Delusions of Grand Juries
Everyone knows that a grand jury would indict a ham sandwich. So why do we bother to use them?
FOR ALL FEDERAL FELONIES, a grand jury must indict before criminal charges may be brought, and as part of that role the grand jury may also do an investigation. A little over 30 years ago, a federal grand jury was convened in Illinois to investigate allegations of gambling. The grand jury subpoenaed approximately 20 people, asking them to provide voice samples to help identify the speaker of incriminating statements recorded on one of the prosecution’s wiretaps. One recipient of the subpoena, informed that he was a “potential defendant in a criminal prosecution,” refused to comply with the subpoena and give a sample. His lawyers pointed out that what the grand jury was doing—hauling in a large number of suspects without probable cause to arrest any of them—would be unlawful if done by law enforcement agents on the prosecutor’s orders.
The lawyers seemed to have a point, and while the district court denied his challenge, on appeal the Seventh Circuit found otherwise. Grand juries must have minimal supervision, the court held, to ensure that their inquiries, like those of law enforcement personnel, are constrained by the Fourth Amendment’s requirement that searches be reasonable.
Appealed again, however, the case was reversed by the Supreme Court. In the landmark United States v. Dionisio decision, in 1973, the court held that a federal grand jury, unlike law enforcement personnel, may freely use investigative techniques without any “preliminary showing of reasonableness” to justify the exercise of these powers. The court relied on a glowing portrait of the grand jury process. After extolling the grand jury’s “historic role as a protective bulwark standing solidly between the ordinary citizen and an overzealous prosecutor,” the court held that if the grand jury is to “even approach the proper performance of its constitutional mission” in this regard, “it must be free to pursue its investigations unhindered by external influence or supervision.”
In other words, with only slight self-consciousness, the court ruled against an individual’s objections by affirming the grand jury’s ability to protect his rights.
This ability is, in reality, a legal fiction, a useful lie the court tells itself. Academics have variously described the modern grand jury as a “fifth wheel,” a “tool of the executive,” a “total captive of the prosecutor,” a “prosecution lapdog,” and an “ignominious prosecutorial puppet.” Yet the court has a good reason not to openly acknowledge what even a casual Law & Order fan probably knows—that a “grand jury would indict a ham sandwich.” Acknowledging this would call into question many of the techniques used by federal prosecutors to build their cases and risk throwing the criminal justice system into chaos.
IN FEDERAL COURTHOUSES NATIONWIDE, citizens are summoned to serve as grand jurors on the supposition that they can provide a meaningful independent check on the prosecutor’s power. Yet a federal grand jury conducting an investigation, far from seeking to make a meaningful “probable cause” determination, hears evidence only to the extent the prosecutor finds it helpful in building the case for trial. The grand jury is entirely dependent on the prosecutor, who is the only authority figure the grand jurors are likely to see throughout their lengthy service (other than the prosecutor’s agents called to give testimony). No judge is present during the taking of evidence. Equally significant, strict secrecy rules bar from the grand jury room both counsel defending the target of the investigation and counsel for the witness being questioned.
Commentators tend to focus on the problem of prosecutorial abuse before the federal grand jury, obscuring the broader concern that even the nonabusive prosecutor can so dominate the grand jury’s decision that its review is not independent at all. The problem is not simply that individual prosecutors, in isolated cases, are so overbearing that they deprive the grand jury of its ability to act independently, but rather that the prosecution and the grand jury as institutions have a legal relationship that all but ensures that prosecutorial decisions will be implemented by the grand jury with little question.
It is the prosecutor who decides what cases the grand jurors will consider and what evidence will be presented with respect to those cases. In modern practice, what the grand jury hears in connection with its “independent” review for probable cause is entirely a function of the prosecutor’s judgment. Equally important, in making this judgment, the prosecutor has every incentive to limit and filter the evidence presented to the grand jury so as to avoid introducing materials that will have to be turned over to the defense at trial.
If a witness is called before the grand jury and the prosecutor later calls the same witness to testify at trial, the transcript of the grand jury testimony will have to be turned over to the defense as “Jencks” materials (the prior relevant statements of the witness). If a grand jury witness says something favorable to the defense, this creates exculpatory evidence, known as “Brady” material, that the defense will likewise be entitled to at trial. And if the government has any hopes of bringing a case for civil penalties after the criminal prosecution, minimizing the grand jury’s role—and the secrecy restrictions that will apply if the grand jurors actively investigate the case—allows the Justice Department to maximize its power to seek civil sanctions. As a result, grand jurors almost never hear the full scope of evidence related to “their” investigation.
