact in the modern sense: it did not hear evidence, and it was not asked to decide the truth or falsity of accusations. Originally it was required only to answer, under oath, whether any local person was "accused or reputed" to have committed certain crimes. By the end of the 12th Century, the presenting jury's function had begun to expand to include not only the accusatory function of the modern grand jury, but also the functions of the modern trial jury. After 1215, the presenting jury was required first to say whether the defendant was accused or reputed to be guilty, and then to give the "verdict of the country as to guilt or innocence.

4. Irwin Langbein, The Jury of Presentment and the Coroner, 33 Colum. L. Rev. 1329, 1331 (1933).

5. The practice was sometimes taken to ridiculous lengths, which suggested that it was intended "less to keep the king's peace than to replenish his coffers." Id. at 1330. For example, in 1321 a London presenting jury was asked to recite all the crimes that had occurred within the past forty-four years (including the exact value of the property owned by each homicide victim), and they were fined for each error. II Frederick Pollock & Frederick William Maitland, The History of English Law 646 (2nd ed. 1923).

6. In 1352 a statute was passed that allowed a defendant to challenge any member of the trial jury who had served on the grand jury that accused him, and effectively created two separate juries.

7. The grand jury's procedure at this point was not formalized, and witnesses were sometimes questioned in their homes or elsewhere.

8. Edward Coke, Second Part of the Institutes of the Laws of England 46 (1797 ed.).

9. Henry Care, English Liberties, or the Free-Born Subject's Inheritance 252 (4th ed. 1719). The original edition was published about 1680, and later editions were printed in Boston (1721) and Providence (1774). See Bernard Bailyn, Pamphlets of the American Revolution, 1750-1776, 742-43 n. 9 (1965).

10. There is evidence that grand juries were in regular use in Virginia as early as 1625, and by 1643 grand juries had also been empaneled in Massachusetts, Maryland, Rhode Island, and Connecticut. John Locke's "Constitution" for the Carolinas, drawn up in 1669, provided for grand juries. Grand juries appeared somewhat later in other colonies. In Connecticut, however, the prosecutor took over most of the inquisitorial functions of the grand jury, instituting criminal proceedings by sworn information. See generally Beale et al., § 1:3.

11. Colonial grand juries gradually undertook a variety of administrative tasks, which varied from colony to colony. They investigated non criminal matters, particularly the conduct of government business, auditing government expenditures, inspecting jails and other public buildings, and advising on matters such as taxes, and the construction and maintenance of public works. In the Carolinas the grand jury even exercised legislative powers, initiating legislation to be considered in the assembly.

12. In Massachusetts, where grand jurors were elected, Revolutionary leaders including Paul Revere and Ebenezer Hancock (John Hancock's brother) were grand jurors in the 1770s.

13. However, under orders from the governor the New York assembly passed a law permitting prosecutions under information, and under the authority of this provision Zenger was charged with libel by information. Thus in Zenger's case, as in the English cases involving Colledge and Shaftesbury, the prosecution eventually found a way around the grand jury's refusal to indict. For an argument that the grand jury was not successful historically, and cannot currently, prevent a determined prosecutor from obtaining criminal charges against any individual, see Andrew D. Leipold, Why Grand Juries Do Not (And Cannot) Protect the Accused, 80 Cornell L. Rev. 260 (1995).

14. Costello v. United States, 350 U.S. 359, 362 (1956). Accord United States v. Dionisio, 410 U.S. 1, 17 n. 15 (1973); Ex Parte Bain, 121 U.S. 1, 11 (1887).

15. 110 U.S. 516 (1884).

16. See Beale et al., supra n. 1, § 1:2 nn. 7-8, and § 8:2.

17. For a discussion of these provisions, see Beale et al., § 6:27.

18. Id. § 6:24.

19. See Tex. Code Crim. Proc. Art. 20.18.

20. See Beale et al., § 4:18.

21. See Beale et al., § 4:19-4:20.

22. Id. § 4:16.

23. See generally id. § 8:6.

24. John H. Langbein, Shaping the Eighteenth Century Criminal Trial: A View From the Ryder Sources, 50 U. Chi. L. Rev. 1, 115 (1983). Each jury typically heard a group of cases and then retired to deliberate. During the first jury's deliberations the second jury heard cases. See also id. at 121 & n. 494 (noting that at this time the longest trials, which were exceptional, took a day, and that no trials exceeding a day took place until 1794).

25. Id. at 124-26 (noting that the available records do not preclude the possibility that counsel appeared in some additional cases).

26. Id. at 126-27.

27. Id. at 129-30 (noting that until 1836 counsel were not permitted to address the jury by making opening and closing statements). Where counsel appeared for the defense, his main function was to take over the burden of cross examination of witnesses; this allowed the accused to remain silent and prevented any inadvertent admissions. Id. at 130.

28. Id. at 124.

29. Id. at 121.

30. According to the Sentencing Commission, from 1994 to 1998 the percentage of federal criminal cases in which there was a trial, rather than a guilty plea, decreased from 9.5% to 6.4%. See U.S. Sentencing Comm'n, 1998 Sourcebook of Federal Sentencing Statistics, Figure C, <http://www.ussc.gov/ANNRPT/1998/Fig-c.PDF>.

31. Id. at 42. There were also a handful of other charges, including aiding a jailbreak and forging a will. Id.

32. See id. at 75 (more than 30 of 171 cases in Old Bailey sample involved testimony of pawnbroker or smith acting in same role).

33. Investigations at this time involved advertising of stolen goods, the cooperation of pawnbrokers, and a developing police force, supervised by the examining magistrate. See id. at 55-76.

34. See generally Jamie S. Gorelick & Harry Litman, Prosecutorial Discretion and the Federalization Debate, 46 Hastings L.J. 967, 972 (1995) (advocating that prosecutorial discretion in the federal system be exercised when, inter alia, "the federal government--by virtue of its investigative, prosecutorial or legal resources--is positioned to make a qualitative difference to the solution of the problem" and describing examples of the exercise of such discretion when state procedural rules hamper a prosecution).