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Learning More About Grand Juries


And in addition to defending the Harriet Miers' nomination, the White House has another big concern, possible indictments in the CIA leak investigations which would come from the grand jury that's been hearing testimony since the investigation began. The case has shown a spotlight on grand juries, generally. Most operate in secret. They must perform a difficult balancing act. They're expected to bring charges when there's a crime while serving as a buffer to protect the innocent against unfair accusations. NPR's Larry Abramson reports.


The grand jury system dates back at least to the Magna Carta and was enshrined in the American legal system by the Fifth Amendment. It guarantees no person shall be held to answer for a capital or otherwise infamous crime unless on a presentment or indictment of a grand jury. The original goal, according to Professor Susan Brenner of the University of Dayton, was to ensure that the state did not have unchecked power to bring criminal charges.

Professor SUSAN BRENNER (University of Dayton): Then that way you get the community involved in charging someone. So it's the idea that you're using a set of citizens to bring charges.

ABRAMSON: Federal grand juries have 23 members. Sixteen have to be present for a quorum and 12 votes are needed for an indictment. The typical federal grand jury, according to former US Attorney Andrew McCarthy, meets for a month and hears testimony on a number of cases.

Mr. ANDREW McCARTHY (Former US Attorney): That's the grand jury that basically catches all manner of crime. You know, anything from mail fraud to murder.

ABRAMSON: A special grand jury focuses on a single complex case like the CIA leak. Either way, grand juries operate in a world where the rights and procedures of the typical courtroom do not apply. Federal grand juries listen to hearsay testimony from FBI agents, for example. Prosecutors call witnesses and run the show, but grand jurors can ask questions. There's no right to an attorney, although witnesses can step outside to ask their lawyers for advice. And when it comes time for a grand jury to consider an indictment, the prosecutor is not supposed to launch into an impassioned closing argument. Former federal prosecutor Andrew McBride says he would quietly, objectively restate the facts to the grand jury.

Mr. ANDREW McBRIDE (Former Federal Prosecutor): Here are the elements, here's the evidence. He can summarize the evidence, then he leaves the room. The grand jury votes, the foreperson records the vote, both pro and con, and if there are 12 pro votes, it's a true bill.

ABRAMSON: The standard behind that true bill is much less than the `beyond a reasonable doubt' a trial jury uses. Grand juries only decide whether there's probable cause to bring an indictment. That little standard has led to the axiom that a decent prosecutor can convince a grand jury to indict a ham sandwich. And law Professor Susan Brenner says that concern led many states to get rid of the grand jury system.

Prof. BRENNER: In the 19th century, when the Supreme Court issued a decision that said the Fifth Amendment isn't binding under states, so they don't have to use the grand jury, states went berserk basically and said, `Well, we'll get rid of it.' The reason for getting rid of it is the perception that it's a star chamber, that it's a witch hunt, that it's not fair.

ABRAMSON: But Andrew McBride says prosecutors can do more harm than good to their careers by bringing flimsy indictments.

Mr. McBRIDE: Under the US Attorney's manual, a prosecutor is obligated not to seek an indictment unless he or she is certain that they have enough evidence that a jury of 12 could convict beyond a reasonable doubt.

ABRAMSON: The grand jury system is also peculiar in how it treats potential targets of an investigation. In some ways, it is more generous. Proceedings are conducted in absolute secrecy so an innocent person can walk away with a clean slate. And former prosecutor Andrew McCarthy says people often get a warning if they come close to admitting to a crime.

Mr. McCARTHY: As a general practice, the prosecutor will Mirandize anybody who reasonably might be thought to be in peril of incriminating himself.

ABRAMSON: But those measures may be cold comfort to those under investigation in high-profile cases like the CIA leak where secrecy is a relative term. Watching their fate unfold for months under the glare of television lights, potential defendants may wonder whether they prefer the system that came before juries, when a hot iron was applied to the hands and a person was judged by whether the wound healed. Larry Abramson, NPR News, Washington.

MONTAGNE: You can read more about the mysteries behind the grand jury process at npr.org.

This is MORNING EDITION from NPR News. Transcript provided by NPR, Copyright NPR.

United States & World Morning Edition
Larry Abramson is NPR's National Security Correspondent. He covers the Pentagon, as well as issues relating to the thousands of vets returning home from the wars in Afghanistan and Iraq.