The topic of discussion for this Constitution Monday comes from the Fifth Amendment to the U.S. Constitution: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury….” This provision guaranteed the right to have their case heard by a Grand Jury before an indictment is made for a capital or infamous crime.
W. Cleon Skousen wrote, “A capital crime is one punishable by death. An infamous crime is one punishable by death or imprisonment.
“A grand jury consists of twelve to twenty-three persons called by the sheriff of the county or by the United States marshal to hear witnesses respecting any subject that may properly be brought before them as a violation of the law. If they believe a person is guilty, they return a `true bill,’ or indictment, which is a formal charge indicating that the grand jury had `reasonable cause’ to believe that the person had committed indicted for a federal offense, he subsequently stands trial before a petit jury of twelve persons.
“Although the grand jury has been retained by the federal government, it has been abolished in a number of states. In its place the prosecuting attorney simply files an `information’ against a person he wishes to bring to trial.
“A presentment’ by a grand jury is a formal declaration against the offender based on an investigation by grand jury members. An `indictment’ is a formal declaration that the jury has heard charges brought by the prosecuting attorney and believes there is reasonable cause to believe that the person should stand trial for the allegations against him.”
Mr. Skousen included three ways a grand jury gives an accused person some advantages: (1) Protection from “reckless accusations”; (2) Forces the “prosecutor and witnesses to screen the facts”; (3) Forces the “prosecutor to pinpoint the charges” and show that he has adequate witnesses and evidence. (See The Making of America – The Substance and Meaning of the Constitution, 703-704.)
Andrew Leipold of The Heritage Foundation stated, “Grand juries have historically served two functions: accusatory and protective. The accusatory function has roots in the English common law. The Founders’ motivation for adding this provision to the Constitution was principally to protect those accused of crimes from prosecutorial overreach. Contemporary practice, however, limits the extent to which grand juries are capable of performing that aspect of their traditional role.
“A typical federal grand jury consists of twenty-three citizens drawn from the community. The jurors meet in a closed courtroom, with no judge, no accused, no press, and no lawyer but the prosecutor present. The prosecution presents evidence that a particular suspect committed a crime; the prosecutor is then excused, and the jurors deliberate and vote on whether there is enough evidence to justify the filing of criminal charges against this suspect and sending the case forward to trial. If a majority of jurors believe that there is sufficient evidence, the jurors return a `true bill,’ which when signed by the prosecutor becomes the indictment: the formal criminal charge that the government must prove beyond a reasonable doubt at trial….” (See The Heritage Guide to the Constitution, p. 329.)
I had the opportunity to serve on a federal grand jury from about January 1984 until approximately May or June 1985. My term of service was supposed to be for eighteen months, but I was released a month or so early due to the fact that I was expecting a baby in July. I have to state that serving on this grand jury was highly educational to me. We heard cases from all over the State of Alaska and about all kinds of gross behavior. As I remember the experience, we returned “true bills” most of the time, believing that the case needed to be looked at a little more than we could do; we also returned some “no bills.” I found that the prosecutor was somewhat careful about what cases he brought to our attention and did not bring any case that he felt he could not justify. I gained a lot of respect for Michael Spaan, the prosecutor I served with, and I am pleased that he is now a judge in the federal court system. I believe he is a very fair judge because of my experience on the grand jury.