The Grand Jury Introduction
FRANKEL, MARVIN E. & NAFTALIS, GARY P.
THE GRAND JURY AN INSTITUTION ON TRIAL BY MARVIN E. FRANKEL AND GARY P. NAFTALIS INTRODUCTION Though best known for other clauses, the Fifth Amendment to our Federal Constitution provides as its...
...As the Supreme Court observed a while ago, reiterating a point it had made in 1919: "Traditionally the grand jury has been accorded wide latitude to inquire into violations of criminal law...
...It may be that the grand jury never was, never became, and never could quite become a People's Panel in any genuine sense...
...It is a grand inquest, a body with powers of investigation and inquisition, the scope of whose inquiries is not to be limited narrowly by questions of propriety or forecasts of the probable result of the investigation, or by doubts whether any particular individual will be found properly subject to an accusation of crime.' Blair v. United States, 250 U.S...
...Whichever path we follow, the issue is surely the people's problem...
...Against this account of its actual operation and doctrinal foundations, we then take up the main problems and conflicts that have for so long made the grand jury a subject of controversy...
...It says: "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger...
...1 Given its awesome range of powers, the grand jury clearly demands attentive understanding...
...In fact, it was the King's Panel, commissioned to investigate for the monarch, enforce his writ, extend and help consolidate his power...
...After centuries of sometimes accidental evolution, the institution developed into, and pretty much remains, the Prosecutor's Panel, largely directed and controlled by the government lawyers—elected or appointed—charged with enforcing the criminal laws and prosecuting alleged violators...
...Frequently referred to as the People's Panel, the grand jury certainly was something else when it was born about 800 years ago...
...The grand jury may compel the production of evidence or the testimony of witnesses as it considers appropriate, and its operation generally is unrestrained by the technical procedural and evidentiary rules governing the conduct of criminal trials...
...It may be, as many have long asserted, that the inability to realize the ideal should prompt us to abolish the imperfect substitute...
...273, (1919...
...No judge presides to monitor its proceedings...
...The grand jury today is a powerful instrument, for good and for ill...
...It deliberates in sea Bret and may determine alone the course of its inquiry...
...Transplanted from England, the grand jury was seen by the Founders as a bulwark for the individual against arbitrary or malevolent prosecutors...
...Finally, we outline the major proposals for Federal reform now pending in the Congress, and we present our own views on some debatable questions...
...But the sensible course would seem to be to inquire first whether the grand jury imperfections are remediable, whether it might yet serve the high purposes, and assure the high protections, the Founders envisioned...
...THE GRAND JURY AN INSTITUTION ON TRIAL BY MARVIN E. FRANKEL AND GARY P. NAFTALIS INTRODUCTION Though best known for other clauses, the Fifth Amendment to our Federal Constitution provides as its first guarantee the protection of the grand jury...
...In the pages that follow we try to meet the demand by starting with an examination of the grand jury's history, its various manifestations, its functions and practices...
...And these purposes, so dear to the liberties- and the authority of the people, entitled the grand jury to be enshrined in the Bill of Rights...
...This meant, and still means, that a person may not be brought to trial for a serious crime (generally a felony—an offense punishable by over a year in prison), unless a grand jury has heard enough evidence to return an indictment...
...It was also valued as a kind of people's watchdog, to search out and disclose governmental imperfections, corruption or areas needing legislative reform...
Vol. 58 • November 1975 • No. 22
