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Probable cause revisited.

Table of Contents

I. A Framework for Understanding Criminal Charging Standards
II. A History of Charging Standards
    A. The Founders' Charging Standard
       1. The English debate and its transmission
       2. The Founding: general view
       3. The Founding: outliers
          a. South Carolina
          b. Pennsylvania
       4. Understanding the Founders
    B. Probable Cause Triumphant: The Nineteenth and Twentieth
III. Probable Cause and Plea Bargaining
    A. The Virtues and Vices of Plea Bargaining
    B. The Interaction of Probable Cause and Plea Bargaining
       1. "Zero opinion" mechanism
       2. Prosecutorial incentives
    C. Understanding Probable Cause's Survival
       1. Demand
       2. Supply
       3. Path dependence


Most judges, lawyers, and scholars accept uncritically that to charge a criminal defendant, the government must present probable cause of his guilt to a grand jury or magistrate. The Supreme Court, for instance, treats the probable cause standard for federal criminal charges, like the reasonable doubt standard for convictions, as ancient and inevitable. (1) It is not. In reality, probable cause is just one of many criminal charging standards known in theory and history.

Charging standards are essential elements of criminal justice systems, yet the criminal procedure literature has paid surprisingly little attention to them. (2) By contrast, civil procedure scholarship focuses extensively on the analogous feature of civil litigation: pleading standards. Since the Supreme Court revised the civil pleading requirements in Bell Atlantic Corp. v. Twombly, (3) scholars have carefully examined the relationship between pleading regimes and other aspects of civil litigation, especially discovery and settlement. (4) Civil pleading rules and criminal charging standards serve a similar function--they determine which cases will be allowed into court. No less than their civil procedure colleagues, criminal procedure scholars should be attentive to the "fit" between a charging standard and the broader adjudicative system to which it belongs.

Part I of this Article begins that effort by offering a simple framework for understanding the relationship between criminal charging standards and adjudicative systems. I argue that charging standards have two primary effects on criminal justice systems: they inhibit erroneous convictions and they constrain the delegation of prosecutorial authority. Strict charging standards are attractive to criminal justice policymakers for whom certainty of guilt and prosecutorial constraint are important. And they are especially appealing when certainty and constraint are not otherwise provided for in the adjudicative system.

Part II uses this framework to explore the history of charging standards in the United States from the Founding to the twentieth century, when "probable cause" came to dominate in the federal courts and the majority of the states. Important parts of this history have not before been told. The history demonstrates that, contrary to commonly held intuitions, probable cause is neither inevitable nor ancient, but instead contingent and of fairly recent vintage.

Part II.A presents novel evidence that many judges of the Founding era rejected the idea, urged by a group of English lawyers and judges a century earlier, that criminal charges require only a "probable Ground for an Accusation." (5) Several Founding-era judges told grand juries that they could indict only if they were certain of a suspect's guilt. Part II.A draws on--but complicates--the leading historical study of criminal charging standards, which found that there was no commonly accepted approach during the Founding era. (6) The recent publication of every surviving grand jury charge from colonial, state, and lower federal courts prior to 1801 makes it possible to revisit that conclusion. (7) From a careful review of the surviving charges, I have identified the positions of twenty-eight Founding-era judges, the vast majority of whom instructed grand juries to use evidentiary standards more demanding than probable cause. (8) Their insistence on a strict charging standard fit the criminal justice system of their day well. Trials during the Founding era were summary affairs, (9) making an additional check against erroneous conviction useful. Likewise, the constraint that a strict charging standard imposes on prosecutors aligns with the Founding generation's anxiety about concentrations of power.

Part II.B then examines the slow but steady adoption of the probable cause standard during the late nineteenth and twentieth centuries. Previous scholarship has characterized the emergence of probable cause during this period as mysterious. (10) argue that probable cause's rise can be understood as a corollary of the formalization of criminal procedure, particularly the criminal trial, during the same time period. Procedural devices like extensive voir dire and error preservation emerged during the same period that probable cause became the dominant charging standard. (11) By the late nineteenth and twentieth centuries, criminal procedure carried the appearance of reliability. Because the criminal justice system had found a different way to accurately judge guilt, it no longer needed a strict charging standard to satisfy its demand for certainty--or so it must have seemed to decisionmakers.

Part III applies the framework developed in Parts I and II to the contemporary use of the probable cause standard. By the second half of the twentieth century, it had become clear to all that plea bargains, not trials, had become the primary mechanism of criminal adjudication. (12) The rise of plea bargaining undercut the probable cause standard's basic logic: that grand juries and magistrates need not be certain of a suspect's guilt because trial juries will be. As Part III.A explains, a substantial body of literature identifies consequences of the criminal justice system's pivot to plea bargaining. According to many commentators, plea bargaining spawned (i) strong prosecutorial control over criminal justice, (13) and (ii) chronic uncertainty about the factual and/or legal guilt of the individuals punished. (14) To the extent these critiques are right, plea bargaining diminishes both of the criminal justice values that strict charging standards offer. The probable cause standard, moreover, exacerbates these consequences of plea bargaining in important ways not fully explored in the literature, as Part III.B describes.

