The Prisoner at the Bar: Sidelights on the Administration of Criminal Justice

by Arthur Cheney Train

But if the grand jury is to exist at all, it must be constituted, and required to act, in accordance with the law. The indictment is invalid if there be on the grand jury one who has not the proper qualification to sit, or if an unauthorized person be present, or if the evidence is not legally sufficient. Even if the defendant be as guilty as the Father of Sin, he may make a motion to dismiss the indictment on any of these grounds, and, whether the point be well taken or no, the case may in consequence be delayed for weeks. Where the defendant has the means to employ astute and learned counsel, he may retard his trial for weeks, or even months, by questioning the proceedings of the grand jury which found the indictment against him.

For example, when Fire Commissioner John J. Scannel was indicted for conspiracy to defraud the city of New York, his lawyers ferreted out the fact that one of the grand jurors who had found the indictment lived a large portion of the year in the town of New Rochelle. When the defendant was called upon to plead to his indictment the lawyers offered "a plea in abatement," although the law expressly provides that no pleas save of "guilty" or "not guilty" or of "autrefois acquit" may now be entered. They insisted, however, on their right to such a plea and the matter was delayed for a long time. Their plea having been refused they then moved to dismiss the indictment because of the alleged irregularity in having this juror present who spent his summers at the seashore. The determination of this motion took months. How like the situation to that which existed in 1433, when a statute was enacted in order to remedy, if possible, somewhat similar abuses.

" ... When the Grand Jury appears and is ready to pass, a tenant or defendant or one of the petit jury pleads false pleas not tryable by the Grand Jury, and so delays proceedings until this be tried. When this is settled for the plaintiff, another pleads a like false plea since the last continuance; and so each of the defendants, tenants, or jurors, one after another, may plead and delay the Grand Jury; and although all be false and feigned, the Common Law has no penalty. This has caused great vexation and travail to the grand juries, and plaintiffs have been so impoverished that they could not pursue their cases, and jurors are more emboldened to swear falsely."[25]

A substantial proportion of the delays in criminal procedure are due to the interminable motions based upon alleged irregularities in the constitution and action of the grand jury, and the insufficiency of indictments. Such delays would vanish with the abolition of that body.

But beyond its general power to investigate specific charges of crime laid before it, the grand jury constitutes the only general inquisitorial body that we have, and its value and services in this respect must not be overlooked. It is highly important that the power should reside in some responsible body to summon witnesses and compel testimony anent suspected offences, conspiracies, and official misconduct. This is precisely what the grand jury did as far back as 1300, when it acted as a "suspecting" jury. Only through some such power can a rumor of crime, unsubstantial and intangible in itself, be traced to its source and the knowledge of those who can testify as to the perpetration of it secured at first hand.

Acting within its legal powers as an investigating body, the grand jury has a vast power and can be immensely useful to the community, but when it attempts to do more, its action has no more validity and is entitled to no more respect than that of any other self-constituted inquisitorial body of intelligent citizens.

A belief is quite prevalent, however, among grand jurymen that it is their duty not only to ascertain what crimes have been committed and to find indictments for them, but to act as the censors of the public morals, as watchdogs of the public treasury, as the promoters of legislation, and generally as the conservators of the public interests. This impression is entirely erroneous, and yet it is surprising to what an extent grand jurors imagine that because of their office some particular sanctity attaches to their enunciation of opinions in matters that do not concern them.

A grand juror walking in the morning from his house to the corner to take a street-car, accidentally stumbles over a coal-hole cover; he reports it to his associates; many of them know persons who have stumbled over coal-hole covers; they talk the matter over and decide that there should be no coal-holes, since with the abolition of the coal-hole the coal-hole cover also would disappear. They call upon the commissioner of public works to appear before them and testify; upon the street-cleaning commissioner; upon the commissioner of buildings; they learn how many coal-holes there are in the city; what their covers are made of; how they are fastened or are not fastened in place; and some day when the grand jury comes down into court, the foreman arises and states that he has a presentment. The judge on the bench requests him to hand it up; he delivers it to the clerk, who passes it to the judge, who returns it to the clerk and directs him to read it. The clerk stands; the grand jurors stand; the clerk reads:

"To the Honorable John Smith, Presiding Justice of the Court of General Sessions: The Grand Jury of the County of New York respectfully present: Our attention has been called to the large number of unprotected and unguarded coal-holes existing in the County of New York; we have called before us a large number of witnesses and given much time to the taking of testimony relative thereto; we find that in the past year ten thousand persons have lost their lives through falling into improperly guarded coal-holes, and that the records of the hospitals show lists of over one hundred thousand others who have been severely injured by similar catastrophies; while it is beyond the capacity of the mind of man to comprehend the infinite number of those who have been wounded, bruised, lacerated and contused by similar accidents, to an extent not sufficient to render hospital aid necessary, etc." And such a presentment goes on with its statistics and figures and ends with the recommendation that the legislature pass a certain law, that the aldermen pass a certain ordinance, that certain laws or certain ordinances be repealed, or that other legislative interference be had, or legislative action should be taken, or that some city official or city officials do this or do that, or that some department make such and such an investigation and act thereon in such and such a way, and concludes with the signature of the foreman and secretary of the grand jury. The court then arises, bows to the grand jurors, says: "Gentlemen, we have heard your presentment; I now direct that it be placed on file in this court and that copies thereof be forwarded forthwith by the clerks to the heads of the appropriate departments." And the grand jurors retire, imagining that in some way they have contributed directly to the public weal.