It’s a common
belief that the U.S. constitution guarantees certain rights
and liberties to its citizens. This includes certain protections
thought to be universal in the court system. Yet, a closer
look reveals the shocking reality of an institution that operates
in secrecy and strips individuals of their basic, fundamental
rights: the Grand Jury system.
Grand Juries, often referred to as the “strong arm
of the court system,” thrive off public ignorance, working
behind closed doors and under seemingly little regulation.
Often working in accordance with the Justice Department, the
Grand Jury system has been, and continues to be, used for
gathering intelligence and suppressing “radical”
groups and organizations that oppose current governmental
Two of the most controversial aspects of the Grand Jury process
involve the Fifth Amendment’s provisions dealing with
protection against self incrimination and right to counsel
and the Sixth Amendment’s right to counsel provision.
We are generally taught that the U.S. Constitution guarantees
protection against self incrimination and the right to counsel
during all court proceedings. But most people don’t
realize that these guarantees do not apply to individuals
involved in a Grand Jury process.
Grand Juries originated in England in 1166 and came over
to the U.S with the English colonists. The first Grand Jury
was established in Massachusetts in 1635, and by the year
1683 some form of Grand Juries was present in all of the colonies.
Adopted into the Fifth Amendment, Grand Juries made their
way into the Constitution because of their key role in the
Revolution and because many colonists feared creating a powerful
centralized government that could easily use the criminal
process against political enemies. As the years progressed,
this seemed to be a well-founded concern.
Many have charged that a chief objective of Grand Juries
is to disrupt organizations deemed anti-American or a threat
to national security. They have done this by not only jailing
people on contempt charges but also by instilling fear in
groups that prevents them from effectively opposing governmental
The use of Grand Juries to repress social movements in the
U.S. has a long history. The National Lawyers Guild tells
us that “Grand Jury activities and investigations have
targeted political dissenters, escaped slaves in the 1850s,
movements involving causes deemed anti-American, and, more
recently in the 1970s the Vietnam Anti-war and Women’s
The scope of Grand Jury investigations continues to widen.
The government loves to boast about how it targets white collar
crimes and political corruption. Yet, as history has shown,
the reality of Grand Juries today is far from what the writers
of the Constitution originally intended when they wrote them
into the Fifth Amendment years ago.
An individual who is called to testify before a Grand Jury
is required to answer all questions, without the Fifth Amendment
privilege. Individuals who choose to take the Fifth Amendment
and remain silent during questioning to avoid self incrimination
may at any time be given “immunity” and forced
to testify. At this time the individual is taken before a
judge in an immunity hearing. Once the immunity is granted,
individuals may not refuse to answer any questions by the
Grand Jury. Doing so subjects them to imprisonment on contempt
charges for the remaining length of the Grand Jury, which
can run up to eighteen months.
For the most part, witnesses are not allowed counsel inside
the Grand Jury room. This is because the proceedings are considered
'non-adversarial' and the witness is thought to have the maximum
protection necessary because there exists, in theory, the
right to Fifth Amendment protection. Yet this reasoning is
a bit deceiving, since the Fifth Amendment right to silence
can be challenged at any point.
While the law against counsel is absolute in federal cases,
there are a few states that do allow representation inside.
In both federal and state cases, witnesses are allowed to
consult with an attorney outside the Grand Jury room at reasonable
occurrences regarding the questioning.
There are two main components to consider when determining
if someone is to be indicted by a Grand Jury. The first is
whether or not a crime has been committed. The second asks
if there is "probable cause" to believe the individual
under investigation committed the crime. As simple as these
two may be, the area of Grand Jury investigation may be extremely
As far as the Grand Jury selection goes, the Jury Selection
and Service Act of 1968 states that "the policy of the
United States that all litigants in Federal courts entitled
to trial by jury shall have the right to grand and petit juries
selected at random from a fair cross section of the community
in the district or division wherein the court convenes."
Voter registration lists are used to randomly select twenty-three
jurors in federal cases. In state grand juries the number
varies, but is never more than twenty-three.
Traditionally, Grand Juries may convene for up to eighteen
months, and their meeting occurrences may vary from weekly
to monthly. Once a Grand Jury term has expired and the investigation
has not concluded, a new Grand Jury may be convened to continue
In my experience, the most fascinating aspect about Grand
Juries is that the public is largely misinformed and kept
in the dark about their true nature. Most citizens do not
realize that an individual called before a Grand Jury has
neither the right to counsel nor Fifth Amendment protection
in the proceedings. I have found that people from all walks
of life are outraged when they learn of this reality.
It is this very secrecy and deception that has allowed Grand
Juries to persist. It is a simple rule that says if no one
is informed, no one will object.
It is perhaps a bit odd that Grand Juries were abolished
in England in 1933 and yet in the United States they continue
to flourish with little organized objection. There were definitely
sound reasons for the abolition of Grand Juries in England
(waste of time and tax dollars, extreme & lawless government
power), yet the public in the U.S. has yet to understand or
even be informed of the ills of the Grand Jury system.
It does seem fair to say that historically, Grand Juries
did have one good intention: to give the people some power
against an oppressive and corrupt government. But what the
grand jury system has devolved into is something so distant
from this early intention that its current true meaning is
difficult to grasp.
Reformists, for the most part, want one of two options: either
to abolish the Grand Jury system entirely or to reconstruct
it to become the "people’s panel" as it was
(at least in theory) intended to be. But the struggle for
reform is met with great resistance from the Executive Structure
itself, which has relied upon Grand Juries to target dissidents
for many years.
There’s a sound argument for abolishing the Grand Jury
system in the United States. If the people were properly informed
and they were to decide, the current abuses and oppressive
practices by the Grand Jury system and the Justice Department
would not be tolerated. We must take a closer look allies
in England for methods for a successful abolition campaign.
But I think it is obvious to everyone, including the most
hardline Grand Jury supporters, that with public education,
the reform of the Grand Jury system is all but inevitable.