Once plea bargaining's domination of the criminal justice system had become apparent, one might have expected to see a reversion to a stricter charging standard. That is not, of course, what happened. Part III.C identifies three ways to understand probable cause's survival in the age of plea bargaining. First, it may be that policymakers no longer valued certainty of guilt or constraints on prosecutors as much as they once did. Second, "voluntary" guilty pleas may have provided, or appeared to provide, an adequate amount of social certainty of guilt. Third, perhaps policymakers never reexamined the fit between charging standards and the plea bargaining regime. This too is plausible. American criminal justice backed into plea bargaining, and formal law has long been ambivalent about it. (15) It is altogether possible that probable cause's survival is nothing more (or less) than path dependency.

A brief Conclusion considers normative implications of the analysis. The crucial implication is that probable cause is a choice, not a fixed element of our legal tradition. While the explanations for probable cause's survival in Part III are descriptively plausible, they are normatively troubling. Charging standards should fit the criminal justice systems of their day, and ours does not. The time has come to recalibrate the charging standard to fit the criminal justice system as it exists now. (16)

I. A Framework for Understanding Criminal Charging Standards

Imagine a criminal justice system with no criminal charging standard whatsoever. (17) Prosecutors can file formal criminal charges at will, with or without evidence or suspicion. Cases then proceed to disposition by plea or trial.

Such a system would differ from one with a charging standard in two significant ways. First, it would likely have more false positives. That is, it would probably convict more innocent defendants. (18) Under realistic assumptions, charging standards prevent some number of innocent defendants from being charged. (19) Sometimes this is because a magistrate or grand jury, applying the charging standard, rejects a case. (20) More generally, because prosecutors make charging decisions in the shadow of the charging standard, they sometimes decline to file cases where the evidence falls short. A system without a charging standard lets more innocents proceed to final disposition. Because all adjudicative systems make mistakes, some innocents will inevitably be erroneously convicted. (21) In more formal terms, the combination of a charging standard with a separate merits adjudication is a "second-opinion" mechanism. (22) When both opinions signal that the defendant is guilty, there is more reason to be confident that he is. (23)

Second, prosecutors in a world without charging standards would possess an unchecked power to subject people to the rigors and risks of the criminal process. A standard imposes a constraint. The constraint may be internal--if the prosecutor feels bound to abide by it. (24) It may be external--if it is enforced by a magistrate, grand jury, or some other independent body. Or it may be both.

Criminal charging standards thus have two significant effects on criminal justice systems: they make them more accurate (with respect to false positives), and they check prosecutorial authority. The stricter the charging standard, the greater the effects. The more one ratchets up a charging standard, that is, the more confident one can be that prosecutors are constrained and that convicted defendants are actually guilty.

This is a simple framework by design, and it does not purport to "predict" the selection of a charging standard. (25) A predictive model would necessarily account for additional variables, especially the social costs of charging standards. (26) But while certainty of guilt and constraint on prosecutorial delegations are not the only considerations bearing on the choice of a charging standard, they are important ones. If demand for one or the other rises or falls, or if their supply elsewhere in the criminal justice system changes, there is a reason to expect a modification in the charging standard. And if the charging standard stays the same despite such changes, that merits further investigation. As we will see in Part II, the framework helps make sense of the peculiar history of charging standards in the United States, and Part III demonstrates that this framework provides useful new ways to understand and evaluate the probable cause standard under modern criminal justice conditions.

II. A History of Charging Standards

On April 20, 1790, Justice James Wilson charged the first federal circuit grand jury to sit in Pennsylvania. (27) Recognizing that "little business of a particular nature" would come before the grand jurors--the first federal crimes would not be created until later that month--Wilson spoke generally about the American system of grand and petit juries. (28) He especially wished to discuss the "manner[] in which grand juries ought to make enquiries," a topic that "well deserves to be attentively considered." (29) Wilson acknowledged that it had been "declared by some, that grand juries are only to enquire, 'whether what they hear be any reason to put the party to answer,'--'that a probable cause to call him to answer is as much as is required by law.'" (30) Wilson found this unacceptable: "Ought not moral certainty to be deemed the necessary basis, of what is delivered under the sanction of an obligation so solemn and so strict [as a grand jury's verdict]?" (31) Then he condemned the "probable cause" doctrine in the strongest possible terms:
   The doctrine, that a grand jury may rest satisfied merely with
   probabilities, is a doctrine, dangerous as well as unfounded: It is
   a doctrine, which may be applied to countenance and promote the
   vilest and most oppressive purposes: It may be used, in pernicious
   rotation, as a snare, in which the innocent may be entrapped, and
   as a screen, under the cover of which the guilty may escape. (32)

