The Texas Grand Jury
Content
PUBLIC AFFAIRS SERIES NUMBER SIXTY-ONE
THE TEXAS GRAND JURY
Stuart A. MacCorkle
Professor of Government and Director of the Institute of Public Afairs
INSTITUTE OF PUBLIC AFFAIRS AUSTIN : THE UNIVERSITY OF TEXAS : 1964
Copyright 1964
BOARD OF REGENTS PHE UNIVERSITY OF TEXAS
PRICE ONE DOLLAR
Foreword
This study is the result of a term of service on the Grand Jury of Travis County by the author. Its aim is to make available to future Texas grand jurors a general source of information on the functions and powers of the grand jury and of the juror's duties and responsibilities as a member of this important body. This brochure is in no way presented as a substitute for the "charge to the grand jury" given by the district judge to each new grand jury, nor is it intended as a substitute for any instructions or material that may be presented this body by either the judge or the district attorney. There are perhaps few services more important to the welfare of the state than that of serving on a grand jury. In addition to its responsibilities in connection with the criminal proceedings of this state, the grand jury is charged with the over-all responsibility of maintaining good and efficient government on both the state and local levels. Its powers of investigation into the organization and operation of government and of making recommendations are both far reaching and significant. The upholding of the fundamentals of justice under law is essential to a democratic government. Both the Institute and the author are very appreciative of the assistance of various persons in the preparation of this brochure. Mr. Samuel David Ward, senior law student in the School of Law at The University of Texas during 1963-64, assisted with the research and Miss Charldean Newell, Research Associate, Institute of Public Affairs, checked the footnotes for accuracy. Both Judge Mace B. Thurman, Jr. of the 147th Judicial District Court and Judge Thomas I. McFarling, Corporation Court, Austin, Texas, read the study in manuscript form with the result that a number of their suggestions have been incorporated herein.
The author wishes to express special thanks to Mr. Tom Blackwell, District Attorney, Travis County, Texas, for the personal interest he has taken in this project. He not only encouraged the author to undertake it, but he has assisted in the preparation of the manuscript by making many valuable suggestions which have added to its accuracy and the improvement of the final draft. To Mr. Blackwell we are most grateful. STUART A. MACCORKLE Director Austin, Texas December. 1964
Table of Contents
ORIGIN ....................................................... THE NATURE OF THE JURY'S FUNCTION IMPORTANCE OF THE OFFICE
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THE JURY COMMISSION ............................... QUALIFICATIONS OF GRAND JURORS EXEMPTIONS FROM SERVICE
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CHALLENGES OF JURY PANELS THE OATH TAKEN ......................................... SCOPE OF INQUIRY ........................................ PROCEDURE IN JURY SESSIONS
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EVIDENCE REQUIRED ..................................... CONSIDERATION THE SUMMONING OF OF PUNISHMENT WITNESSES
THE JURY'S REPORT .......................................
The Texas Grand Jury
ORIGIN
Trial by jury is an English tradition of ancient origin. Although the time of its beginning is obscure, the idea was recognized as early as 1215 when King John granted the Magna Carta at the demand of English noblemen.1 In the early days, the jury decided only that there was cause to suspect a person of a crime. Guilt or innocence was determined by battle or by ordeal. Later, as the concept of a grand jury began to emerge, the jury both accused the person suspected and determined his guilt or innocence. In those days, some or all of the members of the grand jury also sat on the petit, or trial, jury, and if these men voted to acquit someone whom they had previously accused, the judge would sometimes say they had contradicted themselves and, therefore, should be punished.2 By the reign of Henry III (1216-1272), juries in the royal court were used for discovering and presenting to the king's officials persons suspected of serious crimes.3 Eventually, statutes were passed preventing a person who served on the grand jury from being on the trial jury deciding the same case. By the time of the first settlement in America, the grand jury had become only an informing and accusing tribunal and no longer did it determine the guilt or innocence of the individual. At various times in English history when conflict arose over the powers of the king and the rights of his subjects, the
State Grand Jury Handbook, (American Bar Association, no date), p. 8. Charles S. Potts, Criminal Procedure from Arrest to Trial," Texas Law Review, 26 (May, 1948) 616. 3 . Jack Pope, "The Jury," Texas Law Review, 39 (April, 1961) 434.
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grand jury often stood as a barrier to protect against persecution by the Crown. Today, in this country, the grand jury is designed to bring to trial persons accused of public offenses upon just grounds and to protect the citizen against unwarranted prosecution, either by the government or by any person moved by private enmity. The fifth amendment to the Constitution of the United States provides that:
No person shall be held to answer for a capital or otherwise infamous crime unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger....
The Consitution of the State of Texas reads in part as follows:
. . . and no person shah1 be held to answer for a criminal offense, unless on an indictment of a grand jury, except in cases in which the punishment is by fine or imprisonment, otherwise than in the penitentiary; in cases of impeachment and in cases arising in the army or navy, or in the militia, when in actual service in time of war or public danger.4
THE NATURE OF THE JURY'S FUNCTION
The legal encyclopedia, Corpus Juris, defines a grand jury as follows:
A grand jury is a body of men selected and summoned according to law to serve before a competent court and by such court empaneled, sworn and charged to inquire in regard to crimes committed within its jurisdiction and to present'all offenders against the law in the mode and manner defined by it.5
As this definition indicates, the grand jury determines whether a crime has been committed and whether it is probable that the one accused committed it. In this respect, it differs from the petit, or trial, jury which determines the actual
Constitution of the State of Texas, Art. I, sec. 10. Corpus Juris, XXVIII (1922), 763. Hereafter referred to as C.J. F21
THE TEXAS GRAND JURY
guilt or innocence of the accused in a particular case. The grand jury is concerned with estimating probability of guill and serves somewhat in the capacity of a preliminary screening body of broad community activity. The trial jury musl find guilt "beyond a reasonable doubt" or release the accused from custody. While a trial jury is empaneled to try one case only and to go out of existence, the grand jury's life is for a full term of court.6 In this manner, the citizens themselves, through their representatives the grand jurors, play a large part in the maintenance of order in their community. The grand jury's responsibility cannot be delegated to any other governmental authority. The grand jury does not try any case. It normally hears only the evidence presented to it by the prosecuting authorities. In many cases it may hear no evidence for the defense and, indeed, it rarely hears evidence from the accused himself, although it may afford him the opportunity to testify if he wishes. Having heard the evidence most damaging to the accused, the grand jury has the function to determine whether or not that evidence justifies a formal indictment. The grand jury may hear charges of crime brought before it through several channels: (1) by the court, (2) by the prosecuting attorney, (3) by any credible citizen, or (4) by one or more of its own members. If any grand juror obtains notice that a felony has been committed, it is good practice for him to submit this information to the jury foreman and prosecuting attorney, without revealing this knowledge to anyone else. This procedure makes possible an orderly investigation. While a person or situation is under investigation by the grand jury, no one may approach an individual grand juror
6 A term of court in Texas may last from three to six months depending upon the county involved. Vernon's Annotated Revised Civil Statutes of the State of Texas, Arts. 199, 1919 et seq. Hereafter referred to as V.A.C.S.
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in an attempt to persuade him that an indictment should, 01 should not, be returned. If a person has some evidence concerning the matter, he should confer with the prosecuting officer in order that he might be heard by the grand jury as a whole. Any citizen may petition the grand jury for permission to appear before it in order to urge that a certain situation be investigated. Finally, it must be noted that the grand juror is a public official. In this capacity it is his duty to uphold the law as it exists, not as he thinks it should be. He may criticize a particular law as a private citizen, but when he is in the grand jury room, he is not asked to pass upon the merits of the law.
IMPORTANCE OF THE OFFICE
In time of peace, no citizen is able to perform a higher duty than to render grand jury service. The grand jury is designed to be a body of discreet persons called together to protect the public interest, to preserve order, and at the same time to guard and defend the rights of the individual. It hears witnesses who support a charge of crime and determines if the accused should be brought to trial on the charge. Thus no body of citizens exercises functions more vital to the administration of law and order. The importance of the grand jury's power comes from the fact that it is an independent body answerable to no one except the court itself. Membership on the grand jury is considered an honor and imposes a solemn responsibility. The proper functioning of the grand jury depends upon the ability and attitude of its members—on how willingly they serve, how well they are informed, and how seriously they undertake their duties. In order to insure responsible membership on the grand jury, Texas statutes establish the qualifications for grand
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jurors and prescribe the method by which they are to be selected.
