If It's Not a Runaway, It's Not a Real Grand Jury

• Publication year: 2022

33 Creighton L. Rev. 821. IF IT'S NOT A RUNAWAY, IT'S NOT A REAL GRAND JURY

Creighton Law Review

Vol. 33

ROGER ROOTS(fn*)

I. INTRODUCTION

The doings of American grand juries are notoriously misunderstood and unknown by most sectors of the public.(fn1) Generally, the grand jury process escapes obscurity only when indictments are made public and when, for whatever reason, grand jury "leaks" are disclosed in the news media.(fn2) In theory, the grand jury is supposed to act as a check on the government - a people's watchdog against arbitrary and malevolent prosecutions.(fn3) By and large, however, federal grand juries rarely challenge federal prosecutors.

Today, critics are nearly unanimous in describing the alleged oversight function of modern grand juries as essentially a tragic sham.(fn4) The Framers of the Bill of Rights would scarcely recognize a grand jury upon seeing the modern version conduct business in a federal courthouse.(fn5) In modern federal grand jury proceedings, the government attorney is clearly in charge and government agents may outnumber the witnesses by six-to-one.(fn6)

A "runaway" grand jury, loosely defined as a grand jury which resists the accusatory choices of a government prosecutor, has been virtually eliminated by modern criminal procedure. Today's "runaway" grand jury is in fact the common law grand jury of the past. Prior to the emergence of governmental prosecution as the standard model of American criminal justice, all grand juries were in fact "runaways," according to the definition of modern times; they operated as completely independent, self-directing bodies of inquisitors, with power to pursue unlawful conduct to its very source, including the government itself.(fn7)

Before the Federal Rules of Criminal Procedure - which made independently-acting grand juries illegal for all practical purposes - grand juries were understood to have broad powers to operate at direct odds with both judges and prosecutors.(fn8) One recent criminal procedure treatise sums up the inherent inconsistency of the modern grand jury regime:

In theory, the grand jury is a body of independent citizens that can investigate any crime or government misdeed that comes to its attention. In practice, however, the grand jury is dependent upon the prosecutor to bring cases and gather evidence. Except in rare instances of a "runaway" grand jury investigation of issues that a prosecutor does not want inves-tigated, the powers of the grand jury enhance the powers of the prosecutor.(fn9)

Thus, while the grand jury still exists as an institution - in a sterile, watered-down, and impotent form - its decisions are the mere reflection of the United States Justice Department.(fn10) In practice, the grand jury's every move is controlled by the prosecution, whom the grand jury simply does not know it is supposed to be pitted against.(fn11)

The term "runaway grand jury" did not appear in legal literature until the mid-twentieth century.(fn12) The reason for this is that the term would have been inapplicable in the context of previous generations: every American grand jury known by the Constitution's Framers would be considered a runaway grand jury under modern criminal procedure. Constitutional framers knew criminal law to be driven by private prosecution and did not contemplate the omnipresence of government prosecutors.(fn13) Additionally, early American common law placed far more power and investigative judgment in the hands of grand juries than does the criminal procedure of the twentieth century.

Although in 1946 the drafters of the Federal Rules of Criminal Procedure looked with horror at the prospect of grand juries that "could act from their own knowledge or observation,"(fn14) long-standing common law precedent upholds the power of grand juries to act "independently of either the prosecuting attorney or judge."(fn15) At common law, a grand jury could freely "investigate merely on [the] suspicion that the law [was] being violated, or even because it want[ed] assurance that it [was] not."(fn16) In light of the historic independence of the grand jury, the perfidy of the Federal Rules Advisory Committee in limiting the institution through codification can only be seen as willful subversion of well-settled law.(fn17) A truly independent grand jury - which pursues a course different from the prosecutor - is today so rare that it is an oddity, and a virtual impossibility at the federal level since Rule 6 was codified in 1946.

The loss of the grand jury in its traditional, authentic, or runaway form, leaves the modern federal government with few natural enemies capable of delivering any sort of damaging blows against it.(fn18) The importance of this loss of a once powerful check on the "runaway" federal government is a focus that has remained largely untouched in the legal literature.

This article examines the historic decrease in the powers of the American grand jury during the twentieth century. It introduces the subject of the grand jury in the context of the constitutional language which invoked it, and then compares the modern application of the institution at the federal level with its common law model.(fn19) Tracing the historic evolution of the grand jury as an antigovernment institution in the English common law until its "capture" by the government in the midtwentieth century, this article will demonstrate how the role of the grand jury has changed considerably over time. Finally, this article will argue that the modern loss of "runaway" or independent grand juries is unconstitutional and recommend a restoration of the grand jury's historic powers.

II. THE GRAND JURY'S HISTORIC FUNCTION

The Fifth Amendment to the United States Constitution requires that "[n]o person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury."(fn20) Constitutional framers considered this protection "a bulwark against oppression" due to the grand jury's historic powers to investigate the government and deny government indictments.(fn21) The grand jury of the eighteenth century usually consisted of twenty-three people acting in secret who were able to charge both on their own (an accusation known as a "presentment") and upon the recommendations of a prosecutor.(fn22) In addition to its traditional role of screening criminal cases for prosecution, common law grand juries had the power to exclude prosecutors from their presence at any time and to investigate public officials without governmental influence.(fn23) These fundamental powers allowed grand juries to serve a vital function of oversight upon the government.(fn24) The function of a grand jury to ferret out government corruption was the primary purpose of the grand jury system in ages past.(fn25)

THE MODERN GRAND JURY IN COMPARISON

Today's federal grand jury hardly fits the image of a noble and independent body.(fn26) As a practical matter, it is little more than an audience for summary government presentations.(fn27) Grand juries in federal courthouses do little more than listen to "a recitation of charges by a government witness."(fn28) Federal prosecutors, unchecked by a grand jury in its modern misconstruction, can easily obtain whatever result they seek in the grand jury room.(fn29) They generally call only one witness, a federal agent who summarizes, in hearsay form, what other witnesses (if any) told her.(fn30) Eyewitnesses, even if available, rarely appear, and the entire presentation of the prosecutor's case may take as few as three minutes.(fn31)

Even the federal grand jury handbook issued to newly sworn grand jurors reflects the watered down nature of modern grand jury activities.(fn32) The 1979 version of the handbook assured jurors that "you alone decide how many witnesses" are to appear.(fn33) Five years later, the updated version of the handbook told jurors "that the United States Attorney would 'advise them on what witnesses' should be called."(fn34)

"Today, the grand jury is the total captive of the prosecutor," wrote one Illinois district judge, "who, if he is candid, will concede that he can indict anybody, at any time, for almost anything, before any grand jury."(fn35) Supreme Court Justice William Douglas wrote in 1973 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."(fn36) At least one scholar has suggested that the problem of grand jury subordination may be so institutionalized that its very structure violates due process.(fn37) The critics are unanimous in their condemnation of the modern grand jury process as little more than an elaborate ritual used only to justify by ceremony the decisions of the government. Commentators only disagree on whether to term the grand jury the prosecutors; "indictment mill," "rubber stamp," a "tool" or "playtoy."(fn38)

STATISTICAL PROOF

According to David Burnham of the Transactional Records Access Clearinghouse ("TRAC"), the statistical evidence "overwhelmingly supports what practicing lawyers have known in an anecdotal way for many years: One of the basic safeguards promised by the Fifth Amendment is a fraud."(fn39) Describing traditional expressions by federal judges concerning the grand jury as those of "almost mystical faith"-with little basis in reality, Burnham...