Almost all these presentations result
in a slam-dunk wins for the prosecutors. In 3,750 recent
cases, according to an analysis provided by prosecutor Kay,
91% resulted in indictments or the pre-arranged disposition
requested by the prosecutor, and 2% were transferred to
other jurisdictions. In the remaining 7%, many, if not all,
were "withdrawn" at the request of the prosecutor because
of a plea bargain deal, guilty plea or other circumstance.
The prosecution's remarkable success rate was no accident.
As Sol Wachtler, the former Chief Judge of the New York
State Court of Appeals, observed (before he himself was
indicted by a Grand Jury), "Even a modestly competent district
attorney can get a grand jury to indict a ham sandwich."
What shrink-wraps the fate of the proverbial
ham sandwich, and almost every defendant, is the Grand Jury
system itself. It essentially stacks the deck in favor of
the prosecutor. To begin with, the Grand Jury rarely, if
ever, hears a defense. The defendant himself usually does
not appear because, to do so, he must waives his constitutional
right against self-incrimination. Nor can the defendant's
attorney present a defense. The prosecutor thus exclusively
runs the show. And he is not required to provide any exculpatory
evidence. If, for instance, there are a number of civilian
witnesses whose accounts contradict the police witnesses,
the Grand Jury need never know that they exist. Similarly,
if a police search revealed that none of the marked money
was actually found on the person accused of selling drugs,
the Grand Jury need not be told, and any discussions of
the search can be pre-emptively cut off.
The prosecutor, acting as the sole arbiter
of "relevance," can indeed exclude whatever weakens his
case as "irrelevant." As a result, Grand juries hear only
a fraction of the potential evidence of what occurred—and
not of all of this is direct evidence. According to special
rules of evidence for a Grand Jury, the prosecutor can introduce
hearsay evidence, such as the previously mentioned lab reports.
These tests need even be performed at the time of the testimony
of witnesses. They can be added, at a later date. Nor do
Grand Jurors have the right to examine this evidence if
the prosecutor deems it contains secret information, such
as the undercover policeman's name. And since there is no
non-hearsay witness for this kind of evidence, the Grand
Jury cannot, in any case, evaluate its provenance.
More importantly, even though the Grand
Jury, through its inquisitory powers, is supposed to be
the "exclusive judge of the facts", there is a Catch-22.
It is not allowed to directly question witnesses. When a
grand juror wants to ask a question, he must call over the
prosecutor, and ask him to relay his question to the witness.
The prosecutor may ignore or disregard the question if he
judges it irrelevant. Prosecutors, in other words, are not
obliged to ask Grand Jurors questions that may elicit answers
that confuse their case with what they consider irrelevant
information. Since they, and they alone, are the judge of
what is relevant, the supposedly-independent inquisition
does not have independent means to question the prosecution's
And, even if it could question the evidence,
it has to apply the law as it is explained by its "legal
advisor," who is also the prosecutor. He says what constitutes
a crime, what inferences may be made from circumstances
and what special meanings are put on highly-nuanced and
interdependent terms like "possession," "agency," "acting,"
""knowingly," "willfully," " weight," "aided" and "sale."
Not only are these definitions given in an oral briefing,
but that briefing may have occurred days, or even weeks,
before the case. Unless the Grand Jury asks that the briefing
be repeated, they must rely on their memory.
How can Grand Jurors who hears only one
side of a case, and lacks the independent ability to question
it, and who may not even recall the exact phrasing of an
unfamiliar legal code, render a judgment in a few minutes?
One insight may be found in the work on small group behavior
done by the sociologist Solomon Asch, who found in his Asch
Conformity Test, that people in a small group, even if they
are unsure of an answer, often raise their hands just to
conform to other hands raised by the group. In any cases,
hands go up on a Grand Jury.
But why then the torture of secrecy.
Who does it protect? Of course, in bygone days, grand juror
knights may have had to keep secret their star chamber investigations
of fellow knights to prevent them from fleeing or tilting
their lances at them. But nowadays almost all grand jury
defendants already know they are targets. Indeed, most have
been arrested by the police. And, if not, they have received
notification that their case is coming before a grand jury
(in case they want to wave their immunity and appear). So
it is not a secret for them. Nor can the concern be protecting
their sterling reputations since when they are busted, they
have to do their perp walk in front of the media. The shroud
of secrecy also hardly seems necessary to protect grand
jury witnesses, since they are almost all police officers
and other officials whose job it is to testify in open court.
( Undercover cops, in any case, keep their identity secret
even from the Grand Jury.) The other civilian witnesses
are almost invariably the accuser who again must appear
in open court since defendants have a constitutional right
to confront and cross-examine their accusers at the trial.
If some circumstances required the protection of an identity
of a witness, that one in a blue moon case could always
be kept secret. The real reason for the secrecy, as far
as I can see, is to maintain the myth of the Grand Jury
and, by doing so. hide the extent to which it serves as
camouflage for the prosecutorial engine. I of course cannot
disclose anything about the secret machinations of the grand
jury I served on for a month except to say that if Judge
Wachtler's assessment overreached in any way, it was to
assume that even modest competency was needed for a prosecutor
to get his ham sandwich put away.