Grand Jury 101 & FAQs

For more on the “right to petition” a grand jury click here

SUMMARY: The grand jury is considered as the “4th Branch of Government”, which holds the other branches of government accountable, well described by attorney Leo Donofrio, J.D. [8]

A grand jury is composed of everyday people impaneled by a judge. Jurors take an oath to “diligently inquire, and true presentments make of any offenses against the people.” The grand jury has a shield function and a sword function. The shield function occurs when the grand jury stands between the government and the accused. Protecting an innocent citizen from an overzealous prosecutor, or political prosecution. The sword function is used to enforce the law upon “street criminals”, or “government criminals.” Thus, holding government accountable.

“Gentlemen of the Grand Jury, You are convened to execute a Trust of the last importance to your Country. … To inquire after every Breach of the penal Law, to protect the Innocent, to punish the Guilty to guard against the Encroachments of Power, and to keep every man with the limits prescribed by the Constitution, and the Laws, is, in general, the Business of a Grand-Jury.” Judge Robert Hanson’s Charge to the Western Shore Counties of Maryland, 1781 [1]

“…The institution of a grand jury is the most effectual check to arbitrary power and oppression….” Judge Pickering Charge to the Grand Jury of Strafford County, New Hampshire – September 1790. [2]

The grand jury is an investigative body with subpoena power (backed by a judge). For example, Senator Lindsey Graham was served a subpoena to appear before the grand jury of Fulton County Georgia. Senator Graham appealed the subpoena in federal court, and was still required to testify before the grand jury of Fulton County. [3]

The grand jury can pierce the silence of witnesses witnessing corruption. This because a witness does not have the 5th Amendment, “right to remain silent.” Susan McDougal, Bill Clinton’s Whitewater business partner served 18 months in jail for not testifying before a grand jury investigating. [4]

The grand jury body can authorize committees. Said committees may be 2, 3, or more jurors to get out on the streets to investigate. Then, said witnesses can be brought before the grand jury body, then sworn by the foreman for testimony. Then, when enough witnesses and evidence comes forth, the grand jury can issue an indictment, or a presentment. A “presentment” is when a grand jury investigates a matter on its own initiative, from its own knowledge and files the “presentment” (or a report) in court. Hale v. Henkle 201 US 43, 59-66 (1906)

The grand jury is completely independent of the courts, after jurors are sworn in. This per the SCOTUS case of U.S. v. Williams 1992. “Rooted in long centuries of Anglo-American history, …. the grand jury is mentioned in the Bill of Rights, but not in the body of the Constitution. It has not been textually assigned, therefore, to any of the branches described in the first three Articles. It “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. ….. Although the grand jury normally operates, of course, in the courthouse and under judicial auspices, its institutional relationship with the Judicial Branch has traditionally been, so to speak, at arm’s length. Judges direct involvement in the functioning of the grand jury has generally been confined to the constitutive one of calling the grand jurors together and administering their oaths of office. …..

…The grand jury’s functional independence from the Judicial Branch is evident both in the scope of its power to investigate criminal wrongdoing and in the manner in which that power is exercised. … Unlike [a] [c]ourt, whose jurisdiction is predicated upon a specific case or controversy, the grand jury “can investigate merely on suspicion that the law is being violated, or even because it wants assurance that it is not.” ……..The grand jury requires no authorization from its constituting court to initiate an investigation, …. It swears in its own witnesses….” U.S. v. Williams 504 U.S. 36, 47-50 (1992)

The U.S. Justice Department’s “Justice Manual” acknowledges the independence of the grand jury. U.S. Justice Manual 9-11.010 – Introduction: “….The prosecutor must recognize that the grand jury is an independent body, whose functions include not only the investigation of crime and the initiation of criminal prosecution but also the protection of the citizenry from unfounded criminal charges.” [5]

A classic action of the grand jury was accountability after the Boston Massacre. On March 5th, 1770 nine British soldiers shot and killed five colonials. Eight days later, March 13th, 1770 the grand jury handed down the first indictment against the soldiers. The grand jury continued to hand down indictments throughout the rest of March. Trials occurred that fall, where John Adam (who would later become president), was their defense attorney. In the petit/trial jury trials, the two commanders were given the death sentence, while the other seven British soldiers were acquitted.

Then, peace broke out. The grand jury existed centuries prior to the U.S. Constitution, and carried through in the 5th Amendment, “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury…” Massachusetts Bay Colony had the first grand jury in the 1630s.

