Where Science Meets Religion

Ezekiel 44.19:And when they go forth into the utter court, even into the utter court to the people, they shall put off their garments wherein they ministered, and lay them in the holy chambers, and they shall put on other garments; and they shall not sanctify the people with their garments.

The history of the grand jury is rooted in the common and civil law, extending back to Athens, pre-Norman England, and the Assize of Clarendon promulgated by Henry II.1 The right seems to have been first mentioned in the colonies in the Charter of Liberties and Privileges of 1683, which was passed by the first assembly permitted to be elected in the colony of New York.2 Included from the first in Madison’s introduced draft of the Bill of Rights, the provision elicited no recorded debate and no opposition. “The grand jury is an English institution, brought to this country by the early colonists and incorporated in the Constitution by the Founders. There is every reason to believe that our constitutional grand jury was intended to operate substantially like its English progenitor. The basic purpose of the English grand jury was to provide a fair method for instituting criminal proceedings against persons believed to have committed crimes. Grand jurors were selected from the body of the people and their work was not hampered by rigid procedural or evidential rules. In fact, grand jurors could act on their own knowledge and were free to make their presentments or indictments on such information as they deemed satisfactory. Despite its broad power to institute criminal proceedings the grand jury grew in popular favor with the years. It acquired an independence in England free from control by the Crown or judges. Its adoption in our Constitution as the sole method for preferring charges in serious criminal cases shows the high place it held as an instrument of justice. And in this country as in England of old the grand jury has convened as a body of laymen, free from technical rules, acting in secret, pledged to indict no one because of prejudice and to free no one because of special favor.”3

The prescribed constitutional function of grand juries in federal courts4 is to return criminal indictments, but the juries serve a considerably broader series of purposes as well. Principal among these is the investigative function, which is served through the fact that grand juries may summon witnesses by process and compel testimony and the production of evidence generally. Operating in secret, under the direction but not control of a prosecutor, not bound by many evidentiary and constitutional restrictions, such juries may examine witnesses in the absence of their counsel and without informing them of the object of the investigation or the place of the witnesses in it.5 The exclusionary rule is inapplicable in grand jury proceedings, with the result that a witness called before a grand jury may be questioned on the basis of knowledge obtained through the use of illegally seized evidence.6 In thus allowing the use of evidence obtained in violation of the Fourth Amendment, the Court nonetheless restated the principle that, although free of many rules of evidence that bind trial courts, grand juries are not unrestrained by constitutional consideration.7 A witness called before a grand jury is not entitled to be informed that he may be indicted for the offense under inquiry8 and the commission of perjury by a witness before the grand jury is punishable, irrespective of the nature of the warning given him when he appears and regardless of the fact that he may already be a putative defendant when he is called.9

Of greater significance were two cases in which the Court held the Fourth Amendment to be inapplicable to grand jury subpoenas requiring named parties to give voice exemplars and handwriting samples to the grand jury for identification purposes.10 According to the Court, the issue turned on a dual inquiry—“whether either the initial compulsion of the person to appear before the grand jury, or the subsequent directive to make a voice recording is an unreasonable ‘seizure’ within the meaning of the Fourth Amendment.”11 First, a subpoena to appear was held not to be a seizure, because it entailed significantly less social and personal affront than did an arrest or an investigative stop, and because every citizen has an obligation, which may be onerous at times, to appear and give whatever aid he may to a grand jury.12 Second, the directive to make a voice recording or to produce handwriting samples did not bring the Fourth Amendment into play because no one has any expectation of privacy in the characteristics of either his voice or his handwriting.13 Because the Fourth Amendment was inapplicable, there was no necessity for the government to make a preliminary showing of the reasonableness of the grand jury requests.

Besides indictments, grand juries may also issue reports that may indicate nonindictable misbehavior, mis- or malfeasance of public officers, or other objectionable conduct.14 Despite the vast power of grand juries, there is little in the way of judicial or legislative response designed to impose some supervisory restrictions on them.15

Within the meaning of this article a crime is made “infamous” by the quality of the punishment that may be imposed.16 “What punishments shall be considered as infamous may be affected by the changes of public opinion from one age to another.”17 Imprisonment in a state prison or penitentiary, with or without hard labor,18 or imprisonment at hard labor in the workhouse of the District of Columbia,19 falls within this category. The pivotal question is whether the offense is one for which the court is authorized to award such punishment; the sentence actually imposed is immaterial. “When the accused is in danger of being subjected to an infamous punishment if convicted, he has the right to insist that he shall not be put upon his trial, except on the accusation of a grand jury.”20 Thus, an act that authorized imprisonment at hard labor for one year, as well as deportation, of Chinese aliens found to be unlawfully within the United States, created an offense that could be tried only upon indictment.21 Counterfeiting,22 fraudulent alteration of poll books,23 fraudulent voting,24 and embezzlement,25 have been declared to be infamous crimes. It is immaterial how Congress has classified the offense.26 An act punishable by a fine of not more than $1,000 or imprisonment for not more than six months is a misdemeanor, which can be tried without indictment, even though the punishment exceeds that specified in the statutory definition of “petty offenses.”27

A person can be tried only upon the indictment as found by the grand jury, and especially upon its language found in the charging part of the instrument.28 A change in the indictment that does not narrow its scope deprives the court of the power to try the accused.29 Although additions to offenses alleged in an indictment are prohibited, the Court has now ruled that it is permissible “to drop from an indictment those allegations that are unnecessary to an offense that is clearly contained within it,” as, for example, a lesser included offense.30 There being no constitutional requirement that an indictment be presented by a grand jury in a body, an indictment delivered by the foreman in the absence of other grand jurors is valid.31 If valid on its face, an indictment returned by a legally constituted, non-biased grand jury satisfies the requirement of the Fifth Amendment and is enough to call for a trial on the merits; it is not open to challenge on the ground that there was inadequate or incompetent evidence before the grand jury.32

The protection of indictment by grand jury extends to all persons except those serving in the armed forces. All persons in the regular armed forces are subject to court martial rather than grand jury indictment or trial by jury.33 The exception’s limiting words “when in actual service in time of war or public danger” apply only to members of the militia, not to members of the regular armed forces. In 1969, in O’Callahan v. Parker, the Court held that offenses that are not “service connected” may not be punished under military law, but instead must be tried in the civil courts in the jurisdiction where the acts took place.34 In 1987, however, this decision was overruled, with the Court emphasizing the “plain language” of Article I, § 8, clause 14,35 and not directly addressing any possible limitation stemming from the language of the Fifth Amendment.36 “[T]he requirements of the Constitution are not violated where, as here, a court-martial is convened to try a serviceman who was a member of the armed services at the time of the offense charged.”37 Even under the service connection rule, it was held that offenses against the laws of war, whether committed by citizens or by alien enemy belligerents, could be tried by a military commission.38