Advocates and engineers of the Common Law Grand Jury (CLGJ) have their work cut out for them. When they start issuing indictments and presentments and ordering the sheriff to make arrests, they risk prosecution for “simulating legal process.” You can see an example of such a criminal law in Florida Statute 843.0855.
CLGJ advocates might want to argue that nothing in the US or Florida constitutions forbids “we the people” from forming and operating a CLGJ to do the normal functions of grand juries – issuing probable cause information in a presentment to the prosecutor, and in some cases blocking prosecution by refusing to issue such information in an indictment.
They might cite the various provisions of Florida Statutes Chapter 905 which articulates how the Grand Jury shall become set up and operate. They might then argue that nothing in those statutes forbids the establishment and functioning of the CLGJ outside the court’s authority.
However, I think they head for certain trouble who set up such a CLGJ. For my reason I cite three authorities:
1. Florida Statute 2.01
“Common law and certain statutes declared in force.—The common and statute laws of England which are of a general and not a local nature, with the exception hereinafter mentioned, down to the 4th day of July, 1776, are declared to be of force in this state; provided, the said statutes and common law be not inconsistent with the Constitution and laws of the United States and the acts of the Legislature of this state. History.—s. 1, Nov. 6, 1829; RS 59; GS 59; RGS 71; CGL 87.”
“An indictment is a written accusation of one or more persons of a crime or misdemesnor, preferred to, and presented upon oath by, a grand jury. To this end the sheriff of every county is bound to return to every session of the peace, and every commission of oyer and terminer, and of general gaol delivery, twenty four good and lawful men of the county, some out of every hundred, to enquire, present, do, and execute all those things, which on the part of our lord the king shall then and there be commanded [Volume 5, Page 252] them.”
3. The SCOTUS opinion in US v Williams 504 US 36 (1992)
“A grand jury is clothed with great independence in many areas, but it remains an appendage of the court, powerless to perform its investigative function without the court’s aid, because powerless itself to compel the testimony of witnesses. It is the court’s process which summons the witness to attend and give testimony, and it is the court which must compel a witness to testify if, after appearing, he refuses to do so.” Brownv. United States, 359 U. S. 41, 49 (1959).
The English law of Florida pretty clearly shows that a Judge in a county empanels the Grand Jury, stretching all the way back to Ethelbert around the year 600 C.E. Thus, any grand jury operating without a judge having empaneled it thereby operates ultra vires, and subjects its members for prosecution who issue legal process.
Without issuing legal process, of course, the CLGJ operates merely as a First Amendment club of concerned inhabitants contemplating and discussing issues of interest to them.