THE JURY COMMISSION
The district judge in obtaining a grand jury appoints a jury commission of no fewer than three nor more than five members at the beginning of or during each term of court. This commission in turn selects a grand jury. The statute requires that commissioners meet the following qualifications:
1. Be intelligent citizens of the county and be able to read and write the English language; 2. Be qualified jurors and freeholders in the county; 3. Have no suit in said court which requires intervention of a jury; 4. Be residents of different portions of the county; 5. The same person shall not act as jury commissioner more than once in the same year.7
The law further requires that there be no racial discrimination in the selection of jury commissioners or grand jurors. This means that there may be no systematic exclusion from consideration of any race in the selection of either body. In other respects, the district judge has a great deal of discretion in making his selections.8 Jury commissioners are compensated at the rate of four dollars for each day spent in making their selections, and their tenure is for one term of court. After the names of the prospective commissioners have been chosen, the district judge instructs the sheriff or constable to notify the appointees of their selection and to inform them as to the time and place they are to appear. Upon
1 Vemon's Annotated Code of Criminal Procedure of the State of Texas, Art. 333. Hereafter referred to as V.C.C.P. 8 For instance, the failure to pay a poll tax does not disqualify an otherwise qualified commissioner from serving. Hammond v. State, 163 Tex. Grim. Rep. 471, 293 S.W. 2d 652 (Grim. App. 1956).
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their appearance in court, the judge administers to them this oath:
You do swear faithfully to discharge the duties required oi you as jury commissioners; that you will not knowingly elecl any man as juryman whom you believe to be unfit and not qualified . . . that you will not, directly or indirectly, converse with anyone selected by you as a juryman concerning the merits oi any case to be tried at the next term of this court, until after said cause may be tried or continued, or the jury discharged.9
After taking the above oath, the jury commissioners receive instructions as to their duties from the judge. They then retire to make their selections and are not to separate until their task is completed, except by permission of the court. The district clerk furnishes them a list of names of those who appear from the records of the court to be exempt or disqualified from service on the grand jury. He also furnishes them the last tax assessment roll of the county. With this information before them, the commissioners select sixteen prospective grand jurors. The names of those selected are written down in numerical sequence, sealed in an envelope, and delivered to the district judge in open court. The judge transmits the envelope to the district clerk. The district judge designates the day on which the grand jurors are to be qualified and empaneled and notifies the clerk. Within thirty days, the clerk opens the envelope, certifies the names of juror-candidates and the date upon which they are to be summoned, and gives the list to the sheriff. It is the sheriff's duty to issue a summons to those named, at least three days before the grand jury is to be empaneled.10
9 V.C.C.P., Art. 335.
1 0 A juror legally summoned and failing to attend without a reasonable excuse, may, by order of the court, be fined not less than ten nor more than one hundred dollars. V.C.C.P., Art. 347.
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When as many as twelve of those summoned to serve are in attendance in court, the judge proceeds to interrogate them, under oath, concerning their qualifications.
QUALIFICATIONS OF GRAND JURORS
The statute provides that no person shall be selected 01 serve as a grand juror in Texas who does not possess the following qualifications:
1. He must be a citizen of the State, and of the county in which he is to serve, and qualified under the Constitution and laws to vote in said county; but, whenever it shall be made to appear to the court that the requisite number of jurors who have paid their poll taxes cannot be found within the county, the court shall not regard the payment of poll taxes as a qualification for service as a juror. 2. He must be a freeholder within the State, or a householder within the county. 3. He must be of sound mind and good moral character. 4. He must be able to read and write. 5. He must not have been convicted of any felony. 6. He must not be under indictment or other legal accusation for dieft or any other felony.11
The provisions of this article are mandatory and are binding on the jury commission in selecting prospective grand jurors. Women were not considered qualified as grand jurors until 1954, when the state constitution was amended to provide that whenever in the statutes the term "men" is used in reference to grand or petit jurors, it is meant to include persons of the female as well as the male sex.12
V.C.C.P., Art. 339. Constitution of the State of Texas, Art. XVI, sec. 19. A male indicted by an all-male grand jury may not avail himself of this provision to challenge the legality of his indictment, but it is possible that a woman indicted by an all-male grand jury might be allowed to do so. Schwarz v. State, 357 S.W. 2d393 (Grim. App. 1962).
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These qualifications represent the bare letter of the law It is the jury commission's responsibility to abide by the spiril of the law by selecting able and distinguished citizens in the community to compose the grand jury. The first twelve persons in the list of sixteen to qualify are sworn in as grand jurors, as a legally constituted grand jury must consist of this number. Twelve persons are also required for a criminal trial jury. Precisely why the accepted number is twelve on the traditional jury is not known. The origin, as the 17th century English jurist Sir Edward Coke said, is shrouded in an "abundance of mystery."13
EXEMPTIONS FROM SERVICE
Persons otherwise qualified for grand jury service may claim an exemption from duty on one of several grounds. The district judge may, at his discretion, instruct the jury commission not to select exempt persons. However, the court is not compelled to do this, and persons entitled to exemption may serve on the grand jury if they wish. The exemption is a personal privilege which may be claimed or waived by the party for whose benefit it was granted. The Texas statutes provide that the following persons may claim an exemption:
1. All persons over sixty-five (65) years of age. 2. All civil officers of this State or the United States. 3. All overseers of roads. 4. All ministers of the gospel engaged in the active discharge of their ministerial duties. 5. All physicians, dentists, and attorneys and spouses of attor neys engaged in actual practice. 6. All railroad station agents, conductors, engineers and firemenof railroad companies when engaged in the regular and actual discharge of their respective positions. 7. Any person who has acted as a jury commissioner within the preceding twelve (12) months. 8. All members of the national guard of this State under the proXXVII C.J. 764.
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visions of the title "Militia" during periods of time when they are actually on active duty. 9. In cities and towns having a population of one thousand (1000) or more inhabitants, according to the last preceding United States Census, the active members of organized fire com panies, not to exceed twenty (20) to each one thousand (1000) of such inhabitants. 10. All females who have legal custody of a child or children under the age of sixteen (16) years. 11. All registered, practical and vocational nurses actively en gaged in the practice of their profession. 12. Any practitioner who treats the sick by prayer or spiritual means in accordance with the tenets, teachings or practice of any well established church or denomination, or a nurse who cares for the sick who are under treatment by such spiritual means, or a reader whose duty is to conduct regular religious services of such church or denomination. 13. All licensed morticians who are actively engaged in the practice of their profession. 14. All registered pharmacists who are actively engaged in the practice of their profession. 15. Agents and patrolmen engaged in forestry protection work employed by the State Department of Forestry when engaged in the actual discharge of their duties. 16. The wife of any man who is summoned to serve on the same jury panel. 17. All school teachers, which shall include public, parochial and private school teachers.14
As a rule, exempt persons selected to serve are urged not to exercise their right of exemption in the absence of necessity, for some of the most talented citizens in the community may fall in the exempt categories.
CHALLENGES OF JURY PANELS
Before the district judge administers the oath to the grand jurors, any person so desiring may challenge the empanelment of the group as a whole or any one of them in particular. Normally, the district judge asks the prosecutor if he has any
V.A.C.S., Art. 2135.
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challenges. Then any attorneys present in the courtroom arc given an opportunity to challenge. Finally, the judge asks the sheriff if the prisoners in the county jail have been notified oJ the names of the prospective jurors and of their right to challenge the jury's empanelment. Grand jurors may be challenged for specific reasons only these reasons being set forth in the statute. A challenge to the panel as a whole is called a "challenge to the array." This challenge must be made in writing and may only be based on the following statutory reasons:
1. That those summoned as grand jurors are not in fact those selected by the jury commissioners. 2. In case of grand jurors summoned by order of the court, that the officer who summoned them had acted corruptly in sum moning any one or more of them.15
A challenge to a particular grand juror is called a personal challenge. It may be made orally and for the following causes defined by statute:
1. That he is not a qualified grand juror. 2. That he is the prosecutor upon an accusation against the per son making the challenge. 3. That he is related by consanguinity or affinity to one who has been held to bail or who is in confinement upon a criminal ac cusation.16
A prosecutor as used here is defined as one who prefers an accusation against a party whom he suspects to be guilty." "Consanguinity" means relation by blood, and "affinity" means relation by marriage.18
V.C.C.P., Art. 361. V.C.C.P., Art. 362. " Arnold v. State, 148 Tex. Grim. Rep. 310, 186 S.W. 2d 995, 158 A.L.R. 1356 (Grim. App. 1945). 18 Black's Law Dictionary, p. 81.
