Grand Juries and Their Legal Loopholes

    Grand juries are independent screening bodies that prosecutors use to secure indictments against criminal defendants. However, grand juries are a bit confusing in the legal sense for various reasons. First, in contrast to federal jurisdictions, states are not required to even have grand juries as part of their criminal justice process. Hurtado v. California, 110 U.S.516 (1884). In fact, only one third of the states use grand juries, Mississippi being one.

    Additionally, constitutional protections afforded to criminal defendants have been held not required for grand jury proceedings. For example, the Supreme Court has held that a prosecutor does not have a duty to disclose potentially exculpatory evidence to members of a grand jury, though he has this duty at trial. United States v. Williams, 504 U.S. 36 (1992).

    Furthermore, a witness or a potential defendant does not have the right to counsel during grand jury investigation. Kirby v. Illinois, 406 U.S. 682 (1972). The Sixth Amendment right to counsel attaches once formal prosecution against a person begins. Because the grand jury’s purpose is to start these formal charges in the first place, no constitutional right can be applied. Not only that, but witness’ or a future defendant’s attorney can’t even be in the grand jury room. Attorneys (other than the prosecutor) are not allowed in the grand jury rooms because of the constitutional reasons I just explained, but also because grand juries have been traditionally “cloaked with secrecy." Addkinsonv. State, 608 So.2d 304 (Miss.1992).

    Miss. Code Ann. §97-9-53 makes it illegal for any “grand juror, witness, district attorney, clerk, sherriff or any other officer of the court” to disclose whether an indictment was rendered, or the nature of evidence that was used to secure the indictment. However, disclosure is permitted 6 months after the proceedings or after the defendant is arrested or given bail or recognizance.

    Despite these exceptions for disclosure, it is still difficult for defense attorneys to access grand jury transcripts. If the witness at a grand jury is to be used by the state at trial, the defendant is entitled to discovery. Addkinson, 608 So.2d 304. But, many times at grand juries, prosecutors use witnesses who can only relate hearsay evidence, and therefore are not usable at trial. The Supreme Court has found no problem in grand juries securing an indictment on this type of faulty evidence, however. Costello v. United States, 350 U.S. 359 (1956).  As a practical matter therefore, prosecutors may be able to bring witnesses that they won’t use at trial to testify to things that they heard through the grapevine. This evidence is used to secure an indictment, but because the witness will not be at trial, the prosecutor shields defense attorneys from attaining the transcripts via discovery procedures.

    The final practical obstacle for defendants is that many times court reporters are not even present in the grand jury room (or so I’m told from attorneys who actually practice), therefore no recording is made. Despite Addkinson’s mandate that witness testimony from a grand jury be available to defendants if that witness intends on testifying at trial, many times that is impossible because no transcript exists.

    Any substantive grand jury reform will come from the legislature. It is hard, if not impossible, to blame prosecutors for the weirdness of grand juries. Using a hearsay witness at a grand jury proceeding is terrific strategy for a prosecutor and defense attorneys might do the same thing if he or she were in that position. Prosecutors don’t make the rules, they just play by them. But that doesn’t mean defense attorneys can’t be frustrated because the grand jury game does seem a bit rigged.


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