CREIGHTON LAW REVIEW, Vol. 33, No. 4 1999-2000, 821
SCHOOL OF LAW
IF IT'S NOT A RUNAWAY, IT'S NOT A REAL
The doings of American grand juries are notoriously misunderstood and
unknown by most sectors of the public. 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. In theory, the grand jury is supposed to act as a check on
the government — a people's watchdog against arbitrary and malevolent
prosecutions. 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. The
Framers of the Bill of Rights would scarcely recognize a grand jury upon seeing
the modern version conduct business in a federal courthouse. In
modern federal grand jury proceedings, the government attorney is clearly in
charge and government agents may outnumber the witnesses by
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.
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. 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
investigated, the powers of the grand jury enhance the powers of the
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. 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.
The term "runaway grand jury" did not appear in legal literature until
the mid-twentieth century. 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.
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
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," long-standing common law
precedent upholds the power of grand juries to act "independently of either the
prosecuting attorney or judge." 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." 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. 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. 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. Tracing the historic evolution
of the grand jury as an anti-government institution in the English common law
until its "capture" by the government in the mid-twentieth 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."
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. 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. 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. These fundamental powers allowed grand juries to
serve a vital function of oversight upon the government. The
function of a grand jury to ferret out government corruption was the primary
purpose of the grand jury system in ages past.
THE MODERN GRAND JURY IN COMPARISON
Today's federal grand jury hardly fits the image of a noble and
independent body. As a practical matter, it is little more than
an audience for summary government presentations. Grand juries
in federal courthouses do little more than listen to "a recitation of charges
by a government witness." Federal prosecutors, unchecked by a
grand jury in its modern misconstruction, can easily obtain whatever result
they seek in the grand jury room. They generally call only one
witness, a federal agent who summarizes, in hearsay form, what other witnesses
(if any) told her. Eyewitnesses, even if available, rarely
appear, and the entire presentation of the prosecutor's case may take as few as
Even the federal grand jury handbook issued to newly sworn grand jurors
reflects the watered down nature of modern grand jury
activities. The 1979 version of the handbook assured jurors that
"you alone decide how many witnesses" are to appear. Five years
later, the updated version of the handbook told jurors "that the United States
Attorney would 'advise them on what witnesses' should be
"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." 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." At least one scholar has suggested that the problem
of grand jury subordination may be so institutionalized that its very structure
violates due process. 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."
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."
Describing traditional expressions by federal judges concerning the grand jury
as those of "almost mystical faith" — with little basis in reality,
Burnham speaks of scores of decisions in which courts have found that Justice
Department lawyers lied, cheated, or took other improper actions to win their
indictments and convictions, but which courts found did not serve to overpower
the grand jury's alleged independence. "The grand jury as an
institution is worshipped for being something it is not," according to
Burn-ham, "a group of citizens capable of confronting an assistant U.S.
Attorney over matters of the law or sufficiency of evidence."
Another writer has described grand jury subpoenas and indictments as
"essentially unilateral decisions by prosecutors."
According to TRAC, of 785 federal grand juries in 1991, grand jurors
voted against the prosecutor in only sixteen of the 25,943 matters presented to
them, a rate of 99.9% agreement. Even the remaining one tenth of
one percent, according to Burnham, might exaggerate a grand jury's
independence, due to prosecutors deliberately "throwing" a couple of
prosecutions, such as the possibly disingenuous 1991 "investigation" of
Virginia Senator Charles Robb on widespread allegations of illegal tape
recording of a political rival.
Even the Justice Department has tacitly conceded that there is almost no
such thing as grand jury independence. A 1983 report by its Office of
Development, Testing and Dissemination concluded that the imbalance of power
between the courts and prosecutors on one hand and the grand jury on the other
"makes grand jury effectiveness largely dependent on the good will and ethics
of the courts and prosecutors." The Justice Department report
shrugged off this criticism, however, asserting that prosecutors have little
incentive for promoting unsound indictments since they have the burden of
preparing for trial. "Indeed," claimed the report, "the incidence of guilty
pleas and verdicts following indictment may be seen as evidence of the ultimate
effectiveness of the grand jury process."