Fast forward to 1978. In September, the Federal Judicial Conference approves a "model grand jury charge" designed for use in district courts around the country. (33) It informs grand jurors that the trial jurors, not them, "decide[] whether the accused person is guilty or not guilty of the crime charged in the indictment." (34) Their task is narrower: "[Y]our duty [is] to see to it that indictments are returned against those who you find probable cause to believe are guilty...." (35) Wilson's nightmare had been realized. (36)

This Part seeks to recover the peculiar history of criminal charging standards in the United States between the Founding and the twentieth century. Subpart A looks closely at the charging standard at the Founding. The surviving grand jury charges from the era show that judges who considered the evidentiary standard overwhelmingly agreed with Justice Wilson. Subpart B then examines the slow but steady ascent of "probable cause" during the late nineteenth and twentieth centuries.

A. The Founders' Charging Standard

According to Barbara Shapiro's leading historical analysis of Anglo-American charging standards, no commonly accepted understanding of the evidentiary standard for an indictment existed during the Founding era. In her superb study of grand jury charging standards, Shapiro reports that "[d]espite the constitutional provision and the ringing statements of [Justice] Wilson, no commonly accepted evidentiary standard emerged in the early years of the Republic." (37) New evidence casts new light on this conclusion.

In 2012, Stanton Krauss published Gentlemen of the Grand Jury, containing every surviving grand jury charge given by American judges prior to 1801. (38) As detailed in this Part, a careful examination of these charges reveals that among the American judges of the Founding generation who expressed a view, Justice Wilson's position--that a grand jury should return an indictment only upon an evidentiary showing more demanding than probable cause--dominated. While the anti-probable-cause view may or may not rise to the level of a "commonly accepted evidentiary standard," the newly available charges demonstrate, at a minimum, that it circulated much more widely than previously thought. The resistance of many Founding-era judges to criminal charges based on bare probable cause is powerful evidence, moreover, that the probable cause standard is not an inevitable or necessary feature of the American legal tradition.

The Founding-era judges were not writing on a blank slate. They were responding--sometimes explicitly and more often implicitly--to a vigorous debate between two groups of English lawyers and judges from the late seventeenth century. As such, our story begins on the other side of the Atlantic, in the Restoration-era English contests between Tories--who favored a precursor of probable cause--and Whigs--who demanded a stricter standard.

Part II.A proceeds as follows: Subpart 1 explains the English debate and its transmission to America. Subpart 2 describes the charges of the Founding-era American judges who, like the English Whigs, told grand juries to return indictments based on evidentiary criteria stricter than probable cause. Subpart 3 considers the handful of Founding-era judges who gave probable cause instructions. Finally, Subpart 4 offers an explanation of why many Founding-era judges gravitated towards the Whig/Wilson view.

1. The English debate and its transmission

At common law, the job of charging crimes belonged to grand juries. (39) Although the grand jury is traditionally dated to the Assize of Clarendon in 1166, (40) for the first 500 years of its existence, no one gave the evidentiary standard for an indictment the "attentive consideration" that Justice Wilson thought it deserved. (41) Even the great jurist-scholars of the early and mid-seventeenth century, Edward Coke and Matthew Hale, addressed it only in passing. Coke averred vaguely that "seeing the indictment is the foundation of all, it is most necessary to have substantial proof." (42) Somewhat in tension with Coke, Hale wrote that "in case there be probable evidence," a grand jury "ought to find the bill, because it is but an accusation, and the party is to be put upon his trial afterwards." (43)

Sustained attention to the grand jury's evidentiary standard began in 1677, when Zachary Babington published Advice to Grand Jurors in Cases of Blood. (44) Babington, the longtime assize clerk at Oxford, was worried that grand juries too often returned indictments for manslaughter rather than murder. (45) Grand jurors, he believed, typically lacked the legal knowledge to grade homicides. (46) Unlike trial jurors, moreover, they had no access to the defendant's evidence. (47)

The grand jury's deficient legal and evidentiary tools translated, for Babington, into a minimalist epistemological conception of indictments. "[I]t is the duty of all Grand Jurors, in all Cases of blood," Babington explained, "where the Bill of Indictment is brought unto them for Murther, in case they find, upon the Evidence, any probability that the person said to be killed in the Indictment!] was slain by the person charged to do it in the Indictment!,] to put Billa vera [true bill] to that Indictment." (48) Any higher evidentiary standard, in Babington's view, and the grand jury risked usurping the role of the trial judge or jury:
   [H]ow exceeding dangerous and inconvenient were it for Grand
   Jurors, so far to anticipate the Judgment of the Court, and to take
   upon themselves ... the sole Judgment of Law in all these Cases, by
   not finding the Indictment!,] . especially ... where they have
   probable Evidence (for they need no more) to prove such a person
   killed by the hands of such a person.... (49)

While Babington sought throughout Advice to Grand Jurors to minimize the grand jury's interference in the administration of criminal justice, he never explained what positive function the grand jury should play. The omission would become central to the Whigs' response.

