The evolution of the Grand Jury - 31 July 1998

A few weeks ago, when my talk had gone out and it was no longer possible to say "Hold! For correction!" I realised I'd spoken a sentence that must have been totally incomprehensible to most listeners, in the United Kingdom anyway – I don't know about India, Australia, New Zealand and any other country that inherits the tradition of the common law from England.

In fact I've used a similar sentence regularly, airily, you might say, whenever I've talked about a criminal trial or the steps leading up to one. What I'm saying is that it occurred to me, rather late in the day I must say, that when I say, for instance, so far in the case of the president and Miss Lewinsky, so far 70 witnesses have appeared before the Grand Jury.

It's unlikely, to be polite, that one British listener in a hundred, under the age of say 85 or 90, has any precise idea what a Grand Jury is, since the institution was abandoned in the UK in 1913 and formally abolished in 1933.

I'd better start and say how the Grand Jury came about in England, centuries ago. How and why it was so eagerly taken up by colonial America. How in fact it was used as an opening wedge in the War of Independence and how it has developed here since.

One of the greatest English lawyers called the Grand Jury, "the glory and the greatest invention of English law". It took about 400 years from its rude birth to turn into anything like its modern form. Edward III was the inventor and 1368 the crucial date.

He decided to choose 24 men in each of the English counties to form a board that would report and watch out for crimes in the county, a sort of clearing house or detention centre for criminals who might then go to trial. From the beginning, it was an accusatory body. It took another 300 years for the Grand Jury to perform the function it performs today.

First, in England, the Grand Jury turned into usually 16 neighbours – it's now always 23 in this country – neighbours who knew the man accused of a crime. Judges riding in on circuit, coming into town, would collect the 16 and say, "John Doe is accused of stealing £10. Is he the sort of man who might steal money?"

The neighbours, men who knew him well, would say, "Mm, not the sort" or, "Well, perhaps". They'd vote and if a majority said "Yes, possible" then John Doe would go to trial. Otherwise, no case. This all sounds very simple and artless, but the Grand Jury was the first protection the citizen had against gossip, malicious charges, hearsay, political prosecutions.

Of course, the Grand Jury crossed the Atlantic with the first English settlers and took root in American law. And was greatly prized, especially by the colonists who were growing more and more outraged by the arbitrary behaviour of the king's ministers here. It was the governor of each colony, or his underlings, who charged people with crimes and mounted prosecutions in the king's name.

There came a time, about 40-odd years before the revolution broke out, when one Grand Jury had the nerve to refuse to accept charges brought against an editor by the king's prosecutor. And, thereafter, the rebellious colonials used the Grand Jury as an instrument of resistance to the overreaching authority of the English governors. A 20th-Century American judged called the Grand Jury in retrospect, "the first arm of democratic self-government".

The blessing of this protection was not forgotten when they came to write the Constitution. Or, rather the amendments called the Bill of Rights. The Fifth says, "No person shall be held to answer for a capital or otherwise infamous crime unless on a presentment or indictment by a Grand Jury".

Well, today, in all federal courts, the Grand Jury is compulsory. But only about half the states stick with it as a preliminary hearing. The others leave the authority to a magistrate. Which, inevitably, brings us to England. What happened there, and why it fell into disuse and was abolished.

If there's one man who was more responsible than another for killing off the Grand Jury, it was a young Lancastrian, son of an army sergeant major, who got a scholarship to Oxford and dazzled every examiner he ran into, became a devastatingly brilliant, witty and arrogant barrister, and at the age of 46 became Lord Chancellor. FE – Freddie – Smith, subsequently the first Earl of Birkenhead.

He it was who mounted the case against the Grand Jury in its present form and wrote a devastating attack on it. "First", he said,” since Grand Juries were recruited from people on the voting registers, it was preposterous in a city of seven million to keep up the pretence that the chosen jurors would know the man well enough to say if he was likely to have committed a crime".

Next, an institution which had been the protector of the liberties of an accused person was now a prosecutor's weapon with which to beat a jury into the conviction that the accused was guilty before he could be tried.

