grand jury


From Bouvier's Law Dictionary, Revised 6th Ed (1856):

GRAND JURY, practice. A body of men, consisting of not less than twelve nor 
more than twenty-four, respectively returned by the sheriff of every county 
to every session of the peace, oyer and terminer and general gaol delivery, 
to whom indictments are preferred. 4 Bl. Com. 302; 1 Chit. C. L. 310, 1. 
     2. There is just reason to believe that this institution existed among 
the Saxons, Crabb's C. L. 35. By the constitutions of Clarendon, enacted 10 
H. II. A. D. 1164, it is provided, that "if such men were suspected, whom 
none wished or dared to accuse, the sheriff, being thereto required by the 
bishop, should swear twelve men of the neighborhood, or village, to declare 
the truth" respecting such supposed crime; the jurors being summoned as 
witnesses or accusers, rather than judges. If this institution did not exist 
before, it seems to be pretty certain that this statute established grand 
juries, or recognized them, if they existed before. 
     3. A view of the important duties of grand juries will be taken, by 
considering, 1. The organization of the grand jury. 2. The extent of its 
jurisdiction. 3. The mode of doing business. 4. The evidence to be received. 
5. Their duty to make presentments. 6. The secrecy to be observed by the 
grand jury. 
     4. - 1. Of the organization of the grand jury. The law requires that 
twenty-four citizens shall be summoned to attend on the grand jury; but in 
practice, not more than twenty-three are sworn, because of the inconvenience 
which else might arise, of having twelve, who are sufficient to find a true 
bill, opposed to twelve others who might be against it. 6 Adolph. & Ell. 
236; S. C. 33 e. C. L. R. 66; 2 Caines, R. 98. Upon being called, all who 
present themselves are sworn, as it scarcely ever happens that all who are 
summoned are in attendance. The grand jury cannot consist of less than 
twelve, and from fifteen to twenty are usually sworn. 2 Hale, P. C. 161; 7 
Sm. & Marsh. 58. Being called into the jury box, they are usually permitted 
to select a foreman whom the court appoints, but the court may exercise the 
right to nominate one for them. The foreman then takes the following oath or 
affirmation, namely: "You A B, as foreman of this inquest for the body of 
the ______ of _________, do swear, (or affirm) that you will diligently 
inquire, and true presentments make, of all such articles, matters and 
things as shall be given you in charge, or otherwise come to your knowledge 
touching the present service; the commonwealth's counsel, your fellows and 
your own, you shall keep secret; you shall present no one for envy, hatred 
or malice; nor shall you leave any one unpresented for fear, favor, 
affection, hope of reward or gain; but shall present all things truly, as 
they come to your knowledge, according to the best of your understanding, 
(so help you God.") It will be perceived that this oath contains the 
substance of the duties of the grand jury. The foreman having been sworn or 
affirmed, the other grand jurors are sworn or affirmed according to this 
formula: "You 'and each of you do swear (or affirm) that the same oath (or 
affirmation) which your foreman has taken on his part, you and every one of 
you shall well and truly observe on your part." Being so sworn or affirmed, 
and having received the charge of the court, the grand jury are organized, 
and may proceed to the room provided for them to transact the business which 
may be laid before them. 2 Burr. 1088; Bac. Ab. Juries, A. The grand jury 
constitute a regular body until discharged by the court, or by operation of 
law, as where they cannot continue by virtue of an act of assembly beyond a 
certain day. But although they have been formally discharged by the court, 
if they have not separated, they may be called back, and fresh bills 
submitted to them; 9 C. & P. 43; S. C. 38 E. C. L. R. 2 8. 
     5. - 2. The extent of the grand jury's jurisdiction. Their jurisdiction 
is coextensive with that of the court for which they inquire; both as to the 
offences triable there, and the territory over which such court has 
jurisdiction. 
     6. - 3. The mode of doing business. The foreman acts as president, and 
the jury usually appoint one of their number to perform the duties of 
secretary. No records are to be kept of the acts of the grand jury, except 
for their own use, because, as will be seen hereafter, their proceedings are 
to be secret. Being thus prepared to enter upon their duties, the grand jury 
are supplied with bills of indictment by the attorney-general or other 
officer, representing the state or commonwealth against offenders. On these 
bills are endorsed the names of the witnesses by whose testimony they are 
supported. The witnesses are in attendance in another room, and must be 
called when wanted. Before they are examined as to their knowledge of the 