Only a few years after Advice to Grand Jurors appeared, the Tory prosecutions of Whigs Stephen Colledge and Anthony Ashley Cooper, the Earl of Shaftesbury, thrust the grand jury into the political spotlight. The Colledge and Shaftesbury cases are inseparable from the political and religious context of the Exclusion Crisis, which pitted Shaftesbury, an anti-Catholic "country" politician and the leader of the nascent Whig Party, against King Charles II and his brother James, the Catholic Duke of York. (50) The major political aim of the early Whigs was legislation excluding James--whom they saw as embodying absolutism--from the line of succession. (51) Their power base was the House of Commons, where they won majorities in three elections held between 1679 and 1681. (52) Charles and James's supporters, who became known as the Tories during this period, fended off exclusionary legislation from their stronghold in the House of Lords. (53) In 1681, the Whigs lost their political clout when Charles dissolved the Oxford Parliament (so named because it met at the Tory stronghold of Oxford) without calling new elections. (54) Not satisfied with merely a political victory, Tories made plans to prosecute several Whigs, including Shaftesbury. (55) But first, they would need to secure grand jury indictments.

Colledge, a minor figure in the Whig party, was the warm-up. The Crown accused him of threatening violence during the Oxford Parliament and asked a London grand jury to return an indictment for treason. (56) Unfortunately for the Crown, London was the Whigs' last remaining bastion of influence. A Whig-packed grand jury returned an "ignoramus," what today we would call a "no bill." (57) Colledge's victory proved short-lived. The Crown brought the case to a grand jury in Oxford, which returned a true bill. (58)

The stage was thus set for the prosecution of Shaftesbury himself, whose popularity had ebbed since the dissolution of the Oxford Parliament. (59) Tories saw his prosecution as among the final steps in mopping up the Exclusion Crisis. (60) The Crown alleged that he had committed treason by threatening Charles. (61) Apparently lacking a jurisdictional basis to bring their case outside London, however, the Tories were stuck with a Whig grand jury. (62)

Chief Justice Pemberton, the presiding Tory judge, attempted to counter the grand jury's political affiliation by insisting that the evidentiary bar for an indictment was very low. Although he never cited Babington by name, the influence was clear. "Look ye, Gentlemen," Pemberton implored, "I must tell you, That that which is referr'd to you, is to consider, whether, upon what Evidence you shall have given unto you, there be any Reason or Ground for the King to call these Persons to an Account." (63) He continued: "A probable Cause, or some Ground, that the King hath to call these Persons to answer for it, is enough, Gentlemen, for you to find a Bill, 'tis as much as is by Law requir'd." (64) Pemberton's gambit failed when the grand jury returned another ignoramus. (65)

In the aftermath of the Colledge and Shaftesbury cases, books and pamphlets about the evidentiary standard for an indictment proliferated. Many of the contemporary pamphleteers praised the London grand juries. Henry Care, a prominent Whig, included a section on grand juries in his influential book, English Liberties: Or, The Freeborn Subject's Inheritance, first published in 1681 or 1682. (66) Grand jurors, just like petit jurors, Care wrote, must "be fully satisfied in their Consciences, that [the defendant] is Guilty." (67) Care also responded to the "probable cause" standard advanced by Pemberton: "People may tell you, That you ought to find a Bill upon any probable Evidence, for 'tis but matter of Course, a Ceremony, a Business of Form, only an Accusation...." (68) This cannot be, Care reasoned, or else "to what purpose have we Grand Juries at all?" (69) An anonymous pamphleteer echoed this theme, explaining that the idea that grand juries should return indictments based on the "probability of the thing" rendered them "[o]nly for show." (70)

The most sophisticated writing on the Whig side--indeed the Whigs' real answer to Babington--was The Security of Englishmen's Lives, written in 1681 by Lord John Somers. (71) Early in the tract, Somers offered what Babington had not--an explanation of the grand jury's function. "Our ancestors" instituted a grand jury, Somers reasoned, because they "thought it not best to trust" the power of criminal accusation to
   any officer of the king's, or in any judges named by him, nor in
   any certain number of men during life, lest they should be awed or
   influenced by great men, corrupted by bribes, flatteries, or love
   of power, or become negligent, or partial to friends and relations,
   or pursue their own quarrels or private revenges, or connive at the
   conspiracies of others, and indict thereupon. (72)

Somers thus saw the grand jury as a vital check against the dangers inherent in delegating prosecutorial power to the King's officials.

