A Grand Juror's Argument for Reform...
Recommended Reforms for the State Grand Jury System
With a Slight Bit of Commentary Thrown In
My name is Kirk Tatnall and I live in New York City. I served on the
New York State grand jury in New York County (Manhattan) during the late
summer of 1999. What I experienced during my term so alarmed me that I
began to write down many of the shortcomings I was observing in the
courtroom on a daily basis. Having served out my term, I am now convinced
that my state, its fantastic legal legacy notwithstanding, should begin to
look beyond this broken institution to a healthier and more equitable one,
something that can provide a modicum of equality for the accused.
In the clearest of terms, the grand jury defendant
stands little to no chance of a favorable verdict. Bob Kaye, Deputy
District Attorney in Kings County, in his own commentary on this site,
How a New York Grand Jury Works,
notes that a full 91% of all cases in New York State end in an indictment
or SCI (a Superior Court Information bypassing the indictment phase,
waived by the defendant). These numbers alone shed some light on the
defendant’s disadvantage, but then Mr. Kaye proceeds to admit that of
the other 9%, "….2% are referrals to the jurisdiction of other
courts" [in other words, they didn’t belong there anyway] and that
a large number of the remaining 7% are dismissals, many done so at the
request of the DA’s office. For all intents and purposes, unless a case
is actually removed from the grand jury, the indictment is virtually
These statistics alone plainly show the strong leverage
the District Attorney’s office holds over the court presentation, not
only with defendants but with the grand jurists themselves. What happens
to a judicial system, and the agents charged with administrating it, when
the odds are stacked so high in the favor of one side? Should defendants,
many of them immigrants wary of government officials and many others
living outside societal norms, expect a fair proceeding?
While grand juries are a cornerstone of English law,
their origins were born in another era, a time, as Ms. Brenner noted in
the Cyber Law Journal (http://www.nytimes.com/library/tech/98/06/cyber/cyberlaw/12law.html),
of small villages and communities. The spirit and ideal that bore this
once important step in the legal process was one of association, where an
unfounded or frivolous charge could bring unneeded shame to both the
accused and their family (this is the reasoning behind the grand jury’s
secrecy). The stakes were certainly high – as a jurist, you were likely
to know the accused. A suspect’s reputation was held in the balance; a
public charge of wrongdoing against an individual could mean social
avoidance, even exile. Empathy was the grand jury’s guiding principle.
Our communities of today however resemble nothing of
those from even a century ago, let alone 800 years ago, at the grand jury’s
origins. We are today a pluralistic society (in New York City, this is to
say the least), bound by interests, information and needs no longer
constrained by geographic location. It is unlikely that a panelist would
ever know a defendant brought before the grand jury today and even less
likely to comprehend their background, lifestyle, community or the
particular circumstances that surround the charges. With the ability to
understand the accused in a meaningful way now lost, the effectiveness of
the grand jury is lost with it.
Another major development hindering the value of the
grand jury is the advent of the modern media machine. Discretion and
personal protection by journalists have been replaced with open trials by
public opinion, with the ideal of secrecy a quick casualty. Every night on
the evening news a person arrested for arson, murder or some other
atrocity is paraded on the screen, name and face front and center, for all
to see. The case of Richard Jewell (http://www.courttv.com/legaldocs/misc/jewell/)
should be a chilling reminder of what can happen when today’s news
sources reach their own conclusions and mete their own brand of justice.
Would anyone honestly argue that today’s grand jury protects the
reputations of the accused?
But old habits die hard in the New York judicature. I am told a
generation ago there was a movement to end the grand jury in New York, but
the prosecutors fought to keep it. No surprise there, but in an ironic
twist, they convinced the state that it was important for them to work
grand juries so they would bring back no bills in police brutality cases.
This would make it look like the common citizenry had chosen to drop the
charges and not the District Attorney’s office, in the hopes of
protecting aggressive cops and keeping the community furor to a minimum.