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THE OATH TAKEN
After qualifications have been established, exemptions claimed, and challenges ruled upon, the twelve established jurors are ready to be sworn. The district judge appoints one of the number foreman. The judge then administers the statutory oath as quoted below:
You solemnly swear that you will diligently inquire into, and true presentment make, of all such matters and things as shall be given you in charge; the State's counsel, your fellows' and your own, you shall keep secret, unless required to disclose the same in the course of a judicial proceeding in which the truth or falsity of evidence given in the grand jury room, in a criminal case, shall be under investigation. You shall present no person from envy, hatred or malice; neither shall you leave any person unpresented for love, fear, favor, affection or hope of reward; but you shall present things truly as they come to your knowledge, according to the best of your understanding, so help you God.19
The statutes specifically provide that the deliberations of the grand jury shall be secret, and any grand juror who discloses information regarding its official activities is subject to fine and imprisonment. Secrecy is an integral part of the grand jury concept. It is necessary to protect the grand jurors themselves from pressure by persons who may be involved in the actions of the jury. Secrecy is helpful in preventing suspected persons from escaping while an indictment against them is under consideration. It also prevents witnesses appearing before the grand jury from being tampered with or intimidated in case the alleged offender goes on trial. Instead, it encourages witnesses to give full information to the grand ury. The final and perhaps most important reason for secrecy is to protect a wrongly charged person from public disgrace. After the presiding judge has administered the oath, he
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V.C.C.P., Art. 365.
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may advise the grand jury formally and in more detail as to its duties and responsibilities. This address is spoken of as the "charge to the grand jury." It serves as a controlling guide to the jurors, although the court will, as the occasion arises, rule authoritatively on any particular question of law that the grand jury wishes to have answered regarding its duties and powers. Upon the completion of the charge, the grand jury is ready to begin its work. The group is escorted into the grand jury room, and the foreman may appoint one or more of its members to serve as secretaries since it is important that accurate records of the jury's actions be kept. The jury itself determines the days and the hours it will meet and, with the advice of the prosecuting attorney, the number of cases to be taken up at each meeting.
SCOPE OF INQUIRY
The grand jury is empowered to inquire into those violations of the criminal law liable to indictment of which any member may have knowledge, or of which they are informed by the attorney representing the state, or which are submitted by any other credible person.20 The jury investigates felonies committed within the county, since no person may be tried for these crimes without first having been indicted by a grand jury.21 Felonies are more serious crimes, ones punishable by death or imprisonment in the state penitentiary. They are to be distinguished from misdemeanors, which are offenses punishable by fine or imprisonment in jail. The grand jury does not normally investigate misdemeanors, although it is within its power to do so. When the investigation of any feloney is completed, the
20 V.C.C.P., Art. 381.
21 Constitution of the State of Texas, Ait. I, sec. 10.
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grand jury will either vote a true bill, return a no bill, or pass the case. A true bill means that the jury is returning an indictment in the case. Nine members must concur before a true bill may be returned.22 If the jury decides not to indict, it returns a no bill. It is within the jury's discretion to decide how many members must concur to return a no bill. The custom in many counties in Texas is to require nine votes for this action. If nine members cannot agree upon either a true bill or a no bill, or if the jury is not presented with enough facts, it is the custom to pass or carry forward the case, either to a later meeting or to the next grand jury.
PROCEDURE IN JURY SESSIONS
Nine members of a grand jury form a quorum for the transaction of business. While testimony is being heard, the jury may permit other persons to be in the grand jury room. For instance, the state or county attorney may be present to aid the jurors. So may his stenographer, who keeps a record of the testimony. However, it is unwise to allow the indiscriminate attendance of other persons. As a matter of fact, the grand jury has the power to conduct its hearings without the presence of the prosecuting attorney. No one other than dulyempaneled members may be present when the grand jury is deliberating and voting.23 The jury is "deliberating" within the meaning of the law when it is weighing and examining reasons for or against a choice of measures. It is customary for the grand jury to hear witnesses in all the cases pending before them, then at the end of the day, to clear the room and discuss and vote upon the cases it has heard. If this practice is followed consistently, it is easy to show at a later time
V.C.C.P., Art. 391. McGregor v. State, 83 Tex. Crim. Rep. 35, 201 S.W. 184 (Crim. App. 1918).
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that no unauthorized persons were in the room during the deliberating and voting. It is the prosecuting attorney's duty to give the grand jury advice upon any matter of law or upon any question arising respecting the proper discharge of its duties.24 The prosecuting attorney usually examines the witnesses in front of the jurors and advises jurors as to the proper mode of interrogation. Thus the grand jury is in a position to make full use ol his legal knowledge and experience. This system places the prosecuting attorney in a position oi great influence. However, the grand jury should not permit him to dominate its thinking. If this should occur, there would be no reason for the jury. If the grand jury is not satisfied with the advice given it by the prosecutor, it has the duty to seek additional assistance.25 In such cases, the jurors may go to the judge for further advice, or they may seek independent legal counsel for the purpose of clarifying matters of law.26 Neither is common practice.
EVIDENCE REQUIRED
It has been said that the grand jury is not intended to perform the function of the trial jury and determine the guilt of the accused; however, it does have the duty of ascertaining if a crime has been committed and if there is sufficient legal evidence upon which a trial jury could convict the accused in a specific case. Accused persons should not be indicted simply because they were present where a crime was committed. The evidence must show that each accused aided and assisted
2* V.C.C.P., Art. 377. 25 "Powers of the Grand Jury," Drake Law Review, 2 (November, 1952) 26. 26 W. Page Keeton, "Value and Importance of Grand Juries." Address de livered to the Grand Jury Association of Travis County, January, 1954.
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the principal offender in the commission of the offense before he can be considered guilty. Before a trial jury the prosecutor has the burden of producing legally admissible evidence which will prove the accused guilty "beyond a reasonable doubt," but this is not the test to be applied by the grand jury in deciding whether to indict. The test for it to apply is whether the State can make a "prima facie" case or not. Stated another way, the test is whether at the conclusion of the State's evidence in the subsequent trial of the case and before the defendant produces any evidence, the trial judge would be in the position of having to render an instructed verdict against the State. The emphasis here is on "legal" evidence. The technical rules of evidence prevent certain kinds of proof from being admissible at the trial of the case, and while a grand jury may hear this type of evidence, they should never consider it in determining whether there is sufficient evidence upon which to return an indictment. Examples of evidence which will be excluded or which are insufficient for securing a conviction are: (1) hearsay, (2) improperly obtained confessions, (3) results of illegal arrest or searches, (4) accomplice testimony without corroboration and (5) incompetent witnesses such as the wife of the accused or young children. An even more difficult question is presented to the grand jury when the evidence not only shows that the accused committed the offense but that he has a complete defense taking the form of: (1) accident or (2) self-defense. Where the accused will have to use different witnesses than the State to make out his defense, then it is best to indict and not have the grand jury determine the ultimate issue in the secrecy of the grand jury room. On the other hand, if the State's witnesses that make out the "prima facie" case will also make out a complete defense on cross-examination by the accused, there
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should be no indictment because each side is bound by the testimony of its own witnesses and the trial judge would be required to direct a verdict of acquittal for the accused at the end of the State's testimony.
CONSIDERATION OF PUNISHMENT
It should be recalled that it is not a proper function of the grand jury to determine the punishment that should be given an accused person nor to extend to anyone accused of crime any benefits in the nature of clemency or pardon. Both of these are the functions of the judiciary and the executive branches of government. If a grand jury's members fall into the error of allowing pleas for mercy and sympathy and promises of restitution to sway their judgment to the extent that they fail to perform their duty and in effect try the guilt or innocence in its ultimate aspect in the secrecy of the grand jury room, it can only tend to decrease the faith which the community has in the grand jury system. Prior to the enactment of our present probation law, some grand juries extended "unofficial probation" without indictment to young first offenders. Since the grand jury lacks the facilities for supervision, probation should always be after indictment and under the supervision of the probation department. Once the grand jury has returned an indictment, it is the duty of the district attorney to set the case for trial. All indictments should be prosecuted unless key witnesses are unavailable or additional evidence has been uncovered which was not available to the grand jury at the time of indictment. No case can be dismissed until a motion to that effect is filed with the district court setting out the reasons for requesting a dismissal. The case is not dismissed until the judge has heard the motion and consents to the dismissal.