A charge from a Pennsylvania Judge in 1723 stated that grand juries were to redress petitions (public abuses):

“In order therefore to bring Offenders to condign Punishment, and for redressing all public Abuses, within the Jurisdiction of this Court, You are, according to the Oaths and Affirmations you have taken, to Inquire with Diligence, and to Present, with Truth and Uprightness, whatever you find, upon your own Knowledge, or the Informations of others, to be committed within the County contrary to Law.” Judge James Logan’s Charge Philadelphia County, September 2nd, 1723 [6]

“I do understand the Grand Jury of Burlington, at the last General Sessions of the Peace, after an Unprecedented manner, have found an indictment against Me, for what I have done in the Execution of my Office upon the Bench.” Judge David Jamison’s Charge, Burlington County, New Jersey, May 1st 1716. [7]

The courts have consistently supported the grand jury in their independent investigations. Even allowing citizen jurors whatever process they as a body of jurors agree upon for their “evidence taking”. “Over the years, we [SCOTUS] have received many requests to exercise supervision over the grand jury’s evidence-taking process, but we have refused them all, including some more appealing than the one presented today. …” U.S. v. Williams 504 U.S. 36, 50 (1992)

WITH THE SWORD FUNCTION, THE GRAND JURY HOLDS GOVERNMENT ACCOUNTABLE!

We have the 1st Amendment Right to “Petition government for a redress of grievances.” The grand jury is a part of the government yet composed of “everyday people.”

The “right of petition” holds many avenues regarding grand juries:

1. Citizens petition a judge to impanel a grand jury;

2. Citizens petition a sitting grand jury (typically through a willing prosecutor); &

3. Congressional Committees (or other elected authorities) petitioning a sitting grand jury.

(Or for a judge to impanel one when necessary.)

For more on the “right to petition” a grand jury click here

SUMMARY: The grand jury is considered as the “4th Branch of Government”, which holds the other branches of government accountable, well described by attorney Leo Donofrio, J.D. [8]

References for the above:

[1] Pg 297 Judge Robert Hanson’s Charge, Western Shore Counties of Maryland, 1781, Gentlemen of the Grand Jury is compilation in two volumes by Professor of Law - Stanton Krauss, published in 2012 www.cap-press.com ISBN 978-1-59460-815-5, published by Carolina Academic Press
[2] Ibid Gentlemen of the Grand Jury, Page 570 Judge Pickering Charge to the Grand Jury of Strafford County, New Hampshire - September 1790
[3] Fulton Co. Special Purpose Grand Jury v. [U.S. Senator] Lindsey Graham. U.S. Court of Appeals, 11Th Circuit, No. 22-12696-DD, 10/20/2022.
[4] Susan McDougal: https://en.wikipedia.org/wiki/Susan_McDougal 
[5] US Justice Manual: https://www.justice.gov/jm/jm-9-11000-grand-jury#9-11.010
[6] Ibid Gentlemen of the Grand Jury, Page 740 Judge James Logan’s Charge, Philadelphia County September 2 nd , 1723
[7] Ibid Gentlemen of the Grand Jury, Page 583 Judge David Jamison’s Charge, Burlington County, New Jersey, May 1 st , 1716.
[8] Leo C. Donofrio, J.D.: http://www.clgj.info/the-4th-branch-of-government.html

FAQs

Note: This is written in a simple question and answer manner. More information, and references are provided at the end of this document. This FAQ displays that citizens have the right to petition a grand jury, and that the grand jury has the power, and duty to hold corruption accountable. As an example, one of the best summaries of the grand jury power is found in the 1945 Missouri State Constitution, (Article I §16), which reads,

“….but when so assembled such grand jury shall have power to investigate

and return indictments for all character and grades of crime; and that the

power of grand juries to inquire into the willful misconduct in office of public

officers, and to find indictments in connection therewith, shall never be

suspended.” (underlined emphasis added.)

This was continued from the 1875 Missouri Constitution. New York has a similar constitutional provision – N.Y. Const., Art I §6.

  • Q1: What is a grand jury?

    Answer: A grand jury is composed of everyday people, selected from the community, within the judicial district. People are required to be U.S. Citizens and 18 years or older, and of mental competence to do their duty.

  • Q2: How is a grand jury convened or impaneled?

    Answer: By the presiding judge of the respective judicial district. U.S. vs. Williams. No. 90-172 (1992) [1] Or in the several states by a judge per the statutes of the state.

  • Q3: Is a grand jury independent, or is the grand jury a part of the court?

    Answer: Completely, and absolutely independent. See U.S. v. Williams (1992), and other U.S. Supreme Court cases confirming the independence of the grand jury. [2]

  • Q4: Since a grand jury is independent, what duty does the grand jury hold?

