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Article Excerpt
I. INTRODUCTION
In our American criminal legal system, the model grand jury is one that exercises independent judgment while serving as both an accusatory and investigatory body. When in the latter role, commonly referred to as the "sword," the grand jury uncovers wrongdoing and criminal misconduct through its sweeping investigatory powers that include the right to issue subpoenas. (1) This investigatory power is primarily strengthened by three factors. First, most observers are barred from grand jury sessions, which are shrouded in secrecy. (2) Second, as the grand jury is entitled to "every man's evidence," there are no real limits, outside of privileges, to what it can hear or investigate. (3) Third, grand juries face far fewer Fourth Amendment constraints than do police investigations. (4)
Upon completing its investigation, the grand jury assumes an accusatory role to judge the weight of the evidence brought before it and determine whether to issue an indictment. (5) At this stage, when acting as a "shield," (6) the Supreme Court has described the grand jury as a protector of "citizens against unfounded criminal prosecutions." (7) This characterization was due in large part to the fact that the grand jury not only screened out weak cases that lacked sufficient probable cause, but also those that ran contrary to the views and interests of society. (8) In this way, the grand jury earned its reputation as an independent body which could protect the average citizen from unjustified prosecution by the government. In turn, this belief led American society, at least initially, to hold the grand jury in very high regard. (9)
Many are familiar with the Peter Zenger grand jury that twice refused to do the king's bidding and issue an indictment for seditious libel. (10) In addition, there were grand juries that refused to indict the Stamp Act rioters or to indict former Vice President Aaron Burr. (11) Arguably, there was sufficient probable cause in each of the aforementioned cases; however, the community, as reflected by the grand jurors, deemed it inappropriate to indict for a variety of reasons. (12)
The enthusiasm and respect for the grand jury carried over to the newly drafted state constitutions, which, except for that of New Jersey, included an express or implied right of defendants to a grand jury prior to being tried for a felony. (13) U.S. constitutional drafters continued this trend by including the Grand Jury Clause in the Fifth Amendment:
No person shall be held to answer for a capital, or otherwise infamous crime, (14) unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia.... (15)
This early support for the grand jury was based on the notion that grand juries served as a protective barrier between citizens and the criminal charging process. However, over time the American public began to disfavor the grand jury, and individual states started to allow prosecutors the choice (16) of using a grand jury, an information, (17) or a complaint. (18) Today, a majority of states now allow prosecutors the option of using the grand jury process. (19) On the federal level, because of the Fifth Amendment, felony charges must proceed by indictment; however, the defendant may waive her right to a grand jury for all non-capital offenses. (20)
The reasons for the grand jury's loss of status, at least on the federal level, are multifaceted, but carry a central theme: displeasure with how it operates. Grand juries no longer issued reports, (21) except in certain limited instances. (22) These reports were quite popular with the public and useful in drawing attention to both civil and criminal problems within the community. (23) Also, grand juries stopped making presentments or filing charges on their own. (24) Finally, and most importantly, the previously discussed model grand jury that exercised independent judgment had all but vanished as grand jurors were no longer the rulers of the grand jury room; that title had passed to the prosecutor. (25)
With prosecutors in charge, grand jurors found less need and fewer reasons to involve themselves in the overall process, and subsequently made fewer decisions. (26) In turn, this retarded grand jurors' ability to properly perform their adjudicatory role or protect those being investigated from meritless indictments. Put another way, the shield was abandoned in favor of a much-sharpened sword. Most people point to this broad prosecutorial control and lack of grand juror independence as the cause of society's disenchantment with grand juries. (27)
This view, echoed by both legal practitioners and commentators alike, is supported by statistical and anecdotal evidence. (28) In testimony before Congress in 2000, the Department of Justice (DOJ) stated that 99% of the cases brought before federal grand juries resulted in indictments. (29) Moreover, many experienced white collar criminal defense attorneys, if given the choice, find it more beneficial to bring their clients directly to the prosecutor to negotiate rather than appear before a grand jury, whose actions they view as a foregone conclusion. (30) Justice William O. Douglas summed up the feelings of most members of the legal community when he wrote 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." (31)
The marginalization of grand jurors--aided by all three branches of government--is not a new phenomenon, nor did it occur overnight. (32) Commentators have long lamented the problems of the grand jury, and some have offered a range of reform measures. (33) Unfortunately, most of the recommendations and arguments put forward were never adopted for a variety of reasons, primarily because they would have fundamentally altered the traditional role and duties of grand juries. (34) For example, some suggested requiring the prosecutor to produce exculpatory evidence. (35) Others recommended allowing counsel for either the "target" (36) or testifying witness (37) to enter the grand jury room and make arguments before the grand jurors. These and other similar measures have been consistently rejected by the Supreme Court because they ultimately lead to an adversarial setting in the grand jury room. (38)
There is, however, one heretofore under-explored proposal that is non-adversarial in nature: the Grand Jury Legal Advisor (GJLA). Although a licensed attorney, the GJLA neither advocates on behalf of nor represents anyone appearing before the grand jury. (39) Rather, the GJLA serves as counsel to the grand jury. Her main primary responsibility is to provide grand jurors unbiased answers to their questions, legal or otherwise.