Mr. Kaye actually cites this as one of the disadvantages of a magistrate
system "when a prosecutor presents a case to the grand jury despite
the expectation, or belief, that the grand jury will not indict." It
would seem strange that you would ever prosecute a case you were unlikely
(and ultimately unwilling) to take to trial - unless of course you had an
opposite objective and you had complete mastery of the grand jury
proceedings. It is no wonder then that the "ham sandwich" quote
so often mentioned in commentary on this topic was spoken by a once
illustrious judge from my own state.
So if an ADA believes that the evidence in a case is strong enough to
gain an indictment, why not just go the direct route to a trial, as would
appear to be an occasional course of action? I would answer that there are
many other favorable outcomes for the prosecutor besides a conviction –
most obviously confessions and plea bargains. It is my suggestion that the
grand jury is certainly an effective tool - but its only beneficiary is
the DA’s office. In an overworked and under-resourced bureaucracy, there
is little desire to take every suspect and every criminal case through the
meat grinder of a long, expensive and potentially damaging trial (I am
told that less than 20% of all indictments end up before a petit jury in
New York). But with pressure coming from both sides (the public demand for
a tougher stance on crime and the backlogged court system) indictments
work well enough. For an entire segment of our population without the
means, power or prestige to avoid this fate, it is an egregious situation.
It hangs as a sword of Damocles over the heads of the accused, where a
settlement for a crime uncommitted (or one that would never rise to the
"beyond a reasonable doubt" standard) may be a safer alternative
than the risk of a judge’s sentence at trial. It would appear then that
the grand jury is assured to be with us in New York for a long time to
But there is hope. Mr. Kaye’s suggestion of a magistrate acting in
lieu of the grand jury is certainly a refreshing one. There are many other
acceptable alternatives – a glance at the states which seem to be
getting along quite nicely without the institution may be a start. Martin
Luther King once said that "the arm of the moral universe is long,
but it bends towards justice". We can only pray that its trajectory
passes through the New York grand jury system.
Before you read further, may I say that my experience with the grand
jury is limited to one term in one state. Many other New York counties and
states still clinging to the grand jury may have entirely different
operations than the one I was involved with. It is my hope that the
specific recommendations here are broad enough that they can be applied to
as many grand jury situations as possible. I have a feeling they can.
The Fatal Flaw - Of all the failures and inadequacies of the
grand jury in New York State, there is one that rises above the rest: the
prosecutor as the grand jury’s legal advisor. It would seem humanly
impossible for one person to both simultaneously act as impartial
counselor while playing the role of forceful incriminator, but this is the
dilemma that is faced daily within the grand jury courtroom. The
adversarial model of our legal system [pitting the acknowledged biases of
the state and the defendant against each other] is little understood by
the common citizens who make up the jury panel and who are forced into a
situation that most had little knowledge of prior to their call to
service. Since the grand jury is a branch of the judicial arm –
it would appear that we have a player suiting up for the wrong team –
and winning. The jury starts with the misconception that the arrangement
is a proper one – what evidence is presented otherwise? - and it becomes
only too eager to perform to the best of its perceived civic duty. Without
the handicaps of a judge, defense attorneys or even defendants for the
most part, it is no stretch to see how the DA completely controls the
proceedings – there are no alternatives.
The judicial branch must begin to wrest control from the prosecutor and
once again direct the jury proceedings (my limited research on this issue
revealed that prosecutors didn’t begin to dominate the grand jury until
the turn of the 20th Century). It is only here that a semblance
of objectivity can be established. And it is also from this point that the
grand jury can truly function again, attempting to uphold the honest and
noble principle that common citizens are wise enough to make tough and
sometimes harsh decisions, regardless of the state’s agenda. But until
the day comes when the prosecutor is no longer legal counsel, a few
Prosecutors must ask every question posed by jury
members, regardless of their belief that the queries lack logic,
pertinence or even clarity in relationship to the case. There is
nothing more insulting to a grand jurist than to have a prosecutor (as
happened to me on several occasions) not ask a question because he or
she deems it irrelevant to the proceedings. As I understand my juror’s
manual, the pertinence of a question is not at the discretion of the
prosecutor; it is understandable though why certain stabs at a
witnesses’ inconsistent or incomplete testimony would want to be
handled as off limits by the "legal advisor".