Other structural aspects of modern federal grand jury practice also undermine the grand jury’s independence and increase the institutional power of the federal prosecutor. The grand jury is a rotating, temporary body (in contrast to the prosecutor, who is usually a permanent government employee), and only a majority of grand jurors is necessary to approve a draft indictment (whereas a full jury must vote to convict in most federal criminal cases). The significance of the grand jury’s vote is further diluted by the rule that it is permissible for grand jurors to vote in favor of indictment even if they were absent when evidence was presented.
An indictment may be sought from a grand jury that did not hear any witness testimony in person, based only on the testimony of a single government agent selectively summarizing the prosecution’s evidence or on a summary of evidence presented to another grand jury. And even if one panel of grand jurors rejects a proposed indictment, this is not the end of the story. The federal prosecutor is entirely free, as a matter of Supreme Court doctrine, to seek approval of the same indictment from a different panel. This ensures that even if a particular group of grand jurors is independent of the prosecutor, the institution of the grand jury is not.
Virtually the only acts that modern federal grand jurors engage in, other than sitting through some witness testimony and raising a few questions, are the formalities of swearing in witnesses and the final step of voting on indictments drafted and presented by the prosecutor. The grand jury has no practical or legal ability to issue regulations governing its own operations and no capacity to gain independent knowledge of its own role or powers. While the Supreme Court has repeatedly described the federal grand jury as an institution that acts “independently of either prosecuting attorney or judge,” the rules by which it operates in practice make it anything but independent.
THE MODERN FEDERAL GRAND JURY has been shaped by a series of Supreme Court decisions, beginning with Costello v. United States (1956), in which the court examined whether a grand jury indictment may be based only on hearsay evidence. Justice Hugo Black’s sweeping majority opinion, which ostensibly recognized the “high place” the federal grand jury holds as an “instrument of justice,” refused to put any limits on the kind of evidence upon which grand juries may act. In seeking approval of a proposed indictment, the prosecutor may present the case to the grand jury by calling a single law enforcement agent and asking only leading questions that call for one-word affirmations of factual statements formulated by the prosecutor. The grand jury may be presented testimony that is hearsay, double hearsay, or triple hearsay; it need not be presented with any eyewitnesses at all. And “one-agent summaries” have reportedly become the predominate method of obtaining federal criminal indictments from the grand jury.
Courts have interpreted Costello to mean that the prosecutor is allowed to offer evidence highly damaging in its power of suggestion, such as a defendant’s prior criminal convictions, even if that evidence would obviously be inadmissible at trial. In a corollary decision, the Supreme Court ruled in United States v. Williams (1992) that a court cannot require a prosecutor seeking an indictment to present to the grand jurors evidence he possesses that clearly demonstrates the innocence of the defendant of the crimes to be charged. An indictment is valid even if the grand jurors have no knowledge, in voting to indict, that evidence exists that would exculpate the defendant.
Other court grand jury decisions issued between 1986 and 1992, have gone further. The court has increased the authority of grand jury determinations, imposing procedural rules that strictly foreclose judicial review of most challenges to grand jury procedures. Under these decisions, if the defendant is convicted—either by a guilty verdict after trial or by his own guilty plea—it wipes the slate clean with respect to any errors in the indictment process (outside of rare challenges based on the racial composition of the grand jury). A defendant who is found guilty cannot claim that he or she was improperly charged, even if there was clear abuse in the charging process. This has rendered virtually unenforceable the few remaining rules intended to further grand jury independence.
DESPITE THE ALMOST UNIVERSAL RECOGNITION that these legal doctrines make it difficult, if not impossible, for the federal grand jury to operate independently of the prosecutor, the Supreme Court continues to reaffirm the fiction of grand jury independence. Why does the court propagate this myth? Wouldn’t it be easier to acknowledge that the modern grand jury has become an important investigative tool for the federal prosecutor, while its indictment function has become essentially a formality?
One reason that the court doesn’t admit this is that the right to grand jury indictment is set out in the Constitution. The Fifth Amendment states that “[n]o person shall be held to answer” for a federal felony charge “unless on a presentment or indictment of a Grand Jury.” Whereas grand jury indictment, for our British ancestors, was merely a common law right, the Supreme Court frequently describes it in the most elevated terms. According to the court, it was because the defendant’s right to indictment by the grand jury was “so essential to basic liberties” that the founders included this right in the Fifth Amendment. Not only is the grand jury “an integral part of our constitutional heritage” but its adoption in the Constitution as the “sole method for preferring charges in serious criminal cases shows the high place it [holds] as an instrument of justice.”
At the same time, the Supreme Court has been unwilling to read any meaningful content into the constitutional “right” about which it waxes so eloquent. In practice, the grand jury’s function as an investigative and charging body is a much better explanation for its continued role than its theoretical position as a bulwark between the individual and the state.
