grand jury

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Grand Jury

A panel of citizens that is convened by a court to decide whether it is appropriate for the government to indict (proceed with a prosecution against) someone suspected of a crime.

An American institution since the colonial days, the grand jury has long played an important role in Criminal Law. The Fifth Amendment to the U.S. Constitution says that a person suspected of a federal crime cannot be tried until a grand jury has determined that there is enough reason to charge the person. Review by a grand jury is meant to protect suspects from inappropriate prosecution by the government, since grand jurors are drawn from the general population. It has been criticized at times as failing to serve its purpose.

The grand jury system originated in twelfth-century England, when King henry ii enacted the Assize of Clarendon in order to take control of the courts from the Catholic Church and local nobility. The proclamation said that a person could not be tried as a criminal unless a certain number of local citizens appeared in court to accuse him or her of specific crimes. This group of citizens, known as the grand assize, was very powerful: it had the authority to identify suspects, present evidence personally held by individual jurors, and determine whether to make an accusation. Trial was by ordeal, so accusation meant that conviction was very likely. (Trial by ordeal involved subjecting the defendant to some physical test to determine guilt or innocence. For example, in ordeal by water, a suspect was thrown into deep water: if he or she floated, the verdict was guilty; if the suspect sank, the verdict was innocent.)

The grand assize was not designed to protect suspects, and it changed very little over the next five hundred years. Then, in 1681, its reputation began to evolve. An English grand jury denied King Charles II's wish for a public hearing in the cases of two Protestants accused of Treason for opposing his attempts to reestablish the Catholic Church. The grand jury held a private session and refused to indict the two suspects. This gave the grand jury new respect as a means of protection against government bullying (although ultimately in those particular cases, the king found a different grand jury willing to indict the suspects).

After this small act of rebellion, the grand jury became known as a potential protector of people facing baseless or politically motivated prosecution. The early colonists brought this concept to America, and by 1683, all colonies had some type of grand jury system in place. Over the next century, grand juries became more sympathetic to those who resisted British rule. In 1765, for example, a Boston grand jury refused to indict leaders of protests against the Stamp Act, a demonstration of resistance to colonialism.

The grand jury was considered important enough to be incorporated into the U.S. Constitution, and has remained largely unchanged. Grand juries are used in the federal and most state courts. Federal grand juries use a standard set of rules. States are free to formulate their own pretrial requirements, and they vary greatly in the number of grand jurors they seat, the limits they place on the deliberations of those jurors, and whether a grand jury is used at all. Federal courts use a grand jury that consists of 23 citizens but can operate with a quorum of 16. Twelve jurors' votes are required for an indictment. States use a grand jury consisting of as few as five but no more than 23 members. Grand juries are chosen from lists of qualified state residents of legal age, who have not been convicted of a crime, and who are not biased against the subject of the investigation.

Hearsay Evidence: Admissible before a Grand Jury?

The rules of evidence prohibit the introduction of most Hearsay evidence in a criminal trial. (Hearsay is evidence given by a person concerning what someone else said outside of court.) However, when Frank Costello, alias Francisco Castaglia, a notorious Organized Crime figure of the 1940s and 1950s, argued that his conviction for federal income Tax Evasion should be overturned because the grand jury that indicted him heard only hearsay evidence, the Supreme Court rejected his claim (Costello v. United States, 350 U.S. 359, 76 S. Ct. 406, 100 L. Ed. 397 [1956]).

Prior to his trial, Costello asked to inspect the grand jury record. He claimed there could have been no legal or competent evidence before the grand jury that indicted him. The judge refused the request. At trial, Costello's attorneys established that three investigating officers were the only witnesses to testify before the grand jury. These officers summarized the vast amount of evidence compiled by their investigation and introduced computations showing, if correct, that Costello had received far greater income than he had reported. Their summaries clearly constituted hearsay, since the three officers had no firsthand knowledge of the transactions upon which their computations were based. Therefore, Costello alleged a violation of the Fifth Amendment, and asked that hearsay evidence be barred from grand jury proceedings.

Justice hugo l. black, in his majority opinion, rejected these claims, noting that "neither the Fifth Amendment nor any other constitutional provision prescribes the kind of evidence upon which grand juries must act."

