James M. “Jim” Jones

December 30, 2011

“The value of confidentiality of matters occurring before the grand jury is very important.”

— Kenneth Starr

“I was married by a judge. I should have asked for a jury.”

— Groucho Marx

The investigation into alleged sexual abuse by former Penn State assistant football coach Jerry Sandusky has brought the attention of Americans back to grand juries more clearly than since the days of the grand jury investigation of the actions of then President Bill Clinton. I wrote about the Grand Jury system for one of the first Case Study columns nearly seven years ago and, as more than six years have passed since then, it’s probably about time to address the topic again.

The use of Grand Juries in the American legal system arises out of the English Grand Jury — originally created to protect citizens against the abuses of the King. Prior to the signing of the Magna Carta in 1215, accusations were made by a set of 12 local informers who accused suspects, raised taxes and maintained highways. Once a person was accused by the local informers, his or her innocence could only be proven by surviving a trial by ordeal. The trial itself was usually fatal.

In early America, Grand Juries were not immediately adopted. It was not until the middle of the 17th Century that they came into regular use in the American colonies. Instead, colonial governors used “assistants” to bring criminal charges against criminal suspects. When the assistant system fell subject to abuse and misuse, it was the assistants themselves who were among the first persons indicted by English grand juries in the new world. Eventually, colonial Grand Juries came to be used to protect the accused against abuses by the monarchy.

Neither the Articles of Confederation nor the U.S. Constitution contain any specific authorization for a federal Grand Jury. Most administrative matters of the federal judiciary were addressed as part of the Judiciary Act of 1789, but the act did not address the issue of federal Grand Juries. That oversight was addressed by the ratification of the Bill of Rights which provides that, “no person shall be held to answer for a capital, or otherwise infamous crime, unless on presentment or indictment of a grand jury.”

In Ohio, felony cases can only be brought by the Grand Jury unless the accused agrees, in open court, to proceed otherwise. The Grand Jury is comprised of 15 citizens drawn at random from the jury pool. The Grand Jury in Delaware meets in a room on the second floor of the county courthouse. When the law enforcement agencies in the county refer cases to the prosecutor’s office, the grand jury prosecutor reviews the file and subpoenas witnesses to the Grand Jury. The witnesses are called into the Grand Jury room and take an oath to tell the truth. Other than the Grand Jurors and the witness, the only persons allowed in the Grand Jury room are the court reporter and the prosecutor. The prosecutor asks questions of the witness and the Grand Jurors may ask questions as well.

After the presentation of all the evidence, the Grand Jury must decide if there is “probable cause” to bring an indictment. The Grand Jury does not have to find proof beyond a reasonable doubt, like a trial jury would. Probable cause is defined as enough proof to lead a reasonable person to believe that a crime has been committed. If the Grand Jury finds this, they return a “true bill”, also called an indictment. The defendant is then arrested or issued a summons to appear in court. A criminal case has then begun and the state must then prove, beyond a reasonable doubt, that the crime was committed.

If the Grand Jury finds that there is not probable cause, then they return a “no bill” and the case is completed. Of the 15 Grand Jurors, only nine vote on each case and seven votes are required to return an indictment. Although witnesses are summoned to appear before the Grand Jury, the “target” of the Grand Jury — the person who is being investigated, can only appear voluntarily. This is because the target has a constitutional right to remain silent.

As was the case in the Sandusky matter, the intention of the Grand Jury system is, in part to keep the existence of the investigation from becoming public until a determination has been made that there is sufficient evidence for the matter to go forward. This protects the fairness of the investigation as well as avoiding the besmirching of the name of a person against whom there is not even sufficient information to bring a charge.

Grand Jury service is time consuming, but is an unusually rewarding and revealing look into the criminal justice system. In my time as an assistant prosecutor it was routinely the case that grand jurors came to greatly enjoy their participation.

David Hejmanowski is a magistrate and court administrator of the Delaware County Juvenile Court and a former assistant prosecuting attorney.