    Answer: The duty held by a grand jury is to diligently investigate crimes. Crimes committed by a street criminal, or a corrupt government official that has committed, “willful misconduct in office”, or any crime. [3]

  • Q5: Where in the Constitution is the grand jury?

    Answer: The grand jury is mentioned only once in the U.S. Constitution. It is found in the 5th Amendment, which reads,

    “No person shall be held to answer for a capital or otherwise infamous crime unless under presentment, or indictment of a grand jury.” It should be noted that the grand jury was operating long before the constitution, and the grand jury system simply continued into the American legal system as inherited by the British legal system.”

  • Q6: After a grand jury investigates, what is their concluding document called?

    Answer: A presentment, or an indictment. Both are “probable cause” sending one to trial. There can also be a “no true bill”, or, classically, “ignoramus”, meaning that a majority vote could not be obtained for a charge.

  • Q7: What happens if there is clear corruption, but there is no “presentment”, or “indictment” by a grand jury?

    Answer: There is no accountability for a federal felonious crime. In other words, one can get away with whatever they want, even murder. As an example,

    Former U.S. Senator Ted Kennedy got away with murder of Mary Jo Kopechne at Chappaquiddick, because the Massachusetts State judge sealed the evidence. No evidence, no grand jury indictment, thus no accountability.

    Justice William O’ Douglass stated in U.S. vs Dionisio 410 U.S. 19,23 (1973) “It [the grand jury] is the only accusatorial body of the federal government recognized by the Constitution.”

    No “accusation”, by a grand jury, one is not held to account for a federal crime. Real Simple: No indictment, no criminal accountability. No presentment, no criminal accountability at the federal level.

  • Q8: Is a grand jury dependent on a prosecutor?

    Answer: No and yes. No, being independent, a grand jury has full investigative powers absent a prosecutor. The grand jury has full power to send for witnesses [3] and then direct the prosecutor to prepare the formal charges and/or indictment. At the federal level, an indictment is valid only if the prosecutor signs the indictment [4]. However, a "presentment” as issued by a grand jury needs not the signature of a prosecutor. And “presentment” is still in effect, as it is still found in the 5th Amendment. (See the reference section below w/r to court cases and judge’s quotes from Gentlemen of the Grand Jury.)

    Typically, the grand jury members and the prosecutors work together. However, if a grand jury knew its full power, and that the grand jury is independent, they would not be led around “blindly” by a prosecutor.

    The US Attorney Manual confirms the independence of the grand jury;

    “The prosecutor must recognize that the grand jury is an independent body.” (USAM Chapter 9-11.010 – Introduction).

  • Q9: During grand jury proceedings who is in charge?

    Answer: The grand jury foreperson. Not the prosecutor. Remember, the grand jury is independent.

  • Q10: When the grand jury is deliberating is a judge or prosecutor allowed in the grand jury room?

    Answer: No! Historical use, and statutes make it clear that only the grand jury, and a translator are allowed in the grand jury room.

  • Q11: Is a judge presiding during grand jury proceedings?

    Answer: No! The grand jury is an independent body, and the foreperson of the grand jury is in charge. One could say the grand jury foreperson is “presiding.” In “Trial By Jury”, or a “Petit Jury”, the judge is presiding. The grand jury is different in so many ways from a petit jury. To be an effective grand jury, the grand jury members need to realize this is not a petit jury. And the grand jury can ignore the judge’s instruction, and the prosecutor’s instructions! In 2013, Dekalb County Georgia, the grand jury issued a report against the very judge, Mark Anthony that convened them. https://www.wsbtv.com/news/local/special-grand-jury-files-new-case-against-dekalb-j/242332853. A petit jury cannot do such action against a judge.

  • Q12: Is there something else the grand jury can provide, like a report?

    Answer: California county Civil Grand Juries investigate the operations, the equipment, and personnel of the county. Then issues an annual report. Federal Special Grand Juries can also issue a report.

  • Q13: What is the different between an “indictment” and a “presentment”?

    Answer: In the 5th Amendment, the word “presentment” appears before “indictment.” Blackstone’s Commentary on the laws of England clarifies. An indictment is when the matter is laid before the grand jury as the suit of the King.

    A “presentment” is when the grand jury investigates of their own initiative. U.S. Supreme Court Justice Oliver Wendell Holmes wrote, “now presentment, the other parent of our criminal procedure.” (Lecture II of “The Common Law” from 1880-1881.) Probable cause is what is turned into an arrest warrant, incarceration then trial. Thus “probable cause” from a grand jury has two original forms, “presentment”, or “indictment.” Each state is different. Most states require an indictment for prosecution to proceed. If a grand jury files with the court a presentment, then a prosecutor can take the presentment and turn it into an indictment. A prosecutor is required to sign the indictment (U.S. vs. Cox 1965).

