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.
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:
Mr. [witness’s name], we have just come from my office where I explained some rights that you have as a witness before this grand jury. Is that correct?
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?
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?
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?
Do you have any questions about that?
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?
And if you could not afford an attorney, we could arrange for the court to provide you one free of charge. Do you understand?
Mr. [witness’s name], having understood these rights, do you choose to go ahead and testify before the grand jury?
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?
Is there anything you would like to add?
Apart from the subpoena you received to come here today, has anyone pressured you or forced you to testify?
Has anyone told you what to say here, other than the truth?
Has anyone offered you anything in exchange for your testimony?
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?
Mr. [witness’s name], how have you been treated by the police in this case?
How has my office treated you?
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.