His understanding of the grand jury's role led Somers to a strict evidentiary criterion for an indictment: a grand juror should vote to find a true bill only if his conscience is satisfied that the defendant is in fact guilty. (73) This standard was, to Somers, anathema to the Tory focus on "probabilities." "Probable, is a logical term," he explained, "relating to such propositions, as have an appearance, but no certainty of truth; shewing rather what is not, than what is the matter of syllogisms." (74) Somers allowed that "[t]hese may be allowed in rhetorick," but not "in logick, whose object is truth." (75)

The debate between the Whigs and the Tories was conducted in epistemological terms--should an indictment require "certainty" or "probability"? Not far beneath the debate's surface lurked a fiercely contested political question: Should grand juries constrain prosecutors? The parties' positions were dictated by the facts on the ground. Tories controlled the prosecutorial function. Whigs did not. Predictably, when Whigs were haled before grand juries on political charges, their allies championed the grand jury as a check against delegated prosecutorial power. And they adopted a demanding charging standard, backed by moral and epistemic arguments. For the Tories, checks on prosecutorial power obstructed the plan to prosecute their political rivals. Inevitably, the Tories gravitated to a permissive charging standard, which they justified by touting the epistemic advantages of petit over grand juries.

My concern is not with the Whigs and Tories per se, but with their impact on American thinking. Americans learned about their debate, and generally about the English law of grand juries, in three main ways: reprinted Whig tracts, legal treatises, and justice of the peace manuals.

First, Americans read Whig writing about the indictment standard. Two of the most significant Whig pamphlets of the debate were reprinted in America. (76) Somers's The Security of Englishmen's Lives was printed in New York in 1773, (77) and Henry Care's English Liberties was printed in Boston in 1721 and Providence in 1774. (78) On the other hand, none of the Tory pamphlets of the debate seem to have been reprinted in America. Americans apparently had an appetite for Whig writing on grand juries, especially in the run-up to independence.

Treatises were the second major source of American knowledge of English grand juries. Two are particularly important: Matthew Hale's History of the Pleas of the Crown and William Blackstone's Commentaries on the Law of England. I have already noted Hale's remark ratifying the Tory position, which was written sometime before the Whig-Tory debate. (79) Curiously, when his treatise was published posthumously in 1736, its editor appended a footnote suggesting that the law of indictments had since moved towards the Whig view. (80)

As on so many issues, Blackstone was also influential on American thinking.

Here, in full, is his analysis of the grand jury's evidentiary standard:
   [T]hey are only to hear evidence on behalf of the prosecution: for
   the finding of an indictment is only in the nature of an inquiry or
   accusation, which is afterwards to be tried and determined; and the
   grand jury are only to inquire upon their oaths, whether there be
   sufficient cause to call upon the party to answer it. A grand jury
   however ought to be thoroughly persuaded of the truth of an
   indictment, so far as their evidence goes; and not to rest
   satisfied merely with
   remote probabilities: a doctrine, that might be applied to very
   oppressive purposes. (81)

While Blackstone is not unequivocal, (82) he does take a side in the Whig-Tory contest. The replacement of "sufficient cause" for the preferred Tory formulation of "probable cause" is telling. Still more revealing is his insistence that the grand jury must be "thoroughly persuaded of the truth" of the indictment, a notion incompatible with Tory thinking. But the coup de grace is a footnote at the end of Blackstone's discussion citing a Whig critic of Chief Justice Pemberton for the proposition that the "remote probabilities" standard can lead to "oppressive purposes." (83) This is, in context, a direct attack on Pemberton. While the Whigs would have pushed back against Blackstone's claim that the indictment is only an "accusation," rather than a "verdict," they would, on the whole, have embraced his text. The Tories would have resisted it.

Third, and most importantly, Americans learned of the Whig-Tory debate in justice of the peace manuals. As Thomas Davies has noted, justice of the peace manuals were "probably the sources regarding criminal procedure that were most accessible to members of the Framers' generation." (84) Beginning in 1765, manuals began to appear in the colonies based on Burn's The Justice of the Peace, and Parish Officer, a popular British work. (85) Burn, and his American followers, provided the following extended description of the Whig-Tory debate:
      Lord Hale says, that the grand jury at the assizes or sessions
   ought only to hear the evidence for the king, and in case there be
   probable evidence, they ought to find the bill, because it is but
   an accusation, and the party is to be put on his trial afterwards.

      Which doctrine is also laid down by Chief Justice Pemberton, in
   the case of the Earl of Shaftesbury.

      But the learned editor of Hale's History observes upon this,
   that Sir John Hawles in his remarks on the said case, unanswerably
   shews, that a grand jury ought to have the same persuasion of the
   truth of the indictment as a petty jury, or a coroner's inquest;
   for they are sworn to present the truth, and nothing but the truth.

