Grand Jury Duty

My plans for February, and my routines more broadly, were completely upset by getting selected for DC Grand Jury Duty

So back in late 2022, I received a notice summoning me for DC jury duty. I’d received such a notice before - I’d guess around 2014 or 2015 - and didn’t really think anything of it. I mentioned it to my boss and moved on, expecting that I’d show up on the day of the summons, maybe get selected for something or maybe not, and move on. However, I had rather importantly failed to read the fine print. I was not going for a petite jury summons, no this was a DC Grand Jury selection. DC Grand Jury duty is a decidedly different animal than a petite jury summons and a much greater time commitment (25 consecutive business days plus a recall day, though you can request days off). So I spent most of February (and a bit of March) serving on a DC Grand Jury. For secrecy reasons, there’s a lot I can’t talk about but I do want to offer some broader thoughts.

First, I’m going to spend a lot of this post offering what amounts to complaints/critiques and I need to acknowledge two things. One, I am an outsider with basically no relevant knowledge of the broader architecture/processes around the Federal judicial process (my jury was focused on more violent crimes, and DC’s violent crimes are managed by federal prosecutors), so I am almost certainly going to miss various nuances and not properly understand things. Prior to acting on any of my below complaints, I think it’d be best to hear from those with a lot more direct experience/understanding.

Second, the people actually involved in organizing and running this process were clearly smart, hard-working, and capable. We probably engaged with close to a score of AUSAs in hearing our cases, plus court reporters and the administrative staff that kept everything working. Everyone I encountered clearly believed in the mission of the institution and worked hard to make everything run as well as possible. To the extent I am going to complain, I want to be clear the complaints are not directed at any of them. They were great and made what was a difficult process more tolerable.

All that being said, a recurring thought I had while sitting in the grand jury room was “why are we here”. This was not because the cases being brought before us lacked gravity or that the prosecutors weren’t capably keeping us informed as to the relevant legal material, but more because it was - and remains - really difficult to understand what is the actual value we as members of the grand jury had to the proceedings. Fundamentally, from what I could tell, the main role of the Grand Jury was to 1. provide its imprimatur to the testimony of witnesses who came forward during an investigation 2. provide space for attorneys to work through areas of uncertainty regarding their briefs in front of a non-trial setting and 3. voting on indictments/subpoenas. There is probably more nuance to our role, but these seemed to be the ones we were called upon to do most often.

Based on my own experience, we didn’t actually add much to the process for items 1 and 3 and I’m honestly not really sure how much we added to Item 2. Again, this isn’t, a failing of any people involved. I know I took copious notes and tried to ask good questions and I am confident most of my fellow jurors approached things with equal seriousness. It more has to do with what the broader goal is of the process. Formally, a grand jury is supposed to “investigate” various crimes, but because the time period between a formal investigation opening and when an indictment must be issued runs months and DC grand juries only serve for 25 business days, investigations frequently are touched by multiple grand juries. Typically once the prosecutor believes sufficient evidence has been accrued to secure the indictment they’re looking to bring the available grand jury will be brought up to speed through the use of transcripts and then testimony from a detective to cover physical evidence before a final vote on charges. This can be months after the initial witness testimony is brought in.

It’s also not really accurate to say we are “investigating” since who comes before the grand jury and what testimony is presented seemed to be basically at the discretion of the prosecutors. Given that none of us had a formal background in criminal law, that’s not particularly surprising. So, again, the role we actually played is very circumscribed.

Getting into the substance of the three main actions, witnesses testifying before a grand jury do so under oath and therefore getting them in front of a grand jury “locks in” their statements. Much of the value of the grand jury stems from this function, though, again, we, as members of the grand jury don’t actually do much for this - it’s just our physical presence. Generally, the attorneys knew where the witness was going and the direction of the inquiry and had good questions prepared. While we asked questions, they generally didn’t seem to me to be essential to the case or particularly dispositive relative to the attorneys. It is unclear to me why the presence of a random group of citizens is critical to this process - it seems like something you could just have the attorney do with a court reporter present.

In terms of road-testing arguments in a non-trial setting, I’ve heard people discuss that but since for most of our cases we didn’t even vote on an indictment, I honestly can’t offer many thoughts on this. Most of my thoughts on this probably will mesh with my thoughts on the voting on indictments piece, so I’ll take the two of them together. I honestly can’t write about our votes and I won’t do that. But what I will say is that the bar to approve an indictment is extremely, extremely low. Rather than the trial standard of “beyond a reasonable doubt”, a grand jury is told they must vote to approve the indictment if there is “probable cause” - i.e. a reasonable person presented with the facts available and the legal definitions provided would believe that a crime probably took place. The result of this lower bar is that the vast majority of indictments presented to grand juries are approved. Again, I can’t discuss my own experience, but this Washington Post article from 2014 provides some relevant statistics. Basically, federal grand juries only very rarely decline to indict someone facing a potential charge.

All of this gets to my main question from this experience. Why are we there? The United Kingdom abolished grand juries in 1933 and I haven’t heard that their justice system somehow became less effective in the interim. I realize in the United States, the role of a grand jury is enshrined in the Constitution, but at least in its current structure, it is really hard to say that it is really doing anything of value. Everyone involved works very hard and is sincerely committed, but I have to wonder if we couldn’t do a lot to relieve pressure on a burdened judicial system by dropping what, at least to me, seems like a lot of wind-up for very little delivery.