The Fifth Amendment to the Constitution gave its name to the protection against self-incrimination, and it also contains three other famous (and these days somewhat battered) guarantees—against double jeopardy; against deprivation of life, liberty, or property without due process of law; and of just compensation when private property is taken for public use. But before any of these, in pride of place in the very first words of the amendment, comes perhaps the least thought-of protection in the whole Bill of Rights: the assurance that no one will be “held to answer” for a serious crime unless indicted by a grand jury.
I recently finished serving on a homicide and major-crimes grand jury in Washington, D.C. It met every day for five weeks. Since grand jury proceedings are secret, I am not free to report with any specificity on the most memorable parts of the experience—the dynamics among the jurors, the crimes themselves, the riveting scenes conjured up by the words and demeanor of the witnesses. But I can perhaps explain, without violating my juror’s oath, why as a citizen I found this a valuable experience.
To set the stage, some simple information. The first thing to grasp is that a grand jury is not a trial jury: Forget Twelve Angry Men and To Kill a Mockingbird. It does not hear one case, both prosecution and defense, in public, with the defendant present and a judge presiding, then retire to deliberate until a unanimous verdict is reached that the defendant is guilty or not “beyond a reasonable doubt.” It’s not even made up of 12 people, painstakingly selected from a larger pool through the process called “voir dire.”
The grand jury’s job is not to try but to indict: to hear the government’s evidence that a crime was committed by a particular person, then to affirm, or refuse to affirm, that the government has shown “probable cause” to believe that the suspect did the deed. Only if the state clears this hurdle can it can go forward and bring the suspect to trial. On our grand jury, after no voir dire at all, 23 people were sworn in, 16 had to be present for business to proceed, and 12 votes were required to indict.
The judge who swore us in on our first day was the only judge we saw in the whole five weeks. Far from hearing a single case, we heard part or all of nearly 50 cases, of which we must have voted on about half. The cases we didn’t finish, subsequent grand juries are inheriting, just as we took over many cases already underway. For those, we acquainted ourselves with the evidence by reading aloud the transcripts of testimony heard by earlier grand juries. The prosecuting attorney in charge of the case would take the role of the prosecutor, and one of us would volunteer to play the witness. This made for some variety in our days, which we spent reading transcripts, hearing live witnesses, taking in other kinds of evidence—security-camera footage, recorded 911 calls, autopsy photographs, and so on—deliberating, voting, or killing time (without aid of cell phones or personal electronic devices of any kind). Throughout the proceedings we took copious notes, which never left the grand jury room and I understand will eventually be destroyed.
Is there a more efficient way of bringing indictments? Many states have dropped grand juries in favor of “preliminary hearings,” in which a judge considers the evidence and makes the determination as to probable cause. Since the Supreme Court has interpreted the grand jury guarantee of the Fifth Amendment as applying only to the federal government, the states are free to go their own way. (People serving in the military “in time of war or public danger” also forgo the right to indictment by a grand jury, as the Fifth Amendment explicitly states.) The District of Columbia, of course, is anomalous in many of its governmental arrangements, and one of its oddities is that assistant U.S. attorneys from the Department of Justice handle local crime. So the federal prosecutors interrogating witnesses and presenting other evidence for our benefit were polished lawyers, more than half of them women, many of them thirtysomethings apparently on track for high-powered careers.