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AMERICAN BAR ASSOCIATION

ADOPTED BY THE HOUSE OF DELEGATES

FEBRUARY 11, 2013

RESOLUTION

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RESOLVED, That the American Bar Association urges the Judicial Conference of the United States to amend the Model Grand Jury Charge as follows:

a) Delete paragraph 10 (which now reads: “Furthermore, when deciding whether or not to indict, you should not consider punishment in the event of conviction.”);

b) Revise paragraph 23 (to read: “Frequently, charges are made against more than one person. It will be your duty to examine the evidence as it relates to each person, and to make your finding as to each person. In other words, where charges are made against more than one person, you may indict only those persons who you believe properly deserve indictment. You must remember to consider the charges against each person separately.”); and

c) Revise paragraph 25 (to read: “To return an indictment charging an individual with an offense, it is not necessary that you find that individual guilty beyond a reasonable doubt. You are not a trial jury and your task is not to decide the guilt or innocence of the person charged. Your task is to determine whether the government's evidence as presented to you is sufficient to cause you to conclude that there is probable cause to believe that the person being investigated committed the offense charged. To put it another way, you may vote to indict only where the evidence presented to you is sufficiently strong to warrant a reasonable person's belief that the person being investigated is probably guilty of the offense charged.”).

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REPORT

I. Introduction

Under common law tradition, a felony or capital case could not proceed to trial unless a grand jury issued an indictment or presentment.[1] Although the Framers did not mention the grand jury in the original Constitution, the Fifth Amendment included a Grand Jury Clause, which incorporated the common-law requirement and is binding in federal criminal prosecutions:

"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury."

The Framers and judges of their era understood the grand jury to be an independent entity[2] and intended it to play a structural role:[3] Indeed, as the Supreme Court has explained, the grand jury

is a constitutional fixture in its own right. In fact the whole theory of its function is that it belongs to no branch of the institutional Government, serving as a kind of buffer or referee between the Government and the people.[4]

And, as the Court noted, it has

insisted that the grand jury remain free to pursue its investigations unhindered by external influence or supervision so long as it does not trench upon the legitimate rights of any witness called before it. Recognizing this tradition of independence, we have said that the Fifth Amendment's constitutional guarantee presupposes an investigative body acting independently of either prosecuting attorney or judge.[5]

Although Congress, pursuant to Article III, has vested the federal courts with jurisdiction over cases arising under criminal statutes, this jurisdiction cannot be exercised in felony or capital cases without the grand jury’s consent.[6] In addition, the grand jury through its charging authority limits courts’ ability to sentence criminal defendants after a guilty verdict or plea. Thus the grand jury performs a structural role as gatekeeper of the federal courts’ exercise of subject-matter jurisdiction in criminal cases. The grand jury’s robust discretion to limit the cases that courts may hear heightens its checking function with regard to the judicial branch.[7]

Instructions give a grand jury its structure and function.[8] Accordingly, every effort must be made to insure that instructions accurately reflect the true powers and responsibilities of the grand jury.

The Model Grand Jury Charge (MGJC) was first promulgated by the Judicial Conference of the United States in 1978. The Judicial Conference of the United States adopted a revised version in 1986 and again in 2005.

While the ABA House of Delegates has adopted resolutions supporting various improvements in grand jury practices[9], the House has not considered any resolution related to the Judicial Conference’s MGJC. This Resolution sets forth the recommended changes to the most recently adopted MGJC in numerical order. But there is no doubt that the proposed change to paragraph 25 is the most important change called for in the Resolution. Closely related to it is the proposed deletion of paragraph 10 which currently tells grand jurors that they should not consider punishment in making charging decisions.

II. Grand Juries Should Be Instructed That They “May” Indict

Paragraph 10 of the current MGJC instructs grand juries that “when deciding whether or not to indict, you should not consider punishment in the event of conviction.” Paragraph 25 instructs them that they “should vote to indict where the evidence presented to [them] is sufficiently strong to warrant a reasonable person's belief that the person being investigated is probably guilty of the offense charged.” “The word ‘should’ is used to ‘express a duty [or] obligation.’”[10] Accordingly, a grand jury is most likely to understand the word as imposing an inflexible duty on it to indict when the evidence satisfies the standard articulated.[11]

But as so understood, the instruction is at odds with the principle, recognized by the Supreme Court in Vasquez v. Hillery, that “[t]he grand jury is not bound to indict in every case where a conviction can be obtained.”[12] This principle is a fundamental one. Given the large number of criminal laws on the books and the extent to which they are broken, it would not be feasible for all those who violate any criminal law to be prosecuted. Accordingly, somewhere in the criminal justice system discretion must be exercised in deciding which individuals to arrest and prosecute.[13] Obviously, police officers exercise discretion in deciding whom to arrest, and prosecutors exercise discretion in deciding not to pursue charges against some individuals. But that is not the end of the matter. The framers of the Fifth Amendment did not insist on grand jury indictment as a precondition to prosecution merely to create a meaningless formality. Rather, because “it has the power to refuse to indict even where a clear violation of law is shown, the grand jury can reflect the conscience of the community in providing relief where strict application of the law would prove unduly harsh.”[14] Moreover, the grand jury’s discretion is not limited to a simple question of whether or not to indict:

