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'Shield and sword'- Role of the grand jury in justice system

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By Susan Sharp

Words like grand jury and indictment often cause people to take notice. However, take notice is the most they can do because this group is the exception to the open court rule.

Grand juries, who are impaneled by criminal court judges in Tennessee, conduct business behind closed doors. These bodies exist to uncover if crimes have been committed. They are the first stop for defendants who could eventually face a jury.

What goes on in a grand jury room is meant to stay there. The public is not allowed and state prosecutors can be asked to leave.

Testimony and deliberations carried out in that room are privy only to the 13 member jury seated for the term.

This system exists for a number of reasons, according to Eighth Judicial District Criminal Court Judge Shayne Sexton.

Allowing the grand jury to operate away from the public creates a candid environment.

Grand jurors are allowed to ask any question they want, according to Harry Burden, who has served as Campbell County’s Grand Jury Foreman for 36 years. “They are not limited,” he said of the scope granted to them.

If the public was given complete access to these proceedings, jurors may not feel as comfortable asking the difficult questions of those presenting a case for possible indictment, according to Sexton.

The discretion afforded to the grand jury “also helps protect the defendant’s right to a fair trial,” said Eighth Judicial District Attorney General Paul Phillips.

Some of what is presented to the grand jury is often heard at other junctures in the case, Phillips said. However, the confidentiality given to grand jury dealings does limit the number of times the information is disclosed.

That is not to say the public is completely restricted.

Anyone who believes a crime has been committed can appear before the grand jury, pleading their case, the judge said. “It (the grand jury) is a prosecutorial tool,” Sexton said.

Those who believe they know of a crime or feel they have been a victim of a crime can appear before the group. One month prior to the grand jury convening, the criminal court clerk posts the time and date. From that point citizens can begin to come forward.

“That happens quite a bit,” Sexton said.

There are also occasions when citizens disagree with the district attorney’s decision not to pursue a case and appear to present the case on their own, according to Phillips.

However, the judge cautioned that the grand jury “was not a community sounding board.”

“Their sole function is to ferret out crime,” Sexton said.

And while the public can appear, the accused also has a right to be heard.

Bearing in mind the accused must swear to the tell the truth and grand juries have no limitations regarding the questions they ask, it becomes a      “dangerous proposition” for the alleged offender Sexton said.

Before being allowed to give his side, the accused is asked to waive his right to immunity, Phillips said. By doing this, he places himself at the mercy of the jury. As Burden said, “They (grand jurors) can ask any question they want.”

Despite the fact that what is said in the grand jury can’t be introduced at trial, facts discovered in that room, and from the accused, could become issues during the deliberation process.

But Phillips said grand juries are cautioned that if the alleged offender won’t waive immunity the offer to testify should be carefully considered.

While grand juries are impaneled by a judge and guided by the local district attorney’s office they are autonomous otherwise.

With the assistance of Burden, the group listens to the evidence being presented and then deliberates on the case. The deliberations and vote take place immediately following the evidentiary portion, Burden said. They also occur with no one else in the room- just the grand jurors.

“Some cases are very simple; some are not,” he said. Citing public intoxication and drunk driving as the straightforward cases, Burden said the theft and murder cases are the ones that “take a little longer.”

A simple show of hands then determines if the accused becomes a criminal court defendant. “We don’t recommend how they vote,” Phillips said.

In order for an indictment to be handed down, 12 of the 13 jurors have to believe – beyond reasonable doubt- a crime occurred. The group also has the right to disagree with the district attorney’s office overruling any objections it may have.

“We just accept that,” Phillips said of the instances when the grand jury takes a different view of a case.

And while the grand juries power can be far reaching, there remains one decision it can’t make.

“The grand jury can’t find anyone guilty,” Burden said.

Often times community members can become perplexed by the legal system, asking why so many steps are necessary in the system.

For that answer, one only needs to look to the Constitution.

According to Phillips, the Bill of Rights says no one can be put to trial without first appearing before a body of their peers. It is a portion of English law America’s founding fathers chose to incorporate into the laws for their new country.

Once the indictment is handed down it becomes the first step in the case being heard before a jury, Sexton said.

Additionally, a grand jury hearing a case is part of the checks and balances system in the judicial process. Having an independent body hear the evidence offers a different perspective from those who work in the courts.

“The hope is that false charges will fall by the wayside,” Sexton said.

“Grand juries are made up of citizens not the government,” Phillips said pointing out grand jury testimony is the first time someone outside the justice system becomes privy to the details of a case.

Grand juries function as both a shield and a sword, according to Phillips.

They shield individuals from prosecution that lacks merit while also determining if a crime has occurred.

“They have strong investigatory powers should they choose to use them,” Phillips said of grand juries.

 “Are grand juries useless, outdated, and unnecessary? No,” Phillips said. “There is very much a place for them.”