B.2(t). Indictment by a Grand Jury
No Person may be held for trial on any felony-level charge without the approval of a Grand Jury Indictment, except for active-duty military personnel during wartime, and only for service-related offenses.
This is a core right from the Constitution of 1789’s Bill of Rights.[1] Here, the language is updated. Where the earlier Constitution allows military exceptions during “time of War or public danger,” this language restricts it to crimes committed during wartime. “Public danger” is far too broad a cover. At any given time, an argument can probably be made of plausible “public danger” from something. Because of the potential for abuse, I have stricken that broad language from this Charter.
It also further restricts that military carve out to include only active-duty military personnel. This doesn’t mean reservists and guardsmen can’t be subjected to this exception. If they are carrying out their military duties, they are legally considered active-duty military during that period. On the other hand, those same reservists and guardsmen are not considered to be active-duty simply because they belong to the Reserves or National Guard. If they are otherwise carrying on their normal civilian lives, without active orders, they are not active-duty.
Finally, not all crimes committed by active-duty military during time of war qualify for the exemption. Alleged criminal behavior that doesn’t directly involve the service member’s military duties is not exempt from the grand jury requirement. For example, suppose we are at war with Righteous Front, a multi-national terrorist organization. Corporal Jane Smith is not deployed and has been accused of running drugs when off duty. When she is indicted, she would still be entitled to grand jury protection, since her alleged crime has nothing to do with her military service or the war against Righteous Front. During the same conflict, Airman Oliver Adams is deployed to Haiti and has been accused of using his logistics contacts to run drugs. In his case, the alleged crime is directly related to his military duties as a supply specialist, so the grand jury requirement could be waived.
It's important to note that the military exception allows, but does not require, an exception to the grand jury protection. The government might still elect to provide that protection, if they wanted to do so (though, as a veteran myself, I’ll concede that would be very unlikely).
Grand juries must be randomly assembled, and an independent counsel must be appointed to refute the prosecution's claims before the grand jury.
This core protection was important enough during the founding era that Anti-Federalists insisted on it as part of the Bill of Rights. But it isn’t working as intended. It is supposed to be a check on government power and the potential for harassment. In reality, grand juries indict 99.99% of cases brought before them.[1] The situation is so out of hand that former Chief Judge Sol Wachtler of New York’s Court of Appeals once noted that competent prosecutors can get a grand jury to “indict a ham sandwich.” He wasn’t wrong.
The main reason for this lack of restraint is that the grand jury is only presented with the evidence and arguments of the prosecutor. There is no adversarial system in place. No one objects to evidence as potentially inadmissible. No one requires cross-examination of the evidence. With those rules in place, anyone who was part of their high school debate team should be able to secure an indictment. That’s why this Charter calls for independent counsel to refute the prosecution’s claims. This is not a full trial, but it adds a layer of adversarialism that will help bar the gate against rampant abuse.
Although the language here is more specific than the Constitution of 1789 about how a grand jury is assembled, it isn’t an innovation. It is simply codifying current practice.
Nothing in this clause should be construed as requiring the possible defendant to be informed or present at this hearing, as it does not confer guilt; it only allows for indictment.
Currently, grand juries do not give the accused access to the proceedings. In fact, in some cases, the accused does not even know of a grand jury proceeding until an indictment is handed down. Transparency is key to the freedom and effectiveness of democratic forms of government. In this case, though, secrecy may be necessary to prevent the accused from fleeing or destroying evidence. This clause upholds that principle.
The government must prove that probable cause exists for believing a crime has been committed and that the person to be indicted has committed it, either in whole or in part.
This is a simple, positive statement. It says clearly what the prosecution has to do for a grand jury to return an indictment. There has to be enough evidence to show there is a reasonable chance that a crime was committed. Then, the prosecution has to show enough evidence to conclude that there is a reasonable chance that the accused committed that crime, either on their own or with others.
When a grand jury returns an indictment, the transcript of the hearing must immediately become part of the public court transcript. The names of victims or witnesses may be redacted to protect their safety or prevent substantial harm to victims of violent or exploitative crime. Classified information and other information this Charter protects from disclosure may also be redacted. The deliberations of the grand jury are not a matter of record and will not be disclosed.
Grand jury proceedings straddle the line between the need for democratic transparency and the necessity of secrecy. This paragraph resolves that tension. It requires immediate disclosure of hearing transcripts with an indictment. Witness safety and victim protection are legitimate concerns, so there is a narrow exception to address them. In the same way, some cases may involve executive privilege or classified information, so redactions are allowed, as long as they are supported elsewhere in this Charter.
[1] See Bureau of Justice Statistics, U.S. Dep’t of Justice, Federal Justice Statistics 2010 – Statistical Tables, Table 2.3 at 12 (2012); and “The single chart that shows that federal grand juries indict 99.99 percent of the time,” Wash. Post (Nov. 24, 2014), https://www.washingtonpost.com/news/wonk/2014/11/24/the-single-chart-that-shows-that-grand-juries-indict-99-99-percent-of-the-time/.
[1] See U.S. Const. amend. V.
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