Despite this self-serving confidence by the government, the vast
majority of disinterested observers view grand jury effectiveness as completely
subject to the direction of federal prosecutors. As one scholar put it, "[t]he
notion that grand juries do not eliminate weak cases is now so well accepted
that it is difficult to find any recent scholarly support to the
But while critics of the grand jury process are many, few point to any
clearly articulable reasons to explain why the grand juries of the past were so
much better at resisting the will of the prosecutor than those of
today. Some authorities place the blame on federal prosecutors
and argue that Congress should expressly prohibit them from misleading grand
juries by withholding exculpatory information or from using illegally seized
information to gain grand jury indictments. Others point to the
modern grand jury's lack of investigative tools and call upon Congress to
provide grand juries with their own investigative staff and
resources. Other sources, such as the American Bar Association,
have pointed to modern grand jury instructions as a major source of grand jury
subordination, and argue that instructions should be altered to emphasize to
grand jurors their independence and their co-equal status in relation to the
government.[51 ]Other authorities have placed the blame squarely
upon the Federal Rules of Criminal Procedure, which provide no clear avenue for
the exercise of traditional grand jury powers.
The grand jury is first known to have existed in 1166, when the Norman
kings of England required answers from local representatives concerning royal
property rights. In its early centuries, the grand jury evolved
into a body of twelve men who presented indictments at the behest of private
individuals or the prosecutor of the King. The Magna Carta
provided that individuals had the right to go before a grand jury to be charged
of their crimes. As trial by a jury of twelve replaced trial by
ordeal, the grand jury became a body of twelve to twenty-three men, which is
closer to the way it is set up today, acting as ombudsmen between the King's
officials and royal subjects.
SECRECY ADOPTED IN 1681
By 1681, the English grand jury adopted the rule of secrecy which
allowed it to function out of the sight of the King's prosecutors or other
intemeddlers. It was secrecy that provided the grand jury with its greatest
power as an independent populist body, equipped with an oversight power on the
government. Thus was born the grand jury in its primal, plenary sense. It was a
group of men who stood as a check on government, often in direct opposition to
the desires of those in power. Eulogized by Coke and Blackstone, the grand jury
crossed the Atlantic as one of the fundamental foundations of common law in the
The development of grand juries in America was similar to that of
England, with a few exceptions. The English colonies in America were crucibles
for popular anti-monarchical ideology. The grand jury was the initiator
of prosecutions, acting "in several of the colonies as spokesmen for the
people . . . and [as] vehicles for complaints against
officialdom." Indeed, in America, the grand jury originally
began as a defense against the monarchy, and was arguably even more
independent than the English grand jury of the 1600s. American
grand juries initiated prosecutions against corrupt agents of the government,
often in response to complaints from individuals.
Crossing the Atlantic Ocean with the first English colonists, the notion
of the grand jury as an indispensable arm of law enforcement became entrenched.
Grand juries in their "runaway" sense were a bedrock foundation of the English
common law that was inherited by the American justice system.
Grand jurors in New Plymouth colony were charged "to serve the King by
inquiring into the abuses and breaches of such wholesome laws and ordinances as
tend to the preservation of the peace and good of the subject."
In early Connecticut, grand jurors were specifically mandated to report any
breaches of the laws they knew of in their jurisdiction. In
Massachusetts, grand jurors had to appear at least once yearly before their
county courts to disclose "all misdemeanors they shall know or hear to be
committed by any person." These grand jurors had a duty to
report offenses in their communities that came to their attention, to
personally investigate suspected wrongdoing, and to question anyone whose
behavior seemed suspicious.
In the early American experience, the grand jury became more a part of
local government than it had apparently ever been in England. A grand jury in
Virginia in 1662 was part of the country system, which meant that they would
meet two times a year "to levy taxes and oversee spending, supervise public
works, appoint local officials, and consider criminal
accusations." Connecticut grand juries were levying taxes and
conducting local government work by the middle of the 1700s. A
similar active role in local government was assumed by grand juries in the
Carolinas, Georgia, Maryland, New Jersey, and Pennsylvania, all of which had
sufficient independence to publicly announce dissatisfaction with
The grand jury that the drafters of the Bill of Rights knew was no doubt
more powerful than any known in England. Indeed, the actions of grand juries
figured prominently in the beginnings of the Revolution. In 1765, a Boston
grand jury refused to indict Colonists who had led riots against the Stamp
Act. Four years later, as tensions intensified, a Boston grand
jury indicted some British soldiers located within the city boundaries for
alleged crimes against the colonists, but refused to treat certain colonists
who had been charged by the British authorities for inciting desertion in a
like manner. A Philadelphia grand jury condemned the use of the
tea tax to compensate the British officials, encouraged a rejection of all
British goods, and called for organization with other colonies to demand
redress of grievances.