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THE SUMMONING OF WITNESSES
The great bulk of the grand jury's work involves hearing and evaluating the testimony of witnesses. In order that sufficient witnesses may be interrogated to insure a full investigation of any alleged criminal action, the grand jury is armed with the power of subpoena. The foreman may instruct the district attorney to issue a summons to any witness in the county where the grand jury is sitting. This summons may require the witness to appear promptly or at some fixed time. It need not specify the matter under investigation. The grand jury may also summon witnesses from any other Texas county. This is done by written application to the district judge giving the name and address of the witness and certifying that his testimony is believed to be material. The judge may then cause an attachment to be issued to any county in the state for the witness, commanding the sheriff of that county to summon the man and have him appear before the grand jury at a specified time. Any witness who wilfully evades service of a summons may be fined for contempt by the court. When a witness appears, the following oath is administered to him by the foreman, or at his direction:
You solemnly swear that you will not divulge, either by words or signs, any matter about which you may be interrogated, and that you will keep secret all proceedings of the grand jury which may be had in your presence, and that you will true answers make to such questions as may be propounded to you by the grand jury, or under its direction, so help you God.27
The grand jury may now examine the witness. Most of the interrogation will probably be done by the prosecuting attorney or the foreman, but any juror may ask questions if he desires. In interrogating a witness, the jury is not held to the technical rules that govern qualifications of witnesses and ad2' V.C.C.P., Art. 388. F1 7 1
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missibility of evidence in trials before petit juries.28 Nevertheless, the jury should attempt to ask questions that are material to the case before it. When a felony has been committed within the jurisdiction of the grand jury, it is free to ask any pertinent question relative to the alleged crime. There are no statutory restrictions in this regard. In fact, the court is not privileged to look behind the return of an indictment and in quire into the character of the evidence on which the indictment was found.29 The grand jury in obtaining information is restricted only by the requirement that the constitutional rights of a person being examined must be protected. The United States Constitution, as well as the Constitution of the State of Texas, guarantees immunity from self-incrimination. This means that no one shall be compelled to give testimony which may expose him to prosecution for any crime. Unless he voluntarily becomes a witness, he is completely immune from being questioned.30 This privilege is not confined to someone accused but extends to all witnesses before a grand jury.31 For this reason, the grand jury in questioning any person suspected or accused of a crime must state to him the offense with which he is being charged, the county where the offense is said to have been committed, and as nearly as possible the time of the commission of the offense. If the jury thinks it necessary, it may ask him in general terms whether he has knowledge of the violation of any particular law by any person and, if so, by what person. 32 But the statutory warning of self28 Choice v. State, 114 S.W. 132 (Grim. App. 1908). 29 Kingsbury v. State, 37 Tex. Crim. Rep. 259, 39 S.W. 365 (Grim. App. 1897). 30 Long v. State, 120 Tex. Crim. Rep. 373, 48 S.W. 2d 632 (Grim. App. 1931). Also V.C.C.P., Art. 710. 3 1 Ex parte Sanchez, 85 Tex. Crim. Rep. 380, 213 S.W. 271 (Crim. App. 1919). 32 V.C.C.P., Art. 389. [18]
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incrimination must be given before specific questions are asked him, or evidence obtained from him is not admissible on subsequent prosecution.33 If a witness refuses to answer a question, the refusal should be noted. The grand jury itself cannot compel a witness to testify. It can only refer the refusal to the district judge. This is generally done by a written report, signed by the foreman giving the substance of the question asked and noting that the witness refused to answer it. The judge may then examine the witness and inform him whether or not he is required to answer the question. In some cases, a grand jury may wish to grant immunity from prosecution to a witness for his part in a crime in order to induce him to testify. This authority is advantageous where a witness would not otherwise testify for fear of incriminating himself. If he is granted immunity, his answers cannot harm him and he may be compelled to testify.34 However, complete immunity may not be granted by a grand jury or prosecuting attorney acting alone. Any promise of complete immunity must be made with the approval of the court. Until this approval is obtained, the witness may not be compelled to answer.35 Finally, it is not customary for either a witness or an accused person, when appearing before the grand jury, to have counsel present in the grand jury room. But the grand jury may permit counsel to be present if it so desires. After the grand jury has heard all the available evidence, and all persons not members of the jury have left the room, the foreman calls for a discussion of the evidence they have heard. After each member who desires to speak has been
* 3 Bowen v. State, 47 Tex. Crim. Rep. 137, 82 S.W. 520 (Crim. App. 1904). 34 Ex parte Carol Jean Joseph, 356 S.W. 2d 791 (Crim. App. 1962). 35 Ex parte Higgins, 71 Tex. Crim. Rep. 618, 160 S.W. 696 (Crim. App. 1913).
[19]
THE TEXAS GRAND JURY
heard, a vote is taken. It appears customary in most Texas counties to require nine of the twelve votes for action. The result of the vote is given to the state's attorney, who prepares all indictments which have been made by the jury. These he returns to the foreman, who checks each before affixing his signature, after which the state's attorney writes on the indictments the names of the witnesses upon whose testimony they were based. At this point the indictments are ready for delivery to the judge. With the indictments in hand, the foreman and the grand jury go in a body into open court, where the foreman delivers these indictments to the district judge. At least nine members of the grand jury must be present at this time. The indictments are then entered upon the minutes of the court. Unless the person to be tried is in custody or under bond, his name is omitted in the record so as to aid enforcement officers in his arrest.
THE JURY'S REPORT
It is common practice among grand juries in Texas to issue a report. This is usually done at the end of the jury's term of office. While an indictment is the grand jury's official written accusation against a specific person, the report is a written commentary either complimentary or critical, directed at general conditions, designated agencies, or a specific individual from which no indictment is framed.36 The report is submitted to the district judge and becomes a matter of public record. In its report, the grand jury may comment upon any situation in the county. It attempts to call both official and general civic notice to matters which the jury believes will be to the general benefit of the community. There are no statutory regulations concerning the subject matter to be
George H. Dession and Isadore H. Cohen, "The Inquisitorial Functions of Grand Juries," Yale Law Journal 41 (March, 1932) 749-50.
36
[20]
THE TEXAS GRAND JURY
treated; however, the grand jury's investigatory powers are quite broad. It is within the power of a grand jury to inspect any public buildings within the county. It may investigate the work oi any public official, office, or institution. It may inspect the books of the county. In short, the grand jury is the citizens watchdog over the allocation, management, and use of the county's public funds and the performance of its officers. A report is improper in situations in which an indictment should be returned. However, it may happen that the grand jury will be unable to return an indictment in a situation because the statute of limitations has expired on an offense, oi because it is impossible to obtain proper evidence, or because the offense is not indictable, but is serious enough to warrant calling it to public attention.37 In these instances the grand jury report would profitably supplement its power of indictment. The investigatory powers of most grand juries which they may exercise in the public interest are practically limited by both time and funds. These limitations are likely to be severe, especially in the more populous counties where the greatest portion of the jury's time is taken up with hearing evidence concerning indictable offenses. Further, there is no statutory provision allocating funds to the grand jury for a staff of investigators. Regardless of these limits, the importance of the power of the grand jury to investigate inefficiency and corruption and to report them to the public may not lightly be brushed aside. Its power of investigation is a constant reminder to public officials that their conduct is subject to review by the jury. Finally, in making indictments and preparing reports a
31 J. Hadley Edgar, Jr., "Propriety of the Grand Jury Report," Texas Law Review,34 (May, 1956) 749-50.
[21]
THE TEXAS GRAND JUHY
reckless grand jury may do much harm to individuals, to the community, and to public officials. This possibility should never be forgotten by a juror. Membership on the grand jury is a high honor; it also calls for restraint and discernment.
