PARALLEL UNIVERSE: Let's Get With the Rest of the World and Abolish Grand Juries

By David M. Kinchen

One definition of insanity is doing the same thing over and over, expecting a different result. I think this applies to the U.S. clinging to the hoary Grand Jury system. Let's do what England did in 1933 and abolish grand juries.

A story I found in an Internet search says in the headline that "England abolished grand juries decades ago because they didn't work." Grand juries, of course, were part of the legal system in England -- the system we inherited from the Mother Country.

The grand jury  in Ferguson Mo, for the Aug. 9, 2014 death of unarmed teen-ager Michael Brown and the one in Staten Island, NY for the death by police of Eric Garner clearly demonstrate this to me.  I'm not a lawyer, but in my 48 years of journalism, I've learned a lot about the legal system.

From the above referenced story:

The concept comes from our colonial parent, England. "It goes back centuries here," explains London-based legal writer Joshua Rozenberg. "In medieval times, it was drawn from the local neighborhood. And these were men who were expected to look around and report criminal behavior within the community. They're people who actually knew the offenders, as we'd call them today, and could perhaps bring them to justice."

By the 16th century, that morphed into the system we'd now recognize as a grand jury: A group of people listening to a prosecutor's evidence and deciding whether to indict.

But the United Kingdom actually abolished its grand jury system in 1933. "We now send cases that are serious enough straight to jury trial," Rozenberg says. That way, both sides are able to present evidence and make their arguments, which is definitely not the case with a grand jury.

In fact, the UK exported grand juries to most of their former colonies — Canada, Australia, New Zealand — and virtually all of them have stopped using them.

"They are said to be 'putty in the hands of the prosecutor.' In other words, the prosecutor really tells them what he or she wants and they will go along with it," he says. "Or that's what we are told, because we don't really know. We can't watch grand juries at work."

That's why former New York judge Sol Wachtler once famously said that a district attorney could get a grand jury to "indict a ham sandwich." But, Rozenberg points out, "it must be even easier to get the sandwich acquitted if that is what the district attorney may actually want."

The quote, while flippant, actually says a lot about what happened in Ferguson. Robert McCulloch, the St. Louis County attorney, cited the problem of "conflicting evidence" as a reason why Darren Wilson wasn't indicted for Michael Brown's death. But the prosecutor is the one who offers evidence to the grand jury. If the evidence he gives is inconsistent, Rozenberg says that leaves the grand jury in a pickle of sorts.

"You might get some witnesses who say they saw Darren Wilson, the police officer, shoot Michael Brown and he wasn't resisting arrest. Then, of course, you heard Darren Wilson himself and you hear what he says," Rozenberg says. "So this was really what we would regard as a trial, but a trial behind closed doors."

And that's what happened with the Ferguson grand jury. So if this is the case, why do we still have a grand jury system? What's the purpose of a secret procedure in a country that that televises court proceedings?

Rozenberg isn't actually sure. "Why not have everything out in the open and let both sides say, openly, in a public forum, to an ordinary jury what their arguments are — and then let an ordinary jury decide?" he asks.

A lot of people here are asking the same question.

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I'm one of the people asking this question! Maybe it's because -- as a nation -- we stick with old concepts long after they're obsolete. Look at our use of the traditional English system of weights and measures. Long ago the UK converted to the metric system in use throughout the world. It's used by our neighbor to the north -- Canada -- and our neighbor to the south -- Mexico.

Driving in Mexico in 2008, I quickly got used to driving 100 km or even 110 km, knowing that I was going about 63 miles per hour in the first case and just over 68 miles per hour in the second case. In my photography hobby I'm used to thinking metric -- and in my pen-making hobby I regularly use 7 mm drill bits, because that's the size I need for most of my drilling. In other projects, I'll use 8 mm or 10 mm, because that's the right size.

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What's the right size for our criminal justice system?

I'm rooting for  what's called the "inquisitorial" or "non-adversarial" system, as practiced in France and other countries.

From Wikipedia:

In the inquisitorial system, the judge conducts a public inquisition or investigation of a crime. Judges can question witnesses, interrogate suspects, order searches for other or further investigations, and finally declare the verdict and decide on the penalty. Their role is not to prosecute the accused, but to gather facts to reach the correct verdict, and as such their duty is to look for any and all evidence, incriminating or exculpatory. When declaring a verdict, the judge must also release the reasoning explaining the verdict. Any perceived fault in the judge's reasoning (due to logic, science or newly discovered evidence) is grounds for appeal by both prosecutor and defence. There are no pleas in inquisitorial systems, so that even if the accused declare themselves to be guilty of a crime, the judge may declare the accused not guilty if he or she believes there is evidence to indicate that the accused is innocent.

In an adversarial system, judges focus on the issue of the law and procedure and act as a referee in the contest between the defence and the prosecutor. Juries decide on the matter of fact, and sometimes on the matter of the law. Neither judge nor jury can question witnesses or initiate an inquiry. While the jury will declare a verdict, the reasoning behind the verdict and the discussion among jurors cannot be made public. Therefore, the defence can appeal, technically speaking, only on procedural grounds, such as the failure of a prosecutor to disclose evidence or a fault in the evidence presented at the trial. On the other hand, a prosecutor in the adversarial system cannot appeal against a "not guilty" verdict.

The inquisitorial system applies to questions of criminal procedure, not substantive law; that is, it determines how criminal enquiries and trials are conducted, not the kind of crimes for which one can be prosecuted or the sentences that they carry. It is most readily used in some civil legal systems. However, some jurists do not recognize this dichotomy and see procedure and substantive legal relationships as being interconnected and part of a theory of justice as applied differently in various legal cultures.

In some jurisdictions, the trial judge may participate in the fact-finding inquiry by questioning witnesses even in adversarial proceedings. The rules of admissibility of evidence may also allowthe judge to act more like an inquisitor than an arbiter of justice.

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So what are we to do? Given our nation's love affair with traditional systems that have long outlived any usefulness, I'm afraid we're stuck with a system that no longer works…the Grand Jury system. This is too bad, because we have examples throughout the world that are superior to the outdated grand jury system. We should abolish grand juries on all levels and adopt a modern system, not one that dates from the days when men wore steel suits, rode on horses and fired arrows at their opponents.

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