Ecklund 1

Grace Ecklund

Ben Henderson

CAS 138T

3 April 2019

TITLE

Imagine a court hearing without a presiding judge, defense attorney, or members

of the public acting as spectators. Only two parties are involved: a prosecutor and a panel

of jurors. At first glance, this seems like an absurd concept. What is a court session

without a judge or defender? However, it turns out that America has these hearings

(Phillips, 2017). They are known as investigative grand jury hearings, and they are

spelled out as a step in America’s criminal justice system in the Constitution (Cordell,

2014). It is imperative that the United States takes steps to abolish the investigative grand

jury hearing to keep its court system fair, as the founders intended it to be.

An investigative grand jury hearing is similar to the typical hearing that one

imagines when thinking of a court session, except that the judge, defense attorney, and

suspect are absent (Phillips, 2017). Just as jury members are selected to attend court

for criminal trials, the process works the same for recruitment of grand juries

(Phillips, 2017). However, whereas trial juries are made up of twelve people (Types

of Juries, n.d.), federal grand juries are made up of sixteen to twenty-three jurors

(Phillips, 2017). Grand jurors do not decide if a suspect is guilty or innocent, rather

their job is to determine if there is enough evidence to indict a suspect (Phillips,

2017). When a person is indicted, he or she is formally charged with a crime

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(Phillips, 2017). Twelve grand jurors must vote in favor of an indictment for the

suspect to be charged (Phillips, 2017). Whereas the burden of proof in a criminal

trial is belief beyond a reasonable doubt, the standard in a grand jury hearing is just

probable cause (Restoring Legitimacy, n.d.). In other words, it is not as hard to

charge a person with a crime as it is to convict a someone of a crime. During a grand

jury hearing, the prosecutor’s goal is to convince the jury that there is enough

evidence to charge a suspect with a crime (Phillips, 2017).

Grand juries have a long history. In fact, these hearings can be traced back to

Athens (https://www.law.cornell.edu/constitution-conan/amendment-

5/indictment-by-grand-jury). England adopted the use of grand juries early in its

establishment as a country (https://www.law.cornell.edu/constitution-

conan/amendment-5/indictment-by-grand-jury). The country used grand juries “to

provide a fair method for instituting criminal proceedings against persons believed

to have committed crimes” (https://www.law.cornell.edu/constitution-

conan/amendment-5/indictment-by-grand-jury). America’s founders adopted

England’s use of grand juries in order to provide Americans with the same

prerogative. The founders’ thinking was logical, but grand juries have turned into

something they did not envision. These hearings give prosecutors far too much

power.

Due to the fact that there are no other legal participators in the grand jury

hearing, the prosecutor can manipulate the jurors with ease. “How prosecutors

explain the law to jurors and what prosecutors say about the evidence are subject to
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no oversight” (Cordell, 2014). Jurors are often unaware of how the grand jury

system operates, which prosecutors can (and do) use to their advantage (Dillard,

Johnson, & Lynch, 2003). “With no judge or opposing counsel in the room, grand

jurors naturally defer to the prosecutor since he is the official on the scene” (Dillard,

Johnson, & Lynch, 2003). In other words, the jurors tend to believe everything the

prosecutor tells them because there is no other expert in the room to debunk the

reliability of the prosecutor. Sol Wachtler said in a 1985 interview that grand juries

would “indict a ham sandwich” (Levin, 2014). Wachtler’s quote symbolizes how

easily manipulated members of grand juries can be. Wachtler had experience in the

field of law, he was once New York’s Chief Judge (Levin, 2014). As one can deduct

from this quote that has since been reused by others, Wachtler did not favor grand

juries and he felt that the criminal indictment process needed to be reformed (Levin,

2014). MORE

Yet another issue with grand juries is that the prosecutor is not required to

present evidence that a person did not commit a crime (Hurley, 2014). In other

words, the prosecutor can frame the evidence in whatever way he or she pleases in

order to sway the jurors in a certain direction. MORE

On August ninth, 2014, Michael Brown was fatally shot by police officer

Darren Wilson. Brown, a black teenager, was only eighteen years old. Wilson, a

white man, originally stopped Brown because he fit the description of a man who

robbed a convenience store earlier in the evening. Many people believe that the

shooting occurred because of racism (Halpern, 2015). This case is one example of a
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grand jury hearing gone wrong. In 1985, the Supreme Court limited the ability of

police officers to use force, thus the law became less broad (Cordell, 2014). In

Wilson’s grand jury hearing, the assistant prosecutor explained the use of force law

in its old terms, failing to tell the jury members that the old standard is no longer

accepted (Cordell, 2014). Thus, “when officer Darren Wilson testified, the jurors

understood his story within the framework of the erroneous, broader definition of

the use of force” (Cordell, 2014). Wilson was not indicted (Halpern, 2015), and it is

extremely likely that the assistant prosecutor’s misleading the jury contributed to

the decision. Although this is just one case, it is likely that prosecutors have used

their powers similarly in other cases, too.

