The grand jury is a powerful and I think largely misunderstood institution in America.
A grand jury is not like a trial jury.
The grand jury doesn't decide guilt.
The grand jury decides whether there's enough evidence to charge somebody with a crime and
then the case would be decided either by a trial jury or the person charged could negotiate
a plea and settle the case.
The purpose of the grand jury is essentially to be a bulwark against the state.
So if somebody wants to accuse somebody of a crime, the grand jury is there to make a
determination as to whether or not there is actually a basis for charging somebody with
a felony.
A grand jury is mentioned in the Fifth Amendment to our Constitution.
The grand jury was originally intended to protect the innocent, to protect an individual
against the overpowering weight of government, of the crown, of the king.
The grand jury is a sword and a shield for the people.
It's a sword in the sense that it can be used to charge somebody with a crime.
A person can't be charged for a felony short of a grand jury proceeding at least in the
federal system.
And it's a shield in the sense that if there's not sufficient evidence presented for the
grand jury, the grand jury theoretically can't indict the person.
The grand jury in our Constitution may have been intended for that purpose, but that purpose
has no longer been a purpose that is realistic.
It's not the way grand juries operate anymore.
The prosecutor has changed the way we see the grand jury today.
The grand jury doesn't shield anybody.
The prosecutor runs the show.
The prosecutor presents evidence, sometimes in a one-sided fashion, and the grand jury's
then asked to return an indictment.
There are great concerns that the grand jury, being a tool of the prosecutor, is abusive
in that regard and people get indicted simply because prosecutors want to be indicted.
I, myself, don't think that that's necessarily the case.
So, grand jury proceedings are important and they are secret, confidential.
The public doesn't know what happens inside a grand jury room; only the grand jurors,
the prosecutor, the court reporter taking down the evidence, and the witness.
Those are the persons who knows what happens in this inner sanctum.
Protecting witnesses is an extremely important factor in grand jury secrecy.
If a witness is coming forward only because he is gaining some kind of assurance from
the prosecutor is that you won't have to publicly appear unless the case goes to trial, secrecy
of grand juries here and grand jury proceedings is controversial.
The defense feels that they haven't been told things that are going into the grand jury.
I think I would reform the grand jury in terms of the nature of the evidence that grand juries
can consider.
I would reform the grand jury by giving judges much greater power over the grand jury.
I would want the judges to be able to instruct the grand jury.
I'd like the judges to see how the prosecutor interacted with the grand jury.
I would like the grand jurors to be told ahead of time with the ways that the grand jury
can be abused.
I think one of the important things that a- a grand jury system should require is that
in every single case, if there is exculpatory evidence, that that exculpatory evidence is
presented to the grand jury before it's asked to indict an individual.
The grand jury indictment can destroy a person's reputation.
So, the grand jury's not some kind of an ... kind of insignificant agency that simply does charging
simply does investigating.
The grand jury has huge power to affect people's rights, to affect people's liberty in significant ways.
I personally don't think we should abolish the jury.
It certainly needs reform.
There's a clubby relationship between the prosecutor and the jury.
There's no judge in there to stop that.
I would also empower judges routinely, in every case, to review the grand jury testimony
to see if there was sufficient evidence before the grand jury to indict and to ensure that
there were no abuses while the testimony was taking place before the grand jury.