    In a landmark case, there is a clear distinction between indictment and presentment. This is Hale vs. Henkle (1906). And Hale vs. Henkle is a landmark case still being cited by SCOTUS.

  • Q14: When was the Grand Jury Created? Has it continued?

    Answer: In “Western Civilization”, the grand jury started in Great Britain, and became clarified in the Assize of Clarendon of 1166 AD. The Magna Carta of 1215 (Clause 61) increased the power to even confront the king, and seize the king’s assets in the course of accountability. In England, it was more clear in the De Republica Anglorum of 1585. The first Grand Jury in America started in the Massachusetts Bay Colony in 1635, by 1683, all thirteen colonies had grand juries.

    All U.S. States (except North Dakota) have grand juries. (Note: Not all counties have an active grand jury.)

  • Q15: What was the purpose of a Grand Jury?

    Answer: Two-Fold; “A Shield” and “A Sword.” In the shield function, everyday people on the grand jury prevented malicious prosecution by issuing an “ignoramus”, or a “no true bill.” Since then, there have still been overzealous prosecutors that could not overcome the shield function of the grand jury.

    Everyday citizens protect their fellow citizen from suffering political prosecution by overzealous prosecutors.

    In old England, then the American Colonies, the death sentence was much more prevalent for many crimes, not just murder. Examples include adultery and witchcraft. The indictment would take 12 free men (of 23) to send someone to trial. With the petit jury (trial by jury), and 12 more concurred for the death sentence. Thus, a man had to be convicted of 12 + 12, or 24 of his peers to be put to death.

    Development of Rights: The “Shield Function” also prevented a government from committing prosecutorial tyranny, and political prosecution. Over centuries, “Everyday people” on both juries (Grand & Petit) held kings and parliaments accountable to protect rights like the freedom of religion, freedom of speech, freedom of the press, the freedom to peacefully assemble, and the right to petition government for redress of grievance. Prior, these were trampled on by the government. (And in other countries, this still happens.) These freedoms are now enshrined in the 1st Amendment to the U.S. Constitution. Governments develop over centuries. From barbarians to kings to an ordered stable society, both juries were fundamental for the development and improvement of “Western Civilization.” Both the grand jury, and the petit jury have proven themselves to protect political reformers for centuries. It is real simple… under a “King’s Rule”, the king says, “I don’t like what you said, off with your head.” Both juries stand between the king and the accused to protect an innocent political reformer.

    The “Sword Function” of a grand jury became more clear from the “Baron Group of 25” called out in the 1215 AD Magna Carta – Clause 61. In this a grand jury could confront corruption. Grand Juries still hold government accountable to this day. In our nation’s history, on average, every session of Congress has seen at least one grand jury indictment against a congressman. Recent examples of congressmen include: Duncan Hunger (R-Calif.) – 2018, Chris Collins (R-NY)-2018, George Santos (R-NY)-2023, Robert Menendez (D-NJ)-2023.

  • Q16: Can a Grand Jury Member suffer any penalty for how they voted on a matter, indictment, or presentment?

    Answer: NO! Unless a grand jury member committed perjury, or tampered with evidence, there is absolutely no penalty, no consequence, no lawsuit that can be imposed for a grand jury member to vote their conscience. Grand jury members are “indemnified” from any criminal or civil action for their vote on a matter.

    Reading previous questions, and it makes sense as a necessity for government reform, and accountability over the centuries. A judge or a prosecutor can threaten to sue a grand jury member, but the judge or prosecutor has no standing if the grand jury member has operated with honesty and integrity.

  • Q17: Can a grand jury go after government corruption?

    Answer: Yes! (This is deliberately repetitive because most Americans do not know this function.) Holding government accountable is one of the primary functions of a grand jury. The founding generation setup the grand jury to protect citizens, and also to hold corruption accountable. See the footnotes on the “duty” of the grand jury, by the “founding generation” or our country.

  • Q18: Do citizens have a right to petition a federal grand jury?

    Answer: Of course! Justice William O’ Douglass wrote of the origin of the First Amendment’s “Right of Petition.” In Adderly v. Florida, Justice O’ Douglass traced its origin to Clause 61 of the Magna Carta of 1215 AD. [6] Clause 61 detailed a group of individuals that could investigate the king, and “all the kings men”, after receiving a petition. Thus, arguably, the original purpose of the “Right of Petition” was to a grand jury. An elected parliament did not exist at the time.

