Grand juries are in the news, as Hennepin County Attorney Mike Freeman has chosen to use one here in the Justine Ruszczyk Damond shooting case and as special counsel Robert Mueller uses another one (or two) in Washington, D.C., while investigating the Russia-Trump issues.
Grand juries are ancient in origin, akin to a shark or a bronze sword. In our modern age, they are little more than tools of the prosecutor. But both here and in Washington, they are the right tool for the job at hand — seeking the truth.
We should want any witness to the Damond shooting to speak plainly about what happened. The grand jury allows a prosecutor to get answers from witnesses other than the target of the investigation, even when the witnesses resist.
In Washington, truth is often buried in documents, and Mueller’s grand jury provides a shovel with which to dig it out.
The history of the grand jury in British-American law stretches back to a time before the Magna Carta was signed in 1215. In an era before professional prosecutors, grand juries investigated cases and made charging decisions. Until well after the founding of our republic, this remained their function, at least in the federal system. The U.S. Constitution requires that all federal felony cases be charged by an indictment issued by a grand jury. (That same requirement does not apply in Minnesota courts, where grand juries are used only in life-in-prison cases and certain others where the prosecutor affirmatively seeks to use one, as Freeman apparently has).
By the mid-1900s, though, the role of the grand jury had changed. Two crucial powers were taken away from them: the power to vindicate people suspected of crime and the ability to issue presentments, which are reports of wrongdoing. More important, at the same time, grand juries came almost wholly under the control of prosecutors.
The power this gives to prosecutors is substantial. A crucial power of the federal grand jury is to issue subpoenas that compel people to testify and allow for the gathering of documents without a search warrant.
For example, a federal investigation target’s e-mails can be obtained through a grand jury subpoena sent to the service provider, who usually sends them right along. The twist, though, is that the grand jury has almost nothing to do with the issuance of those subpoenas. The foreperson signs a stack of them, blank, and they are delivered that way to the prosecutor, who sends them out as he or she wishes, directing that the response be sent directly to the prosecutor. As I sat at my desk as an assistant U.S. attorney, all I had to do was fill out the rest of the form and — voilà! — I got all the information I might want, all without a warrant. Similarly, if I wanted to talk to potential witnesses and they refused to meet with me, I could simply zip off a grand jury subpoena and they would be compelled to appear.
When the grand jury convenes, it remains the prosecutor’s show. There is no judge in the room and no defense attorney for the target of the investigation. The attorney for the witness — if there is one — must wait out in the hall in federal proceedings. (They get to be in the room in some state grand jury hearings, but can’t participate other than to advise their client). The prosecutor chooses the witnesses, can argue his or her case without fear of being contradicted or objected to, and if seeking an indictment, the prosecutor drafts it up. It is so rare to have a grand jury vote down a proposed federal indictment that to get one rejected is a mark of shame for the unlucky prosecutor.
Which brings us back to the news. Freeman is apparently using the grand jury to obtain the testimony of reluctant witnesses. Meanwhile, Mueller has at least in part been able to avoid the use of the grand jury for that purpose, as witnesses have come in voluntarily to be interviewed (though it is entirely possible he has taken testimony before the grand jury as well). At the same time, Mueller has been using a grand jury to issue subpoenas to gather documents.
Freeman said previously that he wouldn’t use grand juries to charge police-shooting cases. Now he is using one in the Damond case. His turnaround is understandable, if we truly want to find out what happened that dark night and if it is true that police witnesses have refused to testify.
The modern grand jury may be little more than a tool of the prosecutor, but in this instance our community needs that tool to get to the truth.
Mark Osler is the Robert and Marion Short Professor of Law at the University of St. Thomas.