By Craig Rosebraugh

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 policies.

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 policies.

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 Movements."

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 scattered.

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 the investigation.

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.