Today, in America, this is truer than ever. The public prosecutor, the DA – in our present crisis, the special prosecutor – can come before the Grand Jury with a team of lawyers, which Mr Starr has done, and call all the prosecution witnesses he wants. Which he has done – Mr Starr has already had over 70 accusers of President Clinton appear.

But the accused is not permitted a lawyer or any witnesses. Birkenhead maintained, with savagely wounding sarcasm, that this protector of a citizen's liberty began the protective process by recruiting every accuser, every gossipmonger, every hearsay merchant – to this day, hearsay is allowed – to trap the accused in a machinery of guilt and then invite him to wriggle his way out.

In other words,it's become a preliminary trial in which the accused is to be proved guilty before he has a legal chance to prove himself innocent.

Birkenhead wound up by saying that the Grand Jury system, once the genuine guardian of a citizen's innocence had turned into an inquisition, the creature of the prosecutor, which was authoritarian, undemocratic and a monstrous anachronism.

His argument was so compelling that the Grand Jury was, to everybody's relief, formally abolished in 1933. Better leave it, the consensus became, to a magistrate or to a tribunal of magistrates, to say with their knowledge of the law and of human beings. They might be, some of them, blinkered, but they would on the whole do better at deciding whether an accused man ought to go to trial.

To this day, in America, all that a Grand Jury is meant to do is to decide if there is a case. If the accused ought to be tried. Yet, I assure you, I've been saddened down the years to discover how many Americans, and I'm thinking of educated people as well as illiterates, who see a headline in the paper, "John Doe indicted for fraud", and at once register the emotion that John Doe has been found halfway guilty, as if a Grand Jury indictment were a preliminary trial.

The thing that sticks in the throat of libertarians is the curious old fact that the accused is not allowed a lawyer or any witnesses. So now, this brings us to the serious, possibly dire, condition in which suddenly the president finds himself.

Mr Starr, the special prosecutor, had the gall, or the courage, to issue a subpoena to the president to appear before the Grand Jury that's been looking into the relations between Miss Monica Lewinsky and the president.

This act, to issue a subpoena to a president, has happened only once before, way back, when a man was being tried for treason. Thomas Jefferson was subpoenaed. He did not appear but he delivered relevant documents, as did Nixon. Other presidents, Ford and Reagan, have given video evidence, and two earlier presidents, in criminal cases.

But in none of these was the president, the accused. In the Lewinsky case, the target is President Clinton. And the question of whether a sitting president can be prosecuted before, or after, articles of impeachment had gone to the House of Representatives whether, simply, a sitting president can be subject to criminal prosecution, is a question that last week had constitutional lawyers arguing furiously pro and con.

Happily, the problem became irrelevant. M. Clinton did not accept or reject the subpoena. Mr Starr, the special prosecutor, exercised a unique gesture of magnanimity and agreed to withdraw the subpoena if the president would testify on video tape in the White House before his, Starr's, lawyers and – breaking the most baffling, some say the most undemocratic, provision of the Grand Jury system – the president will be allowed to have a lawyer present.

So two weeks from now the leakers are going to discover whether the president will go on stoutly denying he ever had a sexual relationship with Miss Lewinsky. But she has suddenly been given immunity from prosecution by Mr Starr. So she can tell the truth, without fear or favour. She's already said, "Yes, they had sex. She can prove it with a stained dress", leaving us, in stark fact, to decide which of them is lying.

The root question is not whether Mr Clinton had sex with Miss Lewinsky. Amazingly about 65% of the country think so, while the same number think he's being a good president. The question which Mr Starr has been aching for six months to have answered is, did the president try to persuade Miss Lewinsky to lie if she ever appeared before a Grand Jury?

As you'll see, her grant of immunity gives her the freedom to tell a truth that could bring the president down. Because if the Grand Jury finds that the president did take part in a conspiracy to withhold the truth, then he'd be guilty of one of the high crimes, stated in the Constitution, that provide grounds for impeachment –obstruction of justice.

This is the perilous position the president finds himself in as he mingles this weekend with his jet-set supporters on the south, the fashionable, shore of Long Island.

In the meantime and, as Hamlet said, looking before and after, there is a case to be made that so far as I know has never been made or likely to be made in this country against the existence of the Grand Jury system.

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