On May 24, 1854, Anthony Burns, an escaped slave, was arrested by police in Boston under the Fugitive Slave Act. Burns’ abduction led to large protests of locals, speeches by abolitionists, and a crowd struggling to directly free him at the courthouse. In response, the government told an already empaneled grand jury that they should consider anyone who had organized, advised or given speeches to anti-slavery protesters to be liable in “obstruction of federal officers.” Yet despite weeks of pressure from the judge, the grand jury refused to indict. ...So months later, a new grand jury was convened, this time stacked to include the Judge’s own brother-in-law, and with the exact same charges presented against the same abolitionists.

What is a grand jury?

Grand juries were intended to be a check on the power of prosecutors -- a filter by which normal citizens could autonomously curtail, oversee, and even direct them. The rebellious colonists who formed the US certainly saw grand juries this way because they had regularly used grand juries to nullify the king’s decrees and refuse to indict those who broke them.

But in the intervening centuries not only have grand juries been corralled and intimidated into operating as rubber stamps, they now function primarily to *extend* the power of prosecutors. They are seen as a mechanism to enshrine into formal record evidence that would be totally inadmissible in a real trial -- like rumor and innuendo -- while an indictment can hinge on nothing but thin hearsay. The Supreme Court has decided that dishonest testimony, misleading evidence, and prosecutorial misconduct are tolerable grounds for an indictment. And even the “probable cause” standard of proof often presented to grand jurors as sufficient for indictment not only has no grounding as a fundamental standard in the US legal system, but was widely considered by judges in the early US to be inappropriately lax for indictment.

More importantly, modern grand juries allow the government and prosecutors to coerce witnesses onto the stand in secret testimony, deprived of legal counsel, with no standing to contest, without Fourth Amendment protections, and often stripped of their Fifth Amendment rights as well. For decades this has made grand juries a powerful Soviet-style tool to repress activists, political dissidents, and journalists, who can be compelled to speculate and testify not about crimes but the mere political opinions of their friends and thrown in jail if they refuse. This was used to great effect by the FBI during Nixon to do vast fishing expeditions and get information on his political enemies.

This notion of the grand jury as a weapon to be wielded by prosecutors rather than an independent check on them has been widely commented on by judicial scholars, and is partially a result of how they’re structured: Jurors on a grand jury see only what a prosecutor selectively chooses to put before them, and, given the incredible lack of oversight or adversarial presence, much less the total lack of representation for witnesses and the accused, unsurprisingly some prosecutors feel free to lie about the law itself. Moreover, while trial juries require a unanimous verdict, prosecutors only need to persuade a fraction of a grand jury to indict; a federal grand jury of 23 jurors only needs 12 to indict. In some states like Virginia, a prosecutor only needs to convince 4 individuals.

The Republican Sol Wachtler, as Chief Judge of the New York Court of Appeals, infamously complained that, “District attorneys now have so much influence on grand juries that ‘by and large’ they could get them to ‘indict a ham sandwich.”

And similarly, a grand jury will almost always *refuse* to indict when the prosecutor is begrudgingly obliged to bring a case but pretty openly does not want it to succeed, as with prosecutions of police officers.

Functionally then, today’s grand juries often serve not just as a weapon by which prosecutors can obtain inquisitional powers, but as a buck-passing mechanism, a scapegoat for the prosecutor. They can lead the jury along to the conclusion they want, while wiping their hands of any public responsibility.

Prosecutors feel confident in treating grand juries as tools in no small part because they or their colleagues are in charge of picking the jurors. In some places the selection of jurors is directly overseen by a district attorney. But even where the prosecution isn’t involved in picking jurors -- e.g. a circuit court judge may pick 60 citizens from which a court clerk picks five -- the selection process is often in the hands of a few close colleagues, sharing the same assumptions, allegiances, and biases. Infamously the makeup of a jury is often decided on county lines rather than city lines, deliberately leading to juror pools unreflective of local communities. And, of course, serving on a grand jury is more prohibitive than a trial, because it lasts longer and requires more time off work.

Santa Clara County Judge George Barnett defended the stocking of jurors by saying, “It takes 12 to return an indictment, what if we drew only revolutionaries, pot smokers, who would vote against indictments?” (Cohen, The grand jury-who needs it?, Town Crier (Los Altos), Oct. 3, 1973, at 16, col. 1.)

Because prosecutors believe that jurors have been selected to be compliant poodles they often patronize them as such.

But what happens when jurors reclaim their independence?

Grand Juror Resistance

With the dramatic expansion of prosecutions by the Department of Justice in Trump’s second term, grand juries have suddenly started demonstrated a liveliness and autonomy not seen in generations. Some, like JD Vance and Stephen Miller have labeled this as “jury nullification” -- but alas, most instances are transparent instances of the prosecutor simply not having a case and jurors refusing to be herded. Because of their secretive nature, it’s impossible to know how many grand juries have resisted prosecutorial overreach in the last year and a half, yet many cases they publicized have fallen apart, like the prosecution of six members of congress for reminding military personnel they are obligated to not follow unlawful orders.

Resistance by jurors can take many forms.

