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The Confederate Lawyer
December 11, 2014

The Grand Jury
by Charles G. Mills
fitzgerald griffin foundation

GLEN COVE, NY  — The grand jury system is under widespread attack from people who do not appreciate its history and purpose. It is time to affirm that the grand jury is an important element of American liberty.

The traditional grand jury consists of 23 members from the community; 12 votes are required to indict a person charged with a crime.

The right to a grand jury was one of the established English liberties that the British began to take away from the American colonies when relations between the colonies and the British government became strained. Although the right to grand jury indictment was not uniform throughout the colonies, it did serve as a barrier to some political prosecutions.

 

It is time to affirm that the grand jury is an important element of American liberty.

 

As a result of the colonial experience, the Fifth Amendment to the Constitution requires a 23-member grand jury indictment before a person can be put on trial for a serious crime in a federal court.

Some states have similar requirements to the Fifth Amendment; others have reduced the size of their grand juries and provided alternate means of initiating criminal cases. All states, however, require some kind of procedure to establish probable cause before a person can be subject to criminal charges or face trial.

Some demagogues now call for federal prosecutors to handle all charges against police officers because grand juries cannot be trusted. This approach is does not make sense, because the grand jury requirement in federal cases is generally stricter than that in state courts.

The idea of making federal cases out of ordinary criminal matters has already done a lot of harm to our Constitutional balance of power between the federal government and the states. It has centralized power over individuals and stripped the power to punish people — or not — from the local communities that know them. It should be rolled back, not expanded.

Another proposal that demagogues advocate is that prosecutions of police officers be instituted by the simple filing of charges; no indictment would be required. Under our federal and state constitutions, this approach would work only in state courts and only in some states.

To prosecute serious crimes without a grand jury indictment — the Constitutional requirement of process of law — the police officer would have to be given procedures to test as early as possible the presence of probable cause. A procedure before a judge would replace the grand jury proceedings. The consequence of this change would be that the procedure for determination would become subject to far more detailed review by the appellate courts than the deliberations of a grand jury are. The full review of the judge’s determination would replace the 12 votes (or whatever other number states might adopt).

In any case, if prosecutors cannot get 12 out of 23 (or 9 out of 15, as in Missouri) votes that there is a case worthy of being tried, then it is virtually impossible that they could get 12 out of 12 for conviction beyond a reasonable doubt. The failure of a grand jury to indict means simply that the case against the accused is insufficient.

It is reprehensible for demagogues to attack one of our few remaining liberties that date back centuries to the Magna Carta and jeopardize this protection of basic liberties.

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The Confederate Lawyer column is copyright © 2014 by Charles G. Mills and the Fitzgerald Griffin Foundation, www.fgfBooks.com. All rights reserved.

This column may be forwarded, posted, or published if credit is given to Charles Mills and fgfBooks.com.

Charles G. Mills is the Judge Advocate or general counsel for the New York State American Legion. He has forty years of experience in many trial and appellate courts and has published several articles about the law.

See his biographical sketch and additional columns here.

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