Mailinglist Archive: opensuse (911 mails)

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Re: [opensuse] On forum mods
On 12/27/2015 09:17 PM, listreader wrote:
On Sun, 27 Dec 2015 20:03:22 -0500
Ruben Safir <ruben.safir@xxxxxxxxxx> wrote:

On 12/27/2015 06:41 PM, Linda Walsh wrote:
Could be done by computer.) Instead, there is the
concept of they jury voting "not guilty" because of "any factor" --
including, not agreeing with the law, or not agreeing with the
punishment. Citizens are the last line of fairness in a corrupt
legal and court system -- since an accused person has the right to
to trial by jury by his "peers".

well, that and assault rifles.


Why do I keep misreading the title of this thread as "On forum meds"?

Disconcerting...

Ralph



CREIGHTON LAW REVIEW, Vol. 33, No. 4 1999-2000, 821

SCHOOL OF LAW
CREIGHTON UNIVERSITY
OMAHA, NEBRASKA

IF IT'S NOT A RUNAWAY, IT'S NOT A REAL GRAND JURY

ROGER ROOTS†

I. 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]

SECRECY ADOPTED IN 1681

By 1681, the English grand jury adopted the rule of secrecy which
allowed it to function out of the sight of the King's prosecutors or
other intemeddlers. It was secrecy that provided the grand jury with its
greatest power as an independent populist body, equipped with an
oversight power on the government. Thus was born the grand jury in its
primal, plenary sense. It was a group of men who stood as a check on
government, often in direct opposition to the desires of those in power.
Eulogized by Coke and Blackstone, the grand jury crossed the Atlantic as
one of the fundamental foundations of common law in the American
colonies.[56]

The development of grand juries in America was similar to that of
England, with a few exceptions. The English colonies in America were
crucibles for popular anti-monarchical ideology. The grand jury was the
initiator of prosecutions, acting "in several of the colonies as
spokesmen for the people . . . and [as] vehicles for complaints against
officialdom."[57] Indeed, in America, the grand jury originally began as
a defense against the monarchy, and was arguably even more independent
than the English grand jury of the 1600s.[58] American grand juries
initiated prosecutions against corrupt agents of the government, often
in response to complaints from individuals.[59]

Crossing the Atlantic Ocean with the first English colonists, the notion
of the grand jury as an indispensable arm of law enforcement became
entrenched. Grand juries in their "runaway" sense were a bedrock
foundation of the English common law that was inherited by the American
justice system.[60] Grand jurors in New Plymouth colony were charged "to
serve the King by inquiring into the abuses and breaches of such
wholesome laws and ordinances as tend to the preservation of the peace
and good of the subject."[61] In early Connecticut, grand jurors were
specifically mandated to report any breaches of the laws they knew of in
their jurisdiction.[62] In Massachusetts, grand jurors had to appear at
least once yearly before their county courts to disclose "all
misdemeanors they shall know or hear to be committed by any person."[63]
These grand jurors had a duty to report offenses in their communities
that came to their attention, to personally investigate suspected
wrongdoing, and to question anyone whose behavior seemed suspicious.[64]

In the early American experience, the grand jury became more a part of
local government than it had apparently ever been in England. A grand
jury in Virginia in 1662 was part of the country system, which meant
that they would meet two times a year "to levy taxes and oversee
spending, supervise public works, appoint local officials, and consider
criminal accusations."[65] Connecticut grand juries were levying taxes
and conducting local government work by the middle of the 1700s.[66] A
similar active role in local government was assumed by grand juries in
the Carolinas, Georgia, Maryland, New Jersey, and Pennsylvania, all of
which had sufficient independence to publicly announce dissatisfaction
with government.[67]

The grand jury that the drafters of the Bill of Rights knew was no doubt
more powerful than any known in England. Indeed, the actions of grand
juries figured prominently in the beginnings of the Revolution. In 1765,
a Boston grand jury refused to indict Colonists who had led riots
against the Stamp Act.[68] Four years later, as tensions intensified, a
Boston grand jury indicted some British soldiers located within the city
boundaries for alleged crimes against the colonists, but refused to
treat certain colonists who had been charged by the British authorities
for inciting desertion in a like manner.[69] A Philadelphia grand jury
condemned the use of the tea tax to compensate the British officials,
encouraged a rejection of all British goods, and called for organization
with other colonies to demand redress of grievances.[70]

Contrary to the modern situation where secrecy is court imposed and
aimed at aiding the prosecutor in gaining an indictment, these grand
juries embraced secrecy as an inherent power of their own, independent
of any other governmental institutions. Indeed, colonial grand juries
became sounding boards for anti-British sentiment. They functioned as
patriotic platforms and propaganda machines, constantly condemning the
British government and encouraging individuals to support the effort of
independence.[71] "In some instances," according to commentators, "the
calls to arms were sounded by the grand jurors themselves; in others,
the sparks came from patriotic oratory by the presiding judges in their
charges to the grand jury."[72 ]The public proclamations of these grand
juries were drastically different from anything we know today; they were
often circulated in local and national newspapers in an effort to "fuel
the revolutionary fire."[73 ]The process for receiving private
testimony, outside the presence of the court officials, remained a
common practice for a century after the grand jury was enshrined in the
Bill of Rights.[74] Throughout the 19th century, grand juries often
acted on their own initiative in the face of opposition from a district
attorney. It was just such a grand jury that probed and "toppled the
notorious Boss Tweed and his cronies" in New York City in 1872. Without
the prosecutor's assistance, the Tweed grand jury independently carried
out its own investigation in a district that had otherwise been very
loyal to Tweed.[75]

In 1902, a Minneapolis grand jury on its own initiative hired private
detectives and collected enough evidence to indict the mayor and force
the police chief to resign.[76] This same grand jury virtually governed
the city until a new administration could be hired. Similar events
occurred in San Francisco five years later, when a grand jury indicted
the mayor and replaced him.[77]

But beginning about 1910 or so, the grand jury ceased to operate so
independently. As the government began to regulate the grand jury more
and more, the grand jury became "captured." The practice of allowing a
prosecutor to investigate crime allegations and then present his
evidence for indictment before the grand jury became routine and evolved
into such standard practice that by the end of the nineteenth century it
had become a part of "normal" grand jury operations. While previously
the prosecutor often did not get a case until after indictment, now he
was frequently allowed to present evidence before the grand jury
personally. By the turn of the twentieth century, according to one
commentator, "with the prosecutor inside the grand jury room, the
purposes of grand jury secrecy were no longer apparent."[78]

As the grand jury slowly lost its full historic purpose, grand juries
became resigned to a minute corner of the American justice system.
American grand juries ceased to initiate their own investigations.
"Dramatic, sometimes violent confrontations between grand juries and
prosecutors, politicians, legislatures, even within the grand juries
themselves, became largely things of the past by about the 1930's."[79]

