The Constitution of the United States originally made no provision for a grand jury. However, the Fifth Amendment, ratified in 1791, guaranteed that: "...no person shall be held to answer to a capital, or otherwise infamous crime, unless on a presentment of indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia when in actual service in time of war or public danger...."
The grand jury is an arm of the court, but is not the court itself.
The grand jury is under the general supervision and control of the court, at least "to the extent that it is organized." 38 C.J.S. Grand Juries, Section 1, p. 981, note 26.
The grand jury is not under the control of the court to the same extent as the petit jury.
"It is generally conceded that, after it is duly organized, the larger part of its functions is to be performed by it as a separate and independent body acting apart from the court." Ibid., p. 981, note 34.
"It must act free from influence, fear, favor, affection, reward, or hope thereof, preceding from, or without the court." U.S. v. Olmstead, D.C. Wash. 7 F.2nd 758.
Some cases hold that the grand jury is independent of the court and is separate, distinct and "may act independently of the court." Ibid. Notes 35-413, p. 981, 982.
The grand jury is usually officered by a foreman. Ibid., p. 1009
The foreman is the presiding officer of the inquest. Ibid., p. 1010 note 74.
"The ordinary conception of the powers and duties of a grand jury is to guard the rights and liberties of the people, in the preservation of morals and social order." Ibid., p. 1027, note 79.
The court cannot limit the grand jury in its legitimate investigation. Ibid., p. 1028, note 95.
"Members of the grand jury may bring to the attention of their members any crimes known to any of them even though no complaint is presented by any prosecuting officer." Ibid., p. 1028, note 98.
It is the duty of the grand jury to inquire into all offenses within its jurisdiction. Ibid., p. 1029, note 5.
It cannot be a blanket inquiry to bring to light supposed grievances for the purpose of criticizing an officer or department of the government. Ibid., p. 1030, note 21.
"...a grand jury has plenary inquisitorial powers, without any instruction or authority from the court, and may, on its own motion, originate charges against offenders, regardless of how the information on which it acts is brought to its attention. Ibid., p. 1031, note 35.
"...It is empowered to institute and initiate, as well as to manage and control, such investigation, without any interference or hindrance from the court or prosecuting attorney." Ibid., p. 1032, note 37, 38.
The manner of conducting a hearing before a grand jury depends in a large measure on the good judgment of the grand jury. Ibid., p. 1037, note 96.
It is improper for the prosecuting attorney to participate in the deliberations of the grand jury, to express opinions on questions of fact, or as to the weight and sufficiency of evidence, make arguments, or in any way influence or direct the grand jury in its findings. Ibid., p. 1042, notes 91-96.
The grand jury cannot appoint its own attorney to supplant the advice and council of the prosecuting attorney, but an attorney may be summoned to appear before the grand jury in the capacity as an expert witness(es). Ibid., p. 1046, note 26, 27.
A stenographer can be present and take down testimony and information. Ibid., p. 1046-47.
The grand jury can call witnesses before it. Ibid., p. 1049.
Grand juries are protected in the discharge of their duties during the whole of their proceedings. Ibid., p. 1065, notes 60, 61.
Impanelment of the first Grand Jury occurred in the Massachusetts Bay Colony in 1635. This body was entrusted and obligated to consider cases of murder, robbery and spousal abuse. By the middle of the eighteenth century, the Grand Jury was recognized for opposing the British Royalists.
These Colonial Grand Juries expressed their independence by refusing to indict leaders of the Stamp Act of 1765, and a Boston Grand Jury steadfastly refused to bring libel charges against the editors of the Boston Gazette in 1766.
By the end of the Colonial Period, the Grand Jury system had become an indispensable adjunct of government, with power to propose new laws; they protested against abuses in government, and wielded tremendous authority in their power to determine who should, or should not, face trial.