Reviving the Citizen Grand Jury

By: George Noga – June 20, 2014
        Grand juries trace their inception back to 12th century England. King Henry had problems with the pope’s ecclesiastical courts which, in Henry’s view, failed to charge or indict to his satisfaction. King Henry therefore instituted a citizens grand jury. Fast forward to the USA. The Bill of Rights (5th Amendment) states: “No person shall be held to answer for a capital, or otherwise infamous, crime unless on the presentment or indictment of a Grand Jury.” The Bill of Rights introduces grand juries although they are never mentioned in the main body of the Constitution. Hence, grand juries are a constitutional construct in their own right. The founders intended them as a fourth branch of government that belongs  solely to the American people and serves as a buffer between the people and the government.
“Any citizen could bring a matter directly before a grand jury.”
       In the decades immediately following ratification of the Constitution, grand juries played a major role in public life. Any citizen or layman could bring a matter directly before a grand jury including complaints about the conduct of public officials. Grand juries then could (and did) conduct their own independent investigations; if they found sufficient evidence to bring charges and if the act was a crime under law, the grand jury would return an indictment. Of course, the grand jury also screened out charges which were unfounded or of malicious inspiration.
“A prosecutor can get a grand jury to indict a ham sandwich.”
       It was not until the second half of the nineteenth century that the current paradigm emerged in which prosecutors control grand juries. Today there is so much abuse of grand juries by prosecutors with an agenda that it has given rise to a now-famous bon mot linking grand juries and ham sandwiches. The origin of this aphorism can be traced to comments made by Supreme Court Justice Robert Jackson in 1940. However, many attribute it to Judge Saul Wachtler who stated: “A prosecutor can get a grand jury to indict a ham sandwich.” Once empanelled however, grand juries have independence and great power; they occasionally go off on their own – thus giving rise to the term “runaway jury“.
Movement to Return Grand Juries to Citizens
       The widespread abuse by politicians of the grand jury system has led to a growing movement to return grand juries to ordinary citizens – much as they functioned in the first half century of our republic. In fact, six states currently allow citizen (or common law) grand juries in one form or another. These function in different ways. In Oklahoma citizens can petition to request a county grand jury to convene. Montana law allows judges to call grand juries. In other states, citizen grand juries can report their findings to prosecutors or to regularly empanelled grand juries.
        Current state laws do not go near far enough for many. There is a powerful movement afoot to revive the citizen grand juries of the 19th century – not under the control of prosecutors. In recent years a  number of such self-styled citizen grand juries have been formed – including at least one in (Ocala) Florida. One case in Gallatin County, Colorado garnered much attention with over 30 law enforcement officers representing 10 agencies on hand for one proceeding. In Montana different groups are forming advisory grand juries to report findings to judges and also to publish them for the record.

       There are a number of organizations competing to revive the common law grand jury in the USA. They range from the serious and well organized to some with marginal (at best) credibility. For the time being however, citizen grand juries are limited to advisory and public relations roles. Although it is unlikely grand juries will return to their 19th century roots anytime soon, it is not hard to discern that some major changes – such as the following – may come in the years ahead.

  • The beauty of our federal system is that there are 50 states and citizen grand juries may need to catch on only in one or two states to spread like wildfire. Also there are over 3,000 counties and since most grand juries operate at the county level, it is possible significant changes could even originate at the county level.
  • The movement could inspire more and more regularly convened grand juries to become runaway juries.
  • Significant marginal changes are possible. At one time ordinary citizens were allowed to pass information directly to a sitting grand jury. Bringing back this feature could really shake up politicians prone to abuse their power.
  • It is easy to foresee rapid growth in citizen grand juries with an advisory role, i.e. they could report their findings to a regular grand jury and/or independently publish their findings – similar to the present situation in Montana.
       At bottom, the movement to resurrect citizen grand juries is a manifestation of a much broader and more significant reaction by a growing number of Americans against the size, power and arrogance of government. As such it is a welcome trend and could play a significant role in bringing about more liberty and less government in America.