The prosecutor cannot sigh, or be visibly upset by having to ask a
juror’s question. This also happened to me on several occasions and
leaves the impression that far from being our consultant, the DA views
the grand jury as a roadblock, or worse yet – as a mere nuisance.
Any visible contempt on the part of the DA where a complaint is made
and can be confirmed by other jury members should result in the
removal of the DA from the case.
No question can be reworded to fit the needs of the prosecutor. This
also happened to me and others where the Assistant District Attorneys
would lead witnesses with similar but distinctly different questions
than the ones requested, resulting in different answers than would
have occurred if given the original phrasing. An additional solution
would be for jurors to write their question(s) on an index card which
would be read verbatim by the prosecutor.
DAs must be instructed to look at the grand jury when they say
"Seeing no further questions from the grand jury……" This
sounds obvious, but there were prosecutors who never looked in the
direction of the jury when they asked this question.
Better yet, DAs should phrase it: "Are there any additional
questions from the jury?" and not assume that jurists are
finished with their inquiries.
Here is an alternative to the prosecutor as counsel:
The court should establish a legal advisor from its own department.
[Section 190.25 Section 6 of the New York grand jury manual states
that the court is responsible for this role]. An unbiased advisor,
possibly a judge, should sit with each jury and assist it in its quest
for justice, based not only on the jurists’ common sense but on
legal precedence as well. This advisor would:
Listen to all evidence.
Field and repeat questions of the jurists (it may be acceptable at
this point to decline questions based on irrelevance due to the
advisor’s understanding of the law as it applies to the case).
Sit with the jury during deliberations.
Not speak unless addressed specifically for advice.
Never advise jurists on how they should vote.
Only answer questions as they apply to the case as it was heard.
Beginning Instructions – the second major shortcoming of the
system is the lack of education the grand jurors receive as to their
rights and responsibilities. I talked with every jurist I served with and
to one degree or another all admitted that they did not have complete
mastery of their role. Beyond the quick swearing-in ceremony the first
day, a quick reading of some rules by a court employee on our first presiding
day and an occasional grand jury joke from the court clerk, very little
explanation of the purpose of the grand jury, its legacy, our rights and
powers or anything resembling the very parameters of what we could or
could not do was ever addressed. A manual was handed out, but a quick poll
of my surrounding jurists found few (if any) had taken the time to read
it. I am aware of the efforts being made to correct these handicaps, but
the changes cannot come soon enough. Before any case is actually heard, a
day of training should be given by a court employee and they
should go over these and other items:
Above all else, the severity of the grand jury’s decisions should
be explained in stark language. The right to decide the destiny of
another human being, whether they will be incarcerated or set free,
whether they will be publicly humiliated or allowed to return to
normalcy, and even possibly now, the decision over life and death,
lies partially in the grand jury’s hands. It is as grave a duty as
"pulling the plug" on a love one and should be treated as
The job of the grand jury is not to decide whether a crime
has been committed, but whether "reasonable cause" as it is
legally defined can be established by the evidence. Most jurors assume
that reasonable cause is just "plain ol’ common sense";
they do not fully comprehend that it has legal measurements and can be
held up against specific criteria. The judge, or court-appointed legal
adviser, should thoroughly define the term (since this is the crux of
all decision-making), and should cite numerous case histories where
the definition was met and not met long before any testimony is heard.