Contrary to other reform proposals that dramatically diverge from either the common law or the historical evolution of the grand jury in the United States (for example, permitting the presence of a witness's attorney (40) or presentation of exculpatory information), the GJLA is a natural outgrowth of earlier grand jury improvements. In 1979, Congress required that all federal grand jury proceedings be recorded. (41) This was done, inter alia, to provide better oversight once the grand jury doors shut and to "[restrain] prosecutorial abuses before the grand jury." (42) The GJLA takes the 1979 reform measure one step further, and places a live person in the grand jury room. (43)
As previously stated, the main reason for having the GJLA is to provide the grand jurors with an impartial advisor; however, there are other grounds for employing the GJLA. For instance, the GJLA serves as the honest broker in the grand jury room, ensuring that the process operates correctly. (44) While having and reviewing grand jury transcripts is helpful, that alone is insufficient to prevent or correct problems arising in the grand jury room. (45) As discussed infra, getting access to grand jury transcripts is no easy task, and, once obtained, it is usually too late to correct the errors found within them. (46) Furthermore, fixing grand jury problems discovered later in transcripts is time consuming and requires a large expenditure of resources. (47) Having a detached neutral person in the grand jury room who can take immediate action is far superior.
This Article examines not only the idea of providing a GJLA to federal grand jurors, but also the importance of grand jury independence. The Article is divided into six parts. Part I serves as an introduction. Part II provides a brief overview of the grand jury process, highlighting the role of the prosecutor and the level of authority she exercises. Part III takes a historical look at the grand jury's fluctuation between being an independent and dependent decision-making body. Particularly relevant here is the process through which all three branches of government have played a role in diminishing the powers of the grand jurors within the grand jury process.
After demonstrating in both Parts II and III that prosecutors, not grand jurors, are now the dominant force in the grand jury room, Part IV will discuss whether this is even a problem. Some believe that grand jury autonomy is overstated and unnecessary. However, as will be discussed, one need only consider the barriers to correcting a flawed indictment to see the problems with that view. Part V examines implementation of the GJLA by considering both its current and historical applications. This Part will discuss whether and to what extent the GJLA would help restore the independence of the grand jury. The GJLA proposed by this Article will greatly resemble the model currently used in both the military and the state of Hawaii. Part VI discusses the advantages and disadvantages of employing the GJLA, including potential benefits to prosecutors.
This Article, while advocating for the creation of a GJLA, by no means suggests giving grand jurors carte blanche over the grand jury proceedings. If the GJLA is used, all indictments should still require the signature of the prosecutor to be valid, and a "no true bill" determination by one grand jury would not prevent the prosecutor from resubmitting the same evidence to a different grand jury. Also, courts should maintain the right to terminate a grand jury session at any time. (48) Thus, even with the implementation of the GJLA, the prospect of a "runaway" grand jury is not dramatically increased.
As part of the research for this Article, the author has contacted and surveyed several former GJLAs to learn about their experiences with the grand jury. (49) The questions on the GJLA Survey, which can be found in its entirety in Appendix A, covered both procedural and substantive areas. Many of the responses to the GJLA Survey have been incorporated throughout this Article and can also be found in Appendix A. (50) Although the GJLA Survey was not given to every attorney who previously served as a GJLA, the results do provide a fairly broad and representative overview of how the GJLA functions within the grand jury process. In addition, the GJLA Survey demonstrates that the GJLA has been and is working effectively, lending further support to the argument that it should be implemented in other jurisdictions.
