Federal Grand Jury Banner


 

 

    Site Map   Links Home

Search
FAQ's about Grand Juries Federal Grand Jury Info Multimedia Overview
Feedback, Comments, & Stories State Grand Jury Info Grand Juries in the News

A Grand Juror's Argument for Reform... 

Recommended Reforms for the State Grand Jury System

With a Slight Bit of Commentary Thrown In

January 2000

 

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 inevitable.

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 (http://www.star.niu.edu/nina/clipwin3.html) 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 come.

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 REFORMS

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 suggestions:

  1. 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".

  2. 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.

  3. 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.

  4. 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.

  5. Better yet, DAs should phrase it: "Are there any additional questions from the jury?" and not assume that jurists are finished with their inquiries.

  6. Here is an alternative to the prosecutor as counsel:

  7. 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:

  1. Listen to all evidence.

  2. 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).

  3. Sit with the jury during deliberations.

  4. Not speak unless addressed specifically for advice.

  5. Never advise jurists on how they should vote.

  6. 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:

  1. 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 such.

  2. 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.

  3. 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 good.

  4. 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.

  5. 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.

  6. The rights of the grand jury must be explicitly laid out. These would include:

  1. 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).

  2. 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.

  3. 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.

  4. 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 testimony).

  5. 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.

  6. That they can ignore the DA’s advice. The Dewey runaway grand jury  (http://www.udayton.edu/~grandjur/faq/faq8.htm), 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.

  7. 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.]

  8. 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.

  9. 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 deliberation.

  10. 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.

  11. 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.

  1. 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 "live performance".

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 behavior (http://www.snre.umich.edu/~rdeyoung/envtpsych.html). 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.

  1. Seating. The arrangement of the jurists’ chairs is one of the most critical

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:

    1. Seats should be in a semicircle, two rows on each side, six seats to a

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.

    1. 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 "mini-camps".

  1. No clock in the center of the room over the witness table. In 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.

  2. No air conditioner noise. 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.

  3. All witnesses should be miked. 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.

  4. Wallpaper and pictures should be added to the room. Anything but 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!

Hearing Evidence

  1. 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.

  2. 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).

  3. Defense attorneys should have the right to address the grand jury with any discrepancies in the prosecutor’s case.

  4. 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 admit.

  5. 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.

  1. 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.

  2. 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.

  3. 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.

  4. 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.

  5. 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.

  6. 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 Procedureso 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.

  1. 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.

  2. 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:

 

  1. 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.

    1. If the answer comes back "No" by any member of the jury, deliberation continues until exhausted once again and the question is repeated.

    2. If the answer comes back "Yes", voting begins.

  1. 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.

  2. 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.

  1. THERE ARE NO RECOUNTS. A clear bias occurs when the foreman feels it is a mistake not to return an indictment.

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.

  1. 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.

  2. 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.

  1. 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 it.

  2. 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.

  3. 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 lies.

  4. 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.

  5. 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 (http://www.courts.state.ny.us/gjrr.html) were raised and so the state already recognizes this as an invaluable tool of reparation.

  6. 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.

  7. 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!

  8. 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.

  9. 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 institution.

  10. 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.

  

 

 

 

Federal Grand Jury
Home Page

 


E-mail questions, comments, or suggestions regarding this site 

Credits: Susan Brenner, Lori Shaw
Website Research Assistant : Dave Hunter
Copyright © 1997 - 2003 All rights reserved
Privacy Policy