The Grand Jury in Historical Perspective

Joshua C. TateAssociate ProfessorSMU Dedman School of Law

HUNTSVILLE, ALABAMA

DECEMBER 9, 2016

The Grand Jury RightNo person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger. . . .U.S. Constitution, Amendment V (1789)

Magna Carta and the Fifth Amendment

No free man is to be arrested, or imprisoned, or disseised, or outlawed, or exiled, or in any way destroyed . . . save by the lawful judgement of his peers or by the law of the land.

Magna Carta (1215), Clause 39

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury . . . nor be deprived of life, liberty, or property, without due process of law.U.S. Constitution, Amendment V (1789)

The Grand Jury Right

• The federal right to a grand jury under the Fifth Amendment does not extend to the states. • However, some states have their own

constitutional provisions relating to grand juries.• Other states recognize grand juries by statute.

Recent Grand Jury Controversies

November 2014:

Grand jury in St. Louis County, Missouri decides not to indict police officer Darren Wilson for killing unarmed teenager Michael Brown in Ferguson. Questions are raised about the objectivity and fairness of the process.

Recent Grand Jury Controversies

December 2014:

Grand jury in Staten Island, New York declines to indict police officer Daniel Pantaleo regarding the chokehold death of Eric Garner. Questions are raised about the objectivity and fairness of the process.

Recent Grand Jury ControversiesDecember 2015:

Grand jury in Cuyahoga County, Ohio decides not to bring criminal charges against Timothy Loehmann, another police officer, for killing unarmed 12-year old TamirRice. The decision is widely criticized.

Recent Grand Jury ControversiesJanuary 2016:

Grand jury in Harris County, Texas declines to indict Planned Parenthood for alleged misuse of fetal tissue, instead indicting two activists who made secret recordings of Planned Parenthood executives. Critics say that the “runaway” grand jury overreached in its decision.

The Importance of Legal History• The modern institution of the grand jury is clearly

controversial.

• Given the controversy, it is worth asking why this institution came into being in the first place, and whether it continues to serve its original purpose.

• If the institution no longer serves its original purpose, a stronger case could be made that it ought to be changed or even eliminated to address modern concerns.

Origins of the Grand Jury:Henry II and the Assize of Clarendon (1166)

• The modern U.S. grand jury is a direct descendant of an institution called the jury of presentment or accusation, created by the English King Henry II at a royal assembly at his hunting lodge in Clarendon in 1166.

• The Assize of Clarendon called for jurors to be summoned from the communities of England to “present” individuals who were suspected of being robbers, murderers, or thieves.

• The King thus took advantage of local knowledge in the communities of England in an age before professional police.

King Henry II• Henry II became king of England in 1154 at the

death of his cousin Stephen.

• Henry’s ascension to the throne marked the end of a bitter civil war between Stephen and Henry’s mother, Matilda, who also claimed the English throne.

• The reign of Stephen is often referred to as “The Anarchy.”

• Henry II wanted to restore order to the kingdom.

The Angevin Empire

• England was just one of many territories claimed by Henry.

• By marriage or inheritance, he also claimed almost all of western France, including Normandy, Aquitaine, and Anjou. In addition, he asserted dominion over Ireland.

•Henry could not afford to invest a great deal of resources in the investigation of crime in England, but he needed to restore order quickly.

Policing Before Police

•In the age of Henry II, there were no professional police.

•When a violent criminal was caught red-handed, the community could summarily try and execute the individual through a procedure known as the “hue and cry.”

•However, this form of summary justice was limited in scope and could not address the broader public order problem Henry II faced.

Assize of Clarendon, Clause 1 (1166)

King Henry, on the advice of all his barons, for the preservation of peace, and for the maintenance of justice, has decreed that inquiry shall be made . . . through twelve of the more lawful men of the hundred and through four of the more lawful men of each villupon oath that they will speak the truth, whether there be in their hundred or vill any man accused or notoriously suspect of being a robber or murderer or thief, or any who is a receiver of robbers or murderers or thieves, since the lord king has been king. . . . .

The Open Field System• King Henry’s new juries of

presentment drew on local knowledge from the communities of England.

• In many parts of the country, villagers worked side by side in “open fields” and lived in close proximity to each other.

• In such a society, everyone could be expected to know everyone else’s business.

Trial by OrdealLet anyone, who shall be found . . . accused or notoriously suspect of having been a robber or murderer or thief, or a receiver of them, since the lord king has been king, be taken and put to the ordeal of water. . . .

Assize of Clarendon, clause 2 (1166)

Fourth Lateran Council (1215)

From November 11-30, 1215, Pope Innocent III presided over the Fourth Lateran Council. Canon 18 of the Council provided that, in the future, priests would not be allowed to participate in the ordeals.

The English Criminal Trial Jury

•After 1215, the English courts were not sure how to handle the cases that were previously decided by the ordeals.

•A practice developed of asking the defendant how he wished to be tried.

•If he responded, “By God and the Country,” he would be given a jury trial.

Peine Forte et Dure• Defendants who refused jury trial

would be pressed with heavy weights until they relented or were killed.

• This was referred to as “peine forte et dure.”

• The vast majority of defendants agreed to be tried by a jury.

The End of the Self-Informing Jury• In the mid-fourteenth century, a

devastating plague known as the Black Death ravaged England, killing about 40 percent of the population.

• The Black Death caused an acute labor shortage and led to greater social and geographical mobility.

• Traditional open-field agriculture gave way to urbanization.

The Early Modern Grand Jury• By the end of the Middle Ages, these

demographic changes meant that the grand jury would no longer be knowledgeable about suspected criminals in their locality.

• Prosecutions were initiated by complaints brought to a Justice of the Peace or directly to the grand jury.

• The grand jury came to serve a different role: screening out groundless or insubstantial prosecutions.

The Reward System• Beginning in the 1690s, Parliament

responded to the growing problem of crime in an urbanizing England by passing a series of “reward” statutes.

•These statutes offered monetary incentives for individuals to investigate and report cases of serious crime.

The Reward System

•A significant drawback of the reward statutes was that they created an incentive for perjury.

• Individuals known as “thieftakers” earned a living by reporting alleged criminals, some of whom may have been innocent.

•Because the thieftakers needed convictions to obtain their rewards, they were not likely to distinguish between the innocent and the guilty.

The Rise of Professional Police• Beginning in the 1750s, a group of

constables known as the “Bow Street runners” served as quasi-official detective police in England.

• In 1792, Parliament authorized a paid police force for the city of London.

• This was expanded in 1829 to create a single uniformed force for greater London (“the Bobbies”).

The Rise of Professional Police•Professional police departments were

established in major U.S. cities beginning in the mid-nineteenth century.

•These new police departments were partly inspired by the London Metropolitan Police.

• In some cities, police departments were authorized in response to riots between nativists and Irish immigrants. New York City police officers, about 1880.

Grand Jury Reform in England• The grand jury became the subject of

widespread criticism in England beginning in the mid-nineteenth century.

• Increasing reliance on legally trained magistrates to serve a pretrial screening function, along with the existence of a professional police force, rendered the grand jury’s role superfluous in the view of many.

• In 1933, England abolished the grand jury.

Concluding Thoughts•The grand jury was created 850 years ago to

gather information about suspected criminals in the absence of professional police.

•Whatever may be said about today’s grand jury, it certainly does not serve its original purpose.

• It would be wise to consider the history of the institution in making arguments about its possible elimination or reform.