Jury system for RP?

At present, under the 2000 Rules of Criminal Procedure, the preliminary investigation of crimes with an imposable penalty of more than 4 years 2 months and 1 day (for purposes of finding probable cause to indict a respondent to undergo full-blown trial on the merits of the case in court) are conducted by the local public prosecutors under the Department of Justice (DOJ) and by the Office of the Ombudsman (vis-à-vis public officers and employees from crime they commit in relation to their office).

The Office of the Ombudsman is a constitutional office independent of the three branches of Government, while the DOJ is not, the Secretary of Justice being an alter ego of the President. The DOJ, especially under the current Secretary of Justice Raul Gonzales, has been under attack from the public and the media for being a partisan political tool of the Executive. Unlike in the Untied States, the Philippines has no concept of “peer review” by one’s fellow laymen in finding probable cause to indict a respondent for a criminal case. A shift to the grand jury system and the jury trial system in the Philippines will require an amendment of its current Constitution, especially its Bill of Rights, in order to make a citizen’s right to a grand jury and to jury trial a constitutionally-sanctioned human right.

As a brief introduction for the benefit of Filipino readers visiting this blog, let me discuss the basic concepts of the “federal grand jury” as now practised in the USA.

The “grand jury” does not determine guilt or innocence but only whether there is probable cause to believe that a crime was committed and that a specific person or persons committed it. If the grand jury finds probable cause to exist, then it will return a written statement of the charges called an "indictment." After that, the accused will go to trial. On the other hand, the “petit jury” listens to the evidence offered by the prosecution and the defense (if it chooses to offer any) during a criminal trial and returns a verdict of guilty or not guilty.

The grand jury hears only that evidence presented by an attorney for the government which tends to show the commission of a crime. It jury must determine from this evidence, usually without hearing evidence for the defense, whether a person should be tried for a serious federal crime, referred to in the Bill of Rights as an "infamous crime." An “infamous crime” is one which may be “punished by imprisonment for more than one year”.

The grand jury operates both as a "sword," authorizing the government's prosecution of suspected criminals, and also as a "shield," protecting citizens from unwarranted or inappropriate prosecutions. A person may, however, waive grand jury proceedings and agree to be prosecuted by a written charge of crime called an information. The US Attorney must sign the indictment before one may be prosecuted. Thus, the government and the grand jury act as checks upon each other. This assures that neither may arbitrarily wield the awesome power to indict a person of a crime.

Matters may be brought to the attention of the federal grand jury in three ways: (1) by the United States Attorney or an Assistant United States Attorney; (2) by the court that impaneled it; and (3) from the personal knowledge of a member of the grand jury or from matters properly brought to a member's personal attention. In all these cases, the grand jury must hear evidence before taking action.

A federal grand jury can take action only upon “federal crimes” that have been committed within the district in which it has been impaneled. Its concern must be devoted solely to ascertaining whether there is probable cause to believe that a federal crime has been committed and to report accordingly to the court.

US federal law requires that “a grand jury be selected at random from a fair cross section of the community in the district or division in which the federal grand jury convenes”. All citizens have an equal opportunity and obligation to serve. The names of prospective grand jurors are drawn at random from lists of registered voters. The judge directs the selection of “23 qualified persons to become the members of the grand jury”.

After the grand jurors have been sworn, the presiding judge advises the grand jury of its obligations and how best to perform its duties. This is called “the charge to the grand jury”. After the grand jury has been charged, it is taken to the grand jury room, where it will “hear testimony and consider documentary evidence in the cases brought to its attention by the United States Attorney or an Assistant United States Attorney”.

Sixteen (16) of the 23 members of the grand jury constitute a quorum for the transaction of business. If fewer than this number is present, even for a moment, the proceedings of the grand jury must stop.

Witnesses are called to testify one after another. Upon appearing to give testimony, each witness will be sworn by the grand jury foreperson. Ordinarily, the attorney for the government questions the witness first, followed next by the foreperson of the grand jury. The other members of the grand jury may question the witness.

Because of the need for secrecy, US federal law forbids anyone other than authorized persons from being present in the grand jury room while evidence is being presented. This means that only the grand jury, the US Attorney or the US Assistant Attorney, the witness under examination, the court reporter, and the interpreter (if required) may be present. If an indictment should ultimately be voted, the presence of unauthorized persons in the grand jury room could invalidate it.

Occasionally, prior to answering a question, a witness may ask to leave the grand jury room to consult with his or her attorney. The grand jury is to draw no adverse inference from such conduct, for every witness has the right to confer with counsel even though counsel may not be present in the grand jury room. In fact, a witness may confer with counsel after each question, as long as he or she does not make a mockery of the proceedings or does not, by such, make an attempt to impede the orderly progress of the grand jury investigation.