[22]
THE TEXAS GRAND JURY
Stuart A. MacCorkle
Professor of Government and Director of the Institute of Public Afairs
INSTITUTE OF PUBLIC AFFAIRS AUSTIN : THE UNIVERSITY OF TEXAS : 1964
Copyright 1964
BOARD OF REGENTS PHE UNIVERSITY OF TEXAS
PRICE ONE DOLLAR
Foreword
This study is the result of a term of service on the Grand Jury of Travis County by the author. Its aim is to make available to future Texas grand jurors a general source of information on the functions and powers of the grand jury and of the juror's duties and responsibilities as a member of this important body. This brochure is in no way presented as a substitute for the "charge to the grand jury" given by the district judge to each new grand jury, nor is it intended as a substitute for any instructions or material that may be presented this body by either the judge or the district attorney. There are perhaps few services more important to the welfare of the state than that of serving on a grand jury. In addition to its responsibilities in connection with the criminal proceedings of this state, the grand jury is charged with the over-all responsibility of maintaining good and efficient government on both the state and local levels. Its powers of investigation into the organization and operation of government and of making recommendations are both far reaching and significant. The upholding of the fundamentals of justice under law is essential to a democratic government. Both the Institute and the author are very appreciative of the assistance of various persons in the preparation of this brochure. Mr. Samuel David Ward, senior law student in the School of Law at The University of Texas during 1963-64, assisted with the research and Miss Charldean Newell, Research Associate, Institute of Public Affairs, checked the footnotes for accuracy. Both Judge Mace B. Thurman, Jr. of the 147th Judicial District Court and Judge Thomas I. McFarling, Corporation Court, Austin, Texas, read the study in manuscript form with the result that a number of their suggestions have been incorporated herein.
The author wishes to express special thanks to Mr. Tom Blackwell, District Attorney, Travis County, Texas, for the personal interest he has taken in this project. He not only encouraged the author to undertake it, but he has assisted in the preparation of the manuscript by making many valuable suggestions which have added to its accuracy and the improvement of the final draft. To Mr. Blackwell we are most grateful. STUART A. MACCORKLE Director Austin, Texas December. 1964
Table of Contents
ORIGIN ....................................................... THE NATURE OF THE JURY'S FUNCTION IMPORTANCE OF THE OFFICE
.
.
.
.
THE JURY COMMISSION ............................... QUALIFICATIONS OF GRAND JURORS EXEMPTIONS FROM SERVICE
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.
.
.
CHALLENGES OF JURY PANELS THE OATH TAKEN ......................................... SCOPE OF INQUIRY ........................................ PROCEDURE IN JURY SESSIONS
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EVIDENCE REQUIRED ..................................... CONSIDERATION THE SUMMONING OF OF PUNISHMENT WITNESSES
THE JURY'S REPORT .......................................
The Texas Grand Jury
ORIGIN
Trial by jury is an English tradition of ancient origin. Although the time of its beginning is obscure, the idea was recognized as early as 1215 when King John granted the Magna Carta at the demand of English noblemen.1 In the early days, the jury decided only that there was cause to suspect a person of a crime. Guilt or innocence was determined by battle or by ordeal. Later, as the concept of a grand jury began to emerge, the jury both accused the person suspected and determined his guilt or innocence. In those days, some or all of the members of the grand jury also sat on the petit, or trial, jury, and if these men voted to acquit someone whom they had previously accused, the judge would sometimes say they had contradicted themselves and, therefore, should be punished.2 By the reign of Henry III (1216-1272), juries in the royal court were used for discovering and presenting to the king's officials persons suspected of serious crimes.3 Eventually, statutes were passed preventing a person who served on the grand jury from being on the trial jury deciding the same case. By the time of the first settlement in America, the grand jury had become only an informing and accusing tribunal and no longer did it determine the guilt or innocence of the individual. At various times in English history when conflict arose over the powers of the king and the rights of his subjects, the
State Grand Jury Handbook, (American Bar Association, no date), p. 8. Charles S. Potts, Criminal Procedure from Arrest to Trial," Texas Law Review, 26 (May, 1948) 616. 3 . Jack Pope, "The Jury," Texas Law Review, 39 (April, 1961) 434.
2 1
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THE TEXAS GRAND JURY
grand jury often stood as a barrier to protect against persecution by the Crown. Today, in this country, the grand jury is designed to bring to trial persons accused of public offenses upon just grounds and to protect the citizen against unwarranted prosecution, either by the government or by any person moved by private enmity. The fifth amendment to the Constitution of the United States provides that:
No person shall be held to answer for a capital or otherwise infamous crime unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger....
The Consitution of the State of Texas reads in part as follows:
. . . and no person shah1 be held to answer for a criminal offense, unless on an indictment of a grand jury, except in cases in which the punishment is by fine or imprisonment, otherwise than in the penitentiary; in cases of impeachment and in cases arising in the army or navy, or in the militia, when in actual service in time of war or public danger.4
THE NATURE OF THE JURY'S FUNCTION
The legal encyclopedia, Corpus Juris, defines a grand jury as follows:
A grand jury is a body of men selected and summoned according to law to serve before a competent court and by such court empaneled, sworn and charged to inquire in regard to crimes committed within its jurisdiction and to present'all offenders against the law in the mode and manner defined by it.5
As this definition indicates, the grand jury determines whether a crime has been committed and whether it is probable that the one accused committed it. In this respect, it differs from the petit, or trial, jury which determines the actual
Constitution of the State of Texas, Art. I, sec. 10. Corpus Juris, XXVIII (1922), 763. Hereafter referred to as C.J. F21
THE TEXAS GRAND JURY
guilt or innocence of the accused in a particular case. The grand jury is concerned with estimating probability of guill and serves somewhat in the capacity of a preliminary screening body of broad community activity. The trial jury musl find guilt "beyond a reasonable doubt" or release the accused from custody. While a trial jury is empaneled to try one case only and to go out of existence, the grand jury's life is for a full term of court.6 In this manner, the citizens themselves, through their representatives the grand jurors, play a large part in the maintenance of order in their community. The grand jury's responsibility cannot be delegated to any other governmental authority. The grand jury does not try any case. It normally hears only the evidence presented to it by the prosecuting authorities. In many cases it may hear no evidence for the defense and, indeed, it rarely hears evidence from the accused himself, although it may afford him the opportunity to testify if he wishes. Having heard the evidence most damaging to the accused, the grand jury has the function to determine whether or not that evidence justifies a formal indictment. The grand jury may hear charges of crime brought before it through several channels: (1) by the court, (2) by the prosecuting attorney, (3) by any credible citizen, or (4) by one or more of its own members. If any grand juror obtains notice that a felony has been committed, it is good practice for him to submit this information to the jury foreman and prosecuting attorney, without revealing this knowledge to anyone else. This procedure makes possible an orderly investigation. While a person or situation is under investigation by the grand jury, no one may approach an individual grand juror
6 A term of court in Texas may last from three to six months depending upon the county involved. Vernon's Annotated Revised Civil Statutes of the State of Texas, Arts. 199, 1919 et seq. Hereafter referred to as V.A.C.S.
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THE TEXAS GRAND JURY
in an attempt to persuade him that an indictment should, 01 should not, be returned. If a person has some evidence concerning the matter, he should confer with the prosecuting officer in order that he might be heard by the grand jury as a whole. Any citizen may petition the grand jury for permission to appear before it in order to urge that a certain situation be investigated. Finally, it must be noted that the grand juror is a public official. In this capacity it is his duty to uphold the law as it exists, not as he thinks it should be. He may criticize a particular law as a private citizen, but when he is in the grand jury room, he is not asked to pass upon the merits of the law.
IMPORTANCE OF THE OFFICE
In time of peace, no citizen is able to perform a higher duty than to render grand jury service. The grand jury is designed to be a body of discreet persons called together to protect the public interest, to preserve order, and at the same time to guard and defend the rights of the individual. It hears witnesses who support a charge of crime and determines if the accused should be brought to trial on the charge. Thus no body of citizens exercises functions more vital to the administration of law and order. The importance of the grand jury's power comes from the fact that it is an independent body answerable to no one except the court itself. Membership on the grand jury is considered an honor and imposes a solemn responsibility. The proper functioning of the grand jury depends upon the ability and attitude of its members—on how willingly they serve, how well they are informed, and how seriously they undertake their duties. In order to insure responsible membership on the grand jury, Texas statutes establish the qualifications for grand
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THE TEXAS GRAND JURY
jurors and prescribe the method by which they are to be selected.