During this period of the grand jury's slow decline in the states,
federal grand juries became, ironically, more important. Although
federal grand juries had been a rather obscure element of American
criminal procedure before the twentieth century, they stood poised to
explode in importance due to the increase of federal criminal
jurisdiction by the turn of the century.[80] The growing importance of
federal grand juries came at the precise historic moment when state
models for grand juries were becoming more and more limited. In fact,
because federal grand jury practice looked by necessity to state grand
juries as models for federal procedure, the resulting model for federal
grand jury proceedings was actually a mere shell of the model intended
by the Framers.[81]

From the ratification of the Bill of Rights in 1789, up until and to
some extent beyond its codification in the Federal Rules of Criminal
Procedure, a Federal grand jury practice went for the most part
unregulated by statute.[82] This was due to the limited constitutional
jurisdiction of the federal government, and to the scarcity of federal
statutes governing criminal justice, a domain traditionally reserved to
the states.[83] In its traditional form, the citizen grand jury had come
to be seen as an inefficient, unnecessary and possibly dangerous
phenomenon.[84] Ultimately, a combination of judicial activism,
executive contempt and legislative apathy left the federal grand jury
weakened and contained before it had a chance to truly roam free.[85]

1946 ENACTMENT OF THE FEDERAL RULES

In 1946, the Federal Rules of Criminal Procedure were adopted, codifying
what had previously been a vastly divergent set of common law procedural
rules and regional customs.[86] In general, an effort was made to
conform the rules to the contemporary state of federal criminal
practice.[87] In the area of federal grand jury practice, however, a
remarkable exception was allowed. The drafters of Rules 6 and 7, which
loosely govern federal grand juries, denied future generations of what
had been the well-recognized powers of common law grand juries: powers
of unrestrained investigation and of independent declaration of
findings. The committee that drafted the Federal Rules of Criminal
Procedure provided no outlet for any document other than a
prosecutor-signed indictment. In so doing, the drafters at least
tacitly, if not affirmatively, opted to ignore explicit constitutional
language.[88]

IV. THE LOST PRESENTMENT POWER OF THE GRAND JURY

The Fifth Amendment to the United States Constitution requires that no
person shall be held to answer for a capital or otherwise infamous crime
except by a presentment or indictment of a grand jury.[89]

What all authorities recognize as a "presentment," however, has been
written out of the law and is no longer recognized by the federal
judiciary.[90]

A presentment is a grand jury communication to the public concerning the
grand jury's investigation. It has traditionally been an avenue for
expressing grievances of the people against government.[91 ] In early
American common law, the presentment was a customary way for grand
juries to accuse public employees or officials of misconduct.[92] While
an "indictment" was normally thought to be invalid without the signature
of a government prosecutor, a presentment required no formal assent of
any entity outside the grand jury. In early America, a presentment was
thought to be an indictment without a prosecutor's signature and a
mandate to a district attorney to initiate a prosecution.[93]

According to Professor Lester B. Orfield, who served as a member of the
Advisory Committee on Rules of Criminal Procedure, the drafters of Rule
6 consciously decided that the term "presentment" should not be used in
the Rules — even though the term appears in the Constitution.[94]
"Retention," wrote Orfield, "might encourage the use of the 'run-away'
grand jury as the grand jury could act from their own knowledge or
observation and not only from charges made by the United States
attorney."[95]

A presentment is generally drafted from the knowledge and findings of
the jurors themselves, rather than a prosecutor, and signed individually
by each juror who agrees with it. A presentment at common law stood
public with or without approval of a prosecutor or court. In the early
days of the Republic, the Attorney General hinted that a federal
prosecutor was obliged to indict upon the presentment by the grand
jury.[96] Thus, Rule 6 represented a monumental — and deliberate —
change of grand jury practice.[97] Orfield's peculiar use of the term
"runaway" grand jury in the committee notes may mark both the advent of
this term into the legal lexicon[98] and the loss to history of true
grand jury independence.[99]

With the Federal Rules, the grand jury was drastically altered, in what
can only be seen as an immense assault on the grand jury as an
institution, if not an absolute coup d'etat upon it. The rule drafters
deliberately pigeonholed the citizen grand jury into a minor role of
either approving or disapproving of a prosecutor's actions. With the
enactment of Rule 6, the federal government's undeclared war on the
grand jury was almost won. What remained of the federal grand jury as a
free institution was left to the federal courts to whittle away even
further.

The federal courts were quick to uphold the federal rules when it came
to deciding matters relating to the grand jury. In almost cyclical
logic, the federal courts have claimed in near unison that presentments
accusing unindicted persons of crime cannot be allowed, absent judge or
prosecutor approval, "past unchallenged practice" notwithstanding.[100]
Thus, hundreds of years of grand jury jurisprudence was overthrown by
codification.[101]

Justification for hobbling grand juries in this manner was based on the
argument that those who are accused in grand jury documents are denied
due process rights that the courts have a duty to protect.[102 ] It was
argued that allowing the continuance of common law grand jury powers
would expose countless persons — many of them government agents — to
unanswerable accusations in the public eye.[103] Protecting public
officials from public scorn thus won out over upholding the traditional
powers of federal grand juries. Numerous avenues for innocent persons to
fight such accusations are available.[104] Nevertheless, courts during
the latter twentieth century have appeared to uniformly adopt the
"protect people from grand jury accusations" rationale for barring the
federal grand juries from issuing presentments.[105]

Another aspect of the grand jury's lost powers that has received little
consideration in the legal literature is that of grand jury's loss of
power to turn on the government and publicly exonerate a suspect. With
curtailment of the grand jury's power to accuse without prosecutorial
sanction also came curtailment of the grand jury's power to formally and
publicly exonerate. This loss of power also serves the interests of
modern government by allowing a prosecutor to resubmit a matter to a new
grand jury, a practice which almost always can produce a true bill
eventually — even against a ham sandwich.[106]

One principle example in American history of a political persecution
that was exposed by the presentments of grand juries is the almost
unbelievable story of Aaron Burr.[107] After what can only be described
as a bizarre political career,[108] Burr found himself disliked by both
the Federalists and the Republicans.[109] The United States Attorney for
Kentucky, a staunch Federalist aligned with his own party's strongest
rival President Jefferson, moved that a grand jury be summoned to
consider charges against Burr for his alleged attempt to involve the
United States in a war with Spain.[110] This grand jury from
Republican-dominated Kentucky returned an "ignoramus bill," declining to
indict Burr on the evidence.[111] Going even further, the grand jury
issued a written declaration directed to the court in which they
declared that Burr failed to exhibit "any design inimical to the peace
and well-being of the country."[112]