II. GRAND JURY PROCESS
To fully understand and appreciate the depth of prosecutorial control over the grand jury, it is first necessary to examine the modern grand jury process and its historical roots. Grand juries, unlike petit juries, were not created to determine guilt or innocence, but rather to ascertain whether probable cause exists for a criminal trial. (51) Probable cause need not be present when the grand jury begins its investigation. (52) The grand jury can start looking at evidence and investigating "merely on suspicion that the law is being violated, or even just because it wants assurance that it is not." (53) Furthermore, this suspicion can be based on tips, rumors, hearsay, speculation, or the grand juror's personal knowledge. (54) However, even when probable cause is found to exist, grand juries can refrain from issuing an indictment if the charges do not reflect the views or interests of the community. (55)
Grand juries generally consist of between sixteen to twenty-three citizens and, like petit juries, are created from voter registration rolls. (56) Unlike that of petit jurors, voir dire of grand jurors is extremely limited. (57) Sixteen grand jurors must be present for a quorum to conduct a grand jury session, but those voting to indict need not attend every session. (58) The session begins after the grand jurors have been sworn in and given model grand jury instructions by the judge, (59) one of the few times that grand jurors receive guidance from anyone other than the prosecutor. Once the judge reads the instructions, grand jurors are effectively turned over to the prosecutor. (60)
Due to the secrecy associated with the process, attendance at grand jury sessions is limited to the grand jurors, the prosecutor, a stenographer, interpreter (when needed), and the witness called to testify. (61) This secrecy has resulted in some targets remaining unaware that they are under investigation until the indictment is issued. (62) The prosecutor normally informs targets of their target status if they are called to testify before the grand jury. (63) The Supreme Court has yet to affirmatively determine whether a known target must be Mirandized before providing grand jury testimony; however, it is DOJ policy to provide such warnings. (64)
All witnesses testifying, including targets, do so without their attorneys; (65) however, a testifying witness may leave the grand jury room periodically to consult with counsel. (66) Absent assertion of a privilege, the witness must answer the questions at the grand jury session and has no right to present her own evidence. (67) In fact, a grand jury witness lacks many of the same rights as someone interrogated by the police. (68) In addition, grand jurors, unlike petit jurors, are not restricted from hearing certain types of information, and the Rules of Evidence are, for the most part, inapplicable to grand jury proceedings. (69) As a result, grand jurors can consider and base an indictment on evidence that is either illegally seized or deemed hearsay. (70)
After receiving all of the evidence, grand jurors retire in private, without the prosecutor, to determine whether or not to indict. (71) If at least twelve grand jurors decide to indict, (72) a true bill (73) is issued and becomes valid upon the signature of the prosecutor. (74) If fewer than twelve grand jurors agree on an indictment, a no true bill is issued; but the prosecutor may resubmit the evidence to a different grand jury. (75) There are four possible outcomes of the grand jury session: (1) indictment or true bill, (2) no true bill, (3) discharge or expiration without action, (76) or (4) submission of a report to the court. As noted previously, grand juries usually conclude by issuing an indictment. (77)
Throughout the entire process, the prosecutor serves not only as the director of the grand jury proceeding, but also as the gatekeeper of information to the grand jury. (78) The prosecutor determines the order of the evidence, (79) requests that the court issue subpoenas, (80) questions the witnesses, (81) and drafts the charges. In addition, during their eighteen months of service, grand jurors meet at the discretion of the prosecutor. (82) Most importantly, at least for the purposes of this Article, the prosecutor provides legal advice to the grand jurors. (83)
