The original Illinois constitution makes no mention of the grand jury, (See ILL. CONST. (1818)). but the first legislature of the state did not leave this matter open for long. One of their earliest acts was that of February 4, 1819, which declared that the "[c]ommon law of England, all statutes or acts of the British Parliament made in aid of the common law prior to the fourth year of King James I, . . . which are of a general nature . . .shall be the rule of decision, and shall be considered as of full force until repealed by legislative authority." (Ill. Laws of 1819, at 3)(Also See Black Code of Illinois). This legislative act meant the addition of the in situation of the grand jury, as it existed at common law, as the principal method of initiating criminal prosecutions in Illinois. (During the Constitutional Convention of 1870 the issue of whether to retain or abolish the jury arose. A compromise settlement by the delegates left the ultimate responsibility of abolishing or retaining the grand jury to the legislature, as evidenced in the passage of ILL. CONST. art. II § 8: "No person shall be held to answer for a criminal offense, unless on indictment of a grand jury, except in cases in which the punishment is by fine, or imprisonment otherwise than in the penitentiary, in cases of impeachment, and in cases arising in the army and navy, or in the militia when in actual service in time of war or public danger: Provided, that the grand jury may be abolished by law in all cases." The response of the legislature to this article has left the common law grand jury intact at present. See 2 DEBATES AND PROCEEDINGS OF THE CONSTITUTIONAL CONVENTION OF ILLINOIS, 1434 1573 (1870), which contains discussions of the proponents and opponents of the grand jury system's continued use)
Indeed, the current Illinois statutes recite under the section entitled Commencement of Prosecutions: "All prosecutions of felonies shall be by indictment unless waived understandingly by the accused in open court .... (ILL. REV. STAT. ch. 38, § 111-2 (1969) on Commencement of Proceedings; ch. 38, § 111-3(5)(b), requires the indictment to be signed by the foreman of the grand jury. See also, PROPOSED ILLINOIS CODE OF CRIMINAL PROCEDURE (1963), confirming the place of the grand jury in the criminal procedure scheme.)
Since no constitution or legislature has ever defined the common law grand jury,( People ex rel. Ferrill v. Graydon, 333 Il. 429, 432, 164 N.E. 832, 833 (1929). In discussing the history of the grand jury Mr. Justice Dunn stated: "No act of the Legislature has ever attempted to define the grand jury. It had its origin in the common law and has existed for many hundred years. Its Constitution, organization, jurisdiction, and method of proceeding were all well-known features of the common law before the organization of the state of Illinois, and have been recognized and adopted in all our Constitutions and in legislation as it existed at the organization of the state.")
The judge of any court of competent jurisdiction may order a special venire to be issued for a grand jury at any time when he shall be of the opinion that public justice requires it. (ILL. REV. STAT. ch. 78, § 19 (1969). Even without statutory authority a court has the authority to issue the venire for a special grand jury. People ex rel. Ferrill v. Graydon, 333 Il. 429, 164 N.E. 832 (1929).)
The power of the grand jury is not dependent upon the court but is original and complete, and its duty is to diligently inquire into all offenses which shall come to its knowledge, whether from the court, the state's attorney, its own members or from any source, and it may make presentment of its own knowledge without any instruction or authority from the court. The court cannot limit the scope of the investigation of the grand jury. (id. at 433-34, 164 N.E. at 834.) that there may be circumstances under which the circuit court will have jurisdiction to direct that witnesses be subpoenaed to appear before a grand jury . . . [But] that such supervisory power be exercised only when failure to do so will effect a deprivation of due process or result in a miscarriage of justice . . . [and] that the circumstances shown here do not furnish a sufficient basis for the action of the court and the order holding Sears in contempt for refusing to subpoena the witnesses is therefore reserved. (People v. Sears, 49 111. 2d 14, 31, 273 N.E.2d 380, 389 (1971).)
