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

by Arthur Cheney Train

An examination of the long list of presentments on file in the office of the clerk of the Court of General Sessions will show the diversified interests to which the grand jury, acting as we have shown as a merely self-constituted censor morum, has devoted its attention and in which it has consumed many of its working hours in the past. So far as we know, no action whatever has ever been taken upon any of these presentments. That at times they may have done some good through calling to the attention of the public press matters which otherwise would not be under scrutiny, may be admitted; but the discussion of them in the press has usually been as ephemeral as the existence of the grand jury by which they were filed; and in general it may be said that the only effect of a grand jury's meddling with these things is to detract from the dignity of its office and the importance of the work which it and it alone can lawfully do.

The lay reader will naturally be led to inquire why this archaic institution which it costs so much time and money to perpetuate, which causes so much unnecessary inconvenience to witnesses and offers so many technical opportunities for delay, which frequently is ineffective and officious, and for the most part concerns itself with the most trivial matters only, should not be abolished, and why prisoners charged with crime whose cases have been properly examined by committing magistrates should not be immediately placed upon their trial.

It is doubtful if any very convincing arguments in favor of retaining the grand jury for the purpose of indicting ordinary offenders can be advanced. That it should be continued for the purposes of investigation, with power of indictment, to be summoned when the need thereof arises, is indisputable. But the original necessity for the grand jury has disappeared with the onward march of the centuries.[26] In early days, when the influence of the crown threatened the liberties of the English freeman, and when judges and magistrates owed their positions to royal favor, it was often difficult if not impossible to secure the punishment of a criminal if he happened to be a retainer or under the protection of those in power. So, too, the defenceless subject might be accused of crime by an influential person and haled to the bar upon a baseless and malicious charge. Some barrier was needed between the powerful and the weak, and some tribunal before which the weak could accuse the powerful of their wrongs. This was supplied by the grand jury, which, ever changing its members and deliberating in secret, seemed well calculated to safeguard the people's liberties. But at present we need no such protection against a government of and by the people, and indeed such a body, deliberating secretly and hearing the evidence against an accused person without giving him the opportunity to be heard, seems strangely out of harmony with the spirit of our institutions.

To-day, the grand jury, initiating a proceeding against a citizen who may be ignorant that he is even under suspicion, may be led to accuse him of some foul crime upon the mere ex parte statement of malicious witnesses, without giving him an opportunity to explain or contradict the evidence. The mere charge of crime is often enough to ruin a man forever. The argument that a suspected person may escape before arrest unless the charge is considered secretly, has in these days of telegraphs, railroads and extradition treaties little of the force which it may have carried with it in cruder times. Moreover, the possibility of indicting public officials or others upon insufficient evidence for political purposes, or for "moral effect," would be done away with, and only those against whom legal testimony made the charge reasonably clear would be threatened with prosecution, and then only when their defence had been heard by a magistrate and held insufficient.

Prosecutors now prefer to take as few cases before their grand juries in the first instance as possible, and to send the man with a grievance, who thinks he has some political pull and "wants to get the fellow indicted anyway," into the magistrate's court to make good his charge.

Almost twenty-five per cent of the States in the Union have modified their procedure in this regard so as to conform to modern requirements. The State constitutions of Indiana, Illinois, Iowa, Nebraska, Oregon and Colorado give the legislatures the power to make laws dispensing with grand juries in any case, and in California, Connecticut, Kansas, Louisiana, Montana, South Dakota, Utah, Vermont, Wisconsin and Wyoming constitutional provisions exist permitting all criminal proceedings to be made by information, or dispensing with grand juries in certain cases. This is also true of the Federal Government. Experience has demonstrated that ample protection is afforded the accused where the State is permitted to prosecute those held to bail by an examining magistrate upon proof of probable cause. He is better protected than by a grand jury which hears in secret only the evidence against him and gives him no opportunity of explanation.

A system which would allow of the prosecution of all felonies by information would do away with the great and practically useless labor of our grand jurors in the ordinary run of cases, would save endless time and money to all concerned, and might still retain the grand jury for such purposes as necessity requires. Justice would be more speedy and just as effective if the prosecution of all crimes were instituted before an examining magistrate, and the grand jury would then, at the summons of the court, meet to perform only those important and peculiar functions of investigation that are consonant with its dignity and necessary to the public weal.

FOOTNOTES:

[24] Record illegible.

[25] The historical development of the grand jury is highly interesting. Originally the assize at which the knights assembled was not unlike a sort of county parliament and all manner of matters were submitted to them. Gradually as the jury developed out of this unorderly gathering together, the sheriffs got into the habit of summoning only enough men to form the grand jury and as many petty juries (when those came into existence) as might be needed.