Thirty Days on the Grand Jury


by Edward Jay Epstein

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 In the remaining 7%, many, if not all, were "withdrawn" at the request of the prosecutor because of a plea bargain deal, guilty plea or other circumstance.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 case.

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.

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