Always a subject of curiosity due to their secretive nature, grand juries are used to review evidence by a prosecutor to see if it is sufficient to support a criminal indictment against an individual in a confidential proceeding.  The purpose of such a proceeding is to investigate crimes while also protecting individuals from unfounded criminal charges.  Due to the secrecy of the process, sometimes issues of fairness arise which prompted a recent review.  The Supreme Court of Pennsylvania appointed the task force in July 2017 to complete a review of the grand jury system and present its findings and recommendations for the Commonwealth.  The task force, made up of several attorneys, two judges, and the associate dean of Duquesne University’s School of Law released its report in November 2019.

Grand juries in Pennsylvania are provided for by the Investigating Grand Jury Act, which authorizes the process and limits the tribunal’s term to a maximum of 24 months.  Pennsylvania is not unique for having such a system, as all but two states have some kind of grand jury system. Around half of those states have what is similar to the federal system, which requires potential felony charges be brought before a grand jury first.  The other half leave the grand jury as an option for seeking an indictment.  Pennsylvania is unique, however, because of the inconsistent employment of grand juries across its counties.  Only Allegheny County and Philadelphia use grand juries frequently, while the rest of the counties rarely employ them.

California, for example, primarily utilizes its grand jury system for oversight of government institutions.  It has a grand jury serving for one-year terms in every county.  California’s Constitution requires each county to have at least one grand jury.  The jury itself selects the topics it wishes to examine, though it can be presented with criminal cases if the district attorney so desires.  When the grand jury does hear a criminal case and an indictment is issued, the grand jury proceedings become public.

New York provides defendants with a right to have felonies prosecuted by a grand jury unless the defendant waives that right.  Grand juries in the state produce indictments as well as direct filing of lesser charges and remove cases to different courts.  New York’s grand juries also serve a civil role, as they sometimes issue reports on improper actions by public officials and give recommendations for how to address the situations.

During hearings before a grand jury in Pennsylvania, the potential defendant and that person’s attorney are not present.  Only the jurors, a court reporter, the prosecutor, a supervising judge, and any relevant witnesses are present.  The rate of indictment during such proceedings is extremely high.

An alternative to the grand jury system is an arraignment followed by a preliminary hearing, a much more public process, which occurs after charges are brought by a criminal complaint and the district attorney has approved them.  Grand juries may indict when they find sufficient probable cause, which is a lower burden for the prosecutor than he or she would have to meet in a preliminary hearing.  This lower burden as well as the high rate of indictments lead many prosecutors to prefer grand juries over preliminary hearings.  Most Pennsylvania counties, however, use public arraignment and preliminary hearings, which allow a suspect to see some of the evidence against him or her and the ability to cross-examine the prosecution’s witness(es).  The probable cause leading to the initial arrest is communicated by a public affidavit.  It is just Allegheny County and Philadelphia in which grand juries are used more often than the preliminary hearing to initiate a criminal proceeding.

The task force reviewed this inconsistent use throughout the state among other things.  Its report also included a number of recommendations, including developing a judicial training program for new supervising judges and handbooks for the judges and grand jurors.  The task force addressed the lack of grand juries in many regions of the state, as prosecutors have struggled to form them in less populous areas.  Thus, they recommended collaborative measures between counties to aid in the formation of these grand juries.

The group also recommended gathering comprehensive statistics periodically on investigating grand juries to allow the Supreme Court of the state to conduct its oversight role of these proceedings in a more informed manner.  Some statistics the task force recommended gathering were the number of days the grand jurors reported, the notices of submission for organized crime or public corruption, the number of presentments issued by the jury and accepted by the supervising judge and more.  With these statistics, the Supreme Court can better meet the needs of supervising judges in terms of staffing and resources.  The report mentions that most or all other parts of the judicial system have annually released workload statistics, and without those statistics for grand juries, the Supreme Court cannot operate in the informed way it does in other legal spheres.

While the task force acknowledged a need for secrecy in certain cases, they also recommended that the supervising judges submit significant decisions for publication with any necessary redaction to provide greater guidance to supervising judges and appellate courts for the grand jury practice.  Also among the task force’s 37 total recommendations were proposed measures for enhancing witness safety, such as protecting them from view by the public while they enter or leave the building.

One issue on which the task force remained somewhat divided was the availability of grand jury reports to the public.  A majority of the task force recommended that grand jury reports be abolished altogether based on due process concerns when the investigation findings become public.  A minority of members expressed other concerns with the abolishment of these reports, citing instances in which such reports were used to discover public corruption or systematic abuse.

It has yet to be seen the precise consequences, if any, of this task force’s report and recommendations on Pennsylvania’s grand jury system and the legislation that authorizes it.

With contribution from Angela Mauroni, first year J.D. candidate at the University of Pittsburgh School of Law.