THE GRAND SCHEME OF THINGS

It is said that a grand jury will “indict a ham sandwich,” unless that sandwich wears a badge. In the past few weeks “indictment” became a household word (beyond families who work in “waste management”) and the grand jury system has enjoyed attention not seen since the Bill of Rights. But what exactly is it?

Trials are most often decided by juries in proceedings which provide a right to them. Those types of juries are sometimes called petit juries to distinguish them from grand juries. Grand juries, which exist in federal court and some individual states, are groups of citizens who decide whether there is probable cause for criminal charges to stand against a person. They do not decide cases. Typically prosecutors run grand jury proceedings. There is no judge, no defense attorney and few rules of evidence. Witnesses and evidence may be subpoenaed to a grand jury and testimony is recorded. Federal prosecutors use grand juries to investigate crimes because of the subpoena power. It would appear that grand juries are a powerful, unchecked tool of the government.

That wasn’t the original purpose. Grand juries and the right to them in federal cases were developed to protect the rights of individuals. Requiring a panel of citizens to charge (indict) a person ensured that it really would be the people who were deciding how to enforce their laws and that the government couldn’t just charge anybody for any reason. The grand jury–called a “sword and a shield”–could protect citizens from an overreaching government by not indicting. The recent police cases notwithstanding, grand juries have an incredibly high rate of indictment.

Connecticut uses the grand jury in state cases rare circumstances, notably to investigate and charge crimes involving public corruption, organized crime and other complex issues. In nearly all criminal cases, the accused is charged by Information, a document in which the prosecuting authority alleges that he or she has committed a crime. A judge decides that their is probable cause to support an arrest, either by signing a warrant before the arrest or by reviewing police reports after arrest and before arraignment. Probable cause is not a high bar and the evidence to support it, at least at the charging stage, could come from suspect sources. Once probable cause is found, a case remains in court until it is nolle’d by the state, dismissed by the court or is disposed by guilty plea or trial.

For crimes punishable by life in prison or death (still possible for acts committed before April 1, 2012), an accused has a right to a probable cause hearing, wherein the state must present evidence to the court to be bound over for trial. The accused has the right to counsel and may even call witnesses. In other states and the federal government, there is a right to a preliminary hearing for all felonies. Much of the time the hearing is waived for strategic reasons. There are times however when I probably would have insisted on one for a client had the right existed. I’ve had a few cases based on snitches and other shady characters. A prelim, while it may preserve testimony for a witness who might not be around a the time of trial, can also force the State to think about its charges and put on some of its case. The opportunities for discovery in criminal cases is limited as (unlike civil litigation with depositions and other discovery) a complainant or other prosecution witness does not have to talk to us. While it may be difficult to win a case at the prelim, it can potentially force the State to reduce a charge, which in many cases can be a victory. With the grand jury being more of a sword than a shield and prosecutors holding a gun in its absence, Connecticut should allow probable cause hearings for all felonies.