“Common Law” and the Grand Jury

Some people have argued that in US v Williams, Justice Scalia provided the legal foundation for a “common law grand jury” in US v Williams 504 U.S. 36 (1992).

Furthermore, Scalia’s comments have only relevance for the Federal Grand Jury, since the Constitutional right to grand jury has not been extended to the States. See Hurtado v. California, 110 US 516 – Supreme Court 1884

And of course, even if there were a common law foundation for a Grand Jury, any statute would override the common law.

However, I will show that Scalia not only did not do so, but that the Grand Jury is a statutory creature. In that context it is also important to understand that the term “Common Law” does not refer to some “natural law” or “god ordained law” but rather to that

… part of English law that is derived from custom and judicial precedent rather than statutes. Often contrasted with statutory law.

Historically speaking the Grand Jury system started from statute and continued since then:

The earliest record we have of anything like our modern grand jury goes back to the rule of the Anglo Saxon King Ethelred the Unready. In 997 Ethelred enacted his Wantage Code, which provided:

Let twelve elder freemen, and the foreman with them, retire and swear upon the holy book which is given into their hands that they will not accuse any innocent person, nor screen any criminal.

Source: Grand Juries: Common Sense and Common Law

First of all the ruling in US v Williams, 504 U.S. 36 (1992) mentioned

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).

But additionally, ths

In Bennett v Kalamazoo 183 Mich 200, 1916, the Michigan Supreme Court quoted from a Judge’s opinion:

It has become a custom of almost invariable occurrence that the grand jury at the close of its term makes a presentment on some subject on which frequently no evidence has been heard. This no doubt proceeds from the zeal of its members to promote the general welfare by calling attention to certain conditions which they believe should be remedied. So long as they are confined to matters of general interest they are regarded as harmless even though a waste of time and effort and after the ephemeral notice of the day has passed they are allowed a peaceful rest.

But it is very different when the motives and conduct of the individual are impugned and he held to reprobation without an opportunity to defend or protect his name and reputation, for it must be borne in mind that, if the gentlemen of the grand jury were to meet as an association of individuals and give expression to the sentiments contained in a presentment, little attention would be paid to them and a healthy regard for the responsibility of utterances injurious to the individual would in all probability restrain exaggerated and unfounded statements.The mischief arises from a prevalent belief that a grand jury making the conventional presentment speaks with great authority and acts under the sanction of the court thereby giving to its deliverance a solemnity which impresses the mind of the public. This is a grave error. The powers and duties of a grand jury are defined by law. No matter how respectable or eminent citizens may be who comprise the grand jury, they are not above the law and the people have not delegated to them arbitrary or plenary powers to do that under an ancient form which they have not a legal right to do. Some States have abolished the grand jury system. This State yet preserves it and it may be wise that it does so for it is an institution that has indelibly impressed upon the pages of history a record for the protection of the citizen against the arrogance and oppression of power and has inspired in the hearts of the lawless and corrupt a healthy fear of its powers and honesty. But its action should be checked when from thoughtlessness or misconception it arraigns the citizen in phrases accusing him of acts or conduct which in themselves are not criminal thereby precluding him from the right guaranteed by the Constitution to every man to meet his accusers face to face before a jury of his peers but which are the most insidious and harmful because they must remain without answer or denial. Such is this case and in the interests of justice I am constrained to protect the attorney general and his deputies from an injustice by directing that the paper presented to the court by the grand jury hearing date the 7th day of April 1908 and entitled a presentment be stricken from and expunged from the records of this court.


In this State there are but two matters upon which a grand jury have statutory right to make reports or presentments: ie trespass on public lands 1 Comp Laws 1395 and violation of the election laws 11443 5 How Stat 2d ed 14910 3 Comp Laws 11891 11893 5 How Stat 2d ed 15062 15064 provide how indictments shall be found but contain no provisions for the filing of a report or presentment reflecting upon the conduct of public ofiicials An examination of the report filed by the grand jury in the instant case shows that it contains reflections of the gravest character upon the official conduct of the petitioner if it does not actually charge him with the commission of a felony.