A second grand jury was indubitably spurred by Jefferson himself.[113]
The second proceeding convened in Mississippi Territory to consider
similar treason charges against Burr relating to his expedition down the
Mississippi River.[114] It was alleged that Burr intended to capture New
Orleans, a city of nine thousand people protected by a thousand United
States soldiers, using sixty unarmed men in ten boats.[115] The
Mississippi grand jury not only declined to indict Burr in the affair,
but returned presentments which clearly labeled the government's
attempted charges as a vindictive prosecution.[116] The presentment
concluded that "Aaron Burr has not been guilty of any crime or
misdemeanor against the laws of the United States or of this
Territory."[117] Furthermore, the grand jury declared that the arrests
of Burr and his co-travelers had been made "without warrant, and . . .
without other lawful authority,"[118] and represented a "grievance
destructive of personal liberty."[119] In resounding condemnation, the
grand jury pronounced its regret that "the enemies of our glorious
Constitution" had rejoiced at the attempted persecution of Aaron Burr
and expressed the opinion that such prosecutorial misconduct "must sap
the vitals of our political existence, and crumble this glorious fabric
in the dust."[120]

The grand jury's presentment power was thus used not only to accuse
wrongdoers when government prosecutors refuse to do so, but to publicly
declare the innocence of a targeted suspect in the very face of
opposition by the prosecution. Ironically, the Mississippi grand jury
was a "runaway" by today's standards. Nevertheless, a grand jury acting
in such way offered preciously the type of protection envisioned by the
Framers when they included the institution in the Bill of Rights as a
check on the power of the government.[121]

Even more enlightening in comparison with the canons of modern criminal
procedure, the Mississippi grand jury's presentment included a bold
attack on the prosecution itself — an occurrence scarcely imaginable
today. It was thus the grand jury's power over its presentments, rather
than its indictments, that made it so fearsome. The effectiveness of
early American grand juries in ferreting out the shortcomings of public
officials "can be gauged from the long lists of grand jury presentments"
of early America.[122] "Very little escaped the attention of the grand
jurymen,"[123] which even took notice of the failures of town councils
to provide stocks or a whipping post to punish offenders.[124]

V. CONCLUSION

The enactment in 1946 of the Federal Rules of Criminal Procedure has
greatly decreased the power of federal grand juries. While widely
thought of as a gift to defense attorneys at the time,[125] the
codification of grand jury practice into Rule 6 of the Federal Rules of
Criminal Procedure has largely confined the grand jury to its present
state of impotence and has done little to protect defendants from the
modern "runaway" federal government. Present federal grand jury
practice, which forbids grand jurors from issuing presentments without
consent of a federal prosecutor, is unconstitutional and violative of
the historical principles on which the creation of the grand jury was
premised.

† 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.

1. See, e.g., STEPHEN A. SALTZBURG & DANIEL J. CAPRA, AMERICAN CRIMINAL
PROCEDURE 696 (5th ed. 1996) (reprinting New Jersey's model grand jury
instructions which contain the open acknowledgment of this: "Citizens in
general have only a vague idea of what a grand jury is and what its
functions are."); see also Susan W. Brenner & Gregory G. Lockhart,
FEDERAL GRAND JURY: A GUIDE TO LAW AND PRACTICE 2 (1996) ("Surprisingly,
given the power it wields, the grand jury, is an often-overlooked and
little understood phenomenon in American law.").

2. Only occasionally does the public become privy to criticisms of the
grand jury process. A recent source of popular unrest concerning the
grand jury process surrounded the 1998 impeachment of President Bill
Clinton for perjury and obstruction of justice offenses. Other
noteworthy criticism of the process involved former Labor Secretary
Raymond Donovan, who was acquitted on fraud charges, see Ray Jenkins,
Editorial, He Could Indict the Easter Bunny, BALTIMORE SUN, January 29,
1996, at 7A, available in 1996 WL 6602238, and when 23 Colorado grand
jurors went public in 1992 to complain that a United States Attorney's
indictment did not properly reflect their views, see Editorial: The
Eternal Flats Grand Jury The Issue: Should Jurors Be Allowed to Release
Their Report? Our View: Yes, At Least In Part If Not In Full, ROCKY
MOUNTAIN NEWS, July 7, 1997, at 40A. Former Texas governor John Connally
also bitterly criticized the system after his indictment — followed by
swift acquittal — on charges that as Secretary of the Treasury he took
bribes from lobbyists. See Jenkins, supra. Donovan was widely quoted
after his acquittal as asking, "Where do I go to get my reputation
back?" Id.

3. See, e.g., Wood v. Georgia, 370 U.S. 375, 390 (1962) (describing the
operation and purpose of the grand jury).

4. See Fred A. Bernstein, Note, Behind the Gray Door: Williams, Secrecy,
and the Federal Grand Jury, 69 N.Y.U. L. REV. 563, 578 (1994) (stating
that commentators disagree only on what to call the grand jury:
"indictment mill," "rubber stamp," "tool," or "playtoy" have all been
suggested).

5. Modern grand jury proceedings are normally conducted in the grand
jury room, but at common law they could be conducted in private houses
or other places for protection of the witnesses. See, e.g., United
States v. Smyth, 104 F. Supp. 283, 300 (N.D. Cal. 1952); United States
v. Gilboy, 160 P. Supp. 442, 458-59 (M.D. Pa. 1958). However, modern
grand jury charges tend to limit this power, or even overtly conceal it
from the grand jurors. See, e.g., Louis E. Goodman, Charge to the Grand
Jury, 12 F.R.D. 495, 499-501 (N.D. Cal. 1952) (arguing against such
freedom of movement and ordering the grand jury to "hold its meetings
and conduct its investigations and deliberations in quarters provided by
the Court and in no other places").

6. See Tony Mauro & Kevin Johnson, Grand Jury 'Very Lonely' For
Witnesses, USA TODAY, March 3, 1998, at 1A (stating that during
Independent Prosecutor Kenneth Starr's grand jury proceedings against
President Clinton, there were up to a "half-dozen" government attorneys
and staff people sitting opposite the witness).

7. See CHARLES H. WHITEBREAD & CHRISTOPHER SLOBOGIN, CRIMINAL PROCEDURE:
AN ANALYSIS OF CASES & CONCEPTS 546 (3d ed. 1993) (stating that the
grand jury has authority to act as a "watchdog" over government operations).

8. See FED. R. CRIM. P. 7(c)(l) (requiring that all indictments be
"signed by the attorney for the government"). See also id. Advisory
Committee Note 4 explaining Subdivision (a) of the same Rule (stating
that grand jury "presentments," or non-government-approved accusations,
"are obsolete, at least as concerns the Federal courts").

