to Reform the Federal Grand Jury
Bill of Rights for the Federal Grand Jury I n 1791, when the grand jury was incorporated into our constitutional struc- ture, its primary role was to protect the individual from unfounded accusa- tions. As one observer has noted, “the grand jury had achieved renown as a bulwark against despotism, a protector of the common man against oppressive prosecution. The institution’s investigatory role was secondary.” But, in the subse- quent 200 years, in the federal system anyway, “the protective function has been trivialized and the investigator’s function expanded to the point where the institu- tion is almost precisely the opposite of what the Founding Fathers intended.” 1 Today, many would agree with the observation of William J. Campbell, former federal district judge in Chicago: “[T]oday, the grand jury is the total cap- tive of the prosecutor who, if he is candid, will concede that he can indict anybody, at any time, for almost anything, before any grand jury.” 2 What this means is that the federal grand jury is a secret ex parte pro- ceeding where the evidence is presented by the prosecutor and the grand jury votes whether to indict without ever hearing from the court (other than a pre- liminary session welcoming the grand jurors and giving some general guide- lines about their duties) or defense counsel. Unsurprisingly, under these cir- cumstances the grand jurors tend to bond with the prosecutor and indict when the prosecutor indicates there should be an indictment. Thus, the federal grand jury today functions primarily as a tool of the fed- eral prosecutor. Employing the power of compulsory process in a secret proceed- ing, the prosecutor investigates and determines, with virtually no check, who will be indicted and for what. In the federal grand jury, the prosecutor exercises this enormous power unrestrained by law or judicial supervision. The grand jury process is largely devoid of legal rules. The prosecutor can present the evidence he or she wants to present in the manner he or she wants to present it. The only theoretical restriction is that, if an indictment is rendered, the evidence should be sufficient to establish probable cause that the accused committed the crime charged. Even that minimal test, however, finds no mechanism in the federal system for its enforcement. Any claimed insufficiency, unfairness or abuse in the grand jury proceedings is said to “merge” in the trial — prejudice from grand jury impropriety is deemed “cured” by a fair trial. But an indictment alone can cause enormous harm to an individual or business accused. The result is a federal grand jury process virtually immune from judicial supervision. Because grand jury procedure presently is given little legal signifi- cance, federal courts engage in little scrutiny of what happens there. While some prosecutors may conduct grand jury proceedings with meticulous care and con- cern for fairness to targets, others may not. If abuses do occur, they will rarely come to light. Blind faith that misconduct does not occur behind the grand jury door would be naive in the extreme. In recent times, this problem of virtually unbridled federal prosecutorial power over the grand jury has been exacerbated, too fre- quently, by a lack of prosecutorial restraint. As former Reagan Administration Deputy Attorney General Arnold Burns has written:
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