April 01, 2014

Judicial Conference accepts ABA’s proposed grand jury change

Accepting a change recommended by the ABA, the Judicial Conference of the United States approved an amendment in March to the federal judiciary’s Model Grand Jury Charge that clarifies that grand jurors must consider charges against each person separately when charges are brought against more than one person.    

Previous language in Paragraph 23 of the Model Charge advised grand jurors that they may indict “all of the persons or only those persons who they believed properly deserve indictment.” The new language reads: “(a)    Paragraph 23. Frequently, charges are made against more than one person. It will be your duty to examine the evidence as it relates to each person, and to make your finding as to each person. In other words, where charges are made against more than one person, you may indict only those persons who you believe properly deserve indictment. You must remember to consider the charges against each person separately.”

The ABA’s proposed amendment was based on policy adopted by the ABA House of Delegates in February 2013. The association maintained that the previous language in Paragraph 23 was ambiguous and may have been taken to suggest that a blanket indictment by the grand jury would be permissible even if some of the persons, were they to be considered separately, would not deserve indictment. 

In a March 13 letter to ABA Governmental Affairs Director Thomas M. Susman, Julie A. Robinson, chair of the Judicial Conference Committee on Court Administration and Case Management, expressed appreciation for the ABA’s work and input.

The change accepted by the Judicial Conference was one of three amendments proposed by the ABA that were part of the policy adopted by the association in 2013.  The two proposals not accepted by the Judicial Conference would have amended Paragraph 25 and Paragraph 10 of the Model Charge.

The change proposed for Paragraph 25 would have replaced “should vote to indict” with “may vote to indict only” where the evidence is sufficiently strong in order to ensure that grand jurors understand they are not bound to indict. The second ABA proposal would have deleted Paragraph 10, which instructs grand jurors not to consider punishment when deciding whether to indict.

The report accompanying the ABA policy recommendation maintained that the three proposed changes aimed “to help bolster the historic role of the grand jury as an independent entity—the bulwark of liberty it can be – and to ensure that the grand jury fulfills its vital and proper role in the criminal justice system.” The changes also make clear, according to the report, that the grand jury retains discretion with the Supreme Court’s opinion in Vasquez v. Hillery, 474 U.S. 254, 263 (1986) that the grand jury “is not bound to indict in every case where a conviction can be obtained.” 

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