9. MARVIN ZALMAN AND LARRY SIEGEL, CRIMINAL PROCEDURE: CONSTITUTION AND
SOCIETY 643 (2d ed. 1997) (emphasis added).

10. See Stuart Taylor, Jr., Taking Issue: Enough of the Grand Jury
Charade, LEGAL TIMES, May 18, 1992, at 23 (describing grand jury
subpoenas and indictments as "essentially unilateral decisions by
prosecutors").

11. If the Fifth Amendment grand jury right has any purpose at all, it
is to place a check on the prosecutorial power of the federal
government. See Hale v. Henkel, 201 U.S. 43, 61 (1906) ("[Grand juries]
are not appointed for the prosecutor or for the court; they are
appointed for the government and for the people . . . .") overruled in
part sub nom. Murphy v. Waterfront Comm'n, 378 U.S. 52 (1964).
Unfortunately, modern grand jury practice tends to assume the existence
of some affinity between the attorneys for the government and the grand
jurors they present their cases to.

12. This writer has sought in vain to trace the term to its origins.
Nothing about "runaway" grand juries appears in legal dictionaries,
Supreme Court opinions, or any major legal encyclopedia. The first
widely disseminated mention of the term "runaway grand jury" appears to
be Professor Orfield's references to the term by the Advisory
Committee's Reporter in 1946. See infra note 14 and accompanying text.
The case law is similarly sparse of references to "runaway" grand juries
until recently. But see United States v. Worcester, 190 F. Supp. 548,
559 (D. Mass. 1960) (stating rather imaginatively that "[a] grand jury
can roam almost at will. It often does. What else is meant by the phrase
'a runaway grand jury'?"); Fields v. Soloff, 920 F.2d 1114, 1118 (2d
Cir. 1990) (stating that "runaway" grand juries existed in the 1930s in
New York); In re Martin-Tragona, 604 F. Supp. 453, 459-60 (D. Conn.
1985) (admonishing that "'[r]unaway grand juries'. . . may have a
certain romantic allure, but federal law leaves little or no room for
that species of romance"); United States v. Procter & Gamble Co., 174 F.
Supp. 233, 236 (D.N.J. 1959) (mentioning that a "runaway" grand jury is
an unusual situation).

See also the discussion of "runaway" grand juries in the book, MARVIN E.
FRANKEL & GARY NAFTALIS, THE GRAND JURY: AN INSTITUTION ON TRIAL 107-116
(1977) and the discussion in the widely-consulted hornbook WAYNE R.
LAFAVE & JEROLD H. ISRAEL, CRIMINAL PROCEDURE 631 (2d ed. 1992) (stating
that "it takes a most unusual case for a grand jury to act as a
"runaway" and indict notwithstanding the prosecutor's opposition).

13. See infra notes 71-84 and accompanying text.

14. See Lester B. Orfield, The Federal Grand Jury, 22 F.R.D. 343, 346
(1959).

15. See, e.g., United States v. Williams, 504 U.S. 36, 49 (1992)
(citation omitted) (emphasis omitted); Note, Powers of Federal Grand
Juries, 4 STAN. L. REV. 68, 69 (1951) ("The grand jury was appointed to
protect community welfare, not merely to aid prosecutor or court.").

16. See Williams, 504 U.S. at 48 (citing United States v. R. Enters,
Inc., 498 U.S. 292, 297 (1991).

17. Prior to the 20th Century, the grand jury itself was often the
initiator of investigations and conducted their activities in both
shield and sword functions essentially the same way. See BRENNER &
LOCKHART, supra note 1, at 26.

18. See generally DAVID BURNHAM, ABOVE THE LAW: SECRET DEALS, POLITICAL
FIXES AND OTHER MISADVENTURES OF THE U.S. DEPARTMENT OF JUSTICE passim
(1996) (stating that the U.S. Justice Department now operates with few
structural limitations and has become increasingly unaccountable).

19. Properly speaking, the Fifth Amendment right to indictment applies
only to the federal government. The right to indictment by grand jury is
one of the only provisions of the Bill of Rights that has not been
incorporated to the States by the Supreme Court. The Supreme Court first
rejected incorporation of the right in Hurtado v. California, 110 U.S.
516, 538 (1884) and has reaffirmed its holding in subsequent decisions.

A few examples of practices and cases involving state grand juries are
included in this paper for illustration. In general, however, this paper
will concentrate on federal grand juries. Grand jury practice varies so
widely among the states that it is difficult to provide a comprehensive
treatment of that topic in this comment. See BRENNER & LOCKHART, supra
note 1, at 2.

20. U.S. CONST, amend. V.

21. WHITEBREAD & SLOBOGIN, supra note 7, at 546. Historically, the grand
jury was regarded as a primary security for the innocent against
malicious and oppressive persecution. See Wood v. Georgia, 370 U.S. 375,
389-391 (1962).

22. See 1 ORFIELD'S CRIMINAL PROCEDURE UNDER THE FEDERAL RULES 392 (Mark
S. Rhodes ed., 2d ed. 1985) [hereinafter ORFIELD'S];

Under the Constitution the grand jury may either present or indict.
Presentment is the process whereby a grand jury initiates an independent
investigation and asks that a charge be drawn to cover the facts if they
constitute a crime. Since the grand jury may present, it may investigate
independently of direction by the court or the United States Attorney.
Proceeding by presentment is now obsolete in the federal courts. Id.

Orfield's noted that "the common law powers of a grand jury include the
power to make presentments, sometimes called reports, calling attention
to actions of public officials, whether or not they amounted to a
crime." Id. at 392 n.16 (citing In re Grand Jury 315 F. Supp. 662 (D.
Md. 1970).

23. See, e.g., Hale v. Henkel, 201 U.S. 43, 64 (1906) (recognizing that
common law authority stood for the proposition that "none but witnesses
have any business before the grand jury, and that the solicitor may not
be present, even to examine them"). Although widespread practice in the
federal system had been to allow a government attorney to present
evidence to the grand jury, this was by no means a steadfast rule.

24. See WHITEBREAD & SLOBOGIN, supra note 7, at 546 (stating that the
grand jury had the ability to both investigate the government and to
deny a government indictment).

25. See ORFIELD'S, supra note 22, at 389; In re Special February 1975
Grand Jury, 565 F.2d 407 (7th Cir. 1977); United States v. Smyth, 104 F.
Supp 283, 288 (N.D. Cal. 952). When functioning properly, the grand jury
is supposed to be an ever-present danger to tyranny in government. See
ARTHUR TRAIN, THE PRISONER AT THE BAR 128 (1926) (stating that the grand
jury filled a need as a barrier between the powerful and the weak and as
a tribunal before which the weak could accuse the powerful of their wrongs).

