Skip to Navigation Skip to Main Content

History of grand jury system marked by debate

Profile image for By Dawn Cobb / Staff Writer
By Dawn Cobb / Staff Writer

Grand jury selection has long been debated in the U.S., since the grand jury's early roots in England and as the American colonies wrestled with creating their own justice system apart from the royal courts.

The first formal grand jury in the U.S. was established in Massachusetts in 1635 and, by 1683, was in some form established in all of the colonies, according to Marianne Jameson in a brief historical summary prepared for the California Grand Jurors Association in October 2004.

The U.S. Constitution, written in 1787, did not make reference to grand juries specifically.

The Fifth Amendment to the Constitution addressed the issue: "No person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger … ."

The 14th amendment spread the Bill of Rights provisions to states but did not guarantee indictment by grand jury.

A 1984 study of grand juries found at the time that four states required a grand jury indictment for all crimes; 14 states and the District of Columbia required indictments for all felonies; six states mandated grand jury indictments for capital crimes only; and 25 states made indictments optional. In only one state, Pennsylvania, grand juries lack the power to indict.

Texas is among the states that require indictments for all felonies.

The selection of grand juries initially was through a key-man system - a system still used in Texas and California in which judges appoint commissioners who compile a list of potential grand jurists.

This pool is then whittled to a total of 14: 12 jurors and two alternates.

In a report by Larry Karson, a criminal justice professor at the University of Houston-Downtown, the idea behind grand jury selection processes is a pivotal one: "The individuals who select the grand jury select the law," he wrote in a report in the Southwest Journal of Criminal Justice in 2006.

Unlike random selection processes, in which voter rosters are used to randomly select potential members of grand juries, the key-man system's "hand-picked members almost always come from the settled, relatively affluent, 'respectable' segments of the community," according to research from M.E. Frankel and G.P. Naftalis, in their 1977 report titled "The grand jury: An institution on trial."

The question regarding key-man selection has arisen in several cases, most notably in Hildalgo County with Castaneda vs. Partida (1977), argued before the U.S. Supreme Court. In the cited case, the lack of Hispanic representation in grand jury selection was at issue. In short, the responding brief cited that "the Texas system of selecting grand jurors is highly subjective." And while the "facial constitutionality of the key-man system, of course, has been accepted by the court … the court has noted that the system is susceptible of abuse as applied."

In the footnotes of the U.S. Supreme Court case, several references were made to the court's recognition of the potential for abuse inherent in the Texas grand jury selection plan.

In Hernandez vs. Texas (1954), Supreme Court justices acknowledged that the state's system of selecting grand jurors through the use of jury commissions is fair on its face and capable of being utilized without discrimination. "But as this Court has held, the system is susceptible to abuse and can be employed in a discriminatory manner."

As one of two states currently using the key-man system - the other being California - these Texas cases have primarily dealt with the issue of racial makeup of grand jurors in several cases in comparison to the area's population demographics at the time.

In 1968, the Jury Selection and Service Act mandated a random selection process for all federal courts, specifying the makeup of a jury commission and the process for obtaining lists of possible jurors from voter rolls as well as other directories showing a cross-section of available jurors. The names then were mandated to be placed in a master jury wheel to ensure a random selection.

In recent years, some judges in Texas - including in Bexar and Harris counties - have opted to try the random selection method for determining grand jury makeup.

DAWN COBB can be reached at 940-566-6879. Her e-mail address is