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1、California Law Review Volume 43 1 Issue 2 Article 3 May 1955 Historical and Legal Aspects of the California Grand Jury System Harold W. Kennedy James W Briggs Follow this and additional works at: http:/scholarship.law.berkeley.edu/californialawreview Recommended Citation Harold W. Kennedy and James

2、W. Briggs, Historical and Legal Aspects of the California Grand Jury System, 43 CAL. L. REV. 251 (1955). Available at: http:/scholarship.law.berkeley.edu/califomialawreview/vol43/iss273 Link to publisher version (DOI) http:/dx.doi.org/doi:10.15779/Z38W193 This Article is brought to you for free and

3、open access by the California Law Review at Berkeley Law Scholarship Repository. It has been accepted for inclusion in California Law Review by an authorized administrator of Berkeley Law Scholarship Repository. For more information, please contact jceralaw.berkeley.edu. 1955 251 Historical and Lega

4、l Aspects of the California Grand Jury System Harold W. Kennedy and James W. Briggs An adequate appreciation of the functions of a modern grand jury requires at least a superficial understanding of its historical origins.1 This is true with respect to the modern federal2 and California3 grand juries

5、, even though the powers and duties of the latter are largely defined by statute.4 In tracing the historical origins and development of the jury of accusation, the ancestor of the grand jury, we xrnght go as far back as Athenian history. Edwards points out that some investigators liave found evidenc

6、e that there was an institution in Athens performing some functions of an accusing jury, but he goes on to state that if such an institution existed, it did not survive long enough to exert an influence on the common law.5 Prior to the Norman Conquest in 1066 we find there were two institutions rese

7、mbling an accusing jury, which fact has caused considerable debate as to which was the germ of the EngKsh jury of accusation or presentment. The evidence of such a jury in England is found in one of the Dooms (laws) of the Anglo-Saxon King Aethelred (9801016). This doom provided:6 III. These are the

8、 laws (laga) that King Aethelred and his wltan have drawn up at Wantage for the improvement of the peace . . . . 3. Ad a court Aall be held in every wapentake a subdivision of the county later known as the “hundred” and there the twelve leading * Member, California Bar. County Counsel of the County

9、of Los Angeles. President, National Association of County and Prosecuting Attorneys, 1955. Member, California Bar. Deputy County Counsd of the County of Los Angeles. 1 An inquiry into the functions of the early common law grand juries was deemed proper in the leading case of Hale v. Henkel, 201 U.S.

10、 43 (1906) in determining that a federal grand jury had power to initiatej on its own volition, an investigation of crime. California courts have solved problems pertaining to mechanical aspects of the modem grand jury system, such as the number of jurors required to find an accusation, by arguing d

11、irectly from the results of historical studies of English grand juries. Fitts v. Superior Court, 6 Cal.2d 230,57 P.2d 510 (1936); Coffey v. Superior Court, 2 CalApp. 453, 83 Pac. 580 (1905). Hale v. Henkel, 201 U.S. 43 (1906). 3 Fitts v. Superior Court, 6 Cal.2d 230, 57 P.2d 510 (1936); Coffey v. Su

12、perior Court, 2 CaLApp. 4S3, 83 Pac. S80 (1905). 4 CAL. PEN. CODE 915-931. For an article pointing out the need for federal legislation more clearly defining the powers and duties of federal grand juries, see Powers of Federal Grand Juries, 4STAN. L. REV. 68 (1951). B EDWARDS, THE GRAND JURY 1-2 (19

13、06). STEPHENSON AND MARCHAM, SOURCES OF ENGUSH CONSTITUTIONAL EDBTORY 21 (1937). 252 CALIFORNIA LAW REVIEW Vol.43 (yldestan) thegns, together with the reeve; shall come forward and swear on holy things, to be placed in their hands, that they will neither accuse any innocent man nor spare any guilty

14、one . . . . The meaning of Aethelreds law is the subject of much dispute, but it is conceivable that the law had a general application throughout England and that by the end of the tenth century local courts may have summoned a body of sworn neighbors to present crimes which lxad come to their knowl

15、edge.7 The other early institution showing signs of becoming an accusing jury is found in the FranMsli kingdom, where the kings had established a summary method of ascertaining tie fiscal and other rights of the crown a royal prerogative seemingly inherited from the Roman Government.8 Court officers

16、 were ordered to inquire into these royal rights by obtaining statements under oath from the neighbors.9 The Norman dukes apparently adopted similar procedures in Normandy, or at least used them for the first time wlxen they occupied England in 1066.10 Here at least was the germ of trial by jury as

