| "Jury service is one of the
highest duties of citizenship, who for by it the citizen participates
in the administration of justice between man
and man and between government and the individual."
...
[Harlan Stone, late Chief Justice of the United States Supreme
Court]
In time of peace, no citizen can perform a
higher duty than to serve on a jury or grand jury. No other body
of citizens exercises public functions more vital to the administration
of law. An adequate appreciation of these functions requires an
understanding of their historical origins.
In tracing the historical development of the
grand jury, we might go as far back as Athenian history. There
is some evidence of an institution in Athens which performed similar
functions; however, writers and investigators do not believe that
this body, if it did exist, survived long enough to exert an influence
on the grand jury as it later developed in England.
THE GRAND JURY IN ENGLAND
The birth of our grand jury is generally believed
to have been in England in 1166, when King Henry II issued a law
requiring 12 kings or other freemen of every hundred, and four
men of every township, to send in accusations of murder, robbery,
larceny and harboring of criminals. The organization of royal
justice under the Norman and Plantagenet kings required judges
to leave the royal capitol at fixed times of the year and travel
around the country, thus the term traveling the circuit; i.e.,
circuit judges. Given the conditions of travel in those days,
circuit duty was more an ordeal than a pleasure. Each judge wanted
to get it over with as quickly as possible. Most of the cases
heard while on circuit were criminal charges brought by private
citizens. Many of them were utterly baseless. With no screening
device, they formed a time-consuming ordeal.
Under the circumstances, the use of groups
of citizens to determine which charges were worthy of trial was
an excellent device to reduce the number of charges. This device
worked so well that these groups of citizens acquired a recognized
status and were required to take an oath to faithfully do their
work. They hereby became a jury and were known as the large, or
in Norman French, the grand jury.
In the 13th and 14 centuries, all or some
of the grand jury members always sat in the petit jury which actually
heard the case at a trial. The judges sometimes took the view
that when the members of a petit jury, who had been on the grand
jury that had indicted a defendant, later acquitted him at trial,
they had contradicted themselves and can be punished. Thus, the
true function of the grand jury emerged -- to determine whether,
from the prosecution's evidence, there were grounds for trial.
Besides acting as a screening device to reduce
the workload of the royal judges, the grand jury evolved into
an institution which allowed a degree of local control of criminal
prosecutions. It finely was asserted that royal judges had no
right to hear cases unless approval had been granted by the grand
jury in the locality where the crime had occurred. This function
of the grand jury was embodied in the Magna Carta by the nobles
to protect themselves against the excessive exercise of the Royal
power to prosecute citizens.
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THE GRAND JURY IN THE UNITED
STATES AND OTHER STATES
When our forefathers crossed the Atlantic
Ocean to build a new home, free from the shackles of a royal monarchy,
they brought with them the concept of the grand jury as an institution
to protect the citizen from unjust prosecution. To insurer
its use for this purpose, the grand jury was expressly provided
for in the Fifth Amendment to the Constitution of the United States.
Specifically, the amendment provides:
"No person shall be held to
answer for a capital, or otherwise infamous crime, unless on
a presentment or indictment of Grand Jury."
Although the language of this amendment would
seem to indicate that a grand jury is required in all cases, a
grand jury can be waived in federal court and most other states,
including Texas.
The Supreme Court of the United States has
hailed that the Due Process Clause of the Fourteenth Amendment
to the Constitution does not require the states to use a grand
jury. The Due Process Clause does require the states to inform
an accused of the nature and cause of the accusation against him.
Some states have constitutional or statutory provisions which
provide for a grand jury indictment. Most states, however, allow
the defendant to waive this right. This procedure involves the
filing of an information by the prosecuting attorney or one of
his assistants which is been approved by the court. In some states,
grand jury action is reserved for capital crimes or special investigations.
The grand jury in the United States has become
both a sword and a shield of justice: a sword, because it can
investigate crime and indict criminals; a shield, because by its
secret and nonpublic nature, it can protect the innocent against
unfair publicity. These important powers carry equally grave responsibilities
to see that such powers are not abused. Unless motivated by the
highest sense of justice, a grand jury might return indictments
not warranted by the evidence and thus become a source of oppression
to innocent citizens. On the other hand, a grand jury might dismiss
charges against those who should be indicted. The importance of
its powers is emphasized by the fact that it is an independent
body answerable to no one except the court itself.
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