Strauss-Kahn Affair: What is a Grand Jury?

By Douglas Yates, Ph.D., Associate Professor at AGS

Posted on May 19th, 2011

This week Dominique Strauss-Kahn was brought before a New York grand jury who decided that the prosecutors had sufficient evidence to go on with a trial, and issued an "indictment." This is not a sentence, nor even a conviction of guilt. It is simply a judicial accusation.

The grand jury is a unique Anglo-Saxon institution found in many Common Law countries. It is a special kind of jury, summoned by the sheriff, whose duty is to receive complaints in criminal cases, hear ;the state's evidence, and find "bills of indictment" in cases where they are satisfied a trial ought to be held.

It is called a "grand jury" because it comprises a greater number of jurors that the ordinary trial jury of "petit jury." At common law, a grand jury consisted of not less than twelve nor more than twenty-three men, and this is still the rule in many of the states in the U.S.

The origins on the institution of the grand jury are obscure, although in some forms it was found among the Anglo-Saxons before the Norman Conquest (1166). The institution was introduced into the English colonies, and impressed the framers of the U.S. Constitution enough to include it in the new federal system. No person may be tried by the federal government (that is, the United States government) for any "capital" or otherwise "infamous" crime unless that person has been indicted by a grand jury. This is a constitutional right protected by the Fifth Amendment to United States Constitution, that is, a fundamental procedural right found in the U.S. Bill of Rights.

But DSK is not in federal court. He is in the judicial system of the State of New York. Although not all states have grand juries, the State of New York does. Unlike the federal system, however, you do not have to be indicted by a grand jury in New York. There is an alternative. It is possible for the prosecutor to initiate a felony criminal proceeding by filing a complaint in court and then having a preliminary hearing. This kind of accusation is called an "information." Since the defendant and his attorney are allowed to be present at these preliminary hearings, see the prosecution's physical evidence and hear his witness testimonial evidence, cross-examine those witnesses, and even call witnesses on the defendant's behalf, prosecutors prefer grand juries.

The essence of the grand jury is that it is held in secret. Only the prosecutor, the grand jurors, and the witnesses actually being questioned can be present (as well as a court reporter who makes a record of the proceedings). The defendant and his attorney may not be present at any of the indictment proceedings. Therefore the defense has no right to confront the witnesses who testify against the defendant at a grand jury hearing. The defendant has no right to cross-examine the prosecution's witnesses, nor any right to call witnesses on his own behalf. The practical effect of these procedural differences is that grand juries tend to indict the defendant 99% of the time.

Where is the presumption of innocence? That comes after the "indictment." Once you have been formally accused of committing a crime, the law provides you with a legal presumption of innocence. This is not an assumption that you are innocent, but a legal standard. It implies that the prosecution has the burden of proof. A presumption of innocence can be rebutted. That is what a trial court does by "conviction."

A defendant has the right not to testify before a grand jury if he is called as a witness. A witness also has a constitutionally protected right against self-incrimination. If the prosecutor asks the judge for immunity for that witness from criminal prosecution, then the witness must testify, or face charges of contempt of court. This charge is serious, and can result in up to a year of jail after the grand jury finishes its investigation.

Once evidence of the criminal acts has been presented by the prosecution to the grand jury, and prosectuor and the court reporter must leave the grand jury room to allow the members of the grand jury to deliberate. During deliberation they may ask the grand reporter to re-read testimony, or they may ask the prosecutor or judge for legal clarifications. But all actual deliberations must be done in private. The essence of the grand jury is secrecy.