In the hands of the grand jury lies the power to charge a greater offense or a lesser offense; numerous counts or a single count; and perhaps most significant of all, a capital offense or a noncapital offense – all on the basis of the same facts.[15]

Note that the position of the grand jury is far different from that of the petit jury. Even if one takes the view that the petit jury acts improperly if it declines to convict when it is presented with proof of guilt beyond a reasonable doubt – and arguably especially if one takes that view – it is essential to maintain the power of the grand jury not to indict.[16] The decision to initiate charges, unlike the determination of whether guilt has been proven beyond a reasonable doubt, is at bottom a dicretionary one, and the Fifth Amendment insists that a charge may not be brought unless the grand jury approves.[17]

To underscore the importance of the grand jury’s independence and discretion, the use of the words “may” and “only” in paragraph 25 indicate that there is no inflexible duty to indict. Elimination of paragraph 10 performs two functions. First, it makes clear that the grand jury decides what is important to its decision – not the prosecutor and not the court. Second, it avoids singling out “punishment” as something that is off limits – which actually may have the perverse effect of causing grand jurors to ask why and focus more on punishment than they might were there no such instruction.

III. The Grand Jury Should Be Instructed To Consider Each Defendant Separately.

Paragraph 23 of the MGJC instructs the grand jury that it should “examine the evidence as it relates to each person” and to “make . . . findings as to each person.” This is an important point, for of course guilt is personal. As it stands, the paragraph provides that the grand jury “may indict all of the persons or only those persons who [it believes] properly deserve indictment.” This language is ambiguous; it may be taken to suggest that a blanket indictment woud be permissible even if some of the persons, were they to be considered separately, would not deserve indictment. The resolution proposes eliminating the words “all of the persons or” from this sentence and adding an explicit statement: “You must remember to consider the charges against each person separately.” This should make much clearer the responsibility to consider each defendant individually.

IV. Conclusion

These changes to the Model Grand Jury Instructions aim to help bolster the historic role of the grand jury as an independent entity – the bulwork of liberty it can be -- and to ensure that the grand jury fulfills its vital and proper role in the criminal justice system.

A copy of the Model Grand Jury Charge is below with the changes proposed by the resolution highlighted.

PROPOSED CHANGES by ABA Criminal Procedure and Defense Function Committees

(Additions are underlined; deletions are struck through)

Ladies and Gentlemen:

1. Now that you have been empaneled and sworn as a Grand Jury, it is the Court's responsibility to instruct you as to the law which should govern your actions and your deliberations as Grand Jurors.

2. The framers of our Federal Constitution deemed the Grand Jury so important for the administration of justice, they included it in the Bill of Rights. The Fifth Amendment to the United States Constitution provides in part that no person shall be held to answer for a capital or otherwise infamous crime without action by a Grand Jury. An infamous crime is a serious crime which may be punished by imprisonment for more than one year. The purpose of the Grand Jury is to determine whether there is sufficient evidence to justify a formal accusation against a person—that is, to determine if there is "probable cause" to believe the person committed a crime. If law enforcement officials were not required to submit to an impartial grand jury proof of guilt as to a proposed charge against a person suspected of having committed a crime, they would be free to arrest a suspect and bring that suspect to trial no matter how little evidence existed to support the charge.

3. The Grand Jury is an independent body and does not belong to any branch of the government. As members of the Grand Jury, you, in a very real sense, stand between the government and the person being investigated by the government. A federal grand jury must never be made an instrument of private prejudice, vengeance, or malice. It is your duty to see to it that indictments are returned only against those who you find probable cause to believe are guilty and to see to it that the innocent are not compelled to go to trial.

4. A member of the Grand Jury who is related by blood or marriage to a person under investigation, or who knows that person well enough to have a biased state of mind as to that person, or is biased for any reason, should not participate in the investigation of that person or in the return of the indictment. This does not mean that if you have an opinion you should not participate in the investigation. However, it does mean that if you have a fixed opinion before you hear any evidence, either on a basis of friendship or ill will or some other similar motivation, you should not participate in that investigation and in voting on the indictment.

5. Sixteen of the twenty-three members of the Grand Jury constitute a quorum and must be present for the transaction of any business. If fewer than this number are present, even for a moment, the proceedings of the Grand Jury must stop.

· Limitation on the Power of the Grand Jury

6. Although as Grand Jurors you have extensive powers, they are limited in several important respects.

7. You can only investigate conduct which violates federal criminal laws. Criminal activity which violates state law is outside your inquiry. Sometimes, though, the same conduct violates both federal and state law, and this you may properly consider.

8. There is also a geographic limitation on the scope of your inquiries in the exercise of your power. You may inquire only to federal offenses committed in this district.

9. You cannot judge the wisdom of the criminal laws enacted by Congress, that is, whether or not there should or should not be a federal law designating certain activity as criminal. That is to be determined by Congress and not by you.

10. Furthermore, when deciding whether or not to indict, you should not consider punishment in the event of conviction.

· The Grand Jury Procedures

11. The cases which you will hear will come before you in various ways. Frequently, suspects are arrested during or shortly after the commission of an alleged crime, and they are taken before a Magistrate Judge, who then holds a preliminary hearing to determine whether there is probable cause to believe that the person has committed a crime. If the Magistrate Judge finds such probable cause, he or she will direct that the person be held for the action of the Grand Jury so that you can independently consider whether there should be an indictment.