had come down two days before the effective date of the Hyde Amendment, and the law does not have retroactive application. 15 The Hyde Amendment is a very helpful measure for correcting wrongful prosecutions, but it comes at a fairly late stage of the proceedings. A wrongful indictment in itself — regardless of ultimate outcome — remains devastating. As Justice Kennedy noted in his plurality opinion for the U.S. Supreme Court in Gentile v. Nevada , in the time period between indictment and trial, the accused may suffer ruinous consequences to his reputation and employment from which he may never recover even if acquitted. 16 Now, with the dramatic decrease in the proportion of federal indictments that go to trial as compared to that prior to the enactment of the sentencing guidelines in 1987, the grand jury has in effect become the body of last resort for many accused in the federal criminal justice system. 17 These serious consequences make imperative efforts to restore a meaning- ful shield function to the federal grand jury. Additional safeguards are needed, to protect the individual or business subject to grand jury investigation, and to pro- tect against the waste of tax dollars squandered on investigations and prosecutions that should not be pursued in the first place.We submit that basic reform of the federal grand jury is a logical and necessary next policy step for Congress to take in efforts to restore a balance of fairness to the nation’s criminal justice system. While the grand jury continues to serve as a sword for the prosecutor, it has long ceased to perform its historic function as an independent entity acting as a shield to safeguard the citizenry against prosecutorial excess.
Proposals for Reform
The following ten reforms — a Bill of Rights for the Federal Grand Jury — are mainly drawn from those proposed by the American Bar Association (ABA) more than 20 years ago by its Criminal Justice Section Committee on the Grand Jury (“ABA Report”). Congress held hearings on these proposals but failed to pass them. However, recent developments, noted above, have created a new urgency for grand jury reform, as a critical policy step toward re-establishing a sense of fair balance to the now truly enormous federal prosecutorial/investigative power. We submit that these reforms strike the appropriate balance between the public’s interest in effective law enforcement and the public’s interest in protect- ing the rights of individual citizens and businesses involved in the federal grand jury process. The great benefit from the proposed reforms, and increased judicial scruti- ny of the grand jury process, would be that flaws in potential charges might be exposed at the grand jury stage, and unwarranted prosecutions would be less like- ly to be brought. At least some individuals and businesses would be spared the devastating effects of being forced to face trial on meritless charges. At the same time, none of these reforms would disrupt the effective func- tioning of the grand jury or add significantly to the burden of federal courts and prosecutors. Indeed, several of the proposed rules have been in effect for some time in some state jurisdictions, without any adverse consequences to effective law enforcement. N
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