Guest Column: Roots of the Grand Jury

If it’s not a runaway, it’s not a real grand jury
Roger Roots[1][excerpt from his Constitution Society column here]

constitution_societyI. INTRODUCTION

The doings of American grand juries are notoriously misunderstood and unknown by most sectors of the public.[1] Generally, the grand jury process escapes obscurity only when indictments are made public and when, for whatever reason, grand jury “leaks” are disclosed in the news media.[2] In theory, the grand jury is supposed to act as a check on the government — a people’s watchdog against arbitrary and malevolent prosecutions.[3] By and large, however, federal grand juries rarely challenge federal prosecutors.

Today, critics are nearly unanimous in describing the alleged oversight function of modern grand juries as essentially a tragic sham.[4] The Framers of the Bill of Rights would scarcely recognize a grand jury upon seeing the modern version conduct business in a federal courthouse.[5] In modern federal grand jury proceedings, the government attorney is clearly in charge and government agents may outnumber the witnesses by six-to-one.[6]

A “runaway” grand jury, loosely defined as a grand jury which resists the accusatory choices of a government prosecutor, has been virtually eliminated by modern criminal procedure. Today’s “runaway” grand jury is in fact the common law grand jury of the past. Prior to the emergence of governmental prosecution as the standard model of American criminal justice, all grand juries were in fact “runaways,” according to the definition of modern times; they operated as completely independent, self-directing bodies of inquisitors, with power to pursue unlawful conduct to its very source, including the government itself.[7]

Before the Federal Rules of Criminal Procedure — which made independently-acting grand juries illegal for all practical purposes — grand juries were understood to have broad powers to operate at direct odds with both judges and prosecutors.[8] One recent criminal procedure treatise sums up the inherent inconsistency of the modern grand jury regime:

In theory, the grand jury is a body of independent citizens that can investigate any crime or government misdeed that comes to its attention. In practice, however, the grand jury is dependent upon the prosecutor to bring cases and gather evidence. Except in rare instances of a “runaway” grand jury investigation of issues that a prosecutor does not want investigated, the powers of the grand jury enhance the powers of the prosecutor.[9]

Thus, while the grand jury still exists as an institution — in a sterile, watered-down, and impotent form — its decisions are the mere reflection of the United States Justice Department.[10] In practice, the grand jury’s every move is controlled by the prosecution, whom the grand jury simply does not know it is supposed to be pitted against.[11]

The term “runaway grand jury” did not appear in legal literature until the mid-twentieth century.[12] The reason for this is that the term would have been inapplicable in the context of previous generations: every American grand jury known by the Constitution’s Framers would be considered a runaway grand jury under modern criminal procedure. Constitutional framers knew criminal law to be driven by private prosecution and did not contemplate the omnipresence of government prosecutors.[13] Additionally, early American common law placed far more power and investigative judgment in the hands of grand juries than does the criminal procedure of the twentieth century.

Although in 1946 the drafters of the Federal Rules of Criminal Procedure looked with horror at the prospect of grand juries that “could act from their own knowledge or observation,”[14] long-standing common law precedent upholds the power of grand juries to act “independently of either the prosecuting attorney or judge.”[15] At common law, a grand jury could freely “investigate merely on [the] suspicion that the law [was] being violated, or even because it want[ed] assurance that it [was] not.”[16] In light of the historic independence of the grand jury, the perfidy of the Federal Rules Advisory Committee in limiting the institution through codification can only be seen as willful subversion of well-settled law.[17] A truly independent grand jury — which pursues a course different from the prosecutor — is today so rare that it is an oddity, and a virtual impossibility at the federal level since Rule 6 was codified in 1946.

The loss of the grand jury in its traditional, authentic, or runaway form, leaves the modern federal government with few natural enemies capable of delivering any sort of damaging blows against it.[18] The importance of this loss of a once powerful check on the “runaway” federal government is a focus that has remained largely untouched in the legal literature.

This article examines the historic decrease in the powers of the American grand jury during the twentieth century. It introduces the subject of the grand jury in the context of the constitutional language which invoked it, and then compares the modern application of the institution at the federal level with its common law model.[19] Tracing the historic evolution of the grand jury as an anti-government institution in the English common law until its “capture” by the government in the mid-twentieth century, this article will demonstrate how the role of the grand jury has changed considerably over time. Finally, this article will argue that the modern loss of “runaway” or independent grand juries is unconstitutional and recommend a restoration of the grand jury’s historic powers.

II. THE GRAND JURY’S HISTORIC FUNCTION

The Fifth Amendment to the United States Constitution requires that “[n]o person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury.”[20] Constitutional framers considered this protection “a bulwark against oppression” due to the grand jury’s historic powers to investigate the government and deny government indictments.[21] The grand jury of the eighteenth century usually consisted of twenty-three people acting in secret who were able to charge both on their own (an accusation known as a “presentment”) and upon the recommendations of a prosecutor.[22] In addition to its traditional role of screening criminal cases for prosecution, common law grand juries had the power to exclude prosecutors from their presence at any time and to investigate public officials without governmental influence.[23] These fundamental powers allowed grand juries to serve a vital function of oversight upon the government.[24] The function of a grand jury to ferret out government corruption was the primary purpose of the grand jury system in ages past.[25]

THE MODERN GRAND JURY IN COMPARISON

Today’s federal grand jury hardly fits the image of a noble and independent body.[26] As a practical matter, it is little more than an audience for summary government presentations.[27] Grand juries in federal courthouses do little more than listen to “a recitation of charges by a government witness.”[28] Federal prosecutors, unchecked by a grand jury in its modern misconstruction, can easily obtain whatever result they seek in the grand jury room.[29] They generally call only one witness, a federal agent who summarizes, in hearsay form, what other witnesses (if any) told her.[30] Eyewitnesses, even if available, rarely appear, and the entire presentation of the prosecutor’s case may take as few as three minutes.[31]

