The Grand Jury Reform vs. Abolition
NAFTALIS, GARY P. & FRANKEL, MARVIN E.
REFORM VS. ABOLITION We think the grand jury retains a significant place in our system of criminal justice. It falls far short of the ideal, however, and is in need of improvement. Along the way we...
...And we think that is, in the last analysis, as it should be...
...Pierre v. Louisiana, 306 U.S...
...2986, ?330A (f) (2), P. 13...
...at 453...
...1975...
...It is true that a prosecutor (and also a grand jury) may be moved at times to particularly strong feelings in a case, but if the prosecutor cannot be sobered by the necessity of proving his case beyond a reasonable doubt and of winning a unanimous verdict of guilty, then it would not seem very plausible to rely upon grand jurors to exercise the needed restraint...
...At a time of growing skepticism among our citizens that government is responsive to their needs, the grand jury provides a mechanism for ordinary people to play a role...
...N.A.A.C.P v. Alabama, 357 U.S...
...701, 761 (1972...
...522, 530 (1975...
...363, 367 (Sup...
...449, 462 (1958...
...1961...
...2986, ?330 (a) (1...
...L. Rev...
...1103, 1136 (1955) 31...
...even without legislation, judges (including those who write magazine articles) could undertake this improvement...
...71, 170 (1974...
...L. Rev...
...4. A prospective defendant, in the absence of a good reason for denial, should have the right upon request to appear before the grand jury and tell his version...
...522 (1975...
...Springer v. Philippine Islands, 277 U.S...
...Grand jury reports, exposing wrongs but not indicting anyone, should be allowed, but only in rare situations of allegedly wrongful official conduct that have been specifically prescribed by law...
...1933...
...It follows that the prosecutor should be able to utilize a grand jury according to his felt needs...
...At the same time, we agree that amending the Bill of Rights is a course not to be proposed or taken lightly...
...defendants (who have been indicted) should normally have a right to see grand jury transcripts, subject to precise safeguards, to help prepare for trial...
...858 (S.D.N.Y...
...8. Grand jury secrecy is overdone...
...The grand jury and trial jury are the only institutions in our judicial system in which nonprofessionals are involved in the decision-making process...
...Along the way we have mentioned some changes and measures we would favor...
...913 (1954...
...5. Petition of Borden Co., 75 F. Supp...
...The role is not strictly cosmetic...
...Wood v. Georgia, 370 U.S...
...If the grand jury disappears, the "indicting" function, or its analogue, will exist elsewhere...
...338, 349-350 (1974...
...330, 352-53 (1957) (Black, H., dissenting...
...273, 278-79 (S.D.N.Y...
...at 541-542...
...Talley v. California, 362 U.S...
...United States v. Morse, 292 Fed...
...In his letter to Chairman Ro-dino of the House Judiciary Committee, then Assistant Attorney General Rakestraw outlined the basis for the Department's position: "The preferable way of dealing with this subject matter, we submit, would be to provide that no person shall be held to answer for any crime against the United States, except under an information subscribed by the attorney for the government or upon an indictment of a grand jury, as the attorney for the government may elect...
...is jeopardized once the process of revision is started...
...2. The proposal for fuller instructions to grand juries is a good one...
...1922...
...Smith v. Texas, 311 U.S...
...Carter v. Jury Commission of Greene County, 396 U.S...
...677, 681, N.6 (1958...
...Kuh, The Grand Jury "Presentment": Foul Blow or Fair Play...
...For example, a joint resolution now before Congress introduced by Representative Eilberg, includes such a provision...
...55 Col...
...6. United States v. Proctor & Gamble, 356 U.S...
...320 (1970...
...denied, 347 U.S...
...60, 64 (1960...
...Any experienced prosecutor will attest to the reliance he places on grand jurors' reactions to the credibility of a witness, and to the persuasiveness of a novel or complex prosecutive approach in making a judgment about whether a case should be pursued...
...1953...
...Nor should we reject lightly the role the grand jury plays in providing a vehicle for citizen participation in government...
...9. Since secrecy, properly understood, remains essential to protect reputation and other interests, stronger sanctions should be employed to plug the troublesome grand jury leaks...
...But the belief is widely held by others, among them people of substantial judgment, that the institution should be abolished altogether...
...441, 446 (1972...
...1953), cert...
...Kastigar v. United States, 406 U.S...
...We think that this approach is a sensible and proper one...
...4. In Re Horowitz, 482 F.2d 72, 79-80 (2d Cir...
...7. United States v. Estepa, All F. 2d 1132 (2d Cir, 1972...
...Westen, The Compulsory Process Clause, 75 Mich...
...Peters v. Kiff, 407 U.S...
...189, 201-202 (1928...
...denied, 414 U.S...
...3. New York Times v. Sullivan, 376 U.S...
...To summarize and possibly sharpen the focus, we list reforms and directions we would support...
...83 (1963...
...857 (N.D...
...United States v. Briggs, 514 F. 2d 794, 806 (5th Cir...
...7. A witness should not be summoned when the prosecutor knows it is only for the purpose of having him plead his privilege against self-incrimination, thus illicitly inviting the grand jury to draw an adverse inference that the Constitution forbids...
...867 (1973...
