Last night I heard Rachel Maddow discussing the difference between grand and petit juries. (Psst, Rachel! )It’s pronounced petty.) I’ve posted on this before, but now is a good time for a refresher.

Grand juries, also called presenting juries, date back to 1166, when King Henry II made a variety of changes to England’s judicial system. Among other things, he appointed judges who would ride around–ride circuit–from town to town, hearing cases. When a judge arrived in a particular town, a panel of local bigwigs would present to him all the cases that had accumulated sine the last trials.

Nowadays, grand juries may be chosen in a variety of ways, depending on jurisdiction. Their size differs too, although it’s often more than 12 jurors. Their job in criminal cases is to determine whether enough evidence exists to proceed with the prosecution. In this way, they are said to act as shields against unjust charges. But they also act as swords because they can investigate, call witnesses, and subpoena evidence.

Grand juries are required in federal cases and in some–but not most–states. They don’t decide guilt, but rather whether there’s enough evidence to go to trial.

Petit juries are called that because they’re smaller–usually (although not always) 12 members. Again, their roots lie in the 12th and 13th centuries. In 1215, the Catholic church decided that it would no longer try English defendants by ordeal (e.g., making them carry hot irons or put their hands in boiling water). This means England needed a new way to determine guilt. Since everyone in England was already used to presenting juries, it was relatively easy to give juries the new task of deciding whether defendants were guilty. The judge acted as a sort of referee, but in the end, the jury determined the facts of the case.

In the US, any defendant who’s facing at least 6 month incarceration has the right to ask for a jury trial.

History of juries

I sort of have a thing for history, and today I’m indulging myself by talking about the history of juries.

Like many other components of our legal system, juries come to us from Merry Olde England. Way back when—and I do mean way back, because we’re talking at least as early as the 12th century—a group of local men would investigate claims and present the evidence under oath to the judge. Essentially they were both prosecutors and witnesses, and they were called presenting juries. This is quite different from our modern concept of jurors as people who initially know nothing about a crime, although presenting juries still exist to an extent in our modern system; today we call them grand juries, and their job is to determine whether enough evidence exists to proceed with a criminal prosecution.

In 1166, in an act called the Assize of Clarendon, King Henry II required presenting juries throughout England. This was part of his effort to standardize the legal system throughout the country and also to ensure he maintained power in a way that wouldn’t piss off his subjects too much. (This was shortly after the Norman Conquest, when not much love was lost between the Anglo-Saxon commoners and the Norman nobility.) It was a clever idea in that it provided local input into prosecutions while still allowing the king-appointed judges to be in charge. The size of juries was already set at twelve men, although the precise reason for this is not certain.

At this point many criminal cases were still tried by the Catholic church using trial by ordeal. The accused would do something dangerous, like carrying a hot iron, and if he wasn’t harmed, it meant God had been protecting him, which indicated he was innocent. But in 1215 Pope Innocent III called the Fourth Lateran Council. Among other things, the council forbade priests from officiating over trials by ordeal.

As it turns out, 1215 was an important year law-wise, because it’s also the year in which Magna Carta was signed. Magna Carta was essentially a peace treaty between King John and a bunch of unhappy barons who’d been at war with him. The charter limited the king’s powers in several respects, and it guaranteed trial by jury—at least for noblemen.

Stripped of the ability to use trial by ordeal and with Magna Carta as a model, the English legal system turned to those presenting juries as a handy way to determine guilt. These new kinds of juries were called petit juries—small juries—and over the years they were invested with a surprising amount of power, including  jury nullification. That’s the power to essentially ignore the law and acquit an guilty defendant when doing so is just.

English colonists brought their legal system to America. And we ran with the idea of juries, maybe due in part to our populist ideals. Today, the US uses juries more extensively than any country in the world—including the UK, which has scaled back on them in several respects. Most countries don’t use juries at all, leaving it to the judge to determine guilt. Here in the US, the laws and rules regarding juries have evolved as well, but in essence juries are an institution that has been in place for a millennium or so.

Changes of venue

Among other things, the 6th Amendment guarantees defendants the right to an impartial jury. Seems simple enough. But what if a case is so high-profile or notorious that everyone in the vicinity has heard the details, and it becomes impossible to find potential jurors who haven’t already drawn conclusions about the defendant’s guilt? In that situation, a lawyer can file a motion for a change of venue.

If a change of venue motion is granted, the trial will be moved to another jurisdiction. If the defendant is being prosecuted under state law (as most are), the case will end up in another county in the same state. If the case is being prosecuted by the feds, the case will move to another state.

There’s a strong reluctance within the justice system to grant changes of venue. One reason for this is that the 6th Amendment states that the jury should be “of the state and district wherein the crime shall have been committed.” More practically, however, changing venue is expensive. The entire legal teams for both sides have to travel and temporarily relocate, as do witnesses. And the defendant will need to be transported, usually along with a lot of police.

Sometimes, though, it’s going to be nearly impossible to constitute a fair jury. This is sometimes demonstrated by the requesting party via public opinion polls or other research showing high local levels of knowledge about the case and showing that most locals have already drawn conclusions about the defendant’s guilt.

Either side can request a change of venue. It’s far more often the defense who files this motion, but the prosecution can as well. Very recently, for example, the prosecutor moved for a change of venue for a white University of Cincinnati policeman charged with murdering a black man.

You may be familiar with some famous cases in which changes of venue were granted, such as Timothy McVeigh (the Oklahoma City bomber) or the LAPD officers in the Rodney King case. Nevertheless, granting these motions is a rare thing.