26. See Fred A. Bernstein, Note, Behind the Gray Door: Williams,
Secrecy, and the Federal Grand Jury, 69 N.Y.U. L. REV. 563, 563-623 (1994).

27. Bernstein, 69 N.Y.U. L. REV. at 622.

28. Id. at 623.

29. For statistical evidence of grand jury capture, see infra notes
39-47 and accompanying text.

30. See Note, 69 N.Y.U. L. REV. at 577.

31. Id. at 577-78.

32. Id. at 578-89 (stating that the procedural decline of the grand jury
has occurred as the federal system was straining to keep up with an
increasing number of criminal prosecutions).

33. Id. at 578.

34. Id. at 578-79.

35. William J. Campbell, Eliminate the Grand Jury, 64 J. CRIM. L. &
CRIMINOLOGY 174 (1973).

36. United States v. Dioniso, 410 U.S. 19, 23 (1973) (Douglas, J.,
dissenting).

37. See Mark Kadish, Behind the Locked Door of an American Grand Jury:
Its History, Its Secrecy, and Its Process, 24 FLA. ST. U. L. REV. 1-78
(1996).

38. See Note, 69 N.Y.U. L. REV. at 578.

39. BURNHAM, supra note 18, at 359.

40. Id.

41. Id.

42. Taylor, supra note 10, at 23.

43. BURNHAM, supra note 18, at 360. Although statistics like this are
impressive, it should be noted that statistics alone cannot adequately
measure the effectiveness of grand juries in screening prosecutions
effectively. One critic of statistical approaches has pointed out a
number of problems with using numbers of true bills to describe grand
jury ineffectiveness:

[E]ven a brief reflection shows how unhelpful these figures are.
That grand juries nearly always return true bills may indeed demonstrate
that jurors simply approve whatever charges the government submits, but
it could also show that grand juries are a great success. A review of
the prosecutor's decisionmaking leading up to the request for an
indictment shows why.

Federal prosecutors know that virtually all of their charging
decisions must be approved by the grand jury. Thus, in deciding which
charges to bring, the prosecutor must determine not only which
accusations can be proven at trial, but also which accusations will
result in an indictment. If we assume that prosecutors as a group will
normally decline to present charges to a grand jury that they think will
be rejected, we would expect that prosecutors would submit only those
cases that are sufficiently strong to survive a grand jury's review.
Thus, regardless of whether the grand jury is serving as an effective
screen, we would expect a high percentage of the cases presented to lead
to indictments.

Indeed, contrary to the suggestion of critics, there would be cause
for concern if grand juries refused to indict in a high percentage of cases.

44. Andrew D. Leipold, Why Grand Juries Do Not (and Cannot) Protect the
Accused, 80 CORNELL L. REV. 275-76 (1995). BURNHAM, supra note 18, 360.

45. U.S. DEPT. OP JUSTICE, NATIONAL INSTITUTE OP JUSTICE: OFFICE OF
DEVELOPMENT, TESTING AND DISSEMINATION, GRAND JURY REFORM: A REVIEW OF
KEY ISSUES 21 (1983).

46. Id. at 22.

47. Leipold, 80 CORNELL L. REV. at 269.

48. Statistical figures showing a higher prevalence of grand jury
reluctance to follow the government in ages past are almost nonexistent.
However, a table of felony arrests in New York County between 1900 and
1907 found on page 111 of the 1926 book The Prisoner at the Bar by
Arthur Train provides some rare illumination. In those seven years, some
5,214 out of 57,241 people were arrested by the police on felony charges
whom New York state grand jurors decided not to indict. Interestingly,
the rate of indictment rose significantly in those seven years. See
TRAIN, supra note 25, at III.

49. The National Association of Criminal Defense Lawyers, for example,
has promoted a grand jury "bill or rights" to be enacted by Congress,
which would include these and other reforms. See Gerald B. Lefcourt,
High Time For A Bill of Rights For the Grand Jury, 22 APR CHAMPION 5
(Apr., 1998). Lee Hamel, a former federal prosecutor in Houston, has
gone even further by suggesting that Congress should specifically make
it a crime for the prosecution to mislead a grand jury by such conduct
as withholding exculpatory evidence. Lee Hamel, Prosecutorial
Responsibility, TEXAS LAWYER, June 15, 1992, at 13.

While the U.S. Attorneys' Manual specifically provides for an internal
policy to present exculpatory evidence to the grand jury, See DEPARTMENT
OF JUSTICE, U.S. ATTORNEYS' MANUAL, 9-11.233, no binding statutory or
case law now imposes a legal obligation. The enactment of such
legislation enforceable upon government attorneys would not seem to
infringe on the rights and powers of the grand jury. But see BRENNER &
LOCKHART, supra note 1, at 18 (stating that such a limitation on the
prosecutor may implicate the separation of powers if it is considered to
interfere with the exercise of the executive function). See id. ("[I]t
remains to be seen whether Congress can be persuaded to review
allegations of prosecutorial misconduct, and, if so, whether such
intervention would violate the separation of powers.").

50. In some state jurisdictions, including California and South
Carolina, grand juries can hire experts such as accountants to assist
them in conducting special investigations, especially where the
activities of public officials are being investigated. See U.S. DEPT. OF
JUSTICE, NATIONAL INSTITUTE OF JUSTICE, MONOGRAPHS: GRAND JURY REFORM: A
REVIEW OF KEY ISSUES 23 (1983).

51. See ABA GRAND JURY POLICY AND MODEL ACT 5, 11 (2d ed. 1982)
(enunciating in Principle No. 22 the duty of court to give written
charge to jurors completely explaining their duties and limitations).

52. BRENNER & LOCKHART, supra note 1, at 4.

53. Id.

54. Id.

55. Id.

56. Id. at 289-90 (citations omitted).

57. See FRANKEL & NAFTALIS, supra note 12, at 10.

58. See Mark Kadish, Behind the Locked Door of an American Grand Jury:
Its History, Its Secrecy, and Its Process, 24 FLA. ST. U. L. REV. 9 (1996).

59. See id; Note, Powers of Federal Grand Juries, 4 STAN. L. REV. 77
(1951). [T]he grand jury developed at a time of small rural communities,
when the government had not yet assumed responsibility for enforcing the
criminal law. Private persons could initiate prosecutions. The grand
jury ensured that privately instituted proceedings would not go forward
until a representative body of men of the neighborhood had checked the
facts and found a reasonable basis for prosecution.