That the grand jury is the arm of the judicial branch
and NOT that of the DA’s office. Terrible as it is, most
jurors feel they are there to agree with the DA unless some gross
misrepresentation of the facts becomes blatantly obvious. As one juror
I queried regarding this situation so innocently put it, "Why
would the prosecutor lie?" A judicial advisor should explain the
adversarial role of our criminal justice system and that the grand
jury is in essence a panel of judges, there to determine not
only reasonable cause concerning the likelihood that a person(s)
committed particular crimes, but in a larger scope, there to mete out
justice to the best of its capability, where even a technically guilty
individual’s charges are dismissed for the betterment of the common
Each jurist should be handed, along with the manual, the state
definitions for every potential felony charge he or she will be asked
to hear evidence on during the term. The DAs would say for example at
the end of a particular case "I see that you have already heard
the charge of "_________________" (i.e. Criminal Possession
of a Controlled Substance in the Third Degree). (Pause) I see nods in
the affirmative from the grand jury. Seeing no need to repeat those
charges, I’ll leave you to your deliberation." Taking a poll
once again among my panelist peers, it seems most jurors felt that
while they could not actually define the charge, they
remembered its basic relational nature as it applied to the evidence
(i.e. drugs) and that in most probability the defendant was guilty of
something similar to what he or she was being brought up on. I was the
only one on the jury who took notes [legal, as long as they are turned
in to the clerk at the end of the day], and particularly focused on
copying down the definitions of each separate charge as they were
presented for the first time, and I can honestly say that there were
many instances where our group indicted an individual when the
evidence clearly did not match the charge. If every jurist could see
the law as it is written and have it in hand, the only outcome would
be better decision-making.
Each member should have to state his or her first name at the start
of the term to the other members of the panel. This would be an
acknowledgment of the integrated dynamic of the grand jury, displaying
a sense, not so much of teamwork, but of the connectivity each person
has in determining the fate of another individual. This would help cut
down on the numerous "geo-political" divides [voting blocs
formed by seating arrangement and centered around the most outspoken
individual within the bloc] that naturally arise.
The rights of the grand jury must be explicitly laid out. These
The right to call witnesses not presented by the prosecutor (One
hint for the grand jury in this regard would be to listen for people
mentioned during testimony and seek them out for their own account if
the need is warranted).
To recall witnesses. It should be made clear that the grand jury is
not wasting the court's time if an eyewitness, police officer or any
other party directly related to the case, needs to come back, whether
to restate past testimony or to answer a new line of questioning. The
grand jury should also not feel troubled in any way to bring a witness
on another day than the one on which they originally presented.
The grand jury should be told that they can take as much time as
they need to reach a proper decision. From the first day of a term
forward the jury is kept in a constant state of flutter,
subconsciously directed to keep the cases moving on as expeditiously
as possible. Often I was scolded by other jury members that I was
wasting time by asking additional questions of the witnesses when the
testimony as given was sufficient for them. The court should assure
the jury that care should be taken with each case, that there is no
hidden or expected "indictment quota" and that it would be
better to handle one case properly than 100 improperly.
The grand jury has the right to physically see any evidence
mentioned. This would include any contraband, surveillance videos,
even the actual scene of the crime (a field trip on one particular
case I was on would have cleared up many issues from conflicting
The right not to indict. This is certainly mentioned but is
never presented as a truly viable option. It must be stated
emphatically that the grand jury does not exist as a catalyst for
indictments but as a neutral party, caring only if there is sufficient
evidence for a trial.
That they can ignore the DA’s advice. The Dewey runaway grand
in New York incidentally, is always cited as an example of the
institution’s independence, but no one involved within the legal
system honestly believes that each sitting grand jury today is
similarly minded and equally resolute. While the Dewey jury may be as
rare as a Halley’s Comet appearance, it is still a fine example to
mention and its retelling may actually stir a sense of pride in the
panelists. Equally important to mention is the right to take what the
district attorney (and any witness or even defendant for that matter)
would say with a grain of salt.
That they can vote on other charges, lesser or higher than the ones
originally presented by the DA. [Having that juror’s manual with
legal definitions of each possible charge would be helpful here.]
That witnesses can be called that either contradict or confirm the
DA’s case. Many times when there is disagreement over witness
testimony, no thought is given to calling additional witnesses whose
own account may clarify the discrepancies.
