By Ira Glasser and Norman Siegel
The secret panels deny fairness and frustrate justice
Events in Staten Island and Ferguson, Mo., have thrown a long-overdue spotlight on grand juries. In New York, Gov. Cuomo recently called for a review of grand juries, among other things. It’s about time.
Grand juries have long been criticized by legal scholars for their secrecy and dubious procedures. But the reasons for such criticisms, and for proposals to abolish or reform grand juries, are not well known publicly.
What is a grand jury, why do we have them and what do they do? The grand jury is a group of citizens convened to screen criminal cases and decide whether there is enough evidence to accuse and bring someone to trial. It is not built to determine guilt or innocence.
This is an ancient device with origins in medieval England. But the United States is the only common law jurisdiction in the world that still uses it routinely to screen criminal indictments. And even here, many states no longer use grand juries.
In colonial America, the first grand jury was convened in 1635. Back then, they had an important purpose: In the context of growing antagonism between the colonists and the British colonial government, they were a means of interposing citizens between the government and its critics.
Grand juries thus were widely perceived and revered as bulwarks of liberty between citizens and an oppressive government.
They have long since stopped fulfilling that function. Instead, they have become an instrument of the prosecutor, full of unfair procedures carried out in secret. This has been widely recognized in legal circles for decades.
Crucially, grand juries are a unique departure from our standard adversarial tradition — which creates procedural fairness by having lawyers for both sides present their evidence and their legal arguments, cross-examine each other’s witnesses and do it all in the light of day, on the record and presided over by a judge whose job is to enforce procedural rules and ensure that proper legal standards are applied.
Grand juries have none of that. Only the prosecutor chooses what evidence to present. Only the prosecutor ordinarily questions witnesses. And only the prosecutor explains the law, and the legal standards to be applied.
No opposing counsel appears. There is no cross-examination. No judge presides.
And it all happens in secret.
Under these circumstances, it is not surprising that grand juries are little more than instruments of prosecutorial discretion.
In Ferguson and Staten Island, these procedural flaws were prominent. Because the proceedings were secret, it is difficult to know precisely what occurred, and that is a large part of the problem. In New York, grand jury proceedings remain secret by law.
Nonetheless, there is reason to think that the Ferguson prosecutor presented evidence in a way that led some grand jurors mistakenly to think that in order to indict they needed to find evidence beyond a reasonable doubt.
And in Staten Island, there was a video showing the police officer engaged in a prohibited chokehold on Garner. Yet we will never know what happened in the grand jury room, because the proceedings were closed, were not subject to arguments and cross-examination by any opposing counsel, nor to rulings by a judge on the correct legal standard to be applied.
What we are left with is seething resentment based on reasonable but unverifiable speculation, and a strong feeling that the fix was in, fair procedures non-existent and justice not served.
There is another way, one that many states already use. Instead of a grand jury, felonies could require a preliminary hearing to decide whether there’s enough evidence to justify a trial. The hearing would be held in open court, with a judge presiding, and lawyers on both sides in the normal adversarial process.
This would be a major advance for both fairness and justice. Sometimes people still wouldn’t like the result. But this is not about achieving a different result; it is about achieving a fairer process.
And especially in cases like the ones in Ferguson and Staten Island, it is about increasing the possibility of having confidence in the result because we have confidence in the process. In Missouri, state law provides that such a preliminary hearing may be used. But the decision is up to the prosecutor, and he chose the grand jury. It is not hard to see why.
The grand jury is a process left over from another time. It denies fairness and frustrates justice. And it does it all behind closed doors. It’s time for it to go.
Ira Glasser and Norman Siegel are, respectively, the retired and former executive directors of the American Civil Liberties Union and the New York Civil Liberties Union. This post was originally published in the New York Daily News on December 7, 2014.