60. Note, 4 STAN. L. REV. at 77.

In 1906 the United States Supreme Court dealt with the question of
whether grand juries could be restricted from straying into
investigations of issues not formally presented to them by prosecutors.
See Hale v. Henkel, 201 U.S. 43 (1916). The Court held that it was
"entirely clear . . . under the practice in this country," that grand
jurors may proceed upon either their own knowledge or upon the
examination of witnesses brought before them, "to inquire for themselves
whether a crime cognizable in the court has been committed." Hale, 201
U.S. at 65. Thus, in some respects, the "runaway" grand jury, though not
given such a name at the time, has been upheld by the nation's highest
court. It is therefore debatable whether the modern Federal Rules of
Criminal Procedure, which have limited federal grand jury action since
1946, are constitutional. See infra notes 87-128 and accompanying text
(discussing the constitutionality of Rules 6); See also FRANKEL &
NAFTALIS, supra note 12, at 111 (mentioning that Rule 6's language
"sounds like an inescapable and unambiguous barrier to the grand jury's
proceeding without an attorney. . . . [b]ut people learned in the law
have seen means of escaping and possibly overriding barriers that appear
insurmountable at first. While the barriers here still stand, the debate
may not be over.").

61. See, Hale, 201 U.S. at 63 (citations omitted).

62. Id.

63. Id.

64. Id.

65. See Mark Kadish, Behind the Locked Door of an American Grand Jury:
Its History, Its Secrecy, and Its Process, 24 FLA. ST. U. L. REV. 10 (1996).

66. Kadish, 24 FLA. ST. U. L. REV. at 10.

67. Id. at 10-11.

68. See FRANKEL & NAFTALIS, supra note 12, at 11.

69. Id.

70. Id.

71. Id. at 12.

72. Id.

73. Id.

74. Richard Calkins, The Fading Myth of Grand Jury Secrecy, 1 J.
MARSHALL J. PRAC. & PROC. 18, 19 (1967).

75. See FRANKEL & NAFTALIS, supra note 12, at 15.

76. Id.

77. Id.

78. See Fred A. Bernstein, Note, Behind the Gray Door: Williams,
Secrecy, and the Federal Grand Jury, 69 N.Y.U. L. REV. 563, 596 (1994).

79. See FRANKEL & NAFTALIS, supra note 12, at 15.

80. In the federal system, the powers of the grand jury have never been
as broad as those known by colonial pre-Revolutionary grand juries for a
variety of reasons. First, the federal government itself was
historically one of very limited criminal jurisdiction, so the call for
federal grand juries was not as common or strong as at the state level.

Second, the fact that federal cases tend to involve crimes that are more
complex than those of state prosecutions made independence of individual
grand jurors over the area of expertise less likely. See BRENNER &
LOCKHART, supra note 1, at 18. Also, federal grand juries were
traditionally distanced from the sort of "public affairs" investigations
into community life that drew the attention of state grand juries. Id.
at 53.

81. While the Grand Jury Clause of the Fifth Amendment invokes the
"Grand Jury," nothing in the text provides any indication as to just
what a grand jury is or what type of grand jury is required. This
meaning must be garnered from the common law. See United States v.
Warren, 26 F. Supp. 333, 334 (E.D.N.Y. 1939).

But which common law? Is the grand jury as required by the Fifth
Amendment the common law grand jury known in the colonies in 1776? In
England in 1776? In the United States when the Bill of Rights was
ratified in 1789? When Englishmen landed in America in 1606? After all,
the grand jury is a 900 year-old institution, whose operation has
changed greatly over the centuries. See generally Helene E. Schwartz,
Demythologizing the Historic Role of the Grand Jury, 10 AM. CRIM. L.
REV. 701 (1972). For that matter, grand jury operation differed greatly
by region, both in England and her colonies, throughout the Seventeenth
and Eighteenth Centuries, See Goodman v. United States, 108 F.2d 516,
518 (9th Cir. 1939) (stating that grand jury practice has developed in
widely divergent ways partly due to local custom). Thus, any attempt to
pin down "grand jury law" to a single era and venue would simultaneously
defy the common law traditions of other eras and venues. Another problem
is that the "common law" meant very little if anything in federal
jurisdiction because common law crimes were not recognized in federal
courts. See, e.g., United States v. Hudson & Goodwin, 11 U.S. (7 Cranch)
32, 33 (1812).

The question of what common law to apply where the Constitution called
for a common law interpretation was problematic to American jurists
concerning a wide variety of topics for an entire generation after
separation from the mother country. See generally LAWRENCE M. FRIEDMAN,
A HISTORY OP AMERICAN LAW 110-15 (2d ed. 1985). While some early
American courts routinely consulted English decisions, others went so
far in the opposite direction as to prohibit the reading of English
authority in their courtrooms. Id. at 111-12. Due to the paucity of
published American case reports, more English than American cases were
cited in American reports for a generation after Independence. Id. at
112. Nonetheless, by the middle of the 19th century there developed a
truly distinctive common law system in the United States. Id. at 113
(stating that the first generation of American jurists created a
"separate language of law within the family founded in England").

For these reasons, federal grand jury practitioners must look in many
respects to the practice in the states, because state grand juries
provide a more unbroken chain of inheritance to the common law than do
those administering federal law. Federal courts have differed as to the
scope of the federal grand jury's powers. It has been said that Congress
has not defined those powers, or exact limitations on them. Application
of Texas Co., 27 F. Supp. 847, 850-51 (E.D. Ill. 1939); See also
ORFIELD'S, supra note 22, at 286 (noting that "[i]n 1809 Chief Justice
Marshall, sitting as a circuit justice, stated that there was no act of
Congress conferring on federal courts the power to summon grand juries,
or describing their powers").

The Chief Judge of the Second Circuit observed that the constitutional
grand jury was one that was intended to operate substantially like its
English progenitor. United States v. deary, 265 F.2d 459, 460 (2d Cir.
1959) (stating that the grand jury "has remained as free of court-made
limitations and restrictions as it was in England at the time the Fifth
Amendment was adopted"). Yet the practice in grand jury proceedings in
the United States deviates in many ways from that known in England. See
generally Hale v. Henkel, 201 U.S. 43 (1906). This is especially true in
the finding of bills of indictment. Thus, by English colonial standards,
the modern federal grand jury would seem to be unconstitutional. But see
ORFIELD'S, supra note 22, at 390 (suggesting that "the grand jury has
remained as free of court-made limitations and restrictions as it was in
England at the time the Fifth Amendment was adopted").

82. See In re Grand Jury, 315 F. Supp. 662, 673 (D. Md. 1970) ("Federal
statutes are silent on the relationship which is to exist between a
Federal Grand Jury, the District Court which summons it, and the United
States Attorney's office in the District. From 1789 to the present,
Congress has made no definitive statement concerning Grand Jury powers.").