That they do not have to vote on a case based solely upon the
minimal evidence presented by the prosecutor. This is as upsetting a
predicament as any for in the few instances where the jury decides not
to indict, a guilty person may walk. The grand jury should demand as
much evidence as is necessary for an indictment, but should only vote
when sufficient enough evidence has been presented. If insufficient
evidence has been presented for an indictment, ask for more
evidence. If the DA has no more evidence, then more witnesses
should be called. If no more evidence can be gathered, head for
That there is no double jeopardy with the grand jury. If a jury
fails to indict, the accused can always be brought back if additional
evidence is found and it is deemed justifiable to do so. Many jurists
who may be undecided on how to vote yet have a sense of guilt about
returning a no bill lest a person get away with a crime can take
comfort in the fact that the state can bring the same charges again
should more evidence be found and it is judged prudent to do so.
They should be aware that the prosecutor is only going to present
evidence that is helpful to the case and never evidence that hurts it.
A very nice fellow jurist said, "I haven’t heard anything that
would make me believe the man didn’t do the crime." (Well no
kidding, do you think the prosecutor would present evidence that would
hurt the case?) For those citizens who take everything at face
value, explaining this phenomenon would be critical.
The first full day of service should be given over to instruction
and training. Three hours (in Manhattan this is the daily service
time) to receive a brief history of the grand jury, learn procedural
issues, maybe even see a film (there is actually one in the works
here). The jurists’ break during this session would be used to study
the manual, with a group oral test upon return. Several mock cases
should be heard for the trial run before the following day’s
The Room – The quarters where the grand jury resides (again,
I can only speak about Manhattan) are small, dirty and bland, utterly
devoid of cheer. The lack of any interior décor to speak of may seem a
minor grievance, but I am a strong believer that environment affects
A few relatively inexpensive alterations could be implemented to make the
surroundings more appealing, particularly to the jurists themselves. This
would go far in keeping everyone’s mind focused on the proceedings
inside, and blunt the desire to flee the room at the first opportunity.
The arrangement of the jurists’ chairs is one of the
factors in the way justice is arrived at by the grand jury. Each
panelist at the beginning of his or her term sits in a seat with a
corresponding number. Throughout the rest of the sessions, they will not
move from this particular chair. The seating is arranged as if it were a
small off-Broadway theatre: six seats to a row with a partition between
each row so only the heads of the people in the row in front appear.
There is an aisle down the center. As a result of this impersonal
arrangement (probably created to maximize the visual presentation of the
witness testimonies), "mini-camps" of diverging opinions (the
geo-political factions) spring up where people seated closest to each
other begin to empathize with their neighbors’ views over their own.
The jurists with the strongest opinions and biggest mouths are then able
to coerce these mini-camps to vote as a bloc (I know this for a fact
since I was one of the big mouths). Some suggestions then to end this
polarizing seating arrangement would be:
Seats should be in a semicircle, two rows on each side, six seats
row (one of course with five). It would look like this: (( )).
All jurors would be forced to face each other, producing a much more
effective personal interplay.
Jurists would switch seats each day. While each seat would be
numbered, a lottery could be drawn so that panelists are randomly
assigned their chairs. This will hinder if not outright end the
1999, everyone who wants to know what time it is wears a watch. The
court is doing no one a favor by posting the clock in the one position
where everyone must stare at it, a constant reminder of how much time is
left and what other things each jurist could be doing with their day. If
it must be in the room, hanging it in the back would suffice.
No clock in the center of the room over the witness table.
The room where we gathered (in the
summer) contained two whirring AC units making concentrating,
understanding, even hearing a difficulty. More times than could be
counted, the witness was asked to speak up because of the air
conditioner and much of the testimony ultimately was lost. One juror
told me in all seriousness that he didn’t vote to indict on one case
because they had made him turn the AC off during testimony (such was the
quality of decision-making at times). Quieter units, central air or open
windows, whatever it takes, but there is a basic problem when the grand
jurors miss testimony because they can’t hear it.
No air conditioner noise.
