Behind Closed Doors

"The grand jury is an old institution, and it operates in an antiquated way," says Laurie Robinson, the chief of the American Bar Association's criminal justice section. For hundreds of years the purpose of grand juries has been the same: to determine whether there is enough evidence to bring an accused person to trial. But the confusing three-month period it took to decide whether Bernhard Goetz should be charged with attempted murder has put the grand jury system in the dock once again: one panel refused to indict Goetz for that crime, a second panel decided the other way, and the secret deliberations and procedures became almost as controversial as the subway shooting itself.

The Fifth Amendment requires a grand jury indictment before someone can be prosecuted for a major federal offense, and 19 states have similar rules for felonies. A grand jury, called by the prosecutor and made up of up to 23 randomly selected citizens, decides by a majority vote whether a suspect ought to stand trial. The prosecutor gathers and presents all evidence heard by the jury. In most states defense lawyers are not allowed into the deliberations. Grand jury witnesses may be prosecuted for any crime they may mention in testimony unless they are granted immunity, a rule that proved particularly thorny in the Goetz case, since his four victims had cases pending against them at the time of the shooting. The target of a grand jury is not granted immunity for his testimony, since the purpose of the panel is to decide whether or not to indict him, but he of course cannot be compelled to testify.

Secrecy has long been the most controversial aspect of the proceedings. Grand juries have always met behind closed doors to protect the reputations of the accused and to shield jurors and witnesses from possible retaliation. "There's one woman who was a witness in the Goetz case who was scared to death," District Attorney Robert Morgenthau says. "If her name was disclosed, she wouldn't have testified." But critics say the secret presentation of evidence allows the prosecutor to use the grand jury as a political pawn. "The opportunity for abuse is too great and the opportunity for scrutiny too little," says Ivar Goldart, a New York Legal Aid Society lawyer.

Today, 31 states allow charges to be brought without an indictment by a grand jury; instead, a defendant may be charged either by a prosecutor's written statement or after a preliminary hearing before a judge. (Though a state may choose to call a grand jury, the U.S. Supreme Court has not forced states to comply with the grand jury section of the Fifth Amendment.) Sixteen states now permit a grand jury's target to bring his or her own counsel into the jury room under some circumstances. In New York, legislators are considering using grand juries only in cases where no one has yet been arrested. Another proposal would allow prosecutors to offer only partial immunity to witnesses in an attempt to solve problems like the one Morgenthau faced with Goetz's victims. Britain abandoned the grand jury system in 1933 in favor of hearings before a magistrate. Yet even though grand juries are under & heavy fire in some states, Morgenthau points out: "I would rather have my fate in the hands of 23 representative citizens of the county than in the hands of a politically appointed judge."