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The Grand Jury - an Indictment Richard P University of Baltimore Law Forum Volume 18 Article 2 Number 1 Fall, 1987 1987 The Grand Jury - An Indictment Richard P. Gilbert Chief Judge, Court of Special Appeals of Maryland Follow this and additional works at: http://scholarworks.law.ubalt.edu/lf Part of the Law Commons Recommended Citation Gilbert, Richard P. (1987) "The Grand Jury - An Indictment," University of Baltimore Law Forum: Vol. 18: No. 1, Article 2. Available at: http://scholarworks.law.ubalt.edu/lf/vol18/iss1/2 This Article is brought to you for free and open access by ScholarWorks@University of Baltimore School of Law. It has been accepted for inclusion in University of Baltimore Law Forum by an authorized administrator of ScholarWorks@University of Baltimore School of Law. For more information, please contact [email protected]. The Grand Jury - An Indictment by The Honorable Richard P. Gilbert The origin of the Grand Jury has been not only to protect the King's subjects, but At the bottom of the water container was lost in time, I but it is safe to say that it is its action was closer to condemnation than a stone that the accused was to bring forth of ancient vintage. Shakespeare's "Twelfth mere indictment or accusation. Today, an when he withdrew his arm from the hot Night," Act III, Scene 2, observed that indicted defendant is "presumed to be water. The arm was then bandaged for there "had been grand jurymen since innocent until proven guilty." Not so in three days, after which the bandage was before Noah was a sailor." While medieval times.6 Then, an accusation by removed. H the scalding had healed, the Shakespeare's comment is an exaggeration, the Grand Assize was followed by trial in accused was innocent; but if it had it does serve to illustrate that Grand Juries the form of an ordeal.? The ordeal took festered, he was guilty. (This particular have been part of our legal system for cen­ four specific forms - cold water, hot ordeal may have given rise to the expres­ turies. water, hot iron, and morseLS sion "in hot water," meaning to be in It is reported in one source that King The cold water ordeal was of three days trouble, difficulty, or peril.) Ethelred of England in the Tenth Century duration. The accused was submitted to it Trial by hot iron was of a similar pat­ had Grand Juries, or something similar to in the presence of a priest. The accused was tern. A piece of iron weight one to three Grand Juries. Some historians claim that taken to church where Mass was chanted pounds, according to the nature of the the ancestor of the present Grand Jury and communion was offered to him. He crime, was heated until it was red hot. The dates from 1166, the year of King Henry was told not to partake of the communion accused was then required to grab it with U's Assize of Clarendon.2 The idea of the if he was guilty of the crime charged. After his naked hand and carry it nine feet and Grand Assize, as it was known to the Nor­ communion the accused was stripped and then drop it. His hand was bandaged for man French from whence it originally cast into a body of water. H he sank, he three days. If, at the expiration of that came, was to employ a body of knowl­ was adjudged not guilty. H he swam, he time, the wound had healed, he was not edgeable local gentry as the King's was pronounced guilty. The theory being guilty. H it festered, he was guilty. investigative arm. That body's function that his instinct for self-preservation The ordeal by morsel was undergone· by was to decide civil questions concerning would preclude his wilfully sinking.9 That the accused's swallowing a piece of barley conflicts of title and ownership of land. J particular ordeal seems to have been a "no bread or cheese of the weight of one As with most governmental institutions win situation." H the accused sank, he died ounce. H he succeeded without serious dif­ that survive to grow old, the duties change, from drowning; and if he swam, he died at ficulty, he was innocent; but if he choked, and the Grand Jury is no exception.