Even without the AC problems,
witnesses repeatedly cannot be heard in the back rows. This is
particularly true for eyewitnesses and victims; most police officers and
other state officials know the score and speak loudly. Clip mikes would
cut down on the wasted time spent asking people to speak up, but most
importantly, crucial testimony would not be lost.
All witnesses should be miked.
dirty, scuffed up walls! A professional, simple wallpapering job would
be best, but even a muted, basic color would suffice. Pictures on the
wall could be of a relevant nature to the task at hand: a copy of the
state constitution regarding the grand jury, or maybe a lithograph of a
famous case heard by the jury (or even a picture of Thomas Dewey!
Wallpaper and pictures should be added to the room.
The option to bar testimony of a witness not called by the prosecution
should be abolished. Whenever a witness was willing to provide an
alternative story to that of the state’s, the prosecutor would make us
vote as to whether we were willing to hear it. This appears to be a
small matter on the surface, but it is actually an appalling situation.
Just as a defendant has a right not to speak before the grand
jury, he or she (or a friend or sympathetic eyewitness) should also have
the right to speak as well. For a grand jury to vote not to hear
a defendant’s testimony comes across as callous at best, but it would
seem unconstitutional as well (in an inverse sort of way). This is but
one more subtle and manipulative orchestration granted the DA.
When the defense’s witness does choose to speak before the
grand jury, he or she should have his or her attorney present to ask the
initial questions, with the chance for follow-ups from the prosecutor.
It may seem unbelievable, but at the moment, defense attorneys are not
allowed to speak openly at all to the jury and the DAs themselves get to
grill the witness, and always in an antagonistic fashion (at times their
behavior with witnesses is so bad, it works against them and paints a
more sympathetic portrait of the accused).
Defense attorneys should have the right to address the grand jury with
any discrepancies in the prosecutor’s case.
No witness should be allowed to use acronyms or initials of particular
agencies or items during testimony. Not only is the grand jury seemingly
expected to know various arcane codewords used within the criminal
justice system (police officers were particularly bad at this), but it
gives off the scent of mistrust that somehow the DAs and their witnesses
know the rules of the game a little bit better than everyone else and
that they have a closer union with each other than they would care to
No warrant numbers should be read to the grand jury without evidence.
An official looking person (a DA I believe) would come in and list a
series of numbers from various investigations where the securing of
particular evidence required a warrant. The jury would hear these
numbers, watch the person walk out of the room, glance at each other and
go back to their crosswords. This type of procedural malarkey shows how
the bureaucracy just rolls along, whether it is understood by anyone or
not, or whether it is even logical. Interestingly, most of the evidence
I heard while on trial was not enough in my mind for an indictment, but
would have been sufficient for issuing a warrant.
The Deliberation – This is one of the least understood facets
of the grand jury. But trust it to say, there is no mystery surrounding
grand jury deliberation: the four or five loudest voices in the group do
all the talking and opining, with 75% of the jurists either intimidated or
uninterested in joining the fray. Half of the people on the panel I was
involved with seldom spoke at all; they may have possessed
Solomonic wisdom but it was not to be shared with the others. This appears
to be an area where the state would really not like to poke its head
around, but the acknowledgement should be made that in a random group of
strangers, everyone learns their roles pretty quickly and then for the
most part settles into the script for the remainder of their time
together. The manual and recommended training at the beginning of the term
could be an amazingly valuable asset in at least raising the awareness
level of the interpersonal relationships fostered when a collection of
disparate people are collected for a common purpose. The recommendations
listed below are suggested as a counterbalance to the very natural
"pecking order" phenomenon that occurs in every jury.
When the charge against an individual is read, the jury should know
the minimum, maximum and average time a person could serve if
convicted of the crime.
The use of a device that would electronically transmit the
stenographer’s transcript into a television monitor in front of each
grand juror’ chair. These monitors would only be activated after all
the evidence was heard but would eliminate the "He Said/She
Said" debates that inevitably occur [which is unavoidable with
the dizzying bombardment of facts that are hurled at the jurors]. It
would also eliminate the need in some cases to call back lawyers and
witnesses to repeat testimony.