Even the federal grand jury handbook issued to newly sworn grand jurors reflects the watered down nature of modern grand jury activities.[32] The 1979 version of the handbook assured jurors that “you alone decide how many witnesses” are to appear.[33] Five years later, the updated version of the handbook told jurors “that the United States Attorney would ‘advise them on what witnesses’ should be called.”[34]

“Today, the grand jury is the total captive of the prosecutor,” wrote one Illinois district judge, “who, if he is candid, will concede that he can indict anybody, at any time, for almost anything, before any grand jury.”[35] Supreme Court Justice William Douglas wrote in 1973 that it was “common knowledge that the grand jury, having been conceived as a bulwark between the citizen and the Government, is now a tool of the Executive.”[36] At least one scholar has suggested that the problem of grand jury subordination may be so institutionalized that its very structure violates due process.[37] The critics are unanimous in their condemnation of the modern grand jury process as little more than an elaborate ritual used only to justify by ceremony the decisions of the government. Commentators only disagree on whether to term the grand jury the prosecutors; “indictment mill,” “rubber stamp,” a “tool” or “playtoy.”[38]

STATISTICAL PROOF

According to David Burnham of the Transactional Records Access Clearinghouse (“TRAC”), the statistical evidence “overwhelmingly supports what practicing lawyers have known in an anecdotal way for many years: One of the basic safeguards promised by the Fifth Amendment is a fraud.”[39] Describing traditional expressions by federal judges concerning the grand jury as those of “almost mystical faith” — with little basis in reality, Burnham speaks of scores of decisions in which courts have found that Justice Department lawyers lied, cheated, or took other improper actions to win their indictments and convictions, but which courts found did not serve to overpower the grand jury’s alleged independence.[40] “The grand jury as an institution is worshipped for being something it is not,” according to Burn-ham, “a group of citizens capable of confronting an assistant U.S. Attorney over matters of the law or sufficiency of evidence.”[41] Another writer has described grand jury subpoenas and indictments as “essentially unilateral decisions by prosecutors.”[42]

According to TRAC, of 785 federal grand juries in 1991, grand jurors voted against the prosecutor in only sixteen of the 25,943 matters presented to them, a rate of 99.9% agreement.[43] Even the remaining one tenth of one percent, according to Burnham, might exaggerate a grand jury’s independence, due to prosecutors deliberately “throwing” a couple of prosecutions, such as the possibly disingenuous 1991 “investigation” of Virginia Senator Charles Robb on widespread allegations of illegal tape recording of a political rival.[44]

Even the Justice Department has tacitly conceded that there is almost no such thing as grand jury independence. A 1983 report by its Office of Development, Testing and Dissemination concluded that the imbalance of power between the courts and prosecutors on one hand and the grand jury on the other “makes grand jury effectiveness largely dependent on the good will and ethics of the courts and prosecutors.”[45] The Justice Department report shrugged off this criticism, however, asserting that prosecutors have little incentive for promoting unsound indictments since they have the burden of preparing for trial. “Indeed,” claimed the report, “the incidence of guilty pleas and verdicts following indictment may be seen as evidence of the ultimate effectiveness of the grand jury process.”[46]

Despite this self-serving confidence by the government, the vast majority of disinterested observers view grand jury effectiveness as completely subject to the direction of federal prosecutors. As one scholar put it, “[t]he notion that grand juries do not eliminate weak cases is now so well accepted that it is difficult to find any recent scholarly support to the contrary.”[47]

But while critics of the grand jury process are many, few point to any clearly articulable reasons to explain why the grand juries of the past were so much better at resisting the will of the prosecutor than those of today.[48] Some authorities place the blame on federal prosecutors and argue that Congress should expressly prohibit them from misleading grand juries by withholding exculpatory information or from using illegally seized information to gain grand jury indictments.[49] Others point to the modern grand jury’s lack of investigative tools and call upon Congress to provide grand juries with their own investigative staff and resources.[50] Other sources, such as the American Bar Association, have pointed to modern grand jury instructions as a major source of grand jury subordination, and argue that instructions should be altered to emphasize to grand jurors their independence and their co-equal status in relation to the government.[51 ]Other authorities have placed the blame squarely upon the Federal Rules of Criminal Procedure, which provide no clear avenue for the exercise of traditional grand jury powers.

III. ORIGINS

The grand jury is first known to have existed in 1166, when the Norman kings of England required answers from local representatives concerning royal property rights.[52] In its early centuries, the grand jury evolved into a body of twelve men who presented indictments at the behest of private individuals or the prosecutor of the King.[53] The Magna Carta provided that individuals had the right to go before a grand jury to be charged of their crimes.[54] As trial by a jury of twelve replaced trial by ordeal, the grand jury became a body of twelve to twenty-three men, which is closer to the way it is set up today, acting as ombudsmen between the King’s officials and royal subjects.[55]

Full column here.

[1] Roger Isaac Roots, J.D., graduated from Roger Williams University School of Law in 1999 and Montana State University-Billings (B.S., Sociology) in 1995. He is founder of the Prison Crisis Project, a not-for-profit prison and criminal justice law and policy think tank based in Providence, Rhode Island. He would like to thank David Cicilline, Margaret Curran, Jonathan Gutoff, and Duane Horton for their thoughtful advice and assistance regarding this article.

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