A review of all the cases cited upon both sides of the question and such others as we have been able to examine leads us to the conclusion that inherently apart from statutory sanction the grand jury has no right to file such a report unless it is followed by an indictment.The evils of the contrary practice must be apparent to all. While the proceedings of the grand jury are supposed to be secret it is clear that in the present instance that secrecy was not inviolate for the objectionable report found its way into the press of Kalamazoo within a few hours after it had been filed. Whether the matter contained in such report be true or false it can make no difference with the principle involved In either event the accused person is obliged to submit to the odium of a charge or charges based perhaps upon insufficient evidence or no evidence at all without having the opportunity to meet his accusers and reply to their attacks. This situation is one which offends every one’s sense of fair play and is surely not conducive to the decent administration of justice. Upon the coming in of said report we are of the opinion that it was the duty of the trial court to have refused to accept it or file it with the records of his court Having received and filed it upon the application of the petitioner it was plainly his duty to have expunged it from the files. The writ will issue as prayed.

McAlvay CJ and Kuhn Stone Bird Moore and Steere JJ concurred with Brooke J.

The following author outlines the confusion on the part of those arguing in favor of a Common Law Grand Jury based on Scalia’s ruling. Scalia’s ruling is nothing different from what had already been established: The Grand Jury only exists under the authority of the convening court, however after summoning and impaneling, the grand jury operates separately from the court.

Source: Donald J. Kiser, Corpus Juris: Being a Complete and Systematic Statement of the Whole Body of the Law as Embodied in and Developed by All Reported Decisions, Volume 28, The American Law Book Co., 1922

Constituent Part of Court

A grand jury is a constituent part or branch of the court  and is under its general supervision and control and it may be empowered to discharge the legal functions imposed on it only by virtue of the authority which it derives as a body of men sworn and impaneled in open court in the mode prescribed by law. But while this is true it has been said that a grand jury is not under the control of the court to the same extent as a petit jury and it is very generally conceded that after a grand jury is duly organized the larger part of its legitimate functions is to be performed by it as a separate find independent body acting apart from the court.

Some courts have suggested that the Grand Jury follows from common law. Such as UNITED STATES v. GILL, 55 F.2d 399, 400 (D.N.M. 1931)

The grand jury is an ancient institution of the common law. Bl. Com., Book IV, p. 302; Charge to Grand Jury, 2 Sawy. 667, Fed. Cas. No. 18,255.

Blackstone, in Book IV, p. 309, says: “This mode of prosecution by information filed on record by the king’s attorney-general, or by his coroner or master of the crown office in the court of the king’s bench, is as ancient as the common law itself.” See also “History of the Criminal Law of England” (Stephen) vol. I, pp. 294, 297.

However, all Blackstone says that it is as ancient as the common law itself, not that it is a creature of common law.

Other judge similarly have observed

Source: STATE v. HAINES 18 N.J. 550 (1955) 115 A.2d 24

“The grand jury, at common law, is an arm of the court and acts for the court under which it is organized, and its proceedings are regarded as proceedings in the court. * * * Its members are officers of the court and exercise functions of a judicial nature and its proceedings are judicial. * * *”

The conclusion that “The grand jury is an arm of the court — a judicial body — and its members are officers of the court,” was reiterated in In re Jeck, 26 N.J.Super. 514, 519 (App. Div. 1953), certification denied 13 N.J. 429 (1953). In re Camden County Grand Jury, 10 N.J. 23, 64 (1952); United States v. Smyth, 104 F.Supp. 283, 291 (D.C.D. Cal. 1952); Application of United Electrical Radio & M. Workers, 111 F.Supp. 858(D.C.D.N.Y. 1953); Application of Iaconi, 120 F.Supp. 589 (D.C.D. Mass. 1954); Hitzelberger v. State, 173 Md. 435, 196 A. 288 (Ct. App. 1938); Commonwealth v. McNary, 246 Mass. 46, 140 N.E. 255, 256, 29A.L.R. 483 (Sup. Jud. Ct. 1923); People v. Trieber, 163 P.2d 492, 497 (Cal. App. 1945), subsequent opinion 28 Cal.2d 657, 171 P.2d 1 (1946); State ex rel. Hall v. Burney, 229 Mo. App. 759, 84 S.W.2d 659, 664 (Ct. App. 1935); Fryer v. State, 146 Ala. 4, 41 So. 172, 173 (Sup. Ct. 1906); State v. McClure, 325 Mo. 1228, 31 S.W.2d 39, 42 (Sup. Ct. 1930); People v. Naughton, 7 Abb. Prac., N.S., 421, 423 (N.Y.O. & T. 1870); People v. Duff, 65 How. Prac. 365, 369 (N.Y.O. & T. 1883). Cf. People v. Sweeney, 213 N.Y. 37, 106 N.E. 913, 916 (Ct. App. 1914); People v. Sexton, 187 N.Y. 495, 80N.E. 396, 402 (Ct. App. 1907).


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