17、it later appears in England,11 for there is no prior trace of a trial jury in Anglo-Saxon law,12 and perhaps this is the progenitor of the accusing jury as well.13 Maitland points out that there is no continuous evidence that the inquisition described in Aethelres law was carried on to the time of t

18、he Conquest,14 whereas immediatdy thereafter there appears in England the practice of inquiring of a body of sworn neighbors as to royal and other rights.15 * Whichever is correctthat the accusing jury finds its origin in the law of Aethelred or in the procedure emanating from the prerogative of the

19、 Frankish kingsthe concept of inquiring of neighbors on their oath was not foreign to England when the practice was sanctioned by the Assize10 of Clarendon of 1166 A.D. By this assize King Henry II ordained, inter alia, that:17 For the preservation of peace and the enforcement of justice, inquiry sh

20、all be made in every county and in every hundred through twelve of the more 7 MATTLAND, THE CoNSTinmoNAL HISTORY OF ENGLAND 127 (1913). 8/. at 121. 9 Id. at 122. 10 Id. at 7. Ibzd. 12 沉 .at 120. 127. a Ibid. at 7. 10 *An assize (assisa) seems to mean in the first instance a sitting, a session, for e

21、xample of the king and Ms barons； then the name is transferred to an ordinance made at such a session we have the Assize of Clarendon, the Assize of Northampton, and, to look abroad, the Assizes of Jerusalem; then again it is transferred to any institution which is created by such an ordinance.* Id.

22、 at 12. 17 SIEPHENSON AND MARCHAM, SOURCES OF ENGLISH CONSTITUTIONAL HISTORY 77 (1937). 19SS CALIFORNIA GRAND JURY SYSTEM 253 lawful men of the hundred and through four of the more lawful men of each vill, put on oath to tell the truth, whether in their hundred or in their vill there is any man accu

23、sed or publicly known as a robber or murderer or tiiief, or any one who has been a receiver of robbers or murderers or thieves, since the lord king has been king. And let the justices make this investiga- tion in their presence and the sheriffs in their presence. Here we see a true jury of presentme

24、ntone whose function was to accuse persons of crime before tiie justices of the King. It was not a trial jury, for the accused personJs guflt or innocence was not established by the accusation but was to be determined by a method of trial known to tliat day, namely, tie ordeal.18 Also to be noted is

25、 that this assize imposed an additional burden upon tie tithing men of tie frankpledge system; it required them not only to present those who were wanted by the authorities but to take the initiative and inform the sheriff or tie KingJs judges of those persons who were ccpublidy knownJ, or generally

26、 suspected19 * of conrmiting the designated crimes. The system of frankpledge requires explanation. This system has been defined as cca system of compulsory collective bail fixed for individuals, not after their arrest for crime, but as a safeguard in anticipation of it.JJ20 Over most of England all

27、 unexcused persons were to be enrolled in a tithing, which at one time was a group of ten men headed by a tithing man. If one of the ten should commit an ojtfense and be accused, the other trine were to produce him for trial, make good tie damage caused by the guilty party and pay a j5ne. Twice a ye

28、ar at a meeting of tie hundred court hdd by the sheriff an inquiry was made as to whether all persons required to be enrolled in a tithing were so enrolled.21 Here then is another institution whicli contributed to the development of an accusing jury in England. As said before, it was the Assize of C

29、larendon whicli expanded the functions of the frankpledge system to include that of presenting persons suspected of crime rather than presenting only those who had previously been accused. To further clarify the functions of the accusing jury as it existed in 1166 there must be an explanation of the

30、 modes of trial of tliat day. These were four in number: (1) Trial by battle, where the injured person would appeal to tie courts and the defendant chose to dear himself of guUt by fighting the appealing person; (2) Trial by ordeal, where the defendant was accused by indictment, in 18 MAITLAND, THE

31、CONSTITUTIONAI, HISTORY or ENGLAND 128 (1913). 191 HOIDSWORTH, HISTORY or ENGLISH LAW 11 (6th ed. 1938). 2 MORRIS, THE FRANKPLEDGE SYSTEM 1, 2 (1910), quoted in 1 HOIDSWORTH, supra note 19 at 13. 21 Id. at 13. 254 CALIFORNIA LAW REVIEW Vol.43 which case it was considered the judgment of God that he

32、was innocent if he successfully passed the ordeal; (3) Trial by oaths or compurgation, where, depending upon the nature of the offense, the defendant was permitted to clear himself of guilt by his own oath or by the oaths of a specified number of oath-helpers; and (4) Trial by jury, though not yet u

33、sed in criminal cases, in which a certain number of men answer under oath the questions propounded to them.22 This primitive trial by jury bore little resemblance to the modern jury trial一 there was no evidence submitted nor examination or cross-examination of witnessesthe jurors being expected to k