    (A DRAFT Amicus Curia has been developed to address this. This is available to those who ask the author of this Q&A, Kelly Z. Mordecai via e-mail @ kellyzmordecai@protonmail.com)

  • Q19: How does one petition a grand jury?

    Answer: To answer that, do you mean, a federal, state, or county grand jury? Answers for each are provided below:

    Federal Grand Jury: A couple of ways…. 18 USC §3332 [5], also through a federal judge, and also via providing to a grand jury member a “request to appear” letter. [18 USC §1504 – last sentence.]

    State Grand Jury: Through the Attorney General of the State. (However, this varies by state. For example, in Texas if you know someone on the grand jury, you can provide them a “petition” by handing them directly to a grand juror. Do study your state statutes.

    County Criminal Grand Jury: Typically through a district attorney. However, in many states, one may hand it to the grand jury member if you know who they are. In some states, the grand jury oath requires them to investigate based on what they individually know, or have knowledge of.

    California County Civil Grand Jury: Simply send it to the PO Box of the grand jury foreperson. This is found on the county grand website. Also there is a complaint form one can download.

  • Q20: What happens if a prosecutor won’t get a petition to a grand jury?

    Answer: They have obstructed your “right to petition”, and are violating your fundament 1st Amendment right to “Petition the government for redress of grievance.” See Amicus Curia question. A lawsuit against the prosecutor should commence. Some petitioners have considered suing prosecutors for “obstruction of justice.”

  • Q21: Who can petition a grand jury?

    Answer: This may be a surprise, but anyone! This answer is not based on the person’s status to petition a grand jury, but on the grand jury’s power. A grand jury is allowed to commence an investigation by whatever information comes their way. By what manner, or method a petition is received is irrelevant. [3] A grand jury can even investigate from a hand-written petition on a napkin. Thus, “citizen status” is irrelevant. Thus, not just a state-house senator, but any citizen, a Congressman, a city council member, a school board member, a child, even an “illegal immigrant” can submit a petition to a grand jury.

    By: Kelly Z. Mordecai, Author- The Hidden 4th Branch, a corrupt government’s worst nightmare. Available on Amazon

    https://www.amazon.com/Hidden-4th-Branch-Governments-Nightmare/dp/1456566660

Additional Information, References & Notes

(Note: More references will be added to this document later.)

[1] From Q#2:

U.S. vs. Williams. No. 90-172 (1992)

https://supreme.justia.com/cases/federal/us/504/36/

Pg. 47: “Although the grand jury normally operates, of course, in the courthouse and under judicial auspices, its institutional relationship with the Judicial Branch has traditionally been, so to speak, at arm’s length. Judges’ direct involvement in the functioning of the grand jury has generally been confined to the constitutive one of calling the grand jurors together and administering their oaths of office.”

KZM Note: In U.S. vs. Williams, the reference to the convening court, or constituting court is mentioned several times. (In other words, U.S. vs. Williams does not permit people to convene a grand jury without a duly appointed, vested judge. Ie… “Common Law”, or “De-Jure’ grand juries are not valid per U.S. vs. Williams. See also Blackstone’s Commentary on the Law of England.)

Typically, the judge picks grand jury members of competent fairness. One significant concern of a judge is to avoid appointing a grand jury member that has an “axe to grind.”

[2] From Q#3:

UNITED STATES v. WILLIAMS

No. 90-1972. Argued January 22, 1992-Decided May 4,1992

47 Because the grand jury is an institution separate from the courts, over whose functioning the courts do not preside, we think it clear that, as a general matter at least, no such “supervisory” judicial authority exists, and that the disclosure rule applied here exceeded the Tenth Circuit’s authority.

A “[R]ooted in long centuries of Anglo-American history, Hannah v. Larche, 363 U. S. 420, 490 (1960) (Frankfurter, J., concurring in result), the grand jury is mentioned in the Bill of Rights, but not in the body of the Constitution. It has not been textually assigned, therefore, to any of the branches described in the first three Articles. It is a constitutional fixture in its own right” United States v. Chanen, 549 F.2d 1306, 1312 (CA9) (quoting Nixon v. Sirica, 159 U. S. App. D. C. 58, 70, n. 54, 487 F.2d 700, 712, n. 54 (1973)), cert. denied, 434 U. S. 825 (1977). 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. See Stirone v. United States, 361 U. S. 212, 218 (1960); Hale v. Henkel, 201 U. S. 43, 61 (1906); G. Edwards, The Grand Jury 28-32 (1906). Although the grand jury normally operates, of course, in the courthouse and under judicial auspices, its institutional relationship with the Judicial Branch has traditionally been, so to speak, at arm’s length. Judges’ direct involvement in the functioning of the grand jury has generally been confined to the constitutive one of calling the grand jurors together and administering their oaths of office. See United States v. Calandra, 414 U. S. 338, 343 (1974); Fed. Rule Crim. Proc. 6(a).

