Grand Juries: Is it time to rethink the system?

Grand Juries are undoubtedly an important part of the American Justice System. The Fifth Amendment guarantees the right to a grand jury for all federal crimes punishable by more than one year. Although the Fifth Amendment right to grand juries has not been incorporated into the Fourteenth Amendment to apply to all states, nearly all states utilize grand juries for criminal indictments in at least some capacity.

The rules for grand jury trials can vary wildly between states. Traditionally, grand jury proceedings are closed and confidential proceedings led by a prosecutor. The prosecutor has no obligation to call witnesses or reveal evidence harmful to their case, no judge is present, and the defendant has no right to attend or even learn about the hearing. These grand jury hearings are designed to be significantly shorter than traditional trials to reduce the burden on both courts and defendants.

Although the original idea of grand juries evaluating the strength of a prosecutor’s case before an indictment was sound, shifting court dynamics have made the original grand jury structure untenable. According to the Pew Research Center, 90% of all federal criminal cases result in guilty pleas, 8% of criminal cases are dismissed before trial and only 2% of all criminal cases go to trial. These statistics are mirrored in the state criminal courts were fewer than 3% of indicted criminal cases result in jury trials.

Given that the concept of innocent until proven guilty is fundamental to the United States judicial system and that over 97% of indicted criminal defendants never get to hear their day in court, it is imperative that the United States has a rigorous and robust system in place to ensure that defendants are only indicted in truly meritorious cases. Unfortunately, the traditional grand jury system can have the opposite effect since prosecutors are often the sole source of information about a case. Since grand jury sessions are sealed without any judicial oversight, a prosecutor may choose to only provide a short interaction of the most damning evidence against a defendant before advising a grand jury how to proceed. In this environment, a grand jury may be asked to decide on as many as forty cases a day and may reach a verdict for each case in as little as seven minutes. Additionally, the traditional prosecutor led grand jury hearing led some jurisdictions to have indictments rates above 98%.

Fortunately, some states, such as Texas, have begun reforming the grand jury system to provide defendants an opportunity for defendants to be involved in the grand jury hearing. Texas allows a defendant to have the right to an attorney present at the hearing. Additionally, the defendant in Texas can provide a presentation either live or in writing to a grand jury, and grand jurors are allowed to question the defense attorney. Although there is little information about whether these reforms have decreased the grand juries’ indictment rate, these reforms provide a defendant with at least some chance to have someone other than the prosecutor evaluate their case. And such reforms are vital to the overall American Judicial system. For a system where the grand jury indicts 98% of defendants and 90% of those defendants subsequently plead guilty cannot be considered a system where a defendant is innocent until proven guilty.