      And L. Coke says, that seeing indictments are the foundation of
   all, and are commonly found in the absence of the party accused, it
   is necessary there should be substantial proof. (86)

Manuals containing this language were printed widely in America. (87)

Shapiro argues that readers of Burn's manual (and the manuals derived from it) must have been puzzled by how to reconcile the views of Hale and Pemberton, on the one hand, and Hale's editors and Hawles, on the other, with Coke perhaps "seem[ing] to offer a third alternative." (88) This is possible, but the text can also be read as presenting the reader with distinct alternatives. Of course, that still leaves readers with the problem of choosing Option A (Hale and Pemberton) or Option B (Hale's editor, Hawles, and maybe Coke). As we will see, many American judges of the Founding era did see this as a choice, and they overwhelmingly picked Option B.

2. The Founding: general view

Until recently, the readily available historical record included the views of only a handful of Founding-era judges about the evidentiary standard for an indictment. Thanks to the publication of Gentlemen of the Grand Jury, (89) the situation has improved markedly.

Grand jury charges in the Founding era had a variety of functions. As Roger Fairfax observes, some judges used them to "lecture captive audiences of prominent local citizens on political issues of the day." (90) Many judges also oriented the grand jurors to the task before them. They explained the jurisdiction's substantive criminal law, (91) the process for receiving witness testimony, (92) and the grand jury's relationship with the prosecuting attorney. (93) In many instances, judges also instructed the jurors on the quantum of evidence they should demand before returning an indictment, an issue that almost never appeared in published legal opinions. (94) Grand jury charges thus open an extraordinary window into the thinking of early American jurists about the evidentiary requirement for a criminal charge.

Founding-era judicial instructions about the quantum of evidence required for an indictment were not uniform, but neither were they closely divided between Whig and Tory views. As this and the next Subparts show, in Founding-era America, among judges who addressed the issue, the Whigs won.

Several judges adopted Blackstone's "thoroughly persuaded" language. Judge Thomas Waties's 1789 charge to a South Carolina grand jury is typical of this approach: "[Y]ou ought to be thoroughly persuaded of the truth of an indictment, as far as the evidence goes, before you assent to it; and ought not to send a person to his trial upon probable grounds only, and the mere presumption of criminality." (95) Other charges told the grand jury to find an indictment only if it was "satisfied," (96) "well satisfied," (97) "fully satisfied]," (98) "convince[d]," (99) or "well convinced" (100) of the defendant's guilt. At least two judges incorporated the Whig idea that grand jurors should present a defendant for trial only if their "consciences" were "satisfied." (101) Yet other judges instructed grand juries to find an indictment only with "the most unequivocal evidence," (102) "moral certainty," (103) evidence "sufficient to convict," (104) the "most probable grounds," (105) the "strongest appearance of criminality," (106) or when it had no "reasonable cause of Doubt." (107) While these formulations offer a range of certainty levels, they share a common theme: all go beyond, and often far beyond, the bare "probable cause" criterion advanced by the English Tories.

While the charges sometimes simply asserted a particular evidentiary criterion, many judges explained their thinking. Like the Whigs before them, several Founding-era judges expressly criticized criminal charges based on "probabilities." We have already seen Justice James Wilson's argument that the probable cause standard could be applied to "promote the vilest and most oppressive purposes." (108) Other judges echoed this concern. Chief Justice James Kinsey of New Jersey found the probable cause standard inconsistent with the grand juror's oath:
   [T]ho' I have often heard it laid down as a rule, that probability
   is a sufficient ground for you to indict a citizen, ... [I] have
   always viewed it as a principle against which reason revolts....
   Indeed if the oath of a Grand-Juryman be considered and compared
   with that of the Petit-jury, and if it also be considered that
   those writers who absurdly advance this doctrine tell you that
   probability is by no means sufficient for a Petit-jury to convict,
   and that it ought to weigh but little, I confess I cannot suggest
   to myself any solid ground for the distinction made between a Petit
   and a Grand-jury.... (109)

South Carolina's Judge Waties agreed: "When indeed you recollect that you are sworn 'to present nothing but the truth,' you will without

doubt require something more than probability to support every charge...." (10)

The notion that the grand jury's inquiry should be as strict or stricter than the petit jury's recurred frequently. "[W]hy should a less evidence indict a man," Judge William Cooper of New York asked, "than the petit-jury have for their verdict?" (111) "[Gjreater exactness and diligence," he continued, "is required of the grand-jury." (112) For Judge Edward Shippen of Pennsylvania, the concurrence of grand and petit jury protects liberty:
      So tender is the Law, and so indulgent to every Person charged
   with a criminal Offence, that before any Bill of Indictment can be
   returned a true Bill, there must be at least twelve of the Grand
   Jury who must concur in finding the Charge again him satisfactorily
   proved; and after that, before he can be finally convicted, the
   whole Petit Jury must agree in the same Judgment; So that twenty
   four at least of his fellow Citizens must be satisfied of his
   guilt, before the Law can punish him. (113)