48 The grand jury’s functional independence from the Judicial Branch is evident both in the scope of its power to investigate criminal wrongdoing and in the manner in which that power is exercised. “Unlike [a] [c]ourt, whose jurisdiction is predicated upon a specific case or controversy, the grand jury ‘can investigate merely on suspicion that the law is being violated, or even because it wants assurance that it is not.” United States v. R. Enterprises, Inc., 498 U. S. 292, 297 (1991) (quoting United States v. Morton Salt Co., 338 U. S. 632, 642-643 (1950)).

SCALIA, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and WHITE, KENNEDY, and SOUTER, JJ., joined. STEVENS, J., filed a dissenting opinion, in which BLACKMUN and O’CONNOR, JJ., joined, and in Parts II and III of which THOMAS, J., joined, post, p. 55.

COMMENT by Kelly Z. Mordecai: In U.S. V. Williams, six of the nine judges concurred on the independence of the grand jury, including independence from the courts. In the dissenting opinion, three judges joined together claiming that the grand jury was a part of the judiciary. Their argument was based upon the historical interaction between the courts and the grand jury. Dissent as they may, six of nine justices concurred for independence, and thus the conclusion is well founded that the grand jury is independent of the courts. In my interaction with, and from other observations of legal professionals, there are two opinions. 1. The grand jury is independent of the courts vs. 2. The grand jury is a part of the judiciary. The definitive answer is found in U.S. v. Williams. However, not studying U.S. v. Williams, and the supporting cases on grand jury independence, the myth that “the grand jury is a part of the courts” is still propagated. Those in the legal profession, using objective thorough research should come to the conclusion that the grand jury is not only independent of the courts, but even as retired attorney Leo Donofrio (NJ) explained, “The 4th Branch of Government.”

https://citizenwells.com/2009/01/22/federal-grand-jury-4th-branch-of-government-leo-donofrio-5th-amendment-us-constitution-constitutional-power-we-the-people-us-supreme-court-has-upheld-creighton-law-review-american-juror-fede/

Distinguished professor of law Susan Brenner also confirms the grand jury as “The 4th Branch of Government.”

The US Attorney Manual confirms the independence of the grand jury; “The prosecutor must recognize that the grand jury is an independent body.” (USAM Chapter 9-11.010 – Introduction). The Fifth Amendment “presupposes an investigative body acting

independently of either prosecuting attorney or judge.” United States v. Dionisio, (410 U.S. 1, 16 | 1973)

[3] From Q#4 :

In Frisbie v. United States (1895), 157 U. S. 160, it is said by Mr. Justice Brewer: “But, in this country, it . . . is for the grand jury to investigate any alleged crime, no matter how or by whom suggested to them, and, after determining that the evidence is sufficient to justify putting the party suspected on trial, to direct the preparation of the formal charge or indictment.”

Hale v. Henkel, 201 U.S. 43 (1906)

Syllabus

Under the practice in this country, the examination of witnesses by a Federal grand jury need not be preceded by a presentment or formal indictment, but the grand jury may proceed, either upon their own knowledge or upon examination of witnesses, to inquire whether a crime cognizable by the court has been committed, and, if so, they may indict upon such evidence. In summoning witnesses, it is sufficient to apprise them of the names of the parties with respect to whom they will be called to testify, without indicating the nature of the charge against them or laying a basis by a formal indictment.

Page 201 U. S. 61

“It has been alleged that grand juries are confined in their inquiries to the bills offered to them, to the crimes given them in charge, and to the evidence brought before them by the prosecutor. But these conceptions are much too contracted; they present but a very imperfect and unsatisfactory view of the duty required from grand jurors and of the trust reposed in them. They are not appointed for the prosecutor or for the court; they are appointed for the government and for the people; and of both the government and people it is surely the concernment that, on one hand, all crimes, whether given or not given in charge, whether described or not described with professional skill, should receive the punishment which the law denounces; and that, on the other hand, innocence, however strongly assailed by accusations drawn up in regular form, and

Page 201 U. S. 62

by accusers, marshaled in legal array, should, on full investigation, be secure in that protection which the law engages that she shall enjoy inviolate.”