If no decision has been reached by the end of session, no vote can
be taken. The foreman or prosecutor should not be able to ask for a
vote at this time; deliberation on the case should be allowed to
continue into the following day’s session. This would end the rushes
to judgement that naturally occur when jurists have one foot out the
door at the end of another grueling session.
A minimum number of minutes must be given to deliberation in the
second half of the term. The endless grind of cases and crimes, names
and numbers, ultimately wears everyone down to a point where, while it
is unfortunate to say, no one cares whether a person gets indicted
or not (how the DAs do it I don’t know but it goes a long way in
explaining much of their bored and cynical conduct). Knowing that each
case will have, say ten minutes tacked on for discussion may lead
jurists to discuss the evidence, if for no other reason than it beats
sitting in silence.
All opinions are to be respected. On occasion a juror’s statement
was discredited by the other members. A person will never speak again
once invalidated by peers. While disagreements will and should occur,
no juror should have the right to tell another juror that their
opinion is stupid or misplaced.
Every jurist should take turns opening deliberations. Since so few
jurists actually ever speak, this would force them to get verbally
involved. The ones who cared so little for human life that they read
books during testimony would be sure to pay attention when their turn
to open up the discussion came around.
Voting Procedure – so many small yet fundamental things need
to be changed at this juncture. For one thing, just the power of the
raised hand has led many wavering votes to join with the seemingly visible
majority. Voting must be handled in a much more precise and even-handed
way. The foreman yields incredible power at this point; when I served at
least two times the foreman called for a recount when only eleven hands
were raised, never doing this when she counted twelve hands in the air
[for fear of a wrongful indictment]. Each time she would count up 12 or
more hands she would mutter "Yes!" under her breath. At times we
were even rushed into votes by the foreman when she felt the debate had
hit an impasse.
Votes should be handled by Yes/No buttons and not a show of hands.
The intimidation and herd factors being what they are, votes should be
conducted by the silent pressing of one of two buttons on the jurist’s
seat in front of them. A small dome the size of a standard ashtray
should be placed above the buttons to conceal decisions. The juror
should be able to see a corresponding "Yes" or
"No" label on this protective hood and be able to match up
his or her fingers with the corresponding label. The juror, upon
instruction to vote, would press one of the buttons one time,
activating the vote. The foreman would have a monitor to register
these votes and announce the decision upon final tally.
Foreman’s instructions should be timed. Voting is handled in such
a slipshod manner, with the "hawks" in the jury raising
their hands before deliberation and the "undecideds" waiting
to steal a glance at whether the majority was going for the indictment
or not before raising their hands. Procedure should follow as such:
With deliberation clearly over (i.e. no one is talking), the foreman
should ask each time "Are we ready to vote?" The foreman
should wait up to five seconds (counting silently) for any response.
If the answer comes back "No" by any member of the jury,
deliberation continues until exhausted once again and the question
If the answer comes back "Yes", voting begins.
With hand voting, foreman should wait another three seconds then
should announce that voting may commence. No votes raised before this
instruction would be counted.
Counting by the foreman should start in the front row, tallied silently
at a regimented pace of one vote/second. After the final row is
accounted for, the total should be quickly jotted down.
A clear bias occurs when the foreman
feels it is a mistake not to return an indictment.
THERE ARE NO RECOUNTS.
4) No utterance can come from the foreman’s mouth until he or she
announces the final vote.
5) An Idea: Raise hands NOT to indict. So often the feeling was that
after a long, boring and winded case any movement was welcome. This
may carry its own share of problems, but anything to break up the monotony
of "listen-raise hands, listen-raise hands, listen-raise hands"
could be of some benefit.
No vote should be taken if final evidence goes within fifteen
minutes of the end of a daily session. Too many times the jury is
willing to vote an indictment just to get out of the room. It is the
nature of everyone’s over-booked and stress-filled lives, but it is
something that the court must acknowledge.
