RESTORING FAIRNESS IN AMERICA’S JUSTICE SYSTEM 1

Grace Ecklund

Ben Henderson

CAS 138T

12 April 2019

Restoring Fairness in America’s Justice System: Abolishing the Grand Jury

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 (Phillips, 2017). Twelve grand
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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 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 (“Indictment by Grand Jury,” n.d.). England adopted the use of grand juries early

in its establishment as a country (“Indictment by Grand Jury,” n.d.). The country used

grand juries “to provide a fair method for instituting criminal proceedings against persons

believed to have committed crimes” (“Indictment by Grand Jury,” n.d.). Grand jury

hearings were purposefully kept a secret so that the identity of the suspect was kept

anonymous. This was implemented in order to stop a bad reputation from forming around

the suspect in the case that there was not enough evidence to indict the person

(“Indictment by Grand Jury,” n.d.). America’s founders adopted England’s use of grand

juries in order to provide Americans with the same prerogative (“Indictment by Grand

Jury,” n.d.). 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 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
RESTORING FAIRNESS IN AMERICA’S JUSTICE SYSTEM 3

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 assess 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, as he was once New York’s Chief Judge (Levin, 2014). As

one can deduce 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). The saying that grand juries would ‘indict a ham sandwich’ becomes

evident in the extraordinary number of hearings that result in an indictment. From

October 2009 to September 2010, there were approximately 162,300 grand jury hearings.

Out of all of these hearings, only eleven did not result in an indictment (Bump, 2014).

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. A grand jury hearing in which the prosecutor framed the

evidence to show that a defendant was not guilty was Darren Wilson’s.

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 grand jury hearing gone
RESTORING FAIRNESS IN AMERICA’S JUSTICE SYSTEM 4

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

investigative 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 also 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 times calling

in witnesses (“Preliminary Hearing,” n.d.). The defense, like in a normal trial, has the

right to cross-examine the witnesses (“Preliminary Hearing,” 2014). The preliminary

RESTORING FAIRNESS IN AMERICA’S JUSTICE SYSTEM 5

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, a trial date will be set, 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 an investigative 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 field of law 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 include the party who is being accused and his

or her attorney and allow them to respond to the accusations. Furthermore, it is more

logical 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).
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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

(Cordell, 2014).

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

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
RESTORING FAIRNESS IN AMERICA’S JUSTICE SYSTEM 7

eliminate the right of a hearing to issue an indictment, but rather to modify 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 grand juries would

be equipped with jurors. To simply charge a person with a crime, it is not necessary to

take members of the public away from their responsibilities to participate in 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.

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
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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

Bump, P. (2014, November 24). “The rarity of a federal grand jury not indicting,

visualized.” Web. Retrieved from https://www.washingtonpost.com/news/the-

fix/wp/2014/11/24/the-rarity-of-a-federal-grand-jury-not-indicting-visualized/

“Charging.” (2014, December 17). Web. 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.” Web. 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.” Web. 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.” Web. Retrieved from

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

constitution.aspx

“Fifth Amendment.” (n.d.). Web. Retrieved from

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

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

https://www.newyorker.com/magazine/2015/08/10/the-cop
RESTORING FAIRNESS IN AMERICA’S JUSTICE SYSTEM 10

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

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

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

“Indictment by Grand Jury.” (n.d.). Web. Retrieved from

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jury

Joy, P. A. (2017, August 7). “The grand jury's role in American criminal justice,

explained.” Web. Retrieved from http://theconversation.com/the-grand-jurys-role-in-

american-criminal-justice-explained-82197

Levin, J. (2014, November 25). “The Judge Who Coined ‘Indict a Ham Sandwich’ Was

Himself Indicted.” Web. Retrieved from https://slate.com/human-interest/2014/11/sol-

wachtler-the-judge-who-coined-indict-a-ham-sandwich-was-himself-indicted.html

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

Know What They Are.” Web. Retrieved from

https://www.washingtonpost.com/news/the-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.). Web. Retrieved from https://pcv.pccd.pa.gov/available-

services/Pages/Preliminary-Hearing.aspx

“Preliminary Hearing.” (2014, December 17). Web. Retrieved from

https://www.justice.gov/usao/justice-101/preliminary-hearing
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“Restoring Legitimacy: The Grand Jury as the Prosecutor's Administrative Agency.”

(n.d.). Web. Retrieved from https://harvardlawreview.org/2017/02/restoring-

legitimacy/

“Types of Juries.” (n.d.). Web. Retrieved from https://www.uscourts.gov/services-

forms/jury-service/types-juries