Additionally, a witness who is appearing before the grand jury may invoke the Fifth Amendment privilege against self-incrimination and refuse to answer a question. In such a situation, the grand jurors may bring the matter before the court in order to obtain a ruling as to whether or not the answer may be compelled. One manner in which an answer may be compelled is “by granting the witness immunity from prosecution in exchange for the witness' testimony”.

The grand jury is “not responsible for determining whether the accused is guilty beyond a reasonable doubt, but only whether there is sufficient evidence of probable cause to justify bringing the accused to trial”. Only the evidence presented to the grand jury in the grand jury room may be considered in determining whether to vote an indictment.

At least 16 jurors must be present and 12 members must vote in favor of the indictment before it may be returned.

Additional Notes:

This Grand Jury is not an agent of any government official. The jurors are not agents of the police or the military. The government agencies or any police or military organization have no control over the grand jury. The power of the grand jury to act is the sovereign power as recognized in the Constitution. The jurors are direct collective agents for the sovereign people in their districts.

Criminal investigations by the grand jury must be conducted secretly and are strictly confidential. The purpose of the secrecy is to protect the constitutional innocence of the suspected offender against trial by publicity. The witness appearing before a grand jury must be told that the investigation is a strictly secret proceeding and he must refrain and avoid revealing any matter such witness had testified before the grand jury, except in a court of law where such witness is called to testify during the trial of the criminal case.

The public may mail or bring their complaint secretly to the Grand Jury through the Office of the Clerk of Court in a sealed envelope and plainly marked "CONFIDENTIAL." The informant need not reveal his identity and the grand jury must not reveal to anyone the name of any witness or party who files a complaint for investigation.

The grand jury cannot be compelled to allow a criminal suspect under investigation or his attorney or any person or public official to be present at its secret investigation. A grand jury is “not a court”, and therefore, preventing a criminal suspect from being present at its investigation does not deprive him of his "day in court". The grand jury must conduct its interrogation only within the confines of its secret hearing room and must interrogate witnesses individually only. Its should never interrogate witnesses by group.

The President can not change the decision of a grand jury even if he files a petition for mandamus before the Supreme Court. Its members are not appointed protegees of powerful public officials. The decision of the grand jury to indict or not to indict is ABSOLUTELY SOVEREIGN and they cannot be questioned, charged or punished for their decision.

By U.S. laws, grand jury investigations are strictly held confidential. Violation of this rule is criminally punishable by law. The purposes of this strict secrecy are: To prevent the escape of offenders; To prevent the destruction of evidence either by the accuser or the victim; To preventing tampering with witnesses; To preserve the reputations or constitutional innocence of persons whose conduct comes under the grand jury's investigation; To encourage witnesses to disclose their full knowledge of possible wrongdoing; To prevent undue prejudice of the public jury pool, and; To protect the grand jurors from bodily harm as well as undue interferences from anybody - not even their spouses.

The filing of a grand jury indictment is confidential “until such time an arrest warrant by the court has been successfully executed and the suspect is actually taken into custody”.

In the case of U.S. vs. Williams, 504 U.S. 36 (1992), the U.S. Supreme Court held that "grand juries are not part of the court system but are in effect a fourth branch of government, separate and apart from the judiciary, the executive branch, and the legislature". Courts cannot order a grand jury by mandamus to act in a certain way.

Once the grand jury indictment is filed in court, a warrant of arrest is thereupon issued by the judge of such court against the accused. Upon his arrest, another adjudicatory group of private citizens consisting of “12 members, known as the trial jury (or petite jury)”, is then called to hear the evidence against the accused “in the presence and supervision of the presiding judge”. It is in this proceeding that the rules of evidence and the rights of the accused are strictly observed and protected. Like the grand jury members, trial jurors are also chosen by lottery and no further official ratification is required for them to serve.

The verdict of a jury “does not require any written judgment”. The verdict is briefly stated either "Guilty" or "Not Guilty" by its foreman in open court. Very seldom does it take a jury to reach a verdict for more than 5 days. In the U.S., most criminal cases are completed in court within 6 months. As soon as its members reach a verdict, immediately it is read by the jury foreman in open court in the presence of the presiding judge, the prosecutor, the defense counsel and the accused.

In the U.S., the precious time of trial judges are not wasted in writing lengthy decisions to explain their judgments. Since juries decide cases speedily, backlogs of cases in U.S. and state trial courts seldom occur. Judges and public officials simply trust the intelligence of the American people in voting to make their court decision in the same way that they trust the people in voting to elect their public officials.