The Magazine

We, the Grand Jury

An education in American citizenship

Feb 18, 2013, Vol. 18, No. 22 • By CLAUDIA ANDERSON
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First, I explained that you have a right to know why you are here. This grand jury is investigating a [robbery/assault/stabbing/shooting/etc.] that occurred on [date] at [address]. Do you understand?

Witness answers.

You also have a right under the Fifth Amendment to the Constitution not to incriminate yourself. That is, you don’t have to answer a question if a truthful answer to that question could get you in trouble with the law. Do you understand?

Witness answers.

I reminded you that you would be under oath and that it is very important you tell the truth in this room. The person sitting there is a court reporter, who is recording and creating a transcript of everything said here. If you were to lie to the grand jury, you could be prosecuted for perjury or obstruction of justice, and those are serious crimes that carry jail time. Do you understand?

Witness answers.

Do you have any questions about that?

Witness answers.

You also have a right to an attorney. That attorney could not be in the jury room with you because testimony given here is secret. But your attorney could sit right outside this door, and you could ask to leave the room at any time to speak with him or her. Do you understand?

Witness answers.

And if you could not afford an attorney, we could arrange for the court to provide you one free of charge. Do you understand?

Witness answers.

Mr. [witness’s name], having understood these rights, do you choose to go ahead and testify before the grand jury?

Witness answers.

Only after this exchange would the prosecutor interrogate the witness about the crime under investigation. Then the jurors were invited to ask our own questions directly of the witness. Each interview ended with another fixed colloquy:

Is there anything I haven’t asked you about that you think the grand jury should know?

Witness answers.

Is there anything you would like to add?

Witness answers.

Apart from the subpoena you received to come here today, has anyone pressured you or forced you to testify?

Witness answers.

Has anyone told you what to say here, other than the truth?

Witness answers.

Has anyone offered you anything in exchange for your testimony?

Witness answers.

As you sit here today, are you under the influence of any medication or any drugs or alcohol that would affect your ability to testify truthfully?

Witness answers.

Mr. [witness’s name], how have you been treated by the police in this case?

Witness answers.

How has my office treated you?

Witness answers.

Thank you for your testimony. You are free to go.

It seemed to me that the very structure of these interviews fostered courtesy, a posture of respect, on the part of the person conducting the interrogation. Prosecutors need the cooperation of both witnesses and jurors. They also must do their work in a manner safe from legal challenge. So they are forced to cultivate patience: patience with procedure; patience with witnesses, many of whom are afraid or upset or inarticulate or barely audible; and patience with lay jurors operating on the basis of common sense and whatever bundle of attitudes and information they happen to bring with them into the jury room.

And there is another tangible expression of respect. D.C. Superior Court grand juries meet in a downtown building known on the street as the “snitch house.” It is not a rarity for witnesses who have reason to fear for their lives to be relocated with assistance from the U.S. Attorney’s Office. I knew such things happened in big FBI investigations of organized crime. I had no idea they were a not uncommon occurrence in local proceedings.

In addition to presenting witnesses, each prosecutor acts as legal adviser to the grand jury on the cases she is handling, but must do so without improperly influencing the jury. That is, she may review the law or explain the difference between, say, a charge of Assault with a Dangerous Weapon and a charge of Possession of a Firearm During a Crime of Violence​—​but may not speculate as to motives or credibility. In my experience, care was taken to observe this distinction, to refer jurors to witnesses’ testimony and remind us that it was not the prosecutor’s role to interpret events or participate in our deliberations.

While the lawyerly parts of this interaction are highly choreographed, others are unpredictable and free. The witness says whatever the witness says. And jurors deliberate and vote behind closed doors, alone with each other.

 

The education citizens gain by participating in the grand jury process—and it is estimated that one-third of Americans will serve on some sort of jury in their lifetime—isn’t only about their criminal justice system. It’s also about their community. “In forcing men to occupy themselves with something other than their own affairs,” Tocqueville wrote, “[jury service] combats individual selfishness, which is like the blight of societies.” This is of urgent relevance today, when our social fabric is said to be Coming Apart, in the title of the must-read work by political scientist Charles Murray. Grand jury service brings neighbors together in a public endeavor that crosses all social divides.

Imagine spending all day every day, five days a week for five weeks, with 22 strangers. All you have in common is that you are U.S. citizens, live in the District of Columbia, and are not felons (or, if felons, completed your sentence including probation or parole at least 10 years back). As your work gets underway, you also come to share the series of horrible dramas unfolding in your grand jury room (which, frustratingly, you may not discuss elsewhere). These have the effect of stirring among you at the same time the sentiment “There but for the grace of God go I” and the sentiment, pithily expressed by a fellow grand juror (before ever entering our jury room, so I feel free to quote her), “I hate crime.”

You meet on a footing of equality. None of you has superior knowledge of any case. At least at first, you know nothing about each other’s politics or religion. Each of you has one vote on each count of each requested charge. You must decide whether witnesses are believable and which evidence is compelling. Your work does not carry quite the moral gravity of a petit jury’s decision to convict or acquit, yet it is solemn enough. 

Because a grand jury like ours considers so many crimes, it exposes jurors to a wide panorama of victims and other witnesses. The detectives tend to be urban ethnics, with an alert, fact-based, seen-it-all mentality. The lay witnesses come in all ages and stations in life, though relatively few are bystanders involved purely by happenstance. Most are called to testify because they are victims, or relatives or friends or close neighbors of victims or suspects. That is, most come from the suspect’s world.

It is no secret that in the District of Columbia, as in most cities, crime is highest in neighborhoods also blighted with poverty, unemployment, drug use, poor schools, low levels of education, and a scarcity of children born to and reared by their married father and mother. People who can afford to live elsewhere very often do. Grand jury service cuts against this chosen separation. It requires the less crime-affected parts of our city to engage with the more crime-affected parts, to stare in the face the catastrophes that police see every day but from which citizens do our best to shield ourselves and our families.

Beyond mere seeing, jurors, prosecutors, and witnesses come together for a purpose. The subpoenas, the oaths, the explanations of rights, the elaborate rules and courtesies, the inconvenient assembling of jurors​—​all support our effort to ensure that our punishment of violent acts is grounded not in arbitrary power or passion or rumor, but in law and a search for truth. Grand juries are part of our inherited means of doing this, and our participation brings us, along with our neighbors, more fully into possession of the civilized legacy we share as Americans. It causes us to see afresh that our democratic birthright is not a thing to be taken for granted, but is something to be honored and preserved.

Claudia Anderson is managing editor of The Weekly Standard.

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