The usual role of a grand jury is to review the adequacy of evidence presented by the prosecutor and then decide whether to indict the suspect. In some cases, a grand jury decides which charges are appropriate. Generally, grand jurors do not lead investigations, but can question witnesses to satisfy themselves that evidence is adequate and usable. The prosecutor prepares a bill of indictment (a list explaining the case and possible charges) and presents evidence to the grand jury. The jurors can call witnesses, including the target of the investigation, without revealing the nature of the case. They call witnesses by using a document called a subpoena. A person who refuses to answer the grand jury's questions can be punished for Contempt of court. However, no witness need answer incriminating questions unless that witness has been granted Immunity. In federal courts, the jurors may accept Hearsay and other evidence that is normally not admissible at trial.If the grand jury agrees that there is sufficient reason to charge the suspect with a crime, it returns an indictment carrying the words true bill. If there is insufficient evidence to satisfy the grand jury, it returns an indictment carrying the words no bill.

Seldom do grand juries issue documents. However, when given a judge's permission to do so, they may use a report to denounce the conduct of a government figure or organization against whom an indictment is not justified or allowed. This occurred in 1973, when U.S. district court judge John J. Sirica allowed the grand jury investigating the Watergate scandals to criticize President Richard Nixon's conduct in covering up the involvement of his administration in the June 17, 1972, Burglary of the Democratic National Committee headquarters in the Watergate Apartment and Hotel complex. The judge recommended that the report be forwarded to the House Judiciary Committee to assist in proceedings to impeach the president. Many states allow the issuance of grand jury reports, but limit their use: the target must be a public official or institution who can be denounced only where statutory authority exists, and the resulting document can be released publicly only with a judge's approval.

In February 1996, for the first time in history, a first lady of the United States was required to appear before a grand jury. Hillary Rodham Clinton testified for four hours before a federal grand jury on the disappearance and reappearance of billing records related to her representation of a failed investment institution that was under scrutiny when she was an attorney in Arkansas. Her testimony was part of the Whitewater investigation, which examined past financial dealings of Hillary Rodham Clinton, President bill clinton, and others.

Should the Grand Jury Be Abolished?

Though the grand jury has existed in the United States since the colonial period, and the Fifth Amendment to the U.S. Constitution requires its use in federal criminal proceedings, it has come under increasing attack. Critics charge that it no longer serves the functions the Framers intended, and therefore should be abolished. Defenders admit there may be some problems with it today, but contend that these can be remedied.

Critics aim their attacks at both federal and state grand juries. They note that a grand jury has two functions. One is to review evidence of criminal wrongdoing and to issue an indictment if the evidence is sufficient. The other is to be an investigative arm of the government, helping the prosecutor gather evidence. Critics contend that in both areas contemporary grand juries have failed.

In reviewing evidence of criminal wrongdoing, a grand jury is supposed to act as a shield against ill-conceived or malicious prosecutions. Yet critics charge that grand juries typically rubber-stamp the prosecution's moves, indicting anyone the prosecutor cares to bring before it.

Historically the grand jury was not dominated by a professional prosecutor. Without a strong attorney leading the way, the grand jury was forced to be independent and diligent in reviewing evidence brought before it.

Critics note that many states abolished all or part of the grand jury's jurisdiction at the end of the nineteenth century, in large part because the process had come increasingly under the control of prosecutors. States acknowledged that a professional criminal prosecutor did not need a grand jury's assistance in the charging process. The prosecutor was capable of making an independent, disinterested review of the need to bring charges. Though forty-eight states have grand juries as part of their criminal justice system, many of these judicial bodies are now reserved for serious felonies, usually first-degree murder.

Those who favor Abolition of the grand jury argue that the domination of the prosecutor has led to a passivity that destroys the legitimacy of the grand jury concept. Most grand jurors have little background in law and must rely on the prosecutor to educate them about the applicable law and help them apply the law. In addition, at the federal level, there are very complex criminal laws, like the racketeer Influenced and Corrupt Organizations statute. Even lawyers find many of these laws difficult to fathom, yet grand jurors are expected to understand them and apply them to intricate fact situations. Not surprisingly, charge the critics, the grand jury tends to follow the prosecution's advice.

Critics point out that though the Fifth Amendment requires a grand jury indictment for all federal crimes, the accused may waive this requirement and accept charges filed by a prosecutor alone on all but capital crimes. Waivers are frequent, and most prosecutions of even serious offenses are initiated by federal prosecutors. Therefore, critics argue that it makes no sense to take additional time and money for a grand jury to convene and participate in a hollow ritual.