In theory, the prosecutor is responsible for providing neutral legal advice to the grand jurors, but this does not always happen. (84) The prosecutor is under no legal duty to provide such counsel. (85) Besides providing advice on legal issues, the prosecutor on occasion is called upon to answer the non-legal questions of grand jurors. (86) The prosecutor, however, is not permitted to testify before the grand jury. (87) Furthermore, courts have held that the prosecutor should only discuss those facts already in the record; to do otherwise makes her an unsworn witness before the grand jury and violates both rules regulating the conduct of attorneys and Federal Rule of Criminal Procedure 6(d). (88)
Understandably, determining when the prosecutor actually testifies before the grand jury is difficult. Apparently, the key point in drawing the distinction is whether the prosecutor places her credibility on the line. (89) If asked for an opinion, the prosecutor should tell the grand jurors that her opinion is personal in nature and not binding on the grand jury. (90) But, as noted in the Grand Jury Legal Advisor Survey, prosecutors can circumvent this entire issue by providing off-the-record information to grand jurors. (91)
As described above, the modern day grand jury has devolved to such an extent that prosecutors, not grand jurors, control every aspect of the process save for voting on the actual indictment. As a consequence, many question the usefulness or necessity of the grand jury and whether it still serves its intended function of being the voice of the community. (92) Those grand juries that do attempt to exercise some measure of authority are quickly labeled as "runaway." (93) However, this was not always the case. Historically, the grand jurors, not the prosecutor, directed and controlled the grand jury proceeding, and grand juries were widely seen as independent--in some instances too much so. (94)
III. THE GRAND JURY'S FLUCTUATION BETWEEN DEPENDENCE AND INDEPENDENCE
A. EARLY HISTORY OF THE GRAND JURY
The grand jury's historical roots can be traced back to Greece, Scandinavia, and the Saxons; however, most associate the modern grand jury with King Henry II and the Grand Assize of Clarendon. (95) King Henry II forced local English barons to accept the Assize (96) of Clarendon in 1166 in an effort to exert his influence while simultaneously reducing the power of those around him. (97) Prior to the Assize of Clarendon, most criminal charges were brought by private individuals, the church, or local barons. (98)
The Assize of Clarendon and later the Assize of Northampton (in 1176) established an early judicial system in which judges traveled to different areas of England to "call upon twelve knights of the hundred or, if there are no knights ... twelve free and lawful men ... to assemble and 'by their oath' identify potential criminal suspects." (99) The importance of these early grand juries to the local citizens cannot be underestimated. An indictment during this time was tantamount to conviction, as petit jury trials were not in existence (100) and defendants instead faced trial by ordeal, which might require the defendant to stick her hand in boiling water and sustain no injury, or avoid drowning without swimming when placed in a lake, in order to prove innocence. (101)
While these initial grand juries acted on their own and issued indictments based on, among other things, personal knowledge, there should be no misunderstanding about their role; they were tools of the government. (102) The king, who was the beneficiary of all fines and forfeitures that resulted from indictments, highly encouraged the grand jurors to indict a certain number of suspects. (103) Those who failed to meet these quotas were themselves fined. (104) The grand jury did not make a name for itself as an independent body and protector of the citizenry until approximately 500 years later, during the trials of the Earl of Shaftesbury and Stephen Colledge. (105) These two early cases demonstrated that with the power to indict comes the power not to indict.
In 1681, King Charles II wanted to try the Earl of Shaftesbury and his acolyte, Stephen Colledge, for treason. (106) Charles, who was trying to reestablish the Catholic Church of England, viewed both pro-Protestant men as impediments to this goal. (107) The judge in Lord Shaftesbury's case gave the following grand jury charge, which illustrates the pressure being applied by the king: "[L]et me tell you, if any of you shall be refractory, and will not find any bill, where there is a probable ground for an accusation, you do therein undertake to intercept justice; and you thereby make yourselves criminals and guilty, and the fault will lie at your door." (108) Yet, despite these ominous and threatening instructions, the Protestant grand jurors of London, who did not necessarily share the views of either the king or the judge, initially refused to indict both men for treason.