THE JURY COMMISSION
The district judge in obtaining a grand jury appoints a jury commission of no fewer than three nor more than five members at the beginning of or during each term of court. This commission in turn selects a grand jury. The statute requires that commissioners meet the following qualifications:
1. Be intelligent citizens of the county and be able to read and write the English language; 2. Be qualified jurors and freeholders in the county; 3. Have no suit in said court which requires intervention of a jury; 4. Be residents of different portions of the county; 5. The same person shall not act as jury commissioner more than once in the same year.7
The law further requires that there be no racial discrimination in the selection of jury commissioners or grand jurors. This means that there may be no systematic exclusion from consideration of any race in the selection of either body. In other respects, the district judge has a great deal of discretion in making his selections.8 Jury commissioners are compensated at the rate of four dollars for each day spent in making their selections, and their tenure is for one term of court. After the names of the prospective commissioners have been chosen, the district judge instructs the sheriff or constable to notify the appointees of their selection and to inform them as to the time and place they are to appear. Upon
1 Vemon's Annotated Code of Criminal Procedure of the State of Texas, Art. 333. Hereafter referred to as V.C.C.P. 8 For instance, the failure to pay a poll tax does not disqualify an otherwise qualified commissioner from serving. Hammond v. State, 163 Tex. Grim. Rep. 471, 293 S.W. 2d 652 (Grim. App. 1956).
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THE TEXAS GRAND JURY
their appearance in court, the judge administers to them this oath:
You do swear faithfully to discharge the duties required oi you as jury commissioners; that you will not knowingly elecl any man as juryman whom you believe to be unfit and not qualified . . . that you will not, directly or indirectly, converse with anyone selected by you as a juryman concerning the merits oi any case to be tried at the next term of this court, until after said cause may be tried or continued, or the jury discharged.9
After taking the above oath, the jury commissioners receive instructions as to their duties from the judge. They then retire to make their selections and are not to separate until their task is completed, except by permission of the court. The district clerk furnishes them a list of names of those who appear from the records of the court to be exempt or disqualified from service on the grand jury. He also furnishes them the last tax assessment roll of the county. With this information before them, the commissioners select sixteen prospective grand jurors. The names of those selected are written down in numerical sequence, sealed in an envelope, and delivered to the district judge in open court. The judge transmits the envelope to the district clerk. The district judge designates the day on which the grand jurors are to be qualified and empaneled and notifies the clerk. Within thirty days, the clerk opens the envelope, certifies the names of juror-candidates and the date upon which they are to be summoned, and gives the list to the sheriff. It is the sheriff's duty to issue a summons to those named, at least three days before the grand jury is to be empaneled.10
9 V.C.C.P., Art. 335.
1 0 A juror legally summoned and failing to attend without a reasonable excuse, may, by order of the court, be fined not less than ten nor more than one hundred dollars. V.C.C.P., Art. 347.
THE TEXAS GRAND JURY
When as many as twelve of those summoned to serve are in attendance in court, the judge proceeds to interrogate them, under oath, concerning their qualifications.
QUALIFICATIONS OF GRAND JURORS
The statute provides that no person shall be selected 01 serve as a grand juror in Texas who does not possess the following qualifications:
1. He must be a citizen of the State, and of the county in which he is to serve, and qualified under the Constitution and laws to vote in said county; but, whenever it shall be made to appear to the court that the requisite number of jurors who have paid their poll taxes cannot be found within the county, the court shall not regard the payment of poll taxes as a qualification for service as a juror. 2. He must be a freeholder within the State, or a householder within the county. 3. He must be of sound mind and good moral character. 4. He must be able to read and write. 5. He must not have been convicted of any felony. 6. He must not be under indictment or other legal accusation for dieft or any other felony.11
The provisions of this article are mandatory and are binding on the jury commission in selecting prospective grand jurors. Women were not considered qualified as grand jurors until 1954, when the state constitution was amended to provide that whenever in the statutes the term "men" is used in reference to grand or petit jurors, it is meant to include persons of the female as well as the male sex.12
V.C.C.P., Art. 339. Constitution of the State of Texas, Art. XVI, sec. 19. A male indicted by an all-male grand jury may not avail himself of this provision to challenge the legality of his indictment, but it is possible that a woman indicted by an all-male grand jury might be allowed to do so. Schwarz v. State, 357 S.W. 2d393 (Grim. App. 1962).
1 2 1 1
These qualifications represent the bare letter of the law It is the jury commission's responsibility to abide by the spiril of the law by selecting able and distinguished citizens in the community to compose the grand jury. The first twelve persons in the list of sixteen to qualify are sworn in as grand jurors, as a legally constituted grand jury must consist of this number. Twelve persons are also required for a criminal trial jury. Precisely why the accepted number is twelve on the traditional jury is not known. The origin, as the 17th century English jurist Sir Edward Coke said, is shrouded in an "abundance of mystery."13
EXEMPTIONS FROM SERVICE
Persons otherwise qualified for grand jury service may claim an exemption from duty on one of several grounds. The district judge may, at his discretion, instruct the jury commission not to select exempt persons. However, the court is not compelled to do this, and persons entitled to exemption may serve on the grand jury if they wish. The exemption is a personal privilege which may be claimed or waived by the party for whose benefit it was granted. The Texas statutes provide that the following persons may claim an exemption:
1. All persons over sixty-five (65) years of age. 2. All civil officers of this State or the United States. 3. All overseers of roads. 4. All ministers of the gospel engaged in the active discharge of their ministerial duties. 5. All physicians, dentists, and attorneys and spouses of attor neys engaged in actual practice. 6. All railroad station agents, conductors, engineers and firemenof railroad companies when engaged in the regular and actual discharge of their respective positions. 7. Any person who has acted as a jury commissioner within the preceding twelve (12) months. 8. All members of the national guard of this State under the proXXVII C.J. 764.
[81
THE TEXAS GRAND JUBY
visions of the title "Militia" during periods of time when they are actually on active duty. 9. In cities and towns having a population of one thousand (1000) or more inhabitants, according to the last preceding United States Census, the active members of organized fire com panies, not to exceed twenty (20) to each one thousand (1000) of such inhabitants. 10. All females who have legal custody of a child or children under the age of sixteen (16) years. 11. All registered, practical and vocational nurses actively en gaged in the practice of their profession. 12. Any practitioner who treats the sick by prayer or spiritual means in accordance with the tenets, teachings or practice of any well established church or denomination, or a nurse who cares for the sick who are under treatment by such spiritual means, or a reader whose duty is to conduct regular religious services of such church or denomination. 13. All licensed morticians who are actively engaged in the practice of their profession. 14. All registered pharmacists who are actively engaged in the practice of their profession. 15. Agents and patrolmen engaged in forestry protection work employed by the State Department of Forestry when engaged in the actual discharge of their duties. 16. The wife of any man who is summoned to serve on the same jury panel. 17. All school teachers, which shall include public, parochial and private school teachers.14
As a rule, exempt persons selected to serve are urged not to exercise their right of exemption in the absence of necessity, for some of the most talented citizens in the community may fall in the exempt categories.
CHALLENGES OF JURY PANELS
Before the district judge administers the oath to the grand jurors, any person so desiring may challenge the empanelment of the group as a whole or any one of them in particular. Normally, the district judge asks the prosecutor if he has any
V.A.C.S., Art. 2135.
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THE TEXAS GRAND JURY
challenges. Then any attorneys present in the courtroom arc given an opportunity to challenge. Finally, the judge asks the sheriff if the prisoners in the county jail have been notified oJ the names of the prospective jurors and of their right to challenge the jury's empanelment. Grand jurors may be challenged for specific reasons only these reasons being set forth in the statute. A challenge to the panel as a whole is called a "challenge to the array." This challenge must be made in writing and may only be based on the following statutory reasons:
1. That those summoned as grand jurors are not in fact those selected by the jury commissioners. 2. In case of grand jurors summoned by order of the court, that the officer who summoned them had acted corruptly in sum moning any one or more of them.15
A challenge to a particular grand juror is called a personal challenge. It may be made orally and for the following causes defined by statute:
1. That he is not a qualified grand juror. 2. That he is the prosecutor upon an accusation against the per son making the challenge. 3. That he is related by consanguinity or affinity to one who has been held to bail or who is in confinement upon a criminal ac cusation.16
A prosecutor as used here is defined as one who prefers an accusation against a party whom he suspects to be guilty." "Consanguinity" means relation by blood, and "affinity" means relation by marriage.18
V.C.C.P., Art. 361. V.C.C.P., Art. 362. " Arnold v. State, 148 Tex. Grim. Rep. 310, 186 S.W. 2d 995, 158 A.L.R. 1356 (Grim. App. 1945). 18 Black's Law Dictionary, p. 81.
