Grand Jury

Though the grand jury has existed in the United States since the colonial period, and the FIFTH AMENDMENT to the U.S. Constitution requires its use in federal criminal proceedings, it has come under increasing attack. Critics charge that it no longer serves the functions the Framers intended, and therefore should be abolished. Defenders admit there may be some problems with it today, but contend that these can be remedied.

Critics aim their attacks at both federal and state grand juries. They note that a grand jury has two functions. One is to review evidence of criminal wrongdoing and to issue an indictment if the evidence is sufficient. The other is to be an investigative arm of the government, helping the prosecutor gather evidence. Critics contend that in both areas contemporary grand juries have failed.

In reviewing evidence of criminal wrongdoing, a grand jury is supposed to act as a shield against ill-conceived or malicious prosecutions. Yet critics charge that grand juries typically rubber-stamp the prosecution's moves, indicting anyone the prosecutor cares to bring before it.

Historically the grand jury was not dominated by a professional prosecutor. Without a strong attorney leading the way, the grand jury was forced to be independent and diligent in reviewing evidence brought before it.

Critics note that many states abolished all or part of the grand jury's jurisdiction at the end of the nineteenth century, in large part because the process had come increasingly under the control of prosecutors. States acknowledged that a professional criminal prosecutor did not need a grand jury's assistance in the charging process. The prosecutor was capable of making an independent, disinterested review of the need to bring charges. Though forty-eight states have grand juries as part of their criminal justice system, many of these judicial bodies are now reserved for serious felonies, usually first-degree murder.

Those who favor ABOLITION of the grand jury argue that the domination of the prosecutor has led to a passivity that destroys the legitimacy of the grand jury concept. Most grand jurors have little background in law and must rely on the prosecutor to educate them about the applicable law and help them apply the law. In addition, at the federal level, there are very complex criminal laws, like the RACKETEER Influenced and Corrupt Organizations statute. Even lawyers find many of these laws difficult to fathom, yet grand jurors are expected to understand them and apply them to intricate fact situations. Not surprisingly, charge the critics, the grand jury tends to follow the prosecution's advice.

Critics point out that though the Fifth Amendment requires a grand jury indictment for all federal crimes, the accused may waive this requirement and accept charges filed by a prosecutor alone on all but capital crimes. Waivers are frequent, and most prosecutions of even serious offenses are initiated by federal prosecutors. Therefore, critics argue that it makes no sense to take additional time and money for a grand jury to convene and participate in a hollow ritual.

For its critics the grand jury has declined from a proactive community voice to a passive instrument of the prosecution. Though the U.S. Supreme Court may talk about the historic importance of the grand jury in Anglo-American justice, few academics defend the institution based on its current performance. Faced with this poor performance, the critics argue that abolition is the best course. It would make the prosecutor directly accountable for the charging decision and remove the illusion that grand jurors are in control.

Defenders of the grand jury acknowledge that there are problems with the modern system, but insist the grand jury is worth saving. Despite its shortcomings the grand jury still allows citizens to help make important community decisions. Though critics may deplore prosecutorial domination of grand juries, they overgeneralize when they call the grand juries rubber stamps for the state. Congress recognized the competency and importance of citizen input when, in the Organized Crime Control Act of 1970 (18 U.S.C.A. §§ 3332–3333), it authorized the creation of "special" grand juries to investigate ORGANIZED CRIME, return indictments if warranted, and issue reports on the results of their investigations.

Supporters also believe that the critics overemphasize the importance of the grand jury in acting as a shield against government oppression. The key function of the grand jury is to enhance the legitimacy of the criminal charges that are returned. Prosecutors use the grand jury to gain community support for charges that might otherwise be perceived as based on racial bias, political motivation, or prosecutorial vindictiveness. A grand jury review may also help a prosecutor avoid bringing charges where the formal requisites of a crime are present but the community's moral sense would regard charges as unjust.

Some supporters of the grand jury admit that it could be improved by severing the close tie between prosecutor and jurors. They point out that Hawaii provides grand juries with their own attorney. Such a "grand jury counsel" provides independent legal advice and acts as a buffer between jurors and prosecutors. This, in turn, makes grand juries more independent and gives their indictments more credibility. Some scholars have argued that though using such a system nationwide would cost more, the added expense would be a small price to pay to reinvigorate the grand jury and restore it to its proper role as a voice of the community.