Silk Road prosecution: how does the US criminal justice system actually work?


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I read it, it was interesting. But I haven’t figured out: what’s a grand jury?

Wikied like that!
A grand jury is a legal body that is empowered to conduct official proceedings to investigate potential criminal conduct and to determine whether criminal charges should be brought. A grand jury may compel the production of documents and may compel the sworn testimony of witnesses to appear before it. A grand jury is separate from the courts, which do not preside over its functioning.

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yeah, I wiki’d it, too, when I realized I’d heard this term thrown around in crime dramas my whole life without any depiction of it, nor explanation. I’m still not really clear on it, though. Wikipedia said that it was a jury of 23 (give or take–there’s a lot of innuendo when it comes to GJs) versus the “petit” jury of 12 for a trial. This implies that they are selected the same way, but I’ve never heard anyone selected for jury duty–including myself– who said it was for a grand jury.

Further reading repeatedly uses the word “retained” to describe them because, unlike the “single use” trial jury, they preside over all cases in the district for a given length of time, but it also implies that they are paid, though nothing is stated explicityly. In the “Criticisms” part, it discusses that they are frequently not a representative sample of the district and that there are no qualifications. This implies that they are appointed, but again, nothing is stated explicitly.

Sounds like an awesome gig. You join a shadowy organization, get paid, no qualifications, and apart from throwing scumbags in jail (well, determining if the state has a case, anyway,) you are required (at least in some districts) to inspect the jails and treasury and report any fraud you find i.e. whistleblow on abuse of power. Sign me up. I’m totally down.

A grand jury decides whther or not to indict/ bring charges to trial. My aunt was selected for a grand jury once. Unlike a regular jury, she was sworn never to reveal any of what went on - presumably the secrecy is to protect those accused when charges aren’t brought to trial? Or to prevent affecting the trial outcome?


In the US, people are protected against double jeopardy. I’m not a lawyer but my understanding is that the job of a grand jury is to determine if there is enough evidence for there to be a reasonable chance of a conviction at trial. They don’t actually determine guilt or punishment, that’s for a normal jury. The grand jury can prevent the state from taking a case to trial before it has gathered enough evidence which would result in criminals getting off the hook due to timing rather than innocence. Multiple grand juries can investigate the same alleged crime over the years, which in a normal court would result in the case being thrown out for double jeopardy. Think of it more as an advisory board for the prosecution than an actual jury.

“Grand juries would indict a ham sandwich”. I have heard this expression often, when someone is mocking the burden of evidence required to get an indictment.

I found the origin:

31 January 1985, New York (NY) Daily News, pg. 3:
New top state judge: Abolish
grand juries & let us decide
IN A BID to make prosecutors more accountable for their actions, Chief Judge Sol Wachtler has proposed that the state scrap the grand jury system of bringing criminal indictments.

Wachtler, who became the state’s top judge earlier this month, said district attorneys now have so much influence on grand juries that “by and large” they could get them to “indict a ham sandwich.”


For a more realistic portrayal than wikipedia on the purpose of Grand Juries, let’s go to Popehat himself:

Let me pause and offer you a dark confession. I miss the grand jury. When I want documents or evidence now as a criminal defense attorney, I have to ask the government for it, wait for them to laugh and refuse, and then run to court and try to convince a judge to order the government to abide by its obligations. As a civil litigant, I have to write long, complicated demands for documents and information, wait a month for a response, get a response refusing most of what I asked for, engage in a letter-writing campaign, and eventually go to court seeking an order making the other side give me the documents, often months later. Oh, to use the grand jury again! As a federal prosecutor, I could just issue grand jury subpoenas. I could refuse extensions at my whim. I could ask for whatever the hell I wanted based on the most remote suspicion that it might be relevant to a federal investigation. I could demand compliance with confidence, knowing that it is extraordinarily rare for a federal court to grant a target’s motion to quash or limit a subpoena. And I could do all of this under the ridiculous fiction that I was acting on behalf of a grand jury so long as, occasionally, I stepped into the grand jury room and had a federal agent testify briefly that “Hey, we’ve got an investigation going into [vague subject], we issued subpoenas in your name, we got these documents, the investigation continues.” 99% of the time, the grand jurors wouldn’t look up from their newspapers, hoping they’d get let out early that day. Were the grand jurors a check on government abuse of the subpoena power? Don’t make me laugh until I throw up.


“How does the US criminal justice system actually work?”

And the award for most tragically ironic headline of the week goes to Mr. Doctorow!

(seriously, you can slice that one about six different ways and it just gets more wrong and more true)

You might want to rethink that - jury pay in the US is much, much less than minimum wage.

Thanks everybody. Now I know what a grand jury is.

yeah, the wiki doesn’t really explain it very well

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