In a similar vein, Justice Samuel Chase wrote that "every Grand Jury, before they find an indictment, should expect the same proof, and as satisfactory evidencje] of the guilt of the accused as the Petit Jury would require to Justify their verdict against him." (114)

Other judges connected a strict evidentiary requirement to the fact that grand jurors heard only the government's evidence. Justice Francis Dana of Massachusetts, for instance, noted in an undated charge that because the grand jury would proceed in secret and hear only the government's witnesses, "you are to proceed with due caution and to be well satisfied that the evidence laid before you ... is sufficient to do away the first presumption of Innocence, before you establish the accusation." (115) Likewise, Pennsylvania's Judge Shippen explained in 1793 that:
   As you hear the Evidence on one Side only, that Evidence should be
   full and convincing; it is not enough that there are probable
   Grounds of the Guilt of the party but the proof must be either
   positive, or strongly presumptive, before you put the party to the
   Hazard Pain or Expence of a public Trial. (116)

Yet another argument grounded a strict evidentiary criterion in the presumption of innocence. Judge Alexander Addison of Pennsylvania wrote that when the evidence against a suspect is "light or rash," the "common presumption of innocence is a sufficient counterpoise, and you may safely disregard an accusation so lightly supported." (117) Massachusetts's Justice Dana concurred: "In all your enquiries Gentlemen take this maxim with you, That the Law presumes every Man innocent untill his guilt is made apparent." (118)

3. The Founding: outliers

From the surviving grand jury charges, we know that at least six Founding-era American judges charged grand jurors to return an indictment on probable cause alone. (119) Four of them--William Henry Drayton, Henry Pendleton, John Faucheraud Grimke, and Elihu Hall Bay--were from South Carolina, while the other two--Thomas McKean and Richard Peters--presided in Pennsylvania.

a. South Carolina

Between 1774 and 1784, three South Carolina judges charged grand juries in conformity with the Tory probable cause standard. (120) None of the charges contained a detailed explanation of the standard's logic. The most elaborate justification was from Judge Grimke, who explained the probable cause standard as a kind of inverted Blackstone ratio:
   [I]t is not to be understood that you are to make so minute an
   investigation into such matters, as are the proper subjects of your
   enquiry, as to establish the fact itself. You are to find the bill,
   tho' founded only upon probable grounds of suspicion, that the
   accused is guilty.... And in conformity to that wise maxim which
   declares that it is better that ten guilty men should elude the
   justice of the Courts of Law, than that one innocent person should
   suffer unmeritedly; it is likewise preferable, that ten guiltless
   persons should undergo the inconveniency of an examination before
   you, than that one offender should triumph in his crimes with
   impunity. (121)

South Carolina is exceptional for two reasons. First, prior to 1788, South Carolina did not have a justice of the peace manual based on Burn's Country Justice. (122) Its manual, William Simpson's The Practical Justice of the Peace and Parish-Officer, of His Majesty's Province of South-Carolina, first published in 1761, lacked the standard text describing the positions of Hale, Pemberton, Hale's editor, Hawles, and Coke on the indictment standard. (123) Indeed, it did not offer any guidance at all about the evidentiary requirement for an indictment.

Where, then, did the South Carolina judges derive the probable cause standard? The likely explanation--and the second reason South Carolina is exceptional--is that they found it in an early eighteenth-century grand jury charge by Nicholas Trott, South Carolina's first Chief Justice. Trott, who received his legal training in England in the 1690s before travelling to South Carolina, (124) apparently knew the then-recent Whig-Tory debate well. In a 1706 charge, he cited Babington's Advice to Grand Jurors for the proposition that:
      You are not to try ye Prisoner but to consider whither or no
   there is just cause of Accusation, or that probable proof of ye
   fact laid in the Charge, as that the Person ought to be put upon
   his Tryal for the same; For then there is an other Jury which
   properly are said to try ye Prisoner, and are to pass between
   him & ye Queen upon his Life or Death. (123)

It seems likely that Trott's charge was the source material for Judges Drayton, Pendleton, and Grimke. (126)

In 1788 a new justice of the peace manual appeared, The South-Carolina Justice of the Peace. (127) A preface complained that Simpson's manual, which it effectively replaced, contained only the "rudiments" of materials magistrates needed to perform their duties. (128) The new manual included Burn's familiar account of the Whig-Tory debate. (129) The next year, Judge Thomas Waties charged a South Carolina grand jury in accord with the Whig view, telling the jury (as quoted above), that it "ought not to send a person to his trial upon probable grounds only, and the mere presumption of criminality." (130) While South Carolina appears to have been moving toward the more common American view of the charging standard, two years later, another South Carolina judge, Elihu Hall Bay, told a grand jury that it was to determine "whether there are probable grounds for prosecuting the offenders complained of." (131) Thus, even after its new justice of the peace manual and Waties's impassioned critique of the probable cause standard, South Carolina may have remained an outlier.