No DA should have the right AFTER THE VOTE to come back in
the room and say that the vote just taken was on the WRONG CHARGE but
the indictment was going to stand on the charge we hadn’t heard
anyway (this actually happened).
Wishful Thinking – most of the things listed below will
probably never happen in my lifetime, but if they stay only as thoughts,
they have no chance of occurring in anyone’s lifetime.
The press should be barred from printing the names of people who
have only been arrested for a crime prior to an indictment. It
completely destroys the very notion of grand jury secrecy if the
person’s character is shredded prior to a hearing. Secrecy is a
cornerstone of the grand jury, but so is "innocent until proven
guilty". Today’s media it seems would prefer to have none of
Jurors’ names should be returned to their certificates. It was
told to me by a court official that Judge Kaye (http://www.tourolaw.edu/Events/JudithKaye.html)
of jury reform fame here in New York had the individual jurist’s
names removed from the "Certificate of Jury Service" so that
her name could be placed upon it in the center. Whether true or
not, it is we, the common citizens, who gave of our time, our wages,
our personal appointments, our sales commissions - to serve the great
state of New York. Reform can start with the individual recognition of
that fact – right in the middle of our certificate of service.
Dummy cases should be entered. Created cases, with actors playing
DAs and defendants, should be occasionally thrown into the mix. Both
the court and the DA’s office should agree beforehand that the
"facts" of a particular mock case and the evidence presented
do NOT measure up to the charges brought. If the real grand
jury hears the case and indicts anyway, you know where the problem
Both jurors and the courts should be respectful of each other’s
time – each day should be 3 hours (in Manhattan) and no longer. A
juror should plan to show up on time – if late and not for an
approved emergency - that juror should be docked for the day. Nothing
longer than a fifteen minute grace period should be given at the
beginning of each session for late arrivals. On the other hand, all
evidence must end to the minute of a session with jurors having the
right to walk out on a DA’s examination if need be.
Exit surveys. If you really want to know how the grand jury reforms
are working, ask the people most effected by them. A quick, 15-minute
survey (to be completed on the last day of service and to be issued
one half hour before release on that day) will go a long way in
finding out if enacted reforms have been of use. All you need to do is
ask. This is how many of the issues in 1999’s Grand Jury Project
were raised and so the state already recognizes this as an invaluable
tool of reparation.
Jurists should be encouraged to take notes. As was decided in a
petit trial in Long Island recently and currently occurs in other
states’ courtrooms, jurors should feel it is an acceptable practice
to personally record as best as possible the seemingly endless details
of various testimonies and to refer to that record as need be. Coupled
with the dozens of cases and hundreds of witnesses that the grand jury
will hear in a term, a notepad and pen should be handed to every
jurist at the beginning of a session. I’m of relative intelligence
and I wouldn’t have been able to keep anything straight if it weren’t
for my notes.
Every effort should be made to convince the defendant, if truly
innocent or with an explanation of extenuating circumstances, to speak
before the grand jury and plead his or her case. YOU ARE GOING TO BE
INDICTED! THAT’S THE FACTS! YOU BETTER SHOW UP! YOU HAVE LITTLE TO
LOSE EXCEPT YOUR FREEDOM! IF YOU’RE GUILTY AS CHARGED, DO YOU HAVE A
GOOD REASON WHY YOU DID IT? TELL US!
All reading material that the individual jury members bring with
them would be checked before they enter the courtroom. If all reading
material was prohibited, at least the jurors would have to pretend
they’re zoning in on the proceedings.
The court clerk should never be allowed to tell jokes, particularly
grand jury jokes, and should not sympathize with the grand jury and
tell them how boring it must be and that it will all be over soon. The
grand jury should be viewed as an extremely serious matter, and to
have a court employee act in such a way debases the entire
Before each case, a picture of the accused should be handed out to
the jurists. The defendant isn’t a faceless number; he or she is
another human soul, not unlike yourself, with all the weight and
dignity that it carries. Just a picture -- and many more humane
decisions will be made within the walls of our grand jury courtrooms.
Well, at least that’s the way I see it.