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One Federal Grand Juror's Experience

(This is an email I received from a former federal grand juror that describes what it was like for this person to spend a year serving on a federal grand jury.
After the story, I have included most of the emails sent between the juror and myself.)

 

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Dear Susan,

We have communicated before regarding my federal grand jury service that ended last week. I just wanted to thank you for creating your informational web site and for your willingness to take the time to give advice and direct me where to go for additional information.

As you know, when I became a grand juror, I asked the prosecutors and the court staff for a copy of the Handbook for Federal Grand Jurors, a publication you had told me about (when I emailed you and asked where I could find out what grand jurors are supposed to do). They told me it wasn’t available and, when I persisted, said they were "out" of them. I emailed you; you checked on the availability of the Handbook and told me I should be able to get a copy of it (since it is supposed to be given to new grand jurors). So I went back and tried again. I finally did get a Xeroxed copy of the Handbook for Federal Grand Jurors from the Administrative Office of the U.S. Courts in Washington, D.C. Had it not been for you, no one on my panel would have known about the Handbook.

I also told you before that some of the Assistant U.S. attorneys would have us give them our questions for witnesses and they would have the witness return and ask the questions for us. Sometimes they would change the way the question was asked and occasionally they would not ask the question at all. You told me that the jurors could ask the questions directly which I insisted on doing. It worked much better; it allowed me to enter into a dialogue with the witness until I was satisfied that my question was answered. The attorneys never objected with one exception, an attorney didn't think we could inquire about a deal a witness got for his/her testimony; that created an interesting discussion (with the witness out of the room) and the attorney backed down.

All in all, I found the process to be about 10%-20% interesting and worth while, and 80%-90% boring and a waste of time. We sat for hours while attorneys read into the record words that drove the average grand juror crazy. Some went to sleep, some read and some just zoned out. And the funny thing was, nobody cared. Most of the time we knew we would return a true bill long before the torture ended but were forced to endure it. Although I think the process stinks I concede that I know of no better way of doing it and that the rationale behind it is sound.

For the most part I thought the attorneys were professional and dedicated to the law. But there were a couple who clearly tried to manipulate the panel toward a bias for them. I didn't know what to do about that. In both cases they had not made the case for probable cause and tried to limit the jurors’ inquiry. I wondered about how careers were shaped in the office and if their behavior was influenced by that. In both of these cases the attorneys asked us if we would be willing to extend for another six months. By vote, we indicated that the majority didn't want to; we were not extended. I was offended that they asked. One reason given for the need was that a request to a judge had not been acted upon for over a month; so one person's procrastination could cause 23 people a major inconvenience for six more months. And in that case some witnesses had been dragged in for the third time in two years.

The other case was disturbing in the sense that the government may have drug laws that are so vague that people will plead guilty to a crime they didn't commit because the odds for conviction are good. So they plea for a lesser penalty in return for cooperative testimony. The law made it illegal to sell legal over the counter drugs that are controlled to people you may have reasonable cause to believe are converting the product into an illegal substance. We heard testimony from witnesses who, it seemed, were doing everything correctly, even reporting sales to the proper agency, but still became targets.

I don't know if you are interested in an ex-grand juror's opinion, but there you have mine. And thanks again for your willingness to help.

And now for some useless stats:

Served from June 1, 1998 - June 1, 1999
Attended 36 times
Time in session: 139:45 hours
Time driving, walking, waiting, riding and eating: 124:41 hours
Number of cases presented: 29
Number of indictment proceedings 17
Attendance pay: $1,400.00
Mileage: $ 1,273.14
Average pay/hour: $ 5.30

Regards

P.S. I forgot to mention that we returned true bills in all cases we were asked to consider.

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Date sent: Thu, 13 Aug 1998 09:03:12 -0700
From: Anonymous Juror
To: Susan Brenner
Subject: Fed. Grand Jury

Dear Susan,

I have been on a federal grand jury for about two months. I have had the feeling that we are being manipulated by the prosecuting attorneys from the first day when we were selected. This feeling has not abated at all. I also feel that our work is almost a total waste of time and that a judge would be better able to make the decision to indict or not. However, I'm not sure about that. I do know that I don't like being there and don't find it at all rewarding. From the first day it seemed like we are just a rubber stamp. Since that first day I have read many others who have used the same expression. At least I know it’s not just me.

