Monday, December 17, 2012

What are the pros and cons of making the grand jury secret?

The grand jury is an investigative jury charged with issuing indictments, as opposed to a trial jury which is searches for truth in criminal tribunals. Unlike the trial jury, the grand jury meets and deliberates in secret.
The central reason for keeping grand jury proceedings secret is to protect the innocent from defamation and disrepute. Because the grand jury's role is to deliberate on evidence to determine if sufficient cause exists to charge a person with a crime, not all cases brought before it will necessarily be adequate to move to trial. An open process would, therefore, result in the potential slander of the uncharged and expose their private information to public view without good cause.
On the other hand, the use of secret deliberations prevents an accused person from offering rebuttal of the evidence being presented to justify his or her indictment. So, too, does it restrain the ability of third parties from offering additional evidence that might impact a case before it moves to the trial phase.
Recognizing these competing issues, all common law nations outside of the United States and Liberia have abolished the grand jury, replacing it with systems of prosecutorial charging. However, this is not universally seen as a curative as it raises the potential of abusive centralization of judicial authority and the misuse of indictments as a punishment in and of themselves.
http://www.msnbc.com/msnbc/6-your-questions-about-grand-juries-answered

https://www.law.cornell.edu/wex/grand_jury


There are two major pros to having secret proceedings for a grand jury:
Grand juries serve to protect people from unjust accusations since simply being accused of a crime can tarnish a person's reputation. A secret grand jury protects a person until they are formally accused of a crime. Often, a grand jury will investigate someone but never formally accuse them of a crime. Since the investigation is done in secret, their reputation is preserved.
Grand juries are also part of the process of investigating crimes. By operating in secret, they protect the identity of witnesses and the security of evidence. If an investigation was done publicly, it might compromise the integrity of a case. For example, if someone knew they were being investigated by a grand jury, they might tamper with the evidence or flee the jurisdiction.
There are also some significant cons to grand jury secrecy:
Grand juries meet in secret with the prosecutor. There is no input from a judge or defendant to ensure the fairness of the proceedings. All information that the jury receives comes from the prosecutor. As a result, grand juries are sometimes seen as siding too closely with prosecutors and acting as a "rubber stamp" for the prosecution.
Also, grand juries have occasionally acted too aggressively without the moderating influence of a defense lawyer or judge. While it is rare, without public oversight, a grand jury can potentially get beyond the control of even the prosecutor and issue frivolous subpoenas and charges. This is known as a "runaway" grand jury.
Sometimes evidence is found in the course of a grand jury's investigation that is relevant to another case. Because the proceedings are secret, it is very difficult to share this evidence that might exonerate or condemn someone in relation to another crime. Legally there is a requirement that information must be shared in order to prevent an injustice from occurring. However, the jury's secrecy and lack of oversight provide no guarantee that this will happen.
https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=6458&context=jclc

https://www.law.cornell.edu/rules/frcrmp/rule_6

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