1 6 15
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THE TEXAS GRAND JURY
THE OATH TAKEN
After qualifications have been established, exemptions claimed, and challenges ruled upon, the twelve established jurors are ready to be sworn. The district judge appoints one of the number foreman. The judge then administers the statutory oath as quoted below:
You solemnly swear that you will diligently inquire into, and true presentment make, of all such matters and things as shall be given you in charge; the State's counsel, your fellows' and your own, you shall keep secret, unless required to disclose the same in the course of a judicial proceeding in which the truth or falsity of evidence given in the grand jury room, in a criminal case, shall be under investigation. You shall present no person from envy, hatred or malice; neither shall you leave any person unpresented for love, fear, favor, affection or hope of reward; but you shall present things truly as they come to your knowledge, according to the best of your understanding, so help you God.19
The statutes specifically provide that the deliberations of the grand jury shall be secret, and any grand juror who discloses information regarding its official activities is subject to fine and imprisonment. Secrecy is an integral part of the grand jury concept. It is necessary to protect the grand jurors themselves from pressure by persons who may be involved in the actions of the jury. Secrecy is helpful in preventing suspected persons from escaping while an indictment against them is under consideration. It also prevents witnesses appearing before the grand jury from being tampered with or intimidated in case the alleged offender goes on trial. Instead, it encourages witnesses to give full information to the grand ury. The final and perhaps most important reason for secrecy is to protect a wrongly charged person from public disgrace. After the presiding judge has administered the oath, he
19
V.C.C.P., Art. 365.
[HI
THE TEXAS GRAND JURY
may advise the grand jury formally and in more detail as to its duties and responsibilities. This address is spoken of as the "charge to the grand jury." It serves as a controlling guide to the jurors, although the court will, as the occasion arises, rule authoritatively on any particular question of law that the grand jury wishes to have answered regarding its duties and powers. Upon the completion of the charge, the grand jury is ready to begin its work. The group is escorted into the grand jury room, and the foreman may appoint one or more of its members to serve as secretaries since it is important that accurate records of the jury's actions be kept. The jury itself determines the days and the hours it will meet and, with the advice of the prosecuting attorney, the number of cases to be taken up at each meeting.
SCOPE OF INQUIRY
The grand jury is empowered to inquire into those violations of the criminal law liable to indictment of which any member may have knowledge, or of which they are informed by the attorney representing the state, or which are submitted by any other credible person.20 The jury investigates felonies committed within the county, since no person may be tried for these crimes without first having been indicted by a grand jury.21 Felonies are more serious crimes, ones punishable by death or imprisonment in the state penitentiary. They are to be distinguished from misdemeanors, which are offenses punishable by fine or imprisonment in jail. The grand jury does not normally investigate misdemeanors, although it is within its power to do so. When the investigation of any feloney is completed, the
20 V.C.C.P., Art. 381.
21 Constitution of the State of Texas, Ait. I, sec. 10.
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THE TEXAS GRAND JURY
grand jury will either vote a true bill, return a no bill, or pass the case. A true bill means that the jury is returning an indictment in the case. Nine members must concur before a true bill may be returned.22 If the jury decides not to indict, it returns a no bill. It is within the jury's discretion to decide how many members must concur to return a no bill. The custom in many counties in Texas is to require nine votes for this action. If nine members cannot agree upon either a true bill or a no bill, or if the jury is not presented with enough facts, it is the custom to pass or carry forward the case, either to a later meeting or to the next grand jury.
PROCEDURE IN JURY SESSIONS
Nine members of a grand jury form a quorum for the transaction of business. While testimony is being heard, the jury may permit other persons to be in the grand jury room. For instance, the state or county attorney may be present to aid the jurors. So may his stenographer, who keeps a record of the testimony. However, it is unwise to allow the indiscriminate attendance of other persons. As a matter of fact, the grand jury has the power to conduct its hearings without the presence of the prosecuting attorney. No one other than dulyempaneled members may be present when the grand jury is deliberating and voting.23 The jury is "deliberating" within the meaning of the law when it is weighing and examining reasons for or against a choice of measures. It is customary for the grand jury to hear witnesses in all the cases pending before them, then at the end of the day, to clear the room and discuss and vote upon the cases it has heard. If this practice is followed consistently, it is easy to show at a later time
V.C.C.P., Art. 391. McGregor v. State, 83 Tex. Crim. Rep. 35, 201 S.W. 184 (Crim. App. 1918).
23 22
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THE TEXAS GKAND JURY
that no unauthorized persons were in the room during the deliberating and voting. It is the prosecuting attorney's duty to give the grand jury advice upon any matter of law or upon any question arising respecting the proper discharge of its duties.24 The prosecuting attorney usually examines the witnesses in front of the jurors and advises jurors as to the proper mode of interrogation. Thus the grand jury is in a position to make full use ol his legal knowledge and experience. This system places the prosecuting attorney in a position oi great influence. However, the grand jury should not permit him to dominate its thinking. If this should occur, there would be no reason for the jury. If the grand jury is not satisfied with the advice given it by the prosecutor, it has the duty to seek additional assistance.25 In such cases, the jurors may go to the judge for further advice, or they may seek independent legal counsel for the purpose of clarifying matters of law.26 Neither is common practice.
EVIDENCE REQUIRED
It has been said that the grand jury is not intended to perform the function of the trial jury and determine the guilt of the accused; however, it does have the duty of ascertaining if a crime has been committed and if there is sufficient legal evidence upon which a trial jury could convict the accused in a specific case. Accused persons should not be indicted simply because they were present where a crime was committed. The evidence must show that each accused aided and assisted
2* V.C.C.P., Art. 377. 25 "Powers of the Grand Jury," Drake Law Review, 2 (November, 1952) 26. 26 W. Page Keeton, "Value and Importance of Grand Juries." Address de livered to the Grand Jury Association of Travis County, January, 1954.
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the principal offender in the commission of the offense before he can be considered guilty. Before a trial jury the prosecutor has the burden of producing legally admissible evidence which will prove the accused guilty "beyond a reasonable doubt," but this is not the test to be applied by the grand jury in deciding whether to indict. The test for it to apply is whether the State can make a "prima facie" case or not. Stated another way, the test is whether at the conclusion of the State's evidence in the subsequent trial of the case and before the defendant produces any evidence, the trial judge would be in the position of having to render an instructed verdict against the State. The emphasis here is on "legal" evidence. The technical rules of evidence prevent certain kinds of proof from being admissible at the trial of the case, and while a grand jury may hear this type of evidence, they should never consider it in determining whether there is sufficient evidence upon which to return an indictment. Examples of evidence which will be excluded or which are insufficient for securing a conviction are: (1) hearsay, (2) improperly obtained confessions, (3) results of illegal arrest or searches, (4) accomplice testimony without corroboration and (5) incompetent witnesses such as the wife of the accused or young children. An even more difficult question is presented to the grand jury when the evidence not only shows that the accused committed the offense but that he has a complete defense taking the form of: (1) accident or (2) self-defense. Where the accused will have to use different witnesses than the State to make out his defense, then it is best to indict and not have the grand jury determine the ultimate issue in the secrecy of the grand jury room. On the other hand, if the State's witnesses that make out the "prima facie" case will also make out a complete defense on cross-examination by the accused, there
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should be no indictment because each side is bound by the testimony of its own witnesses and the trial judge would be required to direct a verdict of acquittal for the accused at the end of the State's testimony.