· the hands of the government. No matter he was guilty.lo. The Grand Assize was established by how you look at it, he was just as dead. In 1215 trial by ordeal was abolished, II Henry II to enable him to wrest the Trial by hot water followed the same but the peril to an accused remained administration of justice from the church idea as trial by cold water, although it may almost as certain. A defendant was tried by and the feudal barons and place it under have been more painful. Water was heated the very same jury that had indicted him. 12 the sovereign. It was primarily a weapon to a high temperature, and the hand or Obviously, his propsects for acquittal were for the King's use in enforcing the King's arm of the accused was plunged into the not bright. Slim as they were, they became peace.5 water up to the wrist or elbow. The severi­ even slimmer as a result of the practice of Contrary to what many believe, the ty of the crime dictated the extent to royal judges' ftning and imprisoning jurors Grand Jury of 700 or 800 years ago failed which the arm was immersed in the water. who found a defendant not guilty. 4-The Law ForumlFal~ 1987 By the middle of the Fourteenth Centu­ petence forced the city council to meet Notwithstanding that Constitutional ry, English law reached the point where an regularly and be more responsive to the fiat, the Supreme Court of the United accused could strike from a petit jury panel public's needs.21 A Boston Grand Jury's States held in Hurtado v. California, 110 any person who had been a member of the threat to indict public officials resulted in U.S. 516 (1884), that the requirement of Grand Jury that had indicted him. \3 It was improvement in the maintenance of the indictment by a Grand Jury in a capital or also about that time that the Grand Jury city's streets.22 infamous crime is not binding upon the began to hear testimony in private - a The prestige of the Grand Jury received states. There is nothing in United States practice that gave rise to the current a boost in 1743 as a result of a matter that constitutional law that requires a state to "secrecy" of Grand Jury proceedings. 14 is more familiar when thinking of "the empanel Grand Juries. Today's popular, albeit misconceived, freedom of the press." The case involved Neither the Maryland Declaration of notion that a Grand Jury is a buffer John Peter Zenger, a New York newspa­ Rights nor the Maryland Constitution between the government and the people - per publisher who criticized the Royal mandates a Grand Jury indictment as a that it acts as a protector of a person from Governor.23 The governor sought to have prerequisite to any criminal proceeding. oppressive government - was a long time Zenger prosecuted for criminal libel. The The establishment of the Grand Jury in in developing. More than five hundred Grand Jury declined to indict, thus evi­ this state is the result of statutory enact­ years elapsed from the origin of what we dencing its independence. Unfortunately ments by the legislature. Chief Judge now call the Grand Jury to the ideal of for Zenger, he was subsequently tried by Robert C. Murphy of the Court of that body's being a buffer or protector. way of a criminal information. Fortunate­ Appeals of Maryland noted on January 31, The Grand Jury's protectorate role ly for him, he was acquitted. 1973, in his Report to the Maryland Gen­ seems to stem from a 1681 case involving eral Assembly on the State of the Judiciary Anthony, Earl of Shaftesbury, and that "most states have abolished any such Stephen Colledge. 15 Those two gentlemen rigid requirements[s]" as indictment by a were vocal Protestant opponents of King Grand Jury. Charles II's attempt to reestablish the Currently, twenty-two states require a Roman Catholic Church in England. The "no right to Grand Jury indictment in felony cases. Earl of Shaftesbury was also allegedly indictment by a Three require it only when a crime is pun­ involved in a plot to assassinate the King. ishable by death or life imprisonment. In The King and his prosecutors sought to Grand Jury existed the other twenty-five states, the prosecutor have Shaftesbury and Colledge indicted may elect to seek indictment or proceed and tried for treason. The Grand Jury, in the Constitution of by way of a criminal information. exerClsmg its power to interrogate the United States as Two states, Virginia and West Virginia, witnesses in private outside the presence of statutorily require indictment by a Grand the royal prosecutors, refused to indict. 16 originally drafted." Jury in all felony cases. In West Virginia an Shaftesbury's case is heralded as the cor­ accused may waive an indictment if the nerstone of the Grand Jury's role in pro­ felony is not punishable by life imprison­ tecting the innocent against malicious and ment, provided he has been advised of the oppressive government prosecutionY nature of the charge and there is a written Aside from the creation of the concept The Grand Jury was considered a highly waiver signed by him and his counsel.
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