To keep its criminal justice system fair, it is imperative that America

abolishes the grand jury hearing and replaces it with a preliminary hearing. As of

now, a grand jury hearing is required before a suspect can be indicted of a federal

crime at the felony level (Joy, 2017). Some states also use grand jury hearings in this

way (Hurley, 2014). Because federal crimes at the felony level require the use of a

grand jury (Joy, 2017), it is imperative that grand juries are replaced with

preliminary hearings federally to ensure that defendants are charged with crimes

fairly, but states should follow along in this effort.

A preliminary hearing occurs after a defendant has pleaded not guilty to a

crime (Preliminary Hearing, 2014). The prosecutor, defendant, and defense attorney

are all present and a judge presides over these parties (Preliminary Hearing, 2014).

The prosecutor presents evidence that the suspect has committed a crime, often
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times calling in witnesses (Preliminary Hearing: PA Victim Services, n.d.). The

defense, like in a normal trial, has the right to cross-examine the witnesses

(Preliminary Hearing, 2014). The preliminary hearing operates so similarly to a

typical trial that it has been coined a “mini-trial” (Preliminary Hearing, 2014). At the

end of the hearing, the presiding judge determines if there is enough evidence (the

standard in a preliminary hearing is probable cause) to charge the defendant of a

crime (Preliminary Hearing, 2014). If the judge determines that the defendant can

be charged with a crime, the trial date will be set soon after, but if he or she believes

that there is not enough evidence against the suspect, all charges will be dropped

(Preliminary Hearing, 2014).

A preliminary hearing serves the same purpose as a grand jury hearing, but it

operates in a few, key different ways. Recall that in a grand jury hearing, the

prosecutor and jury are the only parties present other than witnesses. Defendants

and their attorneys are allowed to be present at a preliminary hearing and thus can

oppose any claims that are made against the suspect. In a preliminary hearing, a

judge, rather than a jury, decides if there is enough evidence to charge a suspect

with a crime.

The main benefit to using a preliminary hearing is that this “mini-trial”

(Preliminary Hearing, 2014) is fairer. It makes more sense to have a judge, who has

been trained in the law and is very educated in the field, decide if there is enough

evidence to charge a person with a crime rather than a group of jurors that know

very little, if not nothing, about how the law operates. It also makes more sense to
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include the party who is being accused and his or her attorney and allow them to

respond to the accusations. Furthermore, it makes more sense to have more parties

involved because it provides a check on the prosecutor’s power. With more people,

the prosecutor can’t hide certain details that he or she does not want the jury to

know (like occurred in Darren Wilson’s grand jury hearing).

Under the United States Constitution, states are not required to use grand juries

(Charging, 2014). Most states have grand juries outlined in their own constitutions

(Hurley, 2014), but “about half have both preliminary and grand jury hearings” (Cordell,

2014). When states have both hearings, the prosecutor has the power to pick which to use

(Cordell, 2014). In cases like Darren Wilson’s, making the decision is simple for a

prosecutor. Rather than deciding whether to please the public by charging Wilson or

please the police by choosing not to charge Wilson, the prosecutor decided to hold a

grand jury hearing (Cordell, 2014). This was favorable to the situation because a grand

jury hearing is secretive (Cordell, 2014). If the prosecutor argued more in favor of letting

Wilson escape charges by presenting the evidence in a way that painted the officer as not

having committed a crime, the public would never find out. Instead, if the prosecutor

decided to present the evidence in a way that suggested that the officer committed a

crime, the police would not find out. However, as was mentioned previously, information

from Wilson’s grand jury hearing was leaked and the secrets came out. Furthermore,

grand jury hearings are preferable to prosecutors because they do not face the wrath from

either charging or not charging a person with a crime—it all falls on the grand jurors.

