When I was a third year law student working in the Carroll County District Attorney’s Office, one of my duties was to present criminal cases to the grand jury. At the time, I thought it was an awesome experience. However, I was unaware of the historical importance of the grand jury and its role in modern criminal jurisprudence.
The grand jury is deeply rooted in English legal tradition. The modern criminal grand jury had its origin by order of Henry II in 1166, which provided for a body of twelve men in each county whose duty was to report persons suspected of crimes.
The grand jury gradually developed an independence from the Crown, and its proceedings became shrouded in secrecy. It began to hear witnesses in secret, and representatives of the king were not permitted to be present when the witnesses were being examined or when the grand jury was deliberating.
The grand jury gained true independence in 1681 during the trials of Stephen College and the Earl of Shaftsbury. The defendants in both of these cases were accused by the Crown of treason. The prosecution ordered the grand jury to hear witnesses in open court. After having done so, each of these grand juries demanded, and were granted, the right to examine the witnesses and to deliberate their findings in private. Both grand juries refused to issue bills of indictment.
Grand jury secrecy developed to protect jurors and accused persons from the tyranny of the Crown. The fundamentals of the grand jury were brought to the United States in much of the same form as it existed in England. The attitude of distrust for the power of government is reflected in the 5th Amendment of the United States Constitution which requires grand jury sanction before a person can be tried for any serious crime. Today, we call this a true bill of indictment.
From a historical perspective, the grand jury has been seen as a shield to protect the innocent defendant accused of a crime by the State. However, the influence of the district attorney on the grand jury has significantly increased over time. From a practical standpoint, much of the independence of the grand jury has been lost. Because of this, the use of the grand jury has been abolished in 22 states. (though we still have grand juries in Georgia and most Southern states). In Georgia, district attorneys have the duty to attend the grand juries, advise them on matters of law, and swear and examine witnesses before them. District attorneys also draw up all indictments when requested by the grand jury.
While it is said that the grand jury is simply an arm of the superior court, with the duty to hand down indictments when any violation of law becomes known to it, in most cases the knowledge they have about alleged criminal offenses comes to them primarily from the district attorney and law enforcement officers. It is simply a very one-sided presentation of criminal cases.
However, it is also somewhat of a vetting process. Cases that clearly should not be prosecuted are often “no billed” by the grand jury which ends a prosecution. Additionally, even if a defendant is indicted, he or she will have an opportunity for a trial jury to hear the case and either convict or acquit the defendant.