CONSIDERATION OF PUNISHMENT
It should be recalled that it is not a proper function of the grand jury to determine the punishment that should be given an accused person nor to extend to anyone accused of crime any benefits in the nature of clemency or pardon. Both of these are the functions of the judiciary and the executive branches of government. If a grand jury's members fall into the error of allowing pleas for mercy and sympathy and promises of restitution to sway their judgment to the extent that they fail to perform their duty and in effect try the guilt or innocence in its ultimate aspect in the secrecy of the grand jury room, it can only tend to decrease the faith which the community has in the grand jury system. Prior to the enactment of our present probation law, some grand juries extended "unofficial probation" without indictment to young first offenders. Since the grand jury lacks the facilities for supervision, probation should always be after indictment and under the supervision of the probation department. Once the grand jury has returned an indictment, it is the duty of the district attorney to set the case for trial. All indictments should be prosecuted unless key witnesses are unavailable or additional evidence has been uncovered which was not available to the grand jury at the time of indictment. No case can be dismissed until a motion to that effect is filed with the district court setting out the reasons for requesting a dismissal. The case is not dismissed until the judge has heard the motion and consents to the dismissal.
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THE SUMMONING OF WITNESSES
The great bulk of the grand jury's work involves hearing and evaluating the testimony of witnesses. In order that sufficient witnesses may be interrogated to insure a full investigation of any alleged criminal action, the grand jury is armed with the power of subpoena. The foreman may instruct the district attorney to issue a summons to any witness in the county where the grand jury is sitting. This summons may require the witness to appear promptly or at some fixed time. It need not specify the matter under investigation. The grand jury may also summon witnesses from any other Texas county. This is done by written application to the district judge giving the name and address of the witness and certifying that his testimony is believed to be material. The judge may then cause an attachment to be issued to any county in the state for the witness, commanding the sheriff of that county to summon the man and have him appear before the grand jury at a specified time. Any witness who wilfully evades service of a summons may be fined for contempt by the court. When a witness appears, the following oath is administered to him by the foreman, or at his direction:
You solemnly swear that you will not divulge, either by words or signs, any matter about which you may be interrogated, and that you will keep secret all proceedings of the grand jury which may be had in your presence, and that you will true answers make to such questions as may be propounded to you by the grand jury, or under its direction, so help you God.27
The grand jury may now examine the witness. Most of the interrogation will probably be done by the prosecuting attorney or the foreman, but any juror may ask questions if he desires. In interrogating a witness, the jury is not held to the technical rules that govern qualifications of witnesses and ad2' V.C.C.P., Art. 388. F1 7 1
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missibility of evidence in trials before petit juries.28 Nevertheless, the jury should attempt to ask questions that are material to the case before it. When a felony has been committed within the jurisdiction of the grand jury, it is free to ask any pertinent question relative to the alleged crime. There are no statutory restrictions in this regard. In fact, the court is not privileged to look behind the return of an indictment and in quire into the character of the evidence on which the indictment was found.29 The grand jury in obtaining information is restricted only by the requirement that the constitutional rights of a person being examined must be protected. The United States Constitution, as well as the Constitution of the State of Texas, guarantees immunity from self-incrimination. This means that no one shall be compelled to give testimony which may expose him to prosecution for any crime. Unless he voluntarily becomes a witness, he is completely immune from being questioned.30 This privilege is not confined to someone accused but extends to all witnesses before a grand jury.31 For this reason, the grand jury in questioning any person suspected or accused of a crime must state to him the offense with which he is being charged, the county where the offense is said to have been committed, and as nearly as possible the time of the commission of the offense. If the jury thinks it necessary, it may ask him in general terms whether he has knowledge of the violation of any particular law by any person and, if so, by what person. 32 But the statutory warning of self28 Choice v. State, 114 S.W. 132 (Grim. App. 1908). 29 Kingsbury v. State, 37 Tex. Crim. Rep. 259, 39 S.W. 365 (Grim. App. 1897). 30 Long v. State, 120 Tex. Crim. Rep. 373, 48 S.W. 2d 632 (Grim. App. 1931). Also V.C.C.P., Art. 710. 3 1 Ex parte Sanchez, 85 Tex. Crim. Rep. 380, 213 S.W. 271 (Crim. App. 1919). 32 V.C.C.P., Art. 389. [18]
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incrimination must be given before specific questions are asked him, or evidence obtained from him is not admissible on subsequent prosecution.33 If a witness refuses to answer a question, the refusal should be noted. The grand jury itself cannot compel a witness to testify. It can only refer the refusal to the district judge. This is generally done by a written report, signed by the foreman giving the substance of the question asked and noting that the witness refused to answer it. The judge may then examine the witness and inform him whether or not he is required to answer the question. In some cases, a grand jury may wish to grant immunity from prosecution to a witness for his part in a crime in order to induce him to testify. This authority is advantageous where a witness would not otherwise testify for fear of incriminating himself. If he is granted immunity, his answers cannot harm him and he may be compelled to testify.34 However, complete immunity may not be granted by a grand jury or prosecuting attorney acting alone. Any promise of complete immunity must be made with the approval of the court. Until this approval is obtained, the witness may not be compelled to answer.35 Finally, it is not customary for either a witness or an accused person, when appearing before the grand jury, to have counsel present in the grand jury room. But the grand jury may permit counsel to be present if it so desires. After the grand jury has heard all the available evidence, and all persons not members of the jury have left the room, the foreman calls for a discussion of the evidence they have heard. After each member who desires to speak has been
* 3 Bowen v. State, 47 Tex. Crim. Rep. 137, 82 S.W. 520 (Crim. App. 1904). 34 Ex parte Carol Jean Joseph, 356 S.W. 2d 791 (Crim. App. 1962). 35 Ex parte Higgins, 71 Tex. Crim. Rep. 618, 160 S.W. 696 (Crim. App. 1913).
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heard, a vote is taken. It appears customary in most Texas counties to require nine of the twelve votes for action. The result of the vote is given to the state's attorney, who prepares all indictments which have been made by the jury. These he returns to the foreman, who checks each before affixing his signature, after which the state's attorney writes on the indictments the names of the witnesses upon whose testimony they were based. At this point the indictments are ready for delivery to the judge. With the indictments in hand, the foreman and the grand jury go in a body into open court, where the foreman delivers these indictments to the district judge. At least nine members of the grand jury must be present at this time. The indictments are then entered upon the minutes of the court. Unless the person to be tried is in custody or under bond, his name is omitted in the record so as to aid enforcement officers in his arrest.
THE JURY'S REPORT
It is common practice among grand juries in Texas to issue a report. This is usually done at the end of the jury's term of office. While an indictment is the grand jury's official written accusation against a specific person, the report is a written commentary either complimentary or critical, directed at general conditions, designated agencies, or a specific individual from which no indictment is framed.36 The report is submitted to the district judge and becomes a matter of public record. In its report, the grand jury may comment upon any situation in the county. It attempts to call both official and general civic notice to matters which the jury believes will be to the general benefit of the community. There are no statutory regulations concerning the subject matter to be
George H. Dession and Isadore H. Cohen, "The Inquisitorial Functions of Grand Juries," Yale Law Journal 41 (March, 1932) 749-50.
36
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treated; however, the grand jury's investigatory powers are quite broad. It is within the power of a grand jury to inspect any public buildings within the county. It may investigate the work oi any public official, office, or institution. It may inspect the books of the county. In short, the grand jury is the citizens watchdog over the allocation, management, and use of the county's public funds and the performance of its officers. A report is improper in situations in which an indictment should be returned. However, it may happen that the grand jury will be unable to return an indictment in a situation because the statute of limitations has expired on an offense, oi because it is impossible to obtain proper evidence, or because the offense is not indictable, but is serious enough to warrant calling it to public attention.37 In these instances the grand jury report would profitably supplement its power of indictment. The investigatory powers of most grand juries which they may exercise in the public interest are practically limited by both time and funds. These limitations are likely to be severe, especially in the more populous counties where the greatest portion of the jury's time is taken up with hearing evidence concerning indictable offenses. Further, there is no statutory provision allocating funds to the grand jury for a staff of investigators. Regardless of these limits, the importance of the power of the grand jury to investigate inefficiency and corruption and to report them to the public may not lightly be brushed aside. Its power of investigation is a constant reminder to public officials that their conduct is subject to review by the jury. Finally, in making indictments and preparing reports a
31 J. Hadley Edgar, Jr., "Propriety of the Grand Jury Report," Texas Law Review,34 (May, 1956) 749-50.
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reckless grand jury may do much harm to individuals, to the community, and to public officials. This possibility should never be forgotten by a juror. Membership on the grand jury is a high honor; it also calls for restraint and discernment.
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