The right to be indicted by a grand jury in cases of capital and serious offenses is guaranteed under the Fifth Amendment to the U.S. Constitution and Article 12 of the Massachusetts Declaration of Rights. Grand jury proceedings have been the focus of national attention this past year. Yet few people across this country understand how a grand jury functions. Further, grand juries vary from state to state in make-up, jurisdiction, and procedure. Here in Massachusetts, grand jury practice strives to maintain the integrity and character of this essential component of our criminal justice system.
The grand jury occupies a unique and historic place in our jurisprudence. See Jones v. Robbins, 8 Gray 329, 342-50 (1857); Commonwealth v. Riley, 73 Mass. App. Ct. 721, 726 (2009). Comprised of citizens who sit independently and in secret, “the grand jury have the dual function of determining whether there is probable cause to believe a crime has been committed and of protecting citizens against unfounded criminal prosecutions.” Lataille v. District Ct. of E. Hampden, 366 Mass. 525, 532 (1974). Probable cause is reasonable grounds to believe that a crime has been committed by a certain person. “[A]t the very least the grand jury must hear sufficient evidence to establish the identity of the accused and probable cause to arrest him.” Commonwealth v. McCarthy, 385 Mass. 160, 163 (1982) (citations omitted).
In Massachusetts, the grand jury is comprised of twenty-three citizens. A Superior Court judge, usually assisted by an Assistant District Attorney, empanels a grand jury every three months. In Suffolk County the jury sits four days per week for the entire three months. Though some employers pay for all jury service, most will pay only the required first three days of service after which the State will pay fifty dollars per day. Using individual voir dire, the judge inquires of each potential juror on the issues of hardship and impartiality. Finding fair and impartial grand jurors who can commit to this three month schedule under these financial conditions is difficult, and empanelment usually takes two days. Once twenty-three jurors are chosen, the court will administer the Grand Jury Oath, G.L. c.277, §5. The Judge follows with the traditional instruction explaining briefly the duties and responsibilities of grand jurors, and then remands them to the care of the prosecutor to begin their work.
The District Attorney oversees the presentation of cases to the grand jury. The prosecutor’s unique access to the police and the victims and witnesses of crimes provides a practical avenue to presenting cases in grand jury. The grand jury meets in secret. The witnesses and evidence that come before it are not disclosed to anyone during the pendency of any investigation. In fact, jurors are forever bound by the secrecy requirement. The grand jury serves both a screening and an investigative function. The grand jury will hear cases for which an arrest has been made to determine whether an indictment should issue, and will also conduct complex investigations into alleged crimes for which no arrest has been made. Standard cases range from simple gun and drug possessions to physical assaults and robberies, from sexual assaults and child abuse to shootings and homicides. A case cannot proceed to Superior Court for trial unless a grand jury has returned indictments.
Typically, the Assistant District Attorney will present evidence through the testimony of sworn witnesses, supplemented with physical evidence. All evidence is obtained through grand jury subpoenas. Physical evidence can take many forms: photographs, surveillance video, recorded statements, drug and gun certificates, medical and other business records. All witnesses summoned before the grand jury are entitled to be represented by an attorney. Witnesses who refuse to testify or otherwise assert a privilege will appear with counsel before a judge for a hearing on that issue. If the judge determines that the witness has a valid claim of privilege, the judge will excuse the witness from testifying. Only the grand jurors, the prosecutor, the witness, and a stenographer, lawyer or interpreter are allowed to be present during testimony. All testimony of witnesses is recorded and transcribed into grand jury minutes and these are later provided as part of a discovery package to an indicted defendant.
The evidence required for a grand jury to indict is “considerably less exacting” than the evidence required for a petit jury to find guilt at trial. Commonwealth v. Walczak, 463 Mass. 808, 817 (2012). See also Riley, 73 Mass. App. Ct. at 726. The rules of evidence are relaxed during grand jury presentations. Leading questions are allowed, and hearsay is permissible. Grand jurors have the opportunity to question witnesses. In furtherance of their duties, grand jurors may request the Court to order witnesses or potential targets to provide DNA samples, fingerprints, or even participate in lineup procedures. This evidence assists the jurors in making the ultimate finding of probable cause, and may exculpate or inculpate a potential target. Grand jury practice has developed over time to now afford the grand jurors a fuller and more complete review of the evidence. While once a single police officer may have been sufficient to establish probable cause, the current practice is for grand jurors to hear most of the percipient witnesses and to receive corroborative evidence, and such exculpatory evidence as is available.
The other major role of the Assistant District Attorney is to serve as a legal advisor to the grand jury. See Walczak, 463 Mass. at 823-24, 840-41. Traditionally prosecutors instruct on and explain the law whenever appropriate, necessary, or requested by the grand jurors. Id. The Court, however, does not require instruction unless specifically requested by the grand jury. Commonwealth v. Noble, 429 Mass. 44, 48 (1999). Recently, the Court carved out an exception to this longstanding rule. In cases where the prosecutor seeks to charge a juvenile defendant with murder and where, apart from any claim of lack of criminal responsibility, there exists substantial evidence of mitigating circumstances or defenses — e.g. that the defendant acted in the heat of passion based on reasonable provocation or sudden combat — the prosecutor must instruct the jury on the elements of murder and the legal significance of this evidence on the record. Walczak, 463 Mass. at 809. In Suffolk County, as a case comes before the grand jury for the first time, the prosecutor will define the elements of the potential crimes and applicable legal concepts using standard jury instructions and case law. Once a jury has been instructed on a specific charge or concept, they will receive subsequent instructions as requested or needed. Before voting any charge, the grand jury has received all applicable instructions of law.
At the conclusion of the evidence, the prosecutor will ask the grand jury to vote on a charge or charges. The jurors deliberate in secret, and the prosecutor is not present. For each crime, the jurors must determine if there is probable cause to charge a certain defendant. If the Commonwealth presents sufficient evidence to meet the standard of probable cause, it is the duty of the juror to vote in favor of a true bill or indictment. In order to true bill a charge, twelve or more grand jurors must vote to support the indictment. If fewer than twelve jurors vote to support a charge, the result is a No Bill, that is, no indictment. Although twenty-three members make up a whole grand jury, a minimum of thirteen need be present to have a quorum. In all cases at least twelve jurors must vote to return a true bill or indictment. The foreperson signs the indictments on behalf of the grand jury and returns these indictments to the Court.
Ultimately, the Court oversees and reviews the grand jury process. At any time, the jurors may request instructions from a judge. For the most part, the legal requirements and responsibilities placed on prosecutors in grand jury have been simple and straightforward. In order to sustain an indictment, the evidence presented to the grand jury must establish probable cause. McCarthy, 385 Mass. at 163. The prosecutor also has a duty to uphold the integrity of the grand jury process and provide significant exculpatory or other mitigating evidence that would influence the grand jury’s decision to indict. Commonwealth v O’Dell, 392 Mass. 445, 451 (1984); Commonwealth v. Mayfield, 398 Mass. 615, 621 (1986). Upon meeting these requirements, an indictment will survive most challenges.
The public would be impressed with the commitment demonstrated by the members of the grand jury. From the moment they take their oath to the end of the three months of service, the jurors work hard to be fair and impartial, fulfilling their solemn responsibility to properly charge individuals with crimes and to uphold their obligation to serve and protect the citizens of this Commonwealth.
Linda Poulos is an Assistant District Attorney with the Suffolk County District Attorney’s Office. She has been the grand jury coordinator for the last 15 years.