For its critics the grand jury has declined from a proactive community voice to a passive instrument of the prosecution. Though the U.S. Supreme Court may talk about the historic importance of the grand jury in Anglo-American justice, few academics defend the institution based on its current performance. Faced with this poor performance, the critics argue that abolition is the best course. It would make the prosecutor directly accountable for the charging decision and remove the illusion that grand jurors are in control.

Defenders of the grand jury acknowledge that there are problems with the modern system, but insist the grand jury is worth saving. Despite its shortcomings the grand jury still allows citizens to help make important community decisions. Though critics may deplore prosecutorial domination of grand juries, they overgeneralize when they call the grand juries rubber stamps for the state. Congress recognized the competency and importance of citizen input when, in the Organized Crime Control Act of 1970 (18 U.S.C.A. §§ 3332–3333), it authorized the creation of "special" grand juries to investigate Organized Crime, return indictments if warranted, and issue reports on the results of their investigations.

Supporters also believe that the critics overemphasize the importance of the grand jury in acting as a shield against government oppression. The key function of the grand jury is to enhance the legitimacy of the criminal charges that are returned. Prosecutors use the grand jury to gain community support for charges that might otherwise be perceived as based on racial bias, political motivation, or prosecutorial vindictiveness. A grand jury review may also help a prosecutor avoid bringing charges where the formal requisites of a crime are present but the community's moral sense would regard charges as unjust.

Some supporters of the grand jury admit that it could be improved by severing the close tie between prosecutor and jurors. They point out that Hawaii provides grand juries with their own attorney. Such a "grand jury counsel" provides independent legal advice and acts as a buffer between jurors and prosecutors. This, in turn, makes grand juries more independent and gives their indictments more credibility. Some scholars have argued that though using such a system nationwide would cost more, the added expense would be a small price to pay to reinvigorate the grand jury and restore it to its proper role as a voice of the community.

Critics have complained that the grand jury offers witnesses and suspected criminals insufficient protection. The cause of the controversy is the set of rules that govern the operation of federal grand juries. For example, a prosecutor manages the work of the grand jury, which some say is contradictory since the job of prosecutor is to prove a defendant's guilt. Another contradiction, according to critics, is that a defense attorney does not represent the suspect. Instead, prosecutors may be required in state grand jury proceedings to present, on behalf of the suspect, information that they feel is exculpatory (so strong that it could create a Reasonable Doubt that the suspect committed the crime); however, the U.S. Supreme Court has held that federal prosecutors are not required to do so in federal grand jury proceedings (United States v. Williams, 504 U.S. 36 [1992]). In arguing that a suspect should be charged, prosecutors may make arguments and use information that would normally not be admissible during a trial. Witnesses who are called before a grand jury are not allowed to have an attorney present when they testify. This holds true for a witness who may be a suspect. A final concern is that grand juries meet in secret, and a formal record of federal grand jury proceedings is not usually provided to the suspect even after indictment.

Critics of the current system claim that justice is ill served by these rules. They say that ambitious prosecutors may be tempted to misuse the powers of a nonprofessional grand jury to harass, trap, or wear down witnesses. For example, activists who opposed the Vietnam War during the 1960s and 1970s accused the Justice Department of abusing the grand jury system as it searched for information about political dissidents. The activists believed that the department used the power and secrecy of the grand jury to intimidate witnesses and fish for evidence. Members of the news media, the business community, and organized labor, have also criticized the institution.

Supporters of the current system say that the secrecy of the grand jury's work prevents several things, including a suspect from escaping, attempts to influence jurors, and the coaching or intimidation of witnesses. Supporters also contend that the system encourages candid testimony and protects the privacy of innocent suspects who are later cleared. Regarding witnesses' lack of Legal Representation,supporters of the status quo point out that delay, disruption, and rehearsed testimony would lessen the efficiency of the grand jury's work and would result in a Minitrial. Similar arguments have been made against limiting evidence that would not be admissible at trial. In addition, federal courts have held that because the rights of a suspect are adequately protected during trial, where the strength or weakness of evidence determines the verdict, no examination of grand jury indictment proceedings is necessary.