To replace grand juries with preliminary hearings, the Constitution’s fifth

amendment would need to be changed. The amendment states: “no person shall be held
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to answer for a capital, or otherwise infamous crime, unless on a presentment or

indictment of a grand jury” (Fifth Amendment, n.d.). To amend the Constitution, thirty-

eight states must vote in favor of ratifying a change (Erickson, 2017). This could present

a challenge for the policy. However, considering that the goal is not to flat out eliminate

the right of a hearing to issue an indictment, but rather to just change the process, the

policy should not generate as much opposition. Furthermore, the argument can be made

that grand juries no longer do what they were intended to do: protect suspects’ identities

from being exposed until they are formally charged with a crime (Cordell, 2014). Today,

the world is far more advanced than the founders probably ever imagined that it would

be. There is no longer a purpose to keeping grand jury hearings between a prosecutor and

jurors so that they are secretive because the information leaks onto the internet for

millions of people to view after the hearing anyway.

Rather than simply reforming the investigative grand jury process, it is more

logical to fully replace the system, as any changes to the grand jury hearing would

make it extremely similar to the preliminary hearing. If one proposes that the

defendant should be included in the grand jury, then a judge would also need to be

present to keep the peace between the prosecution and defense teams. If this was

instituted, the grand jury hearing would be the same thing as a preliminary hearing

except that the former would have a panel of jurors. To simply charge a person with

a crime it is not necessary to take members of the public away from their jobs to be

members of a jury. The jury does play an important role in deciding guilt or

innocence in a formal trial, but they simply perform a job that a judge could handle

in a pre-trial hearing to issue an indictment.

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Grand juries do not provide checks on prosecutors, rather they give these

attorneys immense power. The constitution was written in a time where names could not

reach millions of people on the internet. Today, grand juries no longer provide defendants

with anonymity until charged, so their main purpose is no longer applicable. Replacing

grand juries with preliminary hearings would make America’s court systems much fairer.
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References

Charging. (2014, December 17). Retrieved from https://www.justice.gov/usao/justice-

101/charging

Cordell, L. H. (2014, December 09). The United States Should Finally Abolish Criminal

Grand Juries. Retrieved from https://slate.com/news-and-politics/2014/12/abolish-

grand-juries-justice-for-eric-garner-and-michael-brown.html

Dillard, W. T., Johnson, S. R., & Lynch, T. (2003, May 13). A Grand Façade: How the

Grand Jury Was Captured by Government. Retrieved from

https://www.cato.org/publications/policy-analysis/grand-facade-how-grand-jury-was-

captured-government

Erickson, B. (2017, August). Amending the U.S. Constitution. Retrieved from

http://www.ncsl.org/research/about-state-legislatures/amending-the-u-s-

constitution.aspx

Fifth Amendment. (n.d.). Retrieved from

https://www.law.cornell.edu/constitution/fifth_amendment

Halpern, J. (2017, June 19). The Man Who Shot Michael Brown. Retrieved from

https://www.newyorker.com/magazine/2015/08/10/the-cop

Hurley, G. (2014). The Modern Grand Jury. Retrieved from

https://www.ncsc.org/sitecore/content/microsites/trends/home/Monthly-Trends-

Articles/2014/The-Modern-Grand-Jury.aspx

Phillips, A. (2017, December 09). Grand Juries, Explained for Those who Kinda Sorta

Know What They Are. Retrieved from https://www.washingtonpost.com/news/the-

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fix/wp/2017/12/09/grand-juries-explained-for-those-who-kinda-sorta-know-what-

they-are/?noredirect=on&utm_term=.1286c08e7bca

Preliminary Hearing. (n.d.). Retrieved from https://pcv.pccd.pa.gov/available-

services/Pages/Preliminary-Hearing.aspx

Preliminary Hearing. (2014, December 17). Retrieved from

https://www.justice.gov/usao/justice-101/preliminary-hearing

Restoring Legitimacy: The Grand Jury as the Prosecutor's Administrative Agency. (n.d.).

Retrieved from https://harvardlawreview.org/2017/02/restoring-legitimacy/

Types of Juries. (n.d.). Retrieved from https://www.uscourts.gov/services-forms/jury-

service/types-juries

https://slate.com/human-interest/2014/11/sol-wachtler-the-judge-who-coined-indict-a-

ham-sandwich-was-himself-indicted.html

http://theconversation.com/the-grand-jurys-role-in-american-criminal-justice-explained-

82197