We, the Grand Jury
An education in American citizenship
Feb 18, 2013, Vol. 18, No. 22 • By CLAUDIA ANDERSON
Still, the process is obviously cumbersome—time consuming and expensive. Jurors receive $4 a day for transportation and an additional $30 a day if they’re not being paid by an employer. It’s modest compensation for the disruption of routines, and an expense to the public, especially as multiple grand juries run concurrently, each with its own windowless room equipped with recording and video capabilities. A scheduling office acts as a kind of traffic cop, making sure the appropriate grand jury is available to hear a given witness when the witness appears and a court reporter is on hand to record the proceedings. The “sergeant at arms” whom we elected our first morning (along with our foreman, deputy foreman, and secretary) kept in close touch with this office and let us know throughout the day when the next witness was slated and when we could take breaks.
But man does not live by bread alone, and values above efficiency are served in the jury room. One, as may already be apparent, is civic education. Almost nothing explained here did I know before I took my oath (even though I actually testified before a grand jury once, years ago in another city, after being robbed at knifepoint). And jurors learn not only the mechanics of this part of the judicial process, but a little of its history. When was the last time you heard anyone point out the medieval origins of any facet of American government? Our orientation video traced the grand jury to 12th-century England, before Magna Carta (hence that verbal fossil, “sergeant at arms”). What’s more, the grand jury has died out in all the English-speaking countries except ours. Today, all or nearly all the grand jury proceedings in the world take place in the United States—as do “90 percent of the criminal jury trials and almost all [the] civil jury trials,” according to Andrew Guthrie Ferguson’s splendid Why Jury Duty Matters (2013). It turns out jury service has become an almost uniquely American experience.
Most important, participants learn the spirit of a criminal justice system tethered to the judgment and conscience of ordinary citizens. Alexis de Tocqueville observed this in America in the early 1830s. Jury service was already more widespread here than anywhere in Europe, and he wrote that it “teaches men the practice of equity. Each, in judging his neighbor, thinks that he could be judged in his turn.” As lay decision-makers, jurors are to the judicial branch what voters are to the elected legislature and executive: nonexperts whose role makes manifest the principle of popular sovereignty. If voters select representatives and trial jurors judge, grand juries act as a check on prosecutors: a daily discipline, requiring them to produce evidence to justify every indictment, and when necessary a barrier to the abuse of prosecutorial power.
At least that is how it is supposed to work. In practice, grand juries rarely refuse to return an indictment. It does happen; Google “refuse to indict” and you’ll see recent examples from around the country. But it’s still true that most grand juries return most of the indictments sought. Some say this makes the process a mere formality. A friend who served on a D.C. homicide grand jury a few years ago came away dissatisfied. He felt some prosecutors treated the grand jurors as automatons and were dismissive of their questions about the cases, as if privately buying the cynical line (attributed to New York State chief judge Sol Wachtler in The Bonfire of the Vanities) that a grand jury would indict a ham sandwich. My experience was different. When we voted to indict, I felt it was because the prosecutors had done their job and shown us reasons to believe they had probably found the miscreant. Maybe I’m a sap, but I was struck by the atmosphere of seriousness and respect that generally pervaded our jury room.
In the course of our service, we must have heard from easily 50 live witnesses. Each was sworn in by our foreman (sign of the times: the oath she was given to administer ended “nothing but the truth,” dropping the familiar “so help me God”). Each was asked to state and spell his name for our benefit. Then each interrogation began with the prosecutor explaining to the witness his rights. These rights are a matter of law and not unique to any particular investigation. The “colloquy of rights,” as the lawyers call it, is an impressive litany to hear over and over. It was never skipped (unless the witness was a police detective) or rushed or abbreviated. Each prosecutor used his or her own words, and no two stated it exactly alike. In my own words, it went, essentially, like this:
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