“The oath of a grand juryman -- and his oath is the commission under which he acts -- assigns no limits, except those marked by diligence itself, to the course of his inquiries. Why, then, should it be circumscribed by more contracted boundaries? Shall diligent inquiry be enjoined? And shall the means and opportunities of inquiry be prohibited or restrained?”

Similar language was used by Judge Addison, president of the Court of Common Pleas, in charging the grand jury at the session of the Common Pleas Court in 1791:

“If the grand jury, of their own knowledge or the knowledge of any of them, or from the examination of witnesses, know of any offense committed in the county for which no indictment is preferred to them, it is their duty either to inform the officer who prosecutes for the State of the nature of the offense, and desire that an indictment for it be laid before them, or, if they do not, or, if no such indictment be given them, it is their duty to give such information of it to the court, stating, without any particular form, the facts and circumstances which constitute the offense. This is called a presentment.”

The practice then, prevailing with regard to the duty of grand juries shows that a presentment may be based not only upon their own personal knowledge, but from the examination of witnesses.

UNITED STATES v. WILLIAMS

No. 90-1972. Argued January 22, 1992-Decided May 4,1992

48 “Unlike [a] [c]ourt, whose jurisdiction is predicated upon a specific case or controversy, the grand jury ‘can investigate merely on suspicion that the law is being violated, or even because it wants assurance that it is not.” United States v. R. Enterprises, Inc., 498 U. S. 292, 297 (1991) (quoting United States v. Morton Salt Co., 338 U. S. 632, 642-643 (1950)). It need not identify the offender it suspects, or even “the precise nature of the offense” it is investigating. Blair v. United States, 250 U.S. 273, 282 (1919). The grand jury requires no authorization from its constituting court to initiate an investigation, see Hale, supra, at 59-60, 65, nor does the prosecutor require leave of court to seek a grand jury indictment. And in its day-today functioning, the grand jury generally operates without the interference of a presiding judge. See Calandra, supra, at 343. It swears in its own witnesses, Fed. Rule Crim. Proc. 6(c), and deliberates in total secrecy, see United States

[4] United States v. Cox, 342 F.2d 167 (1965)

[5] 18 USC §3332:

(a) It shall be the duty of each such grand jury impaneled within any judicial district to inquire into offenses against the criminal laws of the United States alleged to have been committed within that district. Such alleged offenses may be brought to the attention of the grand jury by the court or by any attorney appearing on behalf of the United States for the presentation of evidence. Any such attorney receiving information concerning such an alleged offense from any other person shall, if requested by such other person, inform the grand jury of such alleged offense, the identity of such other person, and such attorney’s action or recommendation.

[6] 1966 AD: Adderly v. Florida, 385 U.S. 39

Footnote 2 of 2 Justice William O’ Douglass’ Opinion: “The historical antecedents of the right to petition for the redress of grievances run deep, and strike to the heart of the democratic philosophy. C. 61 of the Magna Carta provided 1 : “[T]hat if we or our justiciar, or our bailiffs, or any of our servants shall have done wrong in any way toward anyone, or shall have transgressed any of the articles of peace or security, and the wrong shall have been shown to four barons of the aforesaid twenty-five barons, let those four barons come to us or to our justiciar, if we are out of the kingdom, laying before us the transgression, and let them ask that we cause that transgression to be corrected without delay.”

NOTE: More references will be added to this document.

QUOTES FROM THE BOOK GENTLEMEN OF THE GRAND JURY…. To further understand the power of the grand jury, consider Judge’s Charges to Grand Juries. This is a glimpse into the thinking of the “Founding Generation” about grand juries, before, and after 1776:

INTRO: Many states currently have statutes that require the grand jury to investigate, “willful misconduct in office by public officers.” Below are selected charges judges gave to grand juries up until 1801. The judges of old knew another function of the grand juries were to hold government corruption accountable.

Gentlemen of the Grand Jury is compilation in two volumes by Professor of Law - Stanton Krauss, published in 2012

ISBN 978-1-59460-815-5, published by Carolina Academic Press. www.cap-press.com

Pg 297 Judge Robert Hanson’s Charge, Western Shore Counties of Maryland, 1781

1 Underline and bold emphasis added. Clause 61 of the Magna Carta of 1215 AD was cited by Judge William O’Douglas as the specific origin of the Right of Petition for redress of grievances. Whereas, in Guarnieri, the Magna Carta was only mentioned in a general origin.

Gentlemen of the Grand Jury, You are convened to execute a Trust of the last importance to your Country. ……

To inquire after every Breach of the penal Law, to protect the Innocent, to punish the Guilty to guard against the Encroachments of Power, and to keep every man with the limits prescribed by the Constitution, and the Laws, is, in general, the Business of a Grand-Jury. …..