34、now of their own knowledge the answers to the questions.23 The evidentiary procedure being then unknown, it was quite natural to expect the accusing jury to present accusations based on personal knowledge. It was also more probable that the accusing jury of 1166 would have personal knowledge of offe

35、nses committed within its jurisdiction than would the modern grand jury because at that time the accusing jurors were selected from smaller jurisdictions, namely, the subdivisions of the counties known as hundreds. With this picture of the accusing jury of the hundred in 1166, we may now trace its d

36、evelopment into the county grand jury of later, and then more modern, times. The Assize of Northampton of 1176 added to the crimes enumerated in the Assize of Clarendon those of forgery, treason and arson.24 Both assizes operated to transfer jurisdiction over the offenses listed therein from the cou

37、nty courts to the courts held by the itinerant justices of the Crown.25 The county courts over which the sheriffs presided were thus deprived of much of their former importance. The royal courts were, however, by the Assize of Clarendon, impliedly prohibited from adjudging that trial be by compurgat

38、ion for the offenses listed in the statute since trial by ordeal was thq metiiod provided. Thus compurgation as 汪 mode of criminal trial disappeared in the royal courts, but it was continued in other courts until a much later period.26 It was late in the twelfth century when the itinerant justices t

39、raveling from county to county began to hold new commissions known as Commissions of Eyre,27 which auiorized them to hear all pleas， including matters 22MAHXAND, THE CONSTITUTIONAL HISTORY OF ENGLAND 115-124 (1913). 231 HOLDSWORTH, HISTORY OF ENGUSH LAW 333 (6th ed. 1938). 24 W. at 71. 您 Ibid. 26 Th

40、ayer, The Older Modes of Trial, 5 HARV. L. REV. 45, 59 (1891) ； 1 HOLDSWORTH, HISTORY OF ENGLISH LAW 307 (6th ed. 1938). 27 Derived from the Latin,打 a walk, way, journey. WEBSTERS NEW INTER NATIONAL DICTIONARY 1320 (2d ed. 1947). 19SS CALIFORNIA GRAND JURY SYSTEM 255 pertaining to all phases of gove

41、rnment.28 Summons were issued prior to the coining of the justices which resulted in large assemblages at the eyre.29 One of the principal purposes of the eyre was to obtain revenue for the King, although the avowed purpose was the impartial administration of justice.30 After tie preliminary matters

42、 were disposed of, presenting juries from each, hundred were chosen. The details of the manner of choosing the presenting juries varied, but it appears that the bailiff of each himdred chose two or four electors, who in turn chose themselves and twelve others from the hundred, and from these, twelve

43、 persons were chosen to form a presenting jury from that hundred.31 To these presenting juries， the “Articles of 运 yre” (consisting of questions pertaining to many phases of government) were read and tie juries were required to give their answers by a certain day.32 The presenting-juries were instru

44、cted to order the arrest of any persons suspected of crime, and if that were not possible, to give the names secretly to the justices that they might order the sheriff to take them.33 * The oath to be taken at one time by the presenting jurors was that they shall udo this faithfully, that they will

45、aggrieve no one through enmity nor show deference to any one through love, and that they will conceal those things which they have heard.,S4 This appears to be the j&rst reference to a pledge of secrecy on the part of the accusing jury, which, according to Edwards, seemed to have for its purpose the

46、 prevention of the escape of offenders.35 However, the jurors were not to keep their secrets from the justices; if the justices suspected their answers, they could examine the jurors separately or collectively to determine the reasons for their action,36 By the year 1290 the presenting jury was stil

47、l comprised of twelve members, but the oath that they then took was ccthot they wfll lawful presentment make of such chapters as shall be delivered to them in writing and in this they will not fail for any love, hatred, feax, reward, or promise, and that they wfll conceal the secrets, so hdp them Go

48、d and the Saints.,3T At this time the accusing jury was required, among other things, to present those who had failed in their duty to keep bridges, causeways and highways in repair; to inquire into the defects of jails and place the responsibility therefor; to determine the responsibilities for any

49、 escapes wMch might have 28 1 HOLDSWORTH, HISTORY OF ENGLISH LAW 26S-266 (6th ed. 1938). 1 Id. at 266-267. 1 Id. at 267-268. 311 Id. at 26S-269. 32 x Id. at 269. Ibid. EDWARDS, THE GRAND JURY 20 (1906). Id. at 20, 21. 35 at 21. ST/rf. at 2S. 256 CALIFORNIA LAW REVIEW Vol.43 occurred; and to inquire whether the sheriff had kept in jail any who should have been brought before the justices.38 39 As time went on, the number and scope of the articles of eyre expanded so that they ranged over the whole field