Grand juries also face criticism in the area of jury selection, especially with high-profile cases. Criticism focuses on bias and a lack of balance in the selection process. The requirement that grand juries be unbiased has evolved since 1807, when Vice President Aaron Burr was indicted as a traitor. Burr insisted that the evidence against him be heard by an "impartial" jury as guaranteed in the Sixth Amendment to the Constitution. He successfully challenged many jurors on the all-Republican grand jury that had been selected. Burr was willing to accept jurors who were familiar with some details of his famous case but who claimed they had not drawn any conclusions about it. (Although he was indicted, Burr was eventually acquitted at trial.)

Today, an unbiased grand jury means one that comprises people who have no prior familiarity with the facts of the case. Critics of this requirement say that it greatly limits the quality of people who are chosen to sit, since many intelligent, engaged, and otherwise ideal candidates for a grand jury also follow the news. On June 24, 1994, a California state judge dismissed a grand jury that was considering whether to indict former athlete and media personality O. J. Simpson for the murder of his ex-wife and her friend. The judge was responding to concerns, of both the prosecutor and the defendant, that grand jurors had been exposed to Pretrial Publicity that might prejudice them—such as transcripts of 911 calls made by Simpson's ex-wife after he broke down the back door to her house.

After numerous struggles to balance grand juries racially and by gender, federal case law provides that "a defendant may challenge the array of grand jurors … on the ground that the grand jury was not selected, drawn or summoned in accordance with law, and may challenge an individual juror on the ground that the juror is not legally qualified" (Estes v. United States, 335 F.2d 609, cert. denied, 379 U.S. 964, 85 S. Ct. 656, 13 L. Ed. 2d 559).

There have been suggestions that the federal grand jury should be abolished, but this action seems unlikely because it would change the Bill of Rights for the first time. In addition, the investigative and indicting roles of the courts have to be performed by some entity, and an alternative entity may be less desirable than the grand jury. Some states have abolished grand juries or provided alternatives. For example, in some states, prosecutors are allowed to file an information, which is a formal list of charges, usually submitted with notice of some kind of Probable Cause hearing.

Other suggestions for change at the federal level may experience more success. Among those promoted by groups such as the American Bar Association are:

  • Better instructions from judges to jurors about the grand jury's powers and its independence from prosecutors
  • Reports by prosecutors on the performance of the grand jury system
  • Increased access to grand jury transcripts for suspects who are eventually indicted
  • Expanded safeguards against abuse of witnesses, including education about their rights and the presence of their attorneys
  • Notification of targets of investigations that they are targets
  • Optional rather than mandatory appearances by targets of investigations
  • An end to the requirement that prosecutors present defense evidence, and replacement with a requirement that grand jurors be informed that the defense was not represented in the hearing.

Further readings

Beale, Sara Sun, et al. 1997. Grand Jury Law and Practice. 2d ed. St. Paul, Minn.: West Group.

Brenner, Susan W. 1995. "The Voice of the Community: A Case for Grand Jury Independence." Virginia Journal of Social Policy and the Law 3.

Farrel, Lyn, ed. 2002. The Federal Grand Jury. New York: Novinka Books.

Goldstein, Howard W. 1998. Grand Jury Practice. New York: Law Journal Seminars-Press.

Iraola, Roberto. 2003."Terrorism, Grand Juries, and the Federal Material Witness Statute." St. Mary's Law Journal 34 (winter).

Justice Department. National Institute of Justice. Office of Development, Testing, and Dissemination. 1983. Grand Jury Reform: A Review of Key Issues. Washington, D.C.: U.S. Government Printing Office.

Leipold, Andrew D. 1995. "Why Grand Juries Do Not (and Cannot) Protect the Accused." Cornell Law Review 80 (January).Simmons, Ric. 2002. "Re-Examining the Grand Jury: Is There Room for Democracy in the Criminal Justice System?" Boston University Law Review 82 (February).

Skolnik, Sam. 1999. "Grand Jury: Power Shift?" Legal Times (April 12).

Worden, Amy. 2000."Lawyers Target 'Lawless' Federal Grand Juries." ABP News Online. Available online at <www.crimelynx.com/gjref.html> (accessed September 19, 2003).

