Criminology

The grand jury has both deeply historical and philosophical features within the context of American criminal proceedings.  Historically, the grand jury is explicitly rooted in American constitutional jurisprudence through the Fifth Amendment.  More specifically, The Fifth Amendment requires a grand jury indictment based on probable cause before an individual can be held to answer for a felony offense HYPERLINK httpwww.questiaschool.comPM.qstaod5000761789(Neely, 2002, p. 171).  In addition to being explicitly required by the constitutional text, it is also generally agreed that the fundamental policy objective underlying this grand jury requirement is two fold.  This has been referred to in the law reviews as a sword and shield approach.  The sword purpose is said to reflect the founders intent for those correctly accused of certain types of crimes to ultimately be charged criminally.  The shield purpose is said to reflect the founders intent to provide a preliminary safeguard to prevent ostensibly innocent individuals from being wrongfully or unjustifiably charged with a crime.  In practice, although the majority of legal scholars seems to view the modern operation of the grand jury as too frequently functioning as a prosecutorial rubber-stamp which neglects the shield function, the actual procedural nature by which the grand jury mechanism functions to initiate criminal proceedings has remained basically the same over the years.

As an initial matter, the dominant function of the grand jury is to serve as a just gatekeeper in the criminal justice system HYPERLINK httpwww.questiaschool.comPM.qstaod5000761789(Neely, 2002, p. 173).  This therefore demands a grand jury that is independent of the prosecutor and which is also exposed to the underlying facts which might later lead to a criminal charge in a fair and balanced manner. A grand jury, whether assembled pursuant to federal or state law, is typically drawn in the same way as other types of juries and intended to be a group of peers determining questions of fact.  A grand jury is not, however, the same as other types of juries for example, lawyers to not engage in voir dire in order to exclude potential jurors on the grounds of some potential or actual bias.  In addition, the grand jury function is generally conducted in secret and the information and evidence submitted by the prosecutor in hopes of eventually securing an indictment is more flexible than would be the case in a subsequent criminal trial.  The members of the grand jury, as a result, have access through the prosecutor and through their own desires to a much broader range of evidence than would be the case in an actual criminal trial with much narrower rules of evidence.  The primary function of this grand jury is to consider the proffered evidence in order to determine whether probably cause exists to issue an indictment an indictment is a formal criminal charge or set of criminal charges that can be filed and served in order to commence formal criminal proceedings.  The grand jury thus functions in an intermediate sphere between a criminal investigation and a criminal trial and in this way fulfills its constitutional mandate as a procedural type of gatekeeper for fact-finding purposes.

Another unique feature of a grand jury, though procedural rules vary among different court systems in Americas complicated federal system, is that it is not confrontational in the same way as a traditional criminal trial.  It has been noted, for instance, that defense attorneys generally do not attend the grand jury proceedings with their clients although some state laws provide for consultative procedures.  The grand jury function is thus primarily between the prosecutor and the members of the grand jury.  This has been justified on the grounds that a finding of probably cause, as is explicitly stated to be the fact-finding burden in the Fifth Amendment, invokes less constitutional protection than actual criminal trials with the higher burden of beyond a reasonable doubt.  Whether these grand juries adequately serve both policy goals effectively, the sword and the shield, is the subject of intense debate and beyond the scope of this paper.  Nonetheless, the grand jury continues to function as a fact-finding gatekeeper through which criminal proceedings are initiated in many criminal cases both federally and in certain state situations.