Discussion Question

Should a grand jury be the final decision maker in determining whether to initiate a prosecution? Should public sentiment or a prosecutor's sentiment about an accused have any bearing on whether the grand jury hands down an indictment? Why do you think grand jury proceedings are closed to the public and confidential? How do you feel about the fact that the grand jury is often used as an investigatory tool for its ability to solicit testimony and subpoena witnesses and information? 

• A grand jury must find that there is sufficient evidence against the accused to meet the Fourth Amendments probable cause requirement for an arrest; Looking at these decision making vehicles side-by-side, it makes sense to extend the impartiality of a jury - a multi-person decision making body made up of regular people who have no personal or professional stake in the outcome - to the first stage of criminal proceedings, especially considering the repercussions of an arrest (even if the accused is found not guilty or their charges are dropped) and the relatively low amount of criminal cases that actually go to trail. From this viewpoint, an impartial grand jury made up of the accuseds peers is the best decision maker for whether or not charges should be brought. On the other hand, others argue that the regular people that make up a grand jury are unlikely to have sufficient knowledge of criminal law and procedure to make a fair probable cause determination, and, further, that investigatory work is best left to trained investigators. In order for grand juries to be impartial, they are, to the extent possible, shielded from both public and prosecutorial sentiment. Some, however, argue that, since grand juries are meant to represent the public, they should know what the public thinks and, further, that as untrained civilians, they should be able to hear the prosecutors - a trained lawyer - analysis and opinions. Grand jury proceedings are closed to the public and confidential due to their investigatory nature. If the proceedings were open to the public, witnesses would be less likely to come forward and those that did come forward would be less likely to testify fully and honestly. Additionally, if grand jury proceedings were made public, those being investigated by the grand jury might flee or try to influence the grand jury's decision if they knew that they were being investigated. There is also the possibility that by opening grand jury proceedings to the public those under investigation could be subject to public ridicule, even if ultimately exonerated by the grand jury. Some argue that without broad investigatory and subpoena powers, the grand jury would be unable to make a probable cause determination due to the lack of evidence. However, others argue that such powers turn the grand jury into a de facto arm of law enforcement operating with little oversight, with little relevant knowledge or training, and with little regard for the constitutional rights of its targets.

Practice Question

Darla calls the police and reports that a suspicious man is outside of her house and trespassing on her property. She provides a description of the individual. Justin, a police officer, arrives and detains Bill for trespass. Officer Justin is aware of several burglaries in the neighborhood and has suspicions about Bill. He takes Bill to the police station. Justin then calls witnesses to the prior burglaries who pick Bill out of a suspect line up as the perpetrator. What would be the process for initiating misdemeanor charges against Bill for trespass? What would be the process for initiating felony charges for burglary? [ht_toggle title="Proposed Answer" id="" class="" style="" ]

• In order to initiate misdemeanor charges for trespass, the prosecutor will file an information with the court attesting that there is sufficient evidence to bring charges against Bill based on Darla's report to Officer Justin and the witnesses picking Bill out of Officer Justins suspect line-up. A judge will review the filed information and, if they find that there is sufficient evidence supporting probable cause, issue Officer Justin a warrant for Bill's arrest for misdemeanor trespass. However, the process for initiating felony charges against Bill for the burglaries is more involved. First, Officer Justin must communicate his suspicions about Bill to the prosecutor who will then submit the case to a grand jury to seek an indictment. Next, the grand jury will hear the prosecutor's evidence, such as Bills being selected out of Officer Justin's suspect line-up by witnesses, and conduct their own investigation, which may include calling additional witnesses to testify and/or issuing subpoenas for documents. After hearing all evidence against Bill and investigating the burglaries, the grand jury will vote to decide whether or not sufficient evidence exists that a crime was committed for which Bill should stand trial. If they find probable cause that Bill committed the burglaries, they will then issue a true bill indicting Bill. Once the true bill is issued, the prosecutor may begin criminal proceedings against Bill.

Academic Research

• Rossman, David, Conditional Rules in Criminal Procedure: Alice in Wonderland Meets the Constitution (September 2, 2008). Boston Univ. School of Law Working Paper No. 08-25. Available at SSRN: https://ssrn.com/abstract=1262283 or http://dx.doi.org/10.2139/ssrn.1262283 
• Jacobi, Tonja and Berlin, Ross, Supreme Irrelevance: The Court's Abdication in Criminal Procedure Jurisprudence (June 6, 2018). UC Davis Law Review, Vol. 51, No. 3, 2018. Available at SSRN: https://ssrn.com/abstract=3192167