Cross-references

Clarendon, Constitutions of.

grand jury

n. a jury in each county or federal court district which serves for a term of a year and is usually selected from a list of nominees offered by the judges in the county or district. The traditional 23 members may be appointed or have their names drawn from those nominated. A grand jury has two responsibilities: 1) to hear evidence of criminal accusations in possible felonies (major crimes) presented by the District Attorney and decide whether the accused should be indicted and tried for a crime. Since many felony charges are filed by the District Attorney in a municipal or other lower court which holds a preliminary hearing to determine if there is just cause for trial instead of having the Grand Jury hear the matter, this function is of minor importance in many jurisdictions. 2) to hear evidence of potential public wrong-doing by city and county officials, including acts which may not be crimes but are imprudent, ineffective or inefficient, and make recommendations to the county and cities involved. Example: a grand jury may recommend that a new jail is needed, find that there is evidence of favoritism in the sheriff's office, that some city council members are profiting by overlooking drug dealing by city staffers, or that judges are not carrying a full load of cases to be tried. (See: indictment, charge, preliminary hearing)

grand jury

(US) a jury of between 12 and 23 persons summoned to inquire into accusations of crime and to ascertain whether the evidence is adequate to found an indictment. Abolished in Britain in 1948.

GRAND JURY, practice. A body of men, consisting of not less than twelve nor more than twenty-four, respectively returned by the sheriff of every county to every session of the peace, oyer and terminer and general gaol delivery, to whom indictments are preferred. 4 Bl. Com. 302; 1 Chit. C. L. 310, 1.
     2. There is just reason to believe that this institution existed among the Saxons, Crabb's C. L. 35. By the constitutions of Clarendon, enacted 10 H. II. A. D. 1164, it is provided, that "if such men were suspected, whom none wished or dared to accuse, the sheriff, being thereto required by the bishop, should swear twelve men of the neighborhood, or village, to declare the truth" respecting such supposed crime; the jurors being summoned as witnesses or accusers, rather than judges. If this institution did not exist before, it seems to be pretty certain that this statute established grand juries, or recognized them, if they existed before.
     3. A view of the important duties of grand juries will be taken, by considering, 1. The organization of the grand jury. 2. The extent of its jurisdiction. 3. The mode of doing business. 4. The evidence to be received. 5. Their duty to make presentments. 6. The secrecy to be observed by the grand jury.
     4. - 1. Of the organization of the grand jury. The law requires that twenty-four citizens shall be summoned to attend on the grand jury; but in practice, not more than twenty-three are sworn, because of the inconvenience which else might arise, of having twelve, who are sufficient to find a true bill, opposed to twelve others who might be against it. 6 Adolph. & Ell. 236; S. C. 33 e. C. L. R. 66; 2 Caines, R. 98. Upon being called, all who present themselves are sworn, as it scarcely ever happens that all who are summoned are in attendance. The grand jury cannot consist of less than twelve, and from fifteen to twenty are usually sworn. 2 Hale, P. C. 161; 7 Sm. & Marsh. 58. Being called into the jury box, they are usually permitted to select a foreman whom the court appoints, but the court may exercise the right to nominate one for them. The foreman then takes the following oath or affirmation, namely: "You A B, as foreman of this inquest for the body of the ______ of _________, do swear, (or affirm) that you will diligently inquire, and true presentments make, of all such articles, matters and things as shall be given you in charge, or otherwise come to your knowledge touching the present service; the commonwealth's counsel, your fellows and your own, you shall keep secret; you shall present no one for envy, hatred or malice; nor shall you leave any one unpresented for fear, favor, affection, hope of reward or gain; but shall present all things truly, as they come to your knowledge, according to the best of your understanding, (so help you God.") It will be perceived that this oath contains the substance of the duties of the grand jury. The foreman having been sworn or affirmed, the other grand jurors are sworn or affirmed according to this formula: "You 'and each of you do swear (or affirm) that the same oath (or affirmation) which your foreman has taken on his part, you and every one of you shall well and truly observe on your part." Being so sworn or affirmed, and having received the charge of the court, the grand jury are organized, and may proceed to the room provided for them to transact the business which may be laid before them. 2 Burr. 1088; Bac. Ab. Juries, A. The grand jury constitute a regular body until discharged by the court, or by operation of law, as where they cannot continue by virtue of an act of assembly beyond a certain day. But although they have been formally discharged by the court, if they have not separated, they may be called back, and fresh bills submitted to them; 9 C. & P. 43; S. C. 38 E. C. L. R. 2 8.
     5. - 2. The extent of the grand jury's jurisdiction. Their jurisdiction is coextensive with that of the court for which they inquire; both as to the offences triable there, and the territory over which such court has jurisdiction.
