The Statewide Association of Prosecutors (SWAP) is proposing a radical change to Utah’s grand jury system. SWAP has stated that the proposed changes are needed and are minor. The exact opposite is true. The proposed changes will turn Utah’s grand jury system on its head.
In Utah, a person charged with the most serious crimes — a felony, or a class A misdemeanor — is entitled to a preliminary hearing before an impartial judge to determine whether probable cause exists to require the accused to stand trial. At this hearing, the accused has the right to cross-examine witnesses, call witnesses on his own behalf, and have an attorney present to protect his rights. After hearing the evidence presented by the prosecution, the judge decides whether there is enough evidence to require the accused to bear the substantial financial and emotional burden of standing trial.
In contrast, the grand jury system enshrines and codifies a remnant from the Middle Ages. The targeted accused does not have the right to be present during the proceeding. His lawyer is not allowed to be present. The lawyers for witnesses are not present. The prosecutor presents evidence to lay people who are more likely than a judge to be influenced by prosecutors and police officers to return an indictment against the accused. The lawyer for the accused is never given an opportunity to give a summation to the grand jury that the evidence is insufficient to support the charges. Instead, it is a completely one-sided affair. Many prosecutors joke that they could obtain an indictment against a ham sandwich. The grand jury provides no protection from an over-zealous prosecutor.
Under the existing law, a prosecutor is required to show “good cause” to convene a grand jury. The proposed amendment will reverse that presumption in favor of convening a grand jury. SWAP’s proposed amendment would replace the “good cause” requirement with a presumption in favor of grand juries. Instead of the prosecutor establishing “good cause,” a panel would consider a list of factors when deciding whether to grant a grand jury. The “factors” the panel would consider when deciding whether to grant a grand jury are: 1) is a grand jury needed to extract testimony from a recalcitrant witness; and 2) is a grand jury needed to protect a sensitive or vulnerable victim. With these factors, a prosecutor will be able to obtain a grand jury in essentially any case. This amendment will encourage prosecutors to obtain indictments from grand juries rather than pursing charges through the preliminary hearing system.
A grand jury system at the state level will not promote justice. The Utah Supreme Court has stated that the preliminary hearing, the preferred method of initiating a prosecution under current law, is a mechanism to “ferret out groundless and improvident prosecutions.” Federal grand juries decline to return indictments in perhaps one case a year. The grand jury is the epitome of a “kangaroo court.” The modified grand jury will not promote confidence or trust in our judicial system. Utah does not need a grand jury makeover.
Walter F. Bugden Jr. is a Salt Lake City attorney.