b. Pennsylvania

Compare two grand jury charges by Pennsylvania Chief Justice Thomas McKean. The first is from 1778: "We now beg leave to dismiss you, with this recommendation, in all doubtful cases to incline rather to acquital than crimination; for it is safer to err in acquitting than in punishing, on the side of mercy than on the side of justice." (132) A decade later, McKean told another grand jury:
   [T]he bills, or presentments, found by a grand Jury, amount to
   nothing more than an official accusation, in order to put the party
   accused upon his trial.... It is the duty of the Grand-Jury to
   enquire into the nature and probable grounds of the charge; but it
   is the exclusive province of the Petty Jury, to hear and determine
   ... whether the Defendant is, or is not, guilty.... (133)

The two charges can perhaps be reconciled, but the change in tone is striking. The 1778 version of McKean is almost Whiggish, but by 1788 he is a fierce Tory. Why the shift?

McKean's private thoughts on the matter are lost to time, but the answer may lie in a bitter dispute he had with a Philadelphia grand jury in late 1782 and early 1783. It began when McKean levied hefty criminal fines against two retired army officers convicted of assault. (134) The fines, and a nasty comment McKean made to one of the defendants, drew the ire of Philadelphia printer Eleazer Oswald, who published columns critical of McKean in his paper. (135) Incensed by Oswald's impetuousness, McKean had him arrested and presented to the grand jury for seditious libel. (136) After the grand jury twice refused to indict, McKean summoned it for (in the words of a grand juror) a "reprimand." (137) McKean ordered the grand jury to reconsider, but it stuck to its position. (138)

The incident inspired a flurry of newspaper columns and essays on both grand juries and the law of seditious libel. (139) The grand jury itself penned a "Memorial and Remonstrance" objecting to McKean's treatment, which was printed in several Philadelphia papers. (140) McKean responded in a newspaper column under the pseudonym "Jurisperitus," in which he directly addressed the evidentiary standard for an indictment. (141) Invoking Blackstone--while conspicuously failing to disclose Blackstone's "thoroughly persuaded" language--McKean argued that it "has been the law for ages" that a grand jury inquires only into the sufficiency of an accusation. (142) He acknowledged that "some writers" held a different opinion, but urged that "their opinion has never been adjudged or received for law." (143) McKean's colleague on the Pennsylvania Supreme Court, Justice George Bryan, backed McKean in two columns under the pseudonym "Adrian." (144) Like the English Tories, he emphasized the greater importance of the trial over the grand jury. (145) Bryan's columns in turn drew a response from John Witherspoon, the President of the College of New Jersey (now Princeton). (146) Witherspoon noted McKean's obvious conflict of interest in the Oswald matter as a reason why the grand jury might have legitimately declined to indict. The grand jurors, he reasoned, may have been wary of a precedent-setting trial "when an exasperated man, of impetuous passions, was to preside in the determination of his own cause." (147)

The most detailed treatment of the evidentiary questions arising out of the incident appears in two essays by Francis Hopkinson, McKean's brother-in-law and longtime nemesis. (148) Hopkinson, a Philadelphia lawyer and later a federal judge, (149) adopted the persona of an ordinary citizen to critique McKean and Bryan. Hopkinson took aim at Bryan's lament over the grand jury's conduct: "Was there not, (says [Bryan],) the usual probable evidence for an open enquiry by a petit jury? If there was, why stifle the cause in the chamber of the grand inquest?" (150) Hopkinson was shocked. "Probable evidence, and stifle a cause," he exclaimed, was "horrid language!" (151) "[A]re men's lives, reputations, and fortunes to be hung upon the tenterhooks of logical probabilities," he asked, "and is the fair acquittal of a fellow-citizen from a heinous charge to be called a stifled cause?" (152)

McKean is a genuine outlier to the American trend of requiring more than probable cause to support an indictment. For three reasons, this cuts only weakly against my claim that the Whig/Wilson view predominated among Founding-era judges who considered the issue. First (and most speculatively), McKean's change in tone between 1778 and 1788 suggests that his dispute with the Oswald grand jury may have driven his position. Second, the strong reaction against McKean's conduct in the Oswald grand jury proceedings--by the grand jury itself, Witherspoon, Hopkinson, and others--indicates that McKean's thinking was out of the mainstream. Third, and most importantly, McKean's views on the grand jury were not very influential among his contemporaries. McKean seems to have convinced Judge Richard Peters, a federal judge in Pennsylvania, who charged a grand jury in 1792 to return an indictment on probable cause using logic plainly derived from McKean. (153) But even in Pennsylvania, at least three judges (Addison, Edwards, and Shippen) gave contrary grand jury charges after 1788. (154)
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Title Annotation:Introduction through II. A History of Charging Standards A. The Founders' Charging Standards 3. The Founding: Outliers, p. 511-538
Author:Ortman, William
Publication:Stanford Law Review
Date:Mar 1, 2016
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