83. While the Fifth Amendment right to indictment by grand jury extends
only to federal criminal prosecutions, numerous states provide for
similar rights in their state constitutions. Notably, however . . . the
rules governing state grand juries vary tremendously. See BRENNER &
LOCKHART, supra note 1, at 2 (noting that "[G]rand jury practice varies
so widely among the states that it is neither possible nor practical to
provide a comprehensive treatment of that topic in this volume."). See
also Susan W. Brenner, The Voice of the Commonity: A Comparison of
Federal and State Grand Juries, 3 VA. J. SOC. POL'Y L. 67 (1995)
(discussing state grand jury practices).

84. Critics of unbridled grand juries may cite a wealth of historical
precedent to support their position. For example, overzealous and
overreaching grand juries figured prominently in the era of the Sedition
Acts. The Federalists, marshals and judges who totally controlled the
judicial branch of government — blatantly packed panels with
sympathizers and allowed offensive, political charges to be delivered to
these grand juries. See Schwartz, 10 AM. CRIM. L. REV. at 723. The
famous impeachment proceedings against United States Supreme Court
Justice Samuel Chase were in part initiated because of Chase's habit of
turning grand jury charges into Federalist harangues. Id. at 727-28.
Still, the failure of the grand jury to act as a check on government
persecution during this period can be attributed more to misuse and
abuse of the grand jury process than to the failure of the institution
itself. Grand juries were impaneled improperly, for an improper purpose,
and were charged improperly. Id. at 732 (stating that "such blatantly
biased panels could hardly have afforded the safeguard which grand
jurors were sworn to provide" and that "some of the nation's founders
indulged in chicanery designed to circumvent the protective barrier in
order to crush their opponents"). Even after the end of the Sedition Act
hysteria, the anti-Federalists aligned with President Thomas Jefferson
abused the grand jury process in pursuit of their hated Federalist
opponents. Id. (recounting that soon after his election as President,
Thomas Jefferson "sullied his own reputation as the defender of the
people's liberties" by relying on the misuse of grand juries to conduct
a "personal vendetta against his enemy, Aaron Burr"). Initially, Aaron
Burr was completely exonerated by two separate grand juries in two
separate states before finally being indicted by a Republican-packed
grand jury in Jefferson's home state of Virginia on charges that he
"lev[ied] war upon the United States." Id. at 738. A trial jury
ultimately acquitted Burr, under the judicial supervision of none other
than John Marshall. Id.

85. The Populist era of the early 20th Century saw some attempts to
revitalize the grand jury. During that period, ex-jurors acted to
protect the grand jury's powers by forming associations. The Grand
Juror's Association of New York was founded in 1912, and began
publishing The Panel, a pro-grand jury periodical, in 1924. Chicagoans
founded the Grand Juror's Federation of America in 1931, and
associations apparently sprang up in other localities. See Renee B.
Lettow, Reviving Federal Grand Jury Presentments, 103 YALE L.J. 1333,
1342 n.50 (1994).

86. Codification thrived as a trend in American law during the latter
part of the 19th and the early part of the 20th Centuries. See FRIEDMAN,
supra note 81, at 391-411. Criminal procedure, however, posed
difficulties to would-be codifiers that other areas of American law did
not, due primarily to constitutional considerations. Id. at 401 (noting
the 5th Amendment grand jury requirement was a nuisance to those who
sought to codify federal criminal procedure).

87. See FED. R. CRIM. P., INTRODUCTION, PROCEDURES FOR THE CONDUCT OP
BUSINESS BY THE JUDICIAL CONFERENCE COMMITTEES ON RULES OF PRACTICE AND
PROCEDURE, 1:1: p. vii

Each Advisory Committee shall carry on 'a continuous study of the
operation and effect of the general rules of practice and procedure now
or hereafter in use' in its particular field, taking into consideration
suggestions and recommendations received from any source, new statutes
and court decisions affecting the rules, and legal commentary. Id.

88. See Lettow, 103 YALE L.J. at 1334 (suggesting that the power of
presentment is a constitutional right of grand juries).

89. U.S. CONST. amend. V states:

No person shall be held to answer for a capital, or otherwise
infamous crime, unless on a presentment or indictment of a Grand Jury,
except in cases arising in the land or naval forces, or in the Militia,
or in the Militia, when in actual service in time of War or public
danger. U.S. CONST. amend. V.

90. See ADVISORY COMMITTEE NOTE 4, FED. R. CRIM. PRO. 7(a) ("Presentment
is not included as an additional type of formal accusation, since
presentments as a method of instituting prosecutions are obsolete, at
least as concerns the Federal courts."). A few voices in the federal
judiciary, however, have ignored this language and allowed for
"presentments" or unapproved statements of federal grand juries to stand
public regardless of the will of federal prosecutors. For a discussion
of this issue, see Phillip E. Hassman, Annotation, Authority of Federal
Grand Jury To Issue Indictment Or Report Charging Unindicted Person With
Crime Or Misconduct, 28 A.L.R. FED. 851 (1976).

91. See ORFIELD'S, supra note 22, at 392 n.16 (noting that "[t]he common
law powers of a grand jury include the power to make presentments . . .
calling attention to actions of public officials, whether or not they
amounted to a crime).

92. See Hassman, 28 A.L.R. FED. at 854-57.

93. However, on occasion, grand juries have used the term "presentment"
to indicate what is commonly a grand jury report, or a statement to the
court regarding some matter but which neither recommends indictment nor
initiates any prosecution. Id. at 853 n.2.

94. Lester B. Orfield, The Federal Grand Jury, 22 F.R.D. 343, 346 (1958).

95. Orfield, 22 F.R.D. at 346.

96. See Renee B. Lettow, Reviving Federal Grand Jury Presentments, 103
YALE L.J. 1333, 1339 (1994).

97. In re Grand Jury, 315 F. Supp. 662, 673 (D. Md. 1970) ("The Advisory
Committee note does not indicate that the quoted provision was intended
to change existing practice, although of course the Rule has the effect
of law.").

98. See ORFIELD, supra note 12 at 346 (discussing the question of where
the term "runaway grand jury" originated).

99. It must be noted that the capture of the grand jury's presentment
power has never faced direct Supreme Court review as to its
constitutionality. The words of United States Supreme Court Justice Hugo
Black, when dissenting from the decision to enact the Federal Rules of
Criminal Procedure, are particularly relevant:

Whether by this transmittal the individual members of the Court who
voted to transmit the rules intended to express approval of the varied
policy decisions the rules embody I am not sure. I am reasonably
certain, however, that the Court's transmittal does not carry with it a
decision that the amended rules are all constitutional.

FED. R. CRIM. P., ORDERS OF THE SUPREME COURT OF THE UNITED STATES
ADOPTING AND AMENDING RULES, ORDER OF FEB. 28, 1966 (Black, J.,
dissenting). For a thoughtful law review note on the constitutionality
of Rule 6, see Lettow, 103 YALE L.J. at 1333.