matters mentioned in the indictment, care must be taken that they have been 
sworn or affirmed. For the sake of convenience, they are generally sworn or 
affirmed in open court before they are sent to be examined, and when so 
qualified, a mark to that effect is made opposite their names. 
     7. In order to save time, the best practice is to find a true bill, as 
soon as the jury are satisfied that the defendant ought to be put upon his 
trial. It is a waste of time to examine any other witness after they have 
arrived at that conclusion. Twelve at least must agree, in order to find a 
true bill; but it is not required that they should be unanimous. Unless that 
number consent, the bill must be ignored. When a defendant is to be put upon 
his trial, the foreman must write on the back of the indictment "a true 
bill," sign his name as foreman, and date the time of finding. On the. 
contrary, where there is not sufficient evidence to authorize the finding of 
the bill, the jury return that they are ignorant whether the person accused 
committed the offence charged in the bill, which is expressed by the foreman 
endorsing on the bill "ignoramus," signing his name as before, and dating 
the time. 
     8. - 4. Of the evidence to be received. In order to, ascertain the 
facts which the jury have not themselves witnessed, they must depend upon 
the statement of those who know them, and who will testify to them. When the 
witness, from his position and ability, has been in a condition to know the 
facts about which he testifies, he is deserving of implicit confidence; if, 
with such knowledge, he has no motive for telling a false or exaggerated 
story, has intelligence enough to tell what he knows, and give a probable 
account of the transaction. If, on the other hand, from his position he 
could not know the facts, or if knowing them, he distorts them, he is 
undeserving of credit. The jury are the able judges of the credit and 
confidence to which a witness is entitled. 
     9. Should any member of the jury be acquainted with any fact on which 
the grand jury are to act, he must, before he testifies, be sworn or 
affirmed, as any other witness, for the law requires this sanction in all 
cases. 
    10. As the jury are not competent to try the accused, but merely to 
investigate the case so far as to ascertain whether he ought to be put on 
his trial, they cannot hear evidence in his favor; theirs is a mere 
preliminary inquiry; it is when he comes to be tried in court that he may 
defend himself by examining witnesses in his favor, and showing the facts of 
the case. 
    11. - 5. Of presentments. The jury are required to make true 
presentments of all such matters which may be given to them in charge, or 
which have otherwise come to their knowledge. A presentment, properly 
speaking, is the notice taken by the grand jury of any offence from their 
own knowledge, as of a nuisance, a libel, or the like. In these cases, the 
authors of the offence should be named, so that they may be indicted, 
    12. - 6. Of the secrecy to be observed by the grand jury. The oath which 
they have taken obliges them to keep secret the commonwealth's counsel, 
their fellows and their own. Although contrary to the general spirit of our 
institutions, which do not shun daylight, this secrecy is required by law 
for wise purposes. It extends to the votes given in any case, to the 
evidence delivered by witnesses, and the communications of the jurors to 
each other; the disclosure of these facts, unless under the sanction of law, 
would render the imprudent juror who should make them public, liable to 
punishment. Giving intelligence to a defendant that a bill has been found 
against him, to enable him to escape, is so obviously wrong, that no one can 
for a moment doubt its being criminal. The grand juror who should be guilty 
of this offence might, upon conviction, be fined and imprisoned. The 
duration of the secrecy appears not to be definitely settled, but it seems 
this injunction is to remain as long as the particular circumstances of each 
case require. In a case, for example, where a witness swears to a fact in 
open court, on the trial, directly in opposition to what he swore before the 
grand jury, there can be no doubt the injunction of secrecy, as far as 
regards this evidence, would be at an end, and the grand juror might be 
sworn to testify what this witness swore to in the grand jury's room, in 
order that the witness might be prosecuted for perjury. 2 Russ. Cr.. 616; 4 
Greenl. Rep. 439; but see contra, 2 Halst. R. 347; 1 Car. & K. 519. Vide, 
generally, 1 Chit. Cr. Law, 162; 1 Russ. Cr. 291; 2 Russ. Cr. 616 2 Stark. 
Ev. 232, n. 1; 1 Hawk. 65, 500 2 Hawk. ch. 25; .3 Story, Const. Sec. 1778 2 
Swift's Dig. 370; 4 Bl. Com. 402; Archb. Cr. Pl. 63; 7 Sm. Laws Penna. 685. 


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