...United States v. Remington, 208 F. 2d 567, 573 (2d Cir...
...Queens Cty...
...on others we have reserved judgment...
...The case is yet to be made that alternative devices are sure to be better in vital respects...
...It is a possibility, not unknown in real life, that we ought to weigh soberly before we discard it...
...Finally, a practical and ideological point remains to be considered in judging both the desirability and the possibility of abolition...
...354 (1939...
...For now, however, those efforts would seem to mark the main lines of constructive hope...
...Ponzi v. Fessenden, 258 U.S...
...The heavy burden of justifying this course with respect to the grand jury has not been sustained...
...254, 262 (1922...
...128, 132 (1940...
...A witness before the grand jury should have a right to a transcript of his testimony...
...807 (1972...
...Brady v. Maryland, 373 U.S...
...2. Bigelow, History of Procedure in England, 325-6 (1880...
...No section of that fundamental charter has ever been amended...
...Application of United Electrical, Radio & Machine Workers, 111 F. Supp...
...Prosecutors should be free to answer legitimate media inquiries, but should be barred from holding press conferences to announce indictments...
...This approach also recognizes that the sole substantial reason for having a grand jury today is to help the attorney for the government, when the need arises, to discharge his prosecutive responsibilities by expediting and facilitating the criminal justice process...
...cert...
...The grand jury is, as it has been from the beginning, a part of the Bill of Rights...
...L. Rev...
...It recognizes that a grand jury, despite the antiquated notion to the contrary, in fact is not a bulwark between the individual and the prosecutor...
...With these improvements and possibly some others now being considered by Congress, the grand jury in our view could be a worthy means of investigation, prosecution and protection...
...5. If a prospective defendant is called without volunteering, he should be told that he is a target of the investigation...
...8. United States v. Calandra, 414 U.S...
...3. Witnesses should have a right to counsel in the grand jury room, subject to suitable restrictions upon the extent of his participation...
...People v. McCabe, 266 N.Y.S...
...The Last Analysis Yet despite the Justice Department's stand and the fact that the abolitionist position has prevailed in England and in many of the states, the odds are not in its favor on the Federal level...
...338, 343 (1974...
...1972...
...In Re Groban, 352 U.S...
...8 Wigmore, Evidence, ?362 at 736 (McNaugh-ton Rev...
...9. Taylor v. Louisiana, 419 U.S...
...denied, 381 U.S...
...Bursey v. United States, 466 F. 2d 1059, 1089 (9th Cir...
...This has led to proposals for amending the Constitution that would eliminate the grand jury requirement from the Fifth Amendment...
...493, 503-504 (1972...
...Many have argued that the very idea should be shunned short of the most desperate need, the thought being that the whole panoply (freedom of speech, religion, press, protection against unreasonable searches and seizures, the ban against cruel and unusual punishments, etc...
...We do not share that view in its fullest manifestation, combining as it does elements of religion and near-superstition...
...Taylor v. Louisiana, 419 U.S...
...So, too, will the investigation function, including the power to compel testimony and the production of evidence...
...1. In general, judges should receive regular reports of grand jury activities from prosecutors—the subjects of inquiry, the number of witnesses called, the results of investigations—so that abuses might be less freely attempted or, if attempted, more susceptible of correction in their incipiency...
...The case name, because it was in partial form an appeal directed against the District Judge, is United States v. Cox, 342 F. 2d 167 (5th Cir...
...FOOTNOTES 1. United States v. Calandra, 414 U.S...
...It would have grand juries exist, but only if Congress wanted them "to investigate any organized criminal activity or any crime against the United States.' While opposing the Eilberg resolution, the Department of Justice has joined in calling for the abolition of the mandatory grand jury system...
...Campbell, Eliminate the Grand Jury, 64 Journal of Criminal Law and Criminology 174 (1973...
...375, 390 (1962...
...at 449...
...Schwartz, Helene E., Demythologizing the Historic Role of the Grand Jury, 10 Amer...
...The proposal will merit intensive consideration if the efforts for reform prove futile...
...254, 276 (1964...
...It favors a constitutional amendment allowing the prosecutor to choose whether to proceed by indictment or information in a given case...
...935 (1965...
...If, as we assume, some investigative agency or person (a magistrate, a "one man grand jury,") would be needed and empowered to interrogate people, there is the prospect of questioning, very possibly under oath, in some official office or chamber or hearing room, with or without counsel...
...Dash, The Indicting Grand Jury: A Critical Stage, 10 American Criminal Law Rev...
...We oppose, however, the further step of allowing the use of these transcripts for challenges to the indictment on the ground that the evidence before the grand jury was insufficient...
...The danger of browbeating could well be greater in such circumstances than it is before the grand jury...
...A group of 23 citizens, not professionally wedded to the law enforcement machinery, may still serve as a moderating influence on impatient or intemperate officials...
...1948...
...6. While we would not support in addition the further right of a prospective defendant to call witnesses other than himself before the grand jury, his suggestions of people to be heard ought to receive careful and sympathetic consideration by the grand jurors...
...cert...
...In that regard, it should be re-emphasized that among the most important sources of present un-happiness with the grand jury is the problem of abusive, intimidating treatment of witnesses...
Vol. 58 • November 1975 • No. 22