You will present every Man, for whose Accusation you shall have strong probable Grounds; but, in Favour of Innocence, you will disregard unmeaning popular Clamours.….

Page 570 Judge Pickering Charge to the Grand Jury of Strafford County, New Hampshire - September 1790

“The security of life, reputation liberty and property is the grand object of the courts of justice; …. In a world like ours, it is necessary to punish the vicious in order to protect the virtuous……

…The institution of a grand jury is the most effectual check to arbitrary power and oppression….

Page 583 Judge David Jamison’s Charge, Burlington County, New Jersey May 1st, 1716.

…… “I do understand the Grand Jury of Burlington, at the last General Sessions of the Peace, after an Unprecedented manner, have found an indictment against Me, for what I have done in the Execution of my Office upon the Bench.”

Page 120 William Few’s Charge to Burke County, Georgia - March 1st, 1798

“It would be tedious, and not necessary for me to enumerate the duties assigned to you; in a word, as Grand Jurors you are to redress every grievance, and to support the right of every citizen; and you are to invigorate the laws and extend their operation and effect.”

Page 436. Francis Dana’s Charge, Fall Circuit in Massachusetts 1797

“Besides, another powerful check against oppression from any of our Constituted Authorities, is formed by your institution; for to you it belongs, Gentlemen, to watch over and protect the safety and rights of Individuals, as well as of the Public. ….. . . .…..Indeed without such personal knowledge, if you have reason to believe an offense has been committed, and no one appears to prosecute it, you may institute an enquiry of yourselves, and cause any persons supposed to have knowledge of it, to be summoned before you for that tend.”

Page 740 Judge James Logan’s Charge, Philadelphia County…. September 2nd, 1723

“In order therefore to bring Offenders to condign Punishment, and for redressing all public Abuses, within the Jurisdiction of this Court, You are, according to the Oaths and Affirmations you have taken, to Inquire with Diligence, and to Present, with Truth and Uprightness, whatever you find, upon your own Knowledge, or the Informations of others, to be committed within the County contrary to Law.

Page 673 Richard Varick’s Charge, New York City, 1785, [as reported by the paper “The New York Gazetteer, and the Country Journal”, and other media, 1785.]

At the late court of Quarter Session, held in this city, a most excellent charge was given to the Grand Jury of the Court by the Recorder, in which they were enjoined in pursuance of their oath, amongst other offences, particularly to enquire into the abuses committed by the officers of government, in respect to the fees extracted by them for their services; and we are informed, that the Grand Jury delivered into Court twelve bills of indictment, six of which were for the above offences, committed by the like number of the officers of government.

Page 608 Judge Joseph Hugg’s Charge, Goucester County New Jersery, Dec. 8th, 1795

“…At this particular juncture of our affairs, it is more particularly the duty of every well-meaning man of the United States to contribute his assistance….. and on the other to rectify any infringements of the constitution; if the President has committed any political error, and his ratification of the treaty involves a violation of the constitution.

Page 816 Judge Alexander Addison’s Charge, Allegheny Fayette, Washington & Westmoreland Counties, Pennsylvania - September 1792

“..Grand juries are watchmen, stationed by the laws, to survey the conduct of their fellow citizens, and enquire where, and by whom, public authority has been violated, or our constitution or laws infringed.”

Page 730 [Federal] Judge William Goforth’s Charge, Hamilton County (Northwest Territory)

February, 1795 [Hamilton County in the N.W. Territory was probably Ohio or Tennessee]

Gentlemen of the Grand Jury, Your appearance in a court of justice, under the respectable character of the grand inquest for the body of the county of Hamilton, is the highest possible proof that we are living under the extended wings of a free government. In the arbitrary and despotic monarchies of the eastern world, the characters and services of grand jurors are not heard of. …..

…. You are to inquire whether any person or persons have been guilty of the crimes of manslaughter, larceny, perjury, forgery, or usurpation. …..

“…At this is a point of law in which the rights of man are deeply interested, I shall detain you one minute longer, was this territory to be honoured with a visit from our illustrious and well beloved President, who is known to have a soul elevated above all this is mean; nevertheless as he is human & it is the lot of humanity to err; suppose he should fall beneath himself as to strike, beat, wound & commit a violent battery on the body of a poor citizen, while you were sitting and within your knowledge, would it not be your duty to make presentment? Certainly it would, if you did not, he might pity you as men; but as cowards he would despise you, if you did your duty, he would love you for your honesty and revere you for your integrity…..”