100. Phillip E. Hassman, Annotation, Authority of Federal Grand Jury To
Issue Indictment Or Report Charging Unindicted Person With Crime Or
Misconduct, 28 A.L.R. FED. 851, 857 (1976).

101. Ironically, a common argument during times when presentments were
common was that presentments were too trivial. See, e.g., TRAIN, supra
note 25, at 126 (stating that "[a]n examination of the long list of
presentments on file in the office of the clerk of Court of General
Sessions [of New York]" shows only the consumption of many working
hours, with only the most fleeting of effect on the public).

[I]n general it may be said that the only effect of a grand jury's
meddling with these things is to detract from the dignity of its office
and the importance of the work which it and it alone can lawfully do.

The lay reader will naturally be led to inquire why this archaic
institution which it costs so much time and money to perpetuate, which
causes so much unnecessary inconvenience to witnesses and offers so many
technical opportunities for delay, which frequently is ineffective and
officious, and for the most part concerns itself with the most trivial
matters only, should not be abolished ....

102. Id. at 126-27.

A carefully considered overview of these issues can be found in the 1976
A.L.R. Annotation by Phillip E. Hassman. Hassman, 28 A.L.R. FED. 851.

103. Id. at 856 (noting that one argument for allowing accusatory
presentments is that the public employee and official is "the most
frequent target" and "must be prepared to accept investigation and
exposure").

104. Offended persons may, for example, challenge the statements of a
presentment by filing a motion to expunge the grand jury report, by a
libel action against the grand jurors or the United States Attorney, or
possibly through the federal civil rights statutes. Id. at 857-58.

105. See, e.g., In re Grand Jury Proceedings, 813 F. Supp. 1451 (1992).

106. The effect of a public presentment exonerating a suspect on any
future proceedings by the government against the same target is
difficult to gauge. The effect of a public presentment expressing a
finding that the government has improperly pursued a case against a
person before the grand jury might well serve the interests of justice.

The ham sandwich reference is a tribute to Judge Sol Wachtler, a former
high court judge of New York, who coined the legendary criticism of
grand juries: "Any prosecutor who wanted to could indict a ham
sandwich." Tony Mauro & Kevin Johnson, Grand Jury 'Very Lonely' For
Witnesses, USA TODAY, March 3, 1998, at 2A:3. This flippant semi-truism
has been popularized by observers of grand jury law and is often
repeated — only half jokingly — by commentators.

107. After fatally wounding Alexander Hamilton in a pistol duel in 1804,
Aaron Burr traveled West to either restore his lost political clout or
sabotage the new nation in spite (historians continue to differ over the
question). See Helene E. Schwartz, Demythologizing the Historic Role of
the Grand Jury, 10 AM. CRIM. L. REV. 733-34 (1972) (briefly summarizing
Burr's efforts either to sever those states and territories west of the
Allegheny Mountains from the Union or to put more land under American
domination through an eventual attack on Mexico).

108. Indeed a political career that culminated in the murder of one of
the United States' principle Founding Fathers, Alexander Hamilton, while
Burr was vice president. Schwartz, 10 AM. CRIM. L. REV. at 733.

109. Schwartz, 10 AM. CRIM. L. REV. at 734. (stating that "the
destruction of any possibility of Burr's returning to a place of power
on the political scene was one issue on which the two parties agreed").

110. Id.

111. Id. at 734-35 (stating that the people of Kentucky did not resent
Burr because of his murder of Hamilton and in fact supported Burr in his
contentions with the "hated Federalist [, United States Attorney] Daviess").

112. Id. at 735 (quoting from J. COOMBS, THE TRIAL OF AARON BURR FOR
TREASON, xix (1864)).

113. Jefferson is said to have been so determined to see Burr "hanged as
a traitor [that] he was ready to abandon all constitutional" constraints
in the process. See DAVID WALLECHINSKY & IRVING WALLACE, THE PEOPLE'S
ALMANAC #2 171 ((1978):

[Jefferson] not only announced his opinion that Burr was guilty
before the jury could consider the case, but he attempted to bribe
witnesses with promises of presidential pardons if only they would
testify against Burr. Concerning this case, Jefferson was the author of
this incredible statement: "There are extreme cases when the laws become
inadequate even to their own preservation, and where the universal
resource is a dictator, or martial law." Id.

114. Schwartz, 10 AM. CRIM. L. REV. at 735.

115. Id.

116. Id.

117. Id. (emphasis added).

118. Id.

119. Id.

120. Id. at 735-36. The presentment read, in pertinent part:

The grand jury of the Mississippi Territory, on a due investigation
of the evidence brought before them, are of opinion that Aaron Burr has
not been guilty of any crime or misdemeanor against the laws of the
United States or of this Territory, or given any just cause of alarm or
inquietude to the good people of same. The grand jurors present, as a
grievance, the late military expedition, unnecessarily, as they
conceive, fitted out against the person and property of the said Aaron
Burr, when no resistance had been made to the civil authorities.

The grand jurors also present, as a grievance destructive of
personal liberty, the late military arrests, made without warrant, and,
as they conceive, without other lawful authority; and they do sincerely
regret that so much cause has been given to the enemies of our glorious
Constitution to rejoice at such measures being adopted, in our
neighboring Territory, as, if sanctioned by the Executive of our
country, must sap the vitals of our political existence and crumble this
glorious fabric in the dust. Id.

121. Even in Aaron Burr's case, the power and duplicity of the Executive
finally won out over the independence of early American grand juries.
After twice failing to garner a grand jury indictment against Aaron
Burr, the Jefferson Administration moved venue to Virginia, "stronghold
of Jefferson, Madison and Monroe." Schwartz, 10 AM. CRIM. L. REV. at
736. Rutgers Law Professor Helene Schwartz wrote: "Perhaps at no other
period in his public career did Jefferson so disgrace himself as he did
in his continued but futile efforts to permanently dispose of Aaron
Burr. 'All of his professions as apostle of "individual rights" were
sunk in the abyss of Burr.'" Id. (quoting W. McCALEB, NEW LIGHT ON AARON
BURR 99 (1963)).

The Virginia grand jury, packed with Republicans, returned true bills of
indictment against Burr and his alleged co-conspirators charging that
they had levied war on the United States. Id. The matter then was sent
to a trial jury, which acquitted Burr.

122. See EDGAR J. McMANUS, LAW AND LIBERTY IN EARLY NEW ENGLAND:
CRIMINAL JUSTICE AND DUE PROCESS 1620-1692 (1993).

123. McMANUS, supra note 122, at 63.

124. Id.

125. See BRENNER & LOCKHART, supra note 1, at 188 (noting that one
commentator described the rule as a "wide change" in prior law, which
had made access to grand jury materials virtually impossible for defense
attorneys).
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