Question: Often the federal attorney excuses the witness and then asks if we have any questions. I've noticed that it does not allow for a free flow of questions from the jurors. Can I, as a juror, demand that I be able to question a witness myself?

Thanks,
Anonymous Juror

Date sent: Friday, 14 Aug 1998 10:23:12 -0700
From: Susan Brenner
To: Anonymous Juror
Subject: Fed. Grand Jury

Dear Anonymous Juror:

I'm not exactly sure what you mean by questioning the witness, so let me give you my answer and if it doesn't address your concerns let me know.

Grand jurors have the right to ask questions of witnesses; you should have gotten a copy of the handbook for federal grand jurors, and it explicitly tells you this. The Department of Justice repeats this in its grand jury manual. The Department's manual tells prosecutors they should tell the grand jurors that the prosecutor will question the witness first, and then the prosecutor will check with the grand jurors to see if they have any questions. The manual tells prosecutors that they can then ask appropriate questions and not ask ones they thing are irrelevant, or embarrassing, etc.

If a grand juror wants to ask a witness a question and the prosecutor is discouraging/preventing the juror from doing so, I would suggest doing the following: First, ask the foreperson of the grand jury if you can ask the question; the foreperson presides over the grand jury and controls the proceedings. Second, if the foreperson won't let the grand juror ask the question, the grand juror should ask to speak to the judge who presides over the grand jury. The grand juror can explain the problem to the judge and ask the judge to direct the prosecutor to let him/her ask the question.

Hope that answers the question.

Susan Brenner
Professor
School of Law
University of Dayton

Date sent: Thu, 20 Aug 1998 00:52:31 -0700
From: Anonymous Juror
To: Susan Brenner
Subject: Re: Fed. Grand Jury

Susan,

Thank you very much for responding to my question. Your reply was very helpful. What occasionally happens is that the prosecutor will ask her/his questions and then ask the witness to step out. The jurors are then asked if they have any questions and if so we tell the prosecutor the questions, the witness is brought back in and the prosecutor asks the questions that the jurors had. This inhibits the free flow of questioning that takes place when the jurors are permitted to ask the questions directly. By going through the foreperson and/or the judge will I be able to question the witness directly?

Anonymous Juror

Date sent: Fri, 21 Aug 1998 02:52:31 -0700
From: Susan Brenner
To: Anonymous Juror
Subject: Re: Fed. Grand Jury

Anonymous Juror:

You asked me if by going "through the foreperson and/or the judge will I be able to question the witness directly?"

I honestly can't answer that: As I said in my previous e-mail, the Department of Justice grand jury manual and the handbook for federal grand jurors sets out the procedure by which the grand jurors go through the prosecutor and have the prosecutor ask their questions (the same is true in some states).

That does not mean it has to be done that way, and I have seen transcripts of grand jury proceedings in which a grand juror asks a question directly of the witness (so I know that is done). Your query raises a very interesting issue, which is who controls the process. Since the grand jury is an independent institution, the grand jury foreperson is in charge of what goes on in the grand jury, and presumably can authorize questioning by grand jurors. (At common law, grand jurors questioned witnesses directly.) If the prosecutor disagrees with that outcome, you will have to take it to the judge.

In my humble opinion (for what that's worth), you should be able to ask questions, as long as they are appropriate (not irrelevant, harassing, etc.). In the final analysis, though, it will depend on what the foreperson and the judge say.

I would very much appreciate it if you would let me know how this is resolved, keeping in mind, of course, the requirement of grand jury secrecy. You cannot disclose any "matters occurring before the grand jury", so if you give me an update, please keep it as general and generic as possible (for your sake and mine).

I hope this has been helpful.

Susan Brenner
Professor
School of Law
University of Dayton

Date sent: Wed, 21 Oct 1998 12:17:41 -0700
From: Anonymous Juror
To: Susan Brenner
Subject: Re: Fed. Grand Jury

Dear Susan,

Sorry I haven't gotten back to you re: questioning witnesses face-to-face but the situation hasn't come up since I asked you about it so I haven't been able to challenge for the right to do it. Is it something I could get our foreperson to ask the judge about without it being connected to a particular case?

