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evidence, then an indictment is handed
down. An indictment, however, does
not mean the case will go to trial. The
district attorney still has the decision of
whether or not to prosecute and for what
crime. Plea bargaining, for example,
has an impact on the latter decision. Or,
the prosecution may feel that despite the
indictment, the evidence is insufficient
to secure a conviction.
Throughout, the proceedings of
the grand jury are secret. There is no
presentation of evidence by the defense.
Persons under investigation are seldom
allowed to testify and when they do,
they have no attorney present. There
Contrary to its
title, the grand
jury is no jury
at all, in the
traditional sense.
is no formal record of the testimony.
Grand jury testimony is neither
disclosed nor subjected to the scrutiny
of the defense. Arguably, this degree
of secrecy is necessary when the grand
jury is performing its investigative
function, especially when one considers
the potential for intimidation and
reprisal aimed at witnesses.
In Oregon, panelists for a grand
jury are drawn by lot from among the
citizens called by the courts to serve on
jury duty. Once selected, their work is
limited to criminal prosecutions with
one exception. By statute, one grand
jury is impaneled each year to inquire
into the conditions and management of
correctional facilities.
Not all criminal cases reach the
court through the grand jury, however.
The Oregon Constitution permits
prosecution by one of two routes:
1. A hearing before a judge to
present the evidence. This process is
called a “ preliminary hearing."
2. A hearing before the grand jury.
TO COURT?
The decision of which route to take
is entirely that of the district attorney.
With either procedure, the prosecution
must produce sufficient evidence to
indicate that there is probable cause to
believe a crime has been committed
by the accused. With the grand jury,
however, there is an opportunity to
insulate witnesses from the scrutiny of
the defense. There are good reasons for
doing so. An abused child or a victim
of rape, for example, can be protected
during this preliminary stage of
prosecution.
Other benefits may exist as well.
The scheduling of witnesses to appear
before the grand jury can be more
flexible than through the courts. Further,
if grounds for prosecution prove weak,
the courts will not have been impacted.
Time and money might be saved and the
expense of hiring an attorney for the
accused might have been spared.
There are critics who dispute these
last arguments about cost and efficiency.
They insist that the secrecy and
one-sided nature of the grand jury
process encourages defendants to go to
trial to test the strength of the
prosecutor’s case. However, no statistics
are readily available to support or
defend this assertion. What we do know
is that Multnomah County, together with
the court, spends approximately
$300,000 a year to support the work of
the grand juries. If they were
eliminated, doubtless the cost, for good
or for ill, would be shifted to support
more preliminary hearings.
While there are advantages to the
grand jury, significant disadvantages
exist as well. Ambitious prosecutors can
conduct these proceedings in a manner
which threatens the rights of individuals
who are being investigated or
subpoenaed as witnesses. Much has
been written on this point but it is best
summed up by Marvin Frankel and
Garry Naftalis, in a scholarly book
entitled The G rand Jury: An Institution
on Trial:
There have been too many cases
in which witnesses have been
badgered, trapped, subject to
harsh, sudden, and wearing
appearances in distant places,
defamed by leaks not necessarily