This paper reviews the history of the grand jury in America, with attention to the evolution of current government prosecutorial control of grand jury proceedings and outcomes; this is followed by recommendations for righting the wrongs of grand jury practice.
The paper concludes that when the American colonies declared their independence from England, the grand jury was an effective protection for individual citizens against the powers of government to intervene unjustifiably in the lives of individual citizens. The paper further concludes, however, that the modern grand jury not only fails to perform this function, but has become a tool for the government to use in launching and pursuing all manner of investigations into the lives of citizens. The authors maintain that Federal prosecutors now use the facade of the "grand jury process" to initiate and conduct investigations about which the grand jury has little or no knowledge and over which it has no oversight or control. The facade of the grand jury has also been used by government prosecutors to bypass the constitutional rights of citizens; for example, once a subpoena as been served on a person under the discretion of the prosecutor, without the necessity of the approval of a judge or the grand jurors, that person has no constitutional right to remain silent. Once a Federal grand jury witness makes an appearance (not to appear is a Federal crime), he/she must answer the questions that are posed by the prosecutor. Any witness who appears before the grand jury but declines to answer questions may be summarily jailed without a trial if a judge determines that a valid claim of privilege does not apply. Further, Federal prosecutors have the power to separate witnesses from their attorneys, which makes the lay witness even more vulnerable to prosecutorial threats and intimidation. The authors recommend that Congress abolish the grand jury's inquisitorial subpoena powers and reject any suggestion of "transferring" such powers to executive-branch police agents or prosecutors. Since this reform is likely to be fiercely resisted by executive-branch agencies as well as legislators, this paper also proposes some less radical changes, such as a witness' right to be accompanied by counsel, judicial review of any prosecutorial dissemination of grand jury material to the military or intelligence services, and government reimbursement for the financial cost of complying with a grand jury subpoena. 87 notes