ILL. REV. STAT. ch. 14, § 6 (1969). "Whenever the attorney general or state's attorney is sick or absent, or unable to attend, or is interested in any cause or proceeding, civil or criminal, which it is or may be his duty to prosecute or defend, the court in which said cause or proceeding is pending may appoint some competent attorney to prosecute or defend such cause or proceeding, and the attorney so appointed shall have the same power and authority in relation to such cause or proceeding as the attorney general or state's attorney would have had if present and attending to the same. . . . Such attorney so appointed shall possess all of the powers and discharge all of the duties of a regularly elected state's attorney under the laws of the State. . ....
Id. at 413-14. the power and duty of the grand jury to investigate is original and complete, susceptible of being exercised upon its own motion and upon such knowledge as it may derive from any source which it may deem proper, and is not therefore dependent for its exertion upon the approval or disapproval of the court . . . that the United States district attorney . . . has the power to present such information without the previous approval of the court . . . and that by the same token the duty of the district attorney to direct the attention of a grand jury to crimes . . . is coterminous with the authority of the grand jury to entertain such charges.
Id. at 293-94. It has been held an inviolable tradition that they need follow the orders or instructions of the judge neither as to what they consider nor as to whom they indict or fail to indict. . . . Unquestionably, the grand jury are under no necessity to follow the orders of the prosecutor. They can present an indictment whether he will or no [sic]. Indeed, they may make a presentment contrary to the orders of the judge, the prosecutor for the king or the Chief Executive. 96
I submit it should remain that way.
Id. at 433-34, 164 N.E. at 834. The power of the grand jury is not dependent upon the court but is original and complete, and its duty is to diligently inquire into all offenses which shall come to its knowledge, whether from the court, the state's attorney, its own members or from any source, and it may make presentment of its own knowledge without any instruction or authority from the court. The court cannot limit the scope of the investigation of the grand jury.
One purpose of the secrecy of the grand jury's doings is to insure against . . . judicial control. They are the voice of the community accusing its members ....Therefore, except in sporadic . . . instances, the courts have never taken supervision
over what evidence shall come before them. .... Id. at 947. This proposition might be taken to mean a completely independent grand jury, but it was put in proper perspective in In re National Glass workers, 287 F. 219 (N.D. Ohio 1922) where the court stated: "In the cases cited, 287 F. 219, 224 (N.D. Ohio 1922), particularly the Kittle and Thompson cases, expressions may be found which might lead one into the view that the power of the court to prevent abuse of its process in connection with a grand jury investigation does not exist. This does not, however, represent the weight of the law."
People ex rel. Ferrill v. Graydon, 333 Il. 429, 432, 164 N.E. 832, 833 (1929). In discussing the history of the grand jury Mr. Justice Dunn stated: "No act of the Legislature has ever attempted to define the grand jury. It had its origin in the common law and has existed for many hundred years. Its Constitution, organization, jurisdiction, and method of proceeding were all well-known features of the common law before the organization of the state of Illinois, and have been recognized and adopted in all our Constitutions and in legislation as it existed at the
organization of the state."
“The purpose of a grand jury investigation is both to exonerate individuals under suspicion of having committed a crime (People v. Rodgers (1982), 92 Ill.2d 283, 289 [65 Ill.Dec. 929, 442 N.E.2d 240] ) and to establish the probable cause necessary for the arrest of suspected felons (Phillips v. Graham (1981), 86 Ill.2d 274, 284 [56 Ill.Dec. 355, 427 N.E.2d 550] ).” Id. at 392, 178 Ill.Dec. 406, 604 N.E.2d 929.
People v. Sears, 49 Ill. 2d 14, 31, 273 N.E.2d 380, 389 (1971) (observing that an Illinois grand jury may not initiate investigation on its own and “the proper channel for presenting information to the grand jury is the State’s Attorney”; but finding that the trial court has jurisdiction “to direct that witnesses be subpoenaed to appear before a grand jury” when a prosecutor’s failure to take action “will effect a deprivation of due process or result in a miscarriage of justice”).
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