Some resign in protest, like Sol Price, who quit a San Diego County grand jury over it returning indictments on the assertion of the DA without investigation. Or the multiple grand jurors who resigned from a Matin County, California, grand jury in 1971 over indictments against a lawyer with no evidence.

Some grand jurors take their formal role as investigators seriously and do their own independent work, like Edison Uno, a San Francisco County grand juror, who -- not merely following the claims presented by the prosecutor -- went in person to the county jail to inspect it.

While today’s institutions are often surprised at grand jurors doing their own independent research, and institutions are often not receptive to requests like Uno’s, as a grand juror you are totally allowed to engage in proactive independent research and bring that research forward in questions!

Asking questions and grilling a prosecutor is one of the main ways that grand jurors can exercise independence, and it can matter immensely. The answers given in a grand jury are formally entered into the court record and can become vital resources for defense attorneys in future trials. When the government is engaged in a fishing expedition they are more likely to get caught in contradictions and claims that might imperil future cases.

There is no limit to the amount of questions you can ask as a grand juror! Don’t be afraid or shamed out of grilling them extensively on anything and everything.

However it is an unfortunate fact that too direct of criticism of a prosecutor may get you removed. Recently unsealed grand jury transcripts in the Broadview Six case showed a juror getting dismissed on the spot by the prosecutor for characterizing the case as “a crock of shit” — and being dismissed by the prosecutor on the spot for saying so.

Such dismissals are considered improper, and got that case vacated entirely, but many prosecutors don’t face oversight and don’t get caught for such flagrant jury tampering. Our advice is to be studiously civil in your criticism and avoid giving the prosecutor an excuse to dismiss you, then report the prosecutor if you are dismissed.

Your voice matters, but so does your vote.

Remember that “probable cause” is a made up threshold. You do not have to let yourself or other jurors be bullied into treating weak evidence as sufficient to bring indictments.

Further, in many circumstances you may judge the charges being brought -- while technically meeting some factual litmus -- as nonetheless obscene miscarriages of justice, for reasons of extenuating context, degree of applicability, or simply that the law in question is unjust. For instance, many grand juries refuse to indict sick people for using pain killing medication or survivors who kill their brutal abusers, and knowledge of this can constrain prosecutors.

A juror’s right to use their conscience and good sense in voting to acquit is inherent and applies in grand juries, just as it does in trials. Once you get to vote, you cannot be punished for a “no bill” vote.

This is fundamentally baked into in anglo-american legal tradition, and the Supreme Court has upheld it endlessly, and even more broadly declared in Vasquez v. Hillery that “the grand jury is not bound to indict in every case where a conviction can be obtained.”

That said, attempting to educate your compatriots in a grand jury about their rights can be a risky strategy.

Judges and DAs have maintained their control over juries in no small part by punishing, silencing, and dismissing jurors who make a loud show of knowing their rights. In 1995 a FIJA activist in FIJA activist in Rhode Island was kicked off the Grand Jury he was sitting on for educating other jurors.

(Commentary from the Frontlines of the FIJA Movement, 20 FIJActivist 4 Autumn 1995)

And we’re not going to lie to you, in cases where grand juries exercise independence and hold firm against prosecutors, the state is often outraged and immediately tries to route around. But this doesn’t mean that jurors can’t win against prosecutors.

In 2022, Richard Obrero was facing a host of murder and a firearms charges. When a Hawaiian grand jury reviewed 9 proposed charges including murder against him and no billed every single one of them, the state tried an immediate workaround the same day — refiling 6 of the 9 charges via a preliminary hearing before a district court instead. The Hawaiian Supreme Court shut this down, but prosecutors whined that such bypasses were so standard a response to disobedient grand juries that if it was ruled unlawful 168 felony convictions would be overturned, even appealing to the state legislature to overturn the Supreme Court. https://fija.substack.com/p/15-minutes-with-fija-26-september Ultimately the legislature allowed prosecutors to bypass getting indictments from a grand jury before filing felony charges, but ultimately upheld that they couldn’t do such when a grand jury had refused to indict.

When the DOJ could not get a grand jury to indict paralegal Sean Dunn for tossing a turkey sandwich at one of the federal officers occupying DC, they simply tried again with another grand jury, and when that jury refused as well they abandoned felony charges, turning to misdemeanor charges, before a normal trial jury threw those out as well.

In 2012, young activists in Oregon and Washington were targeted by a wide-ranging grand jury asking about their friends’ political beliefs and trying to trace friendships.

“As I wasn’t allowed to have my lawyer present or record any of the questions, I would ask for a break after every three questions and go into the other room and write them down so I wouldn’t forget them. This way I could share what they were asking about with everyone else, and make this secret process more transparent. Leaving the room frequently was also a way of demonstrating to my lawyer and others that I wasn’t answering their questions, so there would be no doubt.

After a dozen or so questions and refusals, the prosecutor said he had heard enough. As I got up to leave the room, a jurist in the front row smiled and raised his fist in salute to me.”

While multiple activists were held in prison for their principled refusal to testify, prosecutors were never able to get the grand jury to return indictments.