What is so “secret” about an Investigating Grand Jury?
The report of the grand jury impaneled to consider charges of alleged sexual molestation by clergy involving several Pennsylvania dioceses has been the topic of much news coverage lately. The U.S. Constitution provides for grand juries in the Fifth Amendment, and Pennsylvania has a specific statute, the Investigating Grand Jury Act, which sets out the requirements and powers of a grand jury. Although we hear about them with some regularity, they operate in relative secrecy, and the public has little understanding of the process.
The Act provides that a county grand jury may be impaneled at the request of the local District Attorney or the President Judge of the county Court of Common Pleas or by the Attorney General. In certain instances, the Attorney General may apply to the Supreme Court directly to impanel a multicounty or state-wide grand jury as is the case involving the clergy allegations. A “supervising judge” is appointed to preside over the grand jury proceeding.
To serve on a grand jury, a juror must be a resident of the Commonwealth, of at least legal voting age, able to read, write, speak and understand English, not have been convicted of certain crimes and not suffer from any physical or mental infirmity which would not permit the juror to carry out the duties required. A grand jury consists of 23 members, 15 are needed for a quorum to conduct business, and a majority vote of the “full” grand jury is required to issue a presentment. A “presentment” is a written, formal recommendation by the grand jury that a specific person be charged with a specific crime.
A grand jury may be impaneled to serve for up to 18 months, which can be extended for up to 6 additional months, interestingly, on the vote of a majority of the grand jury. The grand jury may be discharged once its investigation is complete, or if the court determines it is no longer conducting “proper investigative activity.” A grand jury’s main purpose is to investigate alleged criminal activity and to do so, it may issue subpoenas and initiate other civil or criminal proceedings (i.e contempt).
The work of the grand jury is, for the most part, conducted in secrecy. The jurors, attorneys, and stenographers involved take an oath not to reveal the proceedings, the violation of which is punishable by contempt. Most people think the witnesses are not permitted to reveal their testimony. This is not true. Witnesses are specifically permitted to reveal their testimony unless the judge determines why they should not. Witnesses may have counsel present with them to consult with, but unlike regular court proceedings, that lawyer may not ask questions, object or directly argue to or question the jurors.
If the grand jury finds grounds to issue a presentment, it directs the attorney for the Commonwealth to prepare one and on majority vote of the grand jury, it is given to the supervising judge. The supervising judge reviews the presentment and, if the judge finds it is within the grand jury’s authority and abides by the Act, he shall accept it and proceed. The presentment is a public document unless it is sealed by the judge until such time as the suspect(s) which are subject to the presentment is arrested or released pending trial.
The provision of the Act which has caused the most controversy lately, is section 4552 which authorizes grand juries to issue an “investigating grand jury report.” There are no real restrictions on what such a report may encompass, but the report is reviewed by the supervising judge, and if the judge finds that the report is supported by a preponderance of the evidence presented to the grand jury and is within the investigation conducted, the judge must accept it and have it filed as a public document. Typically, such reports contain observations or recommendations of the grand jury regarding issues or persons whom it has been made aware of during its proceedings, but who are not subject to the presentment. A recent case in Northampton county involved a grand jury wanting to submit a report making recommendations to the State Police on conducting investigations involving shootings by its own officers. The supervising judge found the report met the requirements of Section 4552 and was going to release it to the public. The State Police sought to block that release, but the judge denied that request and the report was released.
The supervising judge may seal the report for some period, if its immediate release would jeopardize “fair consideration of a pending criminal matter.” Section 4552 also allows persons who the judge finds the report is critical of but who are not indicted as part of the presentment to submit statements of their own in response to the portions of the report concerning them. The judge then has the discretion to decide whether those responses will accompany the report.
The current proceedings involving the grand jury report concerning various clergy sexual abuse allegations is being decided by the Supreme Court. Unknown individuals initially asked the Court to block release of the report which the supervising judge, after considering argument against its release, found it should be released. The objectors assert that the mention of them in the report violates their privacy rights (reputation) and that their due process rights are also being violated as they had no right to examine witnesses or contest evidence presented to the grand jury before it issued its report. After careful analysis, the supervising judge rejected such arguments. This is believed to be an issue of first impression in Pennsylvania, and it will be interesting to see what the Supreme Court decides and what effect, if any, its eventual decision has on the functions of grand juries in the future.