Some question the significance of the Shaftesbury and Colledge cases because of their ultimate outcomes. (109) Colledge was indicted by a second grand jury and eventually executed, while Shaftesbury fled the country and lived his remaining years in exile in Holland. (110) However, the larger point is that regardless of the end result, this was a watershed moment because for the first time in history, a group of citizens used the grand jury system to stand up to and defy the government. (111) Sir John Somers, the Lord Chancellor of England and a close friend of Shaftesbury, summed up this view when he wrote that "[g]rand juries are our only security, in as much as our lives cannot be drawn into jeopardy by all the malicious crafts of the devil, unless such a number of our honest countrymen shall be satisfied in the truth of the accusations." (112)
The bold and autonomous acts of these early English grand jurors were facilitated by the fact that the prosecutor generally did not enter the grand jury room. (113) The prosecutor only served the government and did not offer legal advice to the grand jurors. (114) Thus, whether by choice or necessity, grand jurors made decisions and came up with answers on their own. One may ultimately conclude that a correlation exists between the interactions of grand jurors and prosecutors and the ability of grand juries to function independently. This early display of self-sufficiency and independence helped elevate the stature of grand juries within the community. (115)
This initial admiration displayed by the English for grand juries, however, was not long lasting. As would later occur in the United States, grand juries over time fell out of favor with the public. (116) Many in England began to view them as corrupt and inefficient, and efforts mobilized to abolish them. (117) These efforts were aided by the fact that, unlike the United States, England had no constitutional considerations to worry about when deciding whether to forego the grand jury entirely. (118) Thus, by 1933, England had all but abandoned the use of grand juries, save for limited exceptions; even those were eliminated by the Criminal Justice Act of 1948. (119)
B. ROLE OF THE PROSECUTOR
Upon arrival in this country around 1635, the prosecutor, like in England, had a limited role in the grand jury process. (120) In fact, grand jurors, who had very broad powers, could actually exclude prosecutors from the grand jury room. (121) This in turn led citizens to view grand juries as their very own Inspectors General or ombudsmen, whose actions touched upon every aspect of society. (122) This distinction between the roles of grand jurors and prosecutors also served to increase the public's confidence in the process as a whole. Few saw grand juries as an arm of the prosecution. (123) In fact, most thought just the opposite. (124)
Prosecutors were not relied upon or needed, for the most part, because American grand jurors, like those in England, were familiar with the people and the issues appearing before them. Investigations could commence merely on the personal knowledge of the grand juror. (125) Further, many of these early grand jurors were highly educated for the time period. (126) In comparison, most of the prosecutors at that time had limited training and familiarity with the law and thus were not necessarily helpful in determining whether sufficient probable cause existed to issue an indictment. (127) Shortly after the turn of the twentieth century, however, the situation began to change. (128)
First, because of the dramatic population increase in the United States, especially in the urban areas, many grand jurors were no longer familiar with the people appearing before them or the communities they represented. In the words of one late twentieth century commentator, "[G]rand jurors today lack the intimate knowledge of community activity possessed by grand jurors of pre-urban society." (129) This period also ushered in the creation of the professional prosecutor's office staffed by individuals trained in the law. (130) In addition, federal criminal law greatly expanded to include statutes that did more than just protect direct federal interests. (131) As a result, grand jurors started to handle crimes that were far more complex and issues that went well beyond the general knowledge of the layperson. (132) Where before grand jurors dealt with assaults, homicides, and robberies, in which they had at least a rudimentary understanding of the crime, they now had crimes involving mail fraud, false claims, and the Mann Act that were not normally seen in everyday community life or familiar to the average grand juror. (133)
Grand jurors responded to these challenges by requesting assistance. Specifically, grand jurors wanted a staff to help them perform their duties. (134) These requests, for the most part, were denied. (135) Instead, courts allowed prosecutors, who now had far more legal training and the increased confidence of the people, to appear before and aid the grand jurors. (136) Eventually, prosecutors started presenting cases to the grand jury where previously they only received the case after an indictment had been issued. (137) This arrangement flourished and grew until today, as previously discussed, the prosecutor participates in every aspect of the grand jury proceeding, save for actually voting on the indictment itself. (138)
In certain respects, an enhanced role for the prosecutor in the grand jury process was to be expected and may be viewed as a natural consequence of a matured legal system that had grown increasingly complex. (139) It does not necessarily follow, however, that the increased presence of the prosecutor required the usurpation of the grand jurors' decision-making powers. Other steps could have been taken to counterbalance these changes, such as providing grand jurors with a staff or, at the very least, a GJLA. Reliance upon and use of the GJLA would have greatly decreased grand juror dependency on the prosecutor. Instead, the executive branch reconfigured the balance of power in the grand jury room to greatly favor the prosecutor, at the expense of the autonomy the grand jury enjoyed at common law--a move accomplished with the assistance of both Congress and the courts. (140)
C. ROLE OF CONGRESS
Historically, Congress has paid sparse attention to grand juries. In the last sixty plus years, aside from codifying the Federal Rules of Criminal Procedure, Congress has done very little by way of changing the grand jury process or structure. Instead, Congress has relied on the courts to ensure that grand juries operate effectively. (141) However, as discussed infra, that may not be an available option in the future. (142)
The most significant legislative change with respect to the grand jury occurred when Congress, desiring uniformity in federal criminal law, passed the 1946 Federal Rules of Criminal...
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