Also, a situation came up today where the US attorney didn't want to disclose whether or not a particular name that came up in the case was or was not a target. She said that she didn't want to create a bias that would influence us. I, and others, pressed her on it and she relented. I, like most of us in there, am just one person trying to do an honest job, albeit, I'm sitting there fat dumb and happy. Does it seem to you that she was trying to withhold information from us in order to push through an indictment? Actually it was a 2nd superseded (?) indictment from a case heard by a past jury that resulted in a true bill that I voted for. But it was very upsetting to some of the panel.

Sitting on this grand jury is very strange to me and I suspect to others on it. With almost no instruction, we're cast into an environment consisting of 23 strangers and we're asked to listen to whatever the federal attorney wants to spoon-feed us and then discuss among ourselves whether or not to indict. Our natural inclination is to go along with the authority figure in the room, the attorney! Our vote could cause someone to spend tens of thousands of dollars, or more, for lawyers to defend him/herself.

I want the bad people in jail or at least to pay. But I also want to be able to do the job we were told we are there to do during our orientation; to protect the accused from false claims by, among others, the government. I'm finding this very difficult to do. Can you help me understand how this whole thing works?

Respectfully Yours,
Anonymous Juror

Date sent: Fri, 22 Oct 1998 03:52:31 -0700
From: Susan Brenner
To: Anonymous Juror
Subject: Re: Fed. Grand Jury

Anonymous Juror:

The best advice I can give you is to read (get a copy of?) the Handbook For Federal Grand Jurors, which is a publication the federal government Puts out for the instruction and guidance of federal grand jurors. It will tell you what grand jurors can do and how the whole system is supposed to operate. It also explains what the grand jurors’ role is in the process of investigating federal Crimes and returning indictments.

I’m surprised many of these questions weren’t answered in your orientation.

Susan Brenner
Professor of Law
School of Law
University of Dayton

Date sent: Wed, 10 Feb 1999 13:51:42 -0800
From: Anonymous Juror
To: Susan Brenner
Subject: Re: Fed. Grand Jury

Dear Susan,

I got the word today that a handbook for federal grand jurors does not exist at the _________ District Court in ______. Nor anything like it.

Anonymous Juror

Date sent: Fri, 12 Feb 1999 11:52:31 -0700
From: Susan Brenner
To: Anonymous Juror
Subject: Re: Fed. Grand Jury

Anonymous Juror:

It certainly should. The book is called "The Handbook for Federal Grand Juries" and it is prepared by the Judicial Conference of the United States and published by the Administrative Office of the United States Courts.

Ask the court clerk again, or you can try calling the Administrative Office of the U.S. Courts.

Susan Brenner
Associate Dean and Professor
School of Law
University of Dayton

Date sent: Wed, 17 Feb 1999 15:39:17 -0800
From: Anonymous Juror
To: Susan Brenner
Subject: Re: Fed. Grand Jury

Dear Susan,

Still in quest for The Handbook for Federal Grand Juries. I showed your note to me suggesting I go to the court clerk to the clerk and she told me to go to the administrative office on the main floor. That office told me to go to the U.S. Attorney's office on the 12th floor. As I was about to get back in the elevator I spotted the attorney who gave us grand jurors our orientation and told her I wanted the handbook. She smiled and told me they no longer give the handbook out to the grand jurors and that we have to learn by "on the job training."

You now know that, at least in the _____ district of _________, grand jurors can not get the handbook from anyone in the court building. Now I feel more like a mushroom than before - kept in the dark and fed b.s.

Thank you for your help.
Anonymous Juror

Date sent: Wed, 17 Feb 1999 16:52:31 -0700
From: Susan Brenner
To: Anonymous Juror
Subject: Re: Fed. Grand Jury

Anonymous Juror:

If I get a chance, I'll email the Administrative Office of the Courts and ask them. . . because my book says the handbook is still available.

If you really want to get out of the dark, you might contact them, as well.

Susan Brenner
Associate Dean and Professor
School of Law
University of Dayton

Date sent: Thu, 18 Feb 1999 11:58:30 -0800
From: Anonymous Juror
To: Susan Brenner
Subject: Re: Fed. Grand Jury

Thank you but I think I'm getting the handbook. After my last email to you I contacted a clearing house type web site that forwarded my request on to the U.S. courts and they said they would send one. Thank you for your help.

Anonymous Juror

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