It is because the grand jury is a powerful investigative tool for the federal prosecutor, particularly indispensable in cases involving white-collar crime, organized crime, drug conspiracies, and, now, terrorism investigations, that the Justice Department fiercely defends it, not because of its effectiveness in protecting citizens against unwarranted accusations by department prosecutors. If the grand jury were unavailable to federal prosecutors, many crucial investigative powers would be stripped from the prosecutor’s arsenal. The grand jury’s subpoena power gives the prosecutor a vital and extraordinarily broad tool in conducting a criminal investigation, allowing him to issue virtually unlimited document demands, to compel testimony from unwilling witnesses, to negotiate immunity deals, and to separate witnesses from their lawyers. Though the grand jury rarely performs the protective role the court describes, in its current incarnation it nevertheless serves a crucial function in the justice system. The court may be recognizing this when it defends the grand jury’s supposed independence as an institution.
By reaffirming and expanding what are supposedly the grand jury’s powers, the court can actually give prosecutors powers beyond those it could constitutionally grant to law enforcement agents acting on their own—reflecting the court’s respect for the critical social function played by criminal law enforcement. And the court’s refusal to allow federal court regulation of prosecutor conduction in grand jury proceedings enhances prosecutors’ discretion to investigate, charge, and resolve criminal matters without judicial interference.
The court’s fiction of grand jury independence also streamlines the judicial process. By characterizing the federal grand jury’s decisional process as both “independent” of the prosecutor and guided by the legal standard of “probable cause,” the court has allowed prosecutors to use a grand jury indictment as a sufficient basis, all by itself, for arresting, detaining, trying, and suspending defendants from government employment without any determination of probable cause by a judge. In this way, the court can avoid the need for more meaningful (and burdensome) review procedures.
But though there may be utility in continuing the grand jury myth, there is also a drawback. The fiction that the grand jury is independent of the prosecutor has become a crutch, allowing the court to reach results it could not easily justify with a more forthright analysis. Just as important, the court has arguably engaged in what amounts to judicial legislating, effectively transforming the federal grand jury into an institution whose indictment function is virtually moribund but whose investigative function is ever more vital. A similar process of transformation has taken place in many states, which have been free to change their grand jury systems without the constraints of the Fifth Amendment, but such states have also enacted balancing reforms (such as preliminary hearings before a magistrate judge) to maintain meaningful review of criminal indictments—which the federal grand jury system entirely lacks. The court arguably has implemented reforms that would have been better legislated by Congress, and without the balance that a Congressional debate would have facilitated.
HOW COULD WE DISCARD THE SUPREME COURT’S MYTHS and approach the federal grand jury system more forthrightly? If we care, as I suggest, about the fairness of the investigative process, we would start reforming the federal grand jury by allowing witnesses to have counsel in the grand jury room when they give testimony, reversing the rule that has probably provoked the most outcry about the grand jury’s investigative procedures. For the same reasons that we allow witnesses to be accompanied by counsel at trials and in investigative interviews conducted by federal agencies, such a reform would enhance the fairness of the investigative process, prevent manipulation of vulnerable witnesses, and protect against inadvertent waivers of critical Fifth Amendment rights or attorney-client privileges. We should also look into providing witnesses with transcripts of their testimony and consider placing limits on the circumstances in which grand jury subpoenas can be issued. Reforms like these would allow the adversary process to work effectively in criminal investigations, rather than leave us having to pretend that a grand jury investigation is a neutral, “nonadversarial” review proceeding in which we can trust grand jurors to protect the interest of the putative defendant.
But if we were instead to focus, as the court’s decisions suggest, on the “independence” of the grand jury, we would begin with very different reforms—to enhance the power of the grand jurors. Most important, we would give the grand jury an independent legal adviser, selected from outside the prosecutor’s office. This adviser would inform the grand jury that its powers rightfully belong to it, not to the prosecutor. Another reform to the same end, modeled after state efforts to improve the quality of grand jury decision making, would establish evidentiary rules for grand jury presentations or a requirement of balance in the prosecutor’s presentation to the grand jury (by demanding that exculpatory evidence be presented, for example). Reforms like these could, however, delay and complicate the issuance of federal grand jury indictments without actually ensuring that grand jury review would be any more “independent.”
It would be a bold step for the Supreme Court to acknowledge the evolution of the federal grand jury, from its constitutional conception as a bulwark against the state to its modern role as a powerful investigative tool of the state. This frank approach might necessitate sacrificing a particular indictment or a particular case. But it would place squarely on Congress the onus to enact legislation addressing the federal grand jury and its role in the broader criminal justice system.
Indictment has become an ever more important stage in criminal justice, with prosecutors’ power to negotiate plea agreements having dramatically increased because of the stringent Federal Sentencing Guidelines and fewer and fewer criminal cases going to trial. Yet a fair indictment process has become an ever less valuable “right” for the defendant. Legislative reforms could protect prosecutors’ interest in investigating federal crimes while ensuring meaningful checks against excessive prosecutorial zeal in their use of the grand jury. ...