The grand jury legal advisor: resurrecting the grand jury's shield.

• Author: Hoffmeister, Thaddeus

1. 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...