     6. - 3. The mode of doing business. The foreman acts as president, and the jury usually appoint one of their number to perform the duties of secretary. No records are to be kept of the acts of the grand jury, except for their own use, because, as will be seen hereafter, their proceedings are to be secret. Being thus prepared to enter upon their duties, the grand jury are supplied with bills of indictment by the attorney-general or other officer, representing the state or commonwealth against offenders. On these bills are endorsed the names of the witnesses by whose testimony they are supported. The witnesses are in attendance in another room, and must be called when wanted. Before they are examined as to their knowledge of the matters mentioned in the indictment, care must be taken that they have been sworn or affirmed. For the sake of convenience, they are generally sworn or affirmed in open court before they are sent to be examined, and when so qualified, a mark to that effect is made opposite their names.
     7. In order to save time, the best practice is to find a true bill, as soon as the jury are satisfied that the defendant ought to be put upon his trial. It is a waste of time to examine any other witness after they have arrived at that conclusion. Twelve at least must agree, in order to find a true bill; but it is not required that they should be unanimous. Unless that number consent, the bill must be ignored. When a defendant is to be put upon his trial, the foreman must write on the back of the indictment "a true bill," sign his name as foreman, and date the time of finding. On the. contrary, where there is not sufficient evidence to authorize the finding of the bill, the jury return that they are ignorant whether the person accused committed the offence charged in the bill, which is expressed by the foreman endorsing on the bill "ignoramus," signing his name as before, and dating the time.
     8. - 4. Of the evidence to be received. In order to, ascertain the facts which the jury have not themselves witnessed, they must depend upon the statement of those who know them, and who will testify to them. When the witness, from his position and ability, has been in a condition to know the facts about which he testifies, he is deserving of implicit confidence; if, with such knowledge, he has no motive for telling a false or exaggerated story, has intelligence enough to tell what he knows, and give a probable account of the transaction. If, on the other hand, from his position he could not know the facts, or if knowing them, he distorts them, he is undeserving of credit. The jury are the able judges of the credit and confidence to which a witness is entitled.
     9. Should any member of the jury be acquainted with any fact on which the grand jury are to act, he must, before he testifies, be sworn or affirmed, as any other witness, for the law requires this sanction in all cases.
    10. As the jury are not competent to try the accused, but merely to investigate the case so far as to ascertain whether he ought to be put on his trial, they cannot hear evidence in his favor; theirs is a mere preliminary inquiry; it is when he comes to be tried in court that he may defend himself by examining witnesses in his favor, and showing the facts of the case.
    11. - 5. Of presentments. The jury are required to make true presentments of all such matters which may be given to them in charge, or which have otherwise come to their knowledge. A presentment, properly speaking, is the notice taken by the grand jury of any offence from their own knowledge, as of a nuisance, a libel, or the like. In these cases, the authors of the offence should be named, so that they may be indicted,
    12. - 6. Of the secrecy to be observed by the grand jury. The oath which they have taken obliges them to keep secret the commonwealth's counsel, their fellows and their own. Although contrary to the general spirit of our institutions, which do not shun daylight, this secrecy is required by law for wise purposes. It extends to the votes given in any case, to the evidence delivered by witnesses, and the communications of the jurors to each other; the disclosure of these facts, unless under the sanction of law, would render the imprudent juror who should make them public, liable to punishment. Giving intelligence to a defendant that a bill has been found against him, to enable him to escape, is so obviously wrong, that no one can for a moment doubt its being criminal. The grand juror who should be guilty of this offence might, upon conviction, be fined and imprisoned. The duration of the secrecy appears not to be definitely settled, but it seems this injunction is to remain as long as the particular circumstances of each case require. In a case, for example, where a witness swears to a fact in open court, on the trial, directly in opposition to what he swore before the grand jury, there can be no doubt the injunction of secrecy, as far as regards this evidence, would be at an end, and the grand juror might be sworn to testify what this witness swore to in the grand jury's room, in order that the witness might be prosecuted for perjury. 2 Russ. Cr.. 616; 4 Greenl. Rep. 439; but see contra, 2 Halst. R. 347; 1 Car. & K. 519. Vide, generally, 1 Chit. Cr. Law, 162; 1 Russ. Cr. 291; 2 Russ. Cr. 616 2 Stark. Ev. 232, n. 1; 1 Hawk. 65, 500 2 Hawk. ch. 25; .3 Story, Const. Sec. 1778 2 Swift's Dig. 370; 4 Bl. Com. 402; Archb. Cr. Pl. 63; 7 Sm. Laws Penna. 685.

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