Even in high profile cases, judges will deny change of venue motions if they believe it’s possible to obtain a fair jury, or if they believe the case is so notorious that moving it won’t do much good. When Boston Marathon bomber Dzhokhar Tsarnaev was tried in 2015, for instance, the judge refused to move the case.


The sequestration question

Betsy settled comfortably into her juror chair and listened to the prosecutor drone on. Some of the other jurors looked unhappy when they learned that this case would last at least two weeks, but not Betsy. She was looking forward to being sequestered. Free nights at a hotel, free meals, an excuse to spend a couple of weeks away from her obnoxious roommates—that sounded like a paid vacation to her. This was going to be fun.

Poor Betsy is in for some bitter disappointment.

To sequester a jury means to isolate jurors during the course of  trial. The purpose of sequestration is to insulate jurors from exposure to outside information about the case. It can happen when a case is receiving a lot of media attention, and when the judge (and attorneys) want to make sure jurors don’t hear anything except what’s presented in court and don’t discuss it with anyone else.

Sequestered jurors spend their days in the courtroom and their nights in a hotel. They’re permitted to speak only with each other and selected court personnel. They’re denied access to TV, the Internet, and other media. They may be allowed a phone call home—or visitors, if the case is long—but court personnel will supervise and monitor. They might also be allowed some entertainment, such as outings or carefully screened movies, but the jurors will be watched every minute.

As you might guess, sequestration can quickly become unpleasant. How long is Betsy going to be happy without her smartphone? No Netflix. No hanging out with friends. No private time with family. No sex! While this might be fine for a night or two, cases can drag on. The jurors in O.J. Simpson’s case were sequestered for 265 days!

The truth is that juries are very rarely sequestered. This is partly due to the extreme inconvenience to the jurors. Those who face isolation for long periods may drop out of the case, which would require the use of alternate jurors and could endanger the case. It’s also expensive. The government ends up paying for all the costs—room, board, and entertainment for jurors, as well as salaries for the court personnel (usually cops) who supervise them.

Forcing a group of people into such close and exclusive association is also problematic. Jurors may become such close friends that it’s difficult for them to deliberate independently regarding the defendant’s guilt. Jurors may even fall in love, which makes for a lovely plot bunny but endangers the integrity of the trial.

In the vast majority of cases that last more than one day, jurors are simply sent home with the warning not to talk about the case with anyone and not to read or watch anything about the trial. There’s no way of knowing how well they listen.

As for Betsy, she’s going to be disappointed either way. Most likely, she’s going home to her roommates tonight. In the event she is sequestered, she’s probably not going to enjoy it much.

You can read more about sequestration here.




Wouldn’t it be grand?

Like much else that’s weird and complicated about American criminal justice, we can blame the English for our jury system. Thanks, guys. Among many other things, we inherited two kinds of juries: petit (pronounced petty) and grand. And no, that doesn’t indicate that one kind is only interested in stupid things while the other wears diamonds and lives in a mansion. The names are French—small and large—because back when they were invented, members of the English nobility were speaking French. Which tells us how old the practice is; it dates all the way back to the Norman Conquest. And the names simply refer to the fact that grand juries are bigger than petit (traditionally, 23 members instead of 12).

Here’s what happened back in 1166. As part of his attempt to unify England, King Henry II created royal courts that rode around, hearing cases in various jurisdictions (shires). These were called circuit courts, a name that carries over into our own federal judiciary today. Circuit courts helped solidify Hank’s rule as well as bringing more uniformity to English law (creating, in fact, a common law). But the process created problems. One of those was that a period of time passed between court sessions in a particular place, and the judge who eventually showed up had no clue what had gone down in his absence.

But Hank had a solution for that too. When the judge appeared, a group of the most prominent local men would appear in front of the sheriff and report—under oath—all the crimes that had occurred in the interim. Jury comes from the French word meaning to swear. So from the beginning, the grand jury’s job was to consider evidence and initiate criminal proceedings.

Jury roles evolved over the centuries, but grand juries made their way into the Magna Carta in 1215 and the English Bill of Rights in 1689, and then hopped the pond and settled into the 5th Amendment to the US Constitution. Settled pretty firmly, in fact, because while the UK has pretty much abolished them and the rest of the world either dumped them or never adopted them to begin with, the US still uses grand juries. (So does Liberia. That’s it.)

How they’re used varies by jurisdiction, as does the size of the grand jury and the manner in which it’s chosen. One thing is universal, however: unlike petit juries, grand juries do not decide guilt.

So what do they do? Thanks to the 5th Amendment, the prosecutor must present evidence before a grand jury in all federal cases. The grand jury then decides whether there’s sufficient evidence to constitute probable cause. If so, it issues an indictment  (yes, more French there) containing the formal charges, and the case proceeds. If not, the initial charges are dropped. The prosecutor can either give up or try again (with the same or different charges; double jeopardy protections don’t apply).

Now, for various complicated reasons, the grand jury clause of the 5th Amendment doesn’t apply in state proceedings. A few states, like New York, require them anyway. Most others keep it as an option. The prosecutor can choose to go before a grand jury or can instead go in front of the judge, a proceeding called a preliminary hearing (or prelim). The latter course of action is much more common, but for strategic or political reasons DAs do occasionally choose the grand jury route.

Grand juries are usually big—23 is a common size. They have the power to order (subpoena) people to appear before them for hearings and, to some extent, the power to conduct investigations.

A few jurisdictions such as California also use civil grand juries. These generally investigate potential government misconduct.

For hundreds of years, people have referred to criminal grand juries as the Sword and the Shield. Shield because they can protect citizens from malicious prosecutions; sword because they have the power to bring justice against wrongdoers. It’s debatable how well they serve either of these functions, especially today. But they’re still interesting creatures and—this is where you come in—serve as wonderful potential plot points.