Contrary to the modern situation where secrecy is court imposed and
aimed at aiding the prosecutor in gaining an indictment, these grand juries
embraced secrecy as an inherent power of their own, independent of any other
governmental institutions. Indeed, colonial grand juries became sounding boards
for anti-British sentiment. They functioned as patriotic platforms and
propaganda machines, constantly condemning the British government and
encouraging individuals to support the effort of independence.
"In some instances," according to commentators, "the calls to arms were sounded
by the grand jurors themselves; in others, the sparks came from patriotic
oratory by the presiding judges in their charges to the grand jury."[72
]The public proclamations of these grand juries were drastically
different from anything we know today; they were often circulated in local and
national newspapers in an effort to "fuel the revolutionary fire."[73
]The process for receiving private testimony, outside the presence of the
court officials, remained a common practice for a century after the grand jury
was enshrined in the Bill of Rights. Throughout the 19th
century, grand juries often acted on their own initiative in the face of
opposition from a district attorney. It was just such a grand jury that probed
and "toppled the notorious Boss Tweed and his cronies" in New York City in
1872. Without the prosecutor's assistance, the Tweed grand jury independently
carried out its own investigation in a district that had otherwise been very
loyal to Tweed.
In 1902, a Minneapolis grand jury on its own initiative hired private
detectives and collected enough evidence to indict the mayor and force the
police chief to resign. This same grand jury virtually governed
the city until a new administration could be hired. Similar events occurred in
San Francisco five years later, when a grand jury indicted the mayor and
But beginning about 1910 or so, the grand jury ceased to operate so
independently. As the government began to regulate the grand jury more and
more, the grand jury became "captured." The practice of allowing a prosecutor
to investigate crime allegations and then present his evidence for indictment
before the grand jury became routine and evolved into such standard practice
that by the end of the nineteenth century it had become a part of "normal"
grand jury operations. While previously the prosecutor often did not get a case
until after indictment, now he was frequently allowed to present evidence
before the grand jury personally. By the turn of the twentieth century,
according to one commentator, "with the prosecutor inside the grand jury room,
the purposes of grand jury secrecy were no longer apparent."
As the grand jury slowly lost its full historic purpose, grand juries
became resigned to a minute corner of the American justice system. American
grand juries ceased to initiate their own investigations. "Dramatic, sometimes
violent confrontations between grand juries and prosecutors, politicians,
legislatures, even within the grand juries themselves, became largely things of
the past by about the 1930's."
During this period of the grand jury's slow decline in the states,
federal grand juries became, ironically, more important. Although
federal grand juries had been a rather obscure element of American criminal
procedure before the twentieth century, they stood poised to explode in
importance due to the increase of federal criminal jurisdiction by the turn of
the century. The growing importance of federal grand juries came
at the precise historic moment when state models for grand juries were becoming
more and more limited. In fact, because federal grand jury practice looked by
necessity to state grand juries as models for federal procedure, the resulting
model for federal grand jury proceedings was actually a mere shell of the model
intended by the Framers.
From the ratification of the Bill of Rights in 1789, up until and to
some extent beyond its codification in the Federal Rules of Criminal Procedure,
a Federal grand jury practice went for the most part unregulated by
statute. This was due to the limited constitutional jurisdiction
of the federal government, and to the scarcity of federal statutes governing
criminal justice, a domain traditionally reserved to the states.
In its traditional form, the citizen grand jury had come to be seen as an
inefficient, unnecessary and possibly dangerous phenomenon.
Ultimately, a combination of judicial activism, executive contempt and
legislative apathy left the federal grand jury weakened and contained before it
had a chance to truly roam free.
1946 ENACTMENT OF THE FEDERAL RULES
In 1946, the Federal Rules of Criminal Procedure were adopted, codifying
what had previously been a vastly divergent set of common law procedural rules
and regional customs. In general, an effort was made to conform
the rules to the contemporary state of federal criminal
practice. In the area of federal grand jury practice, however, a
remarkable exception was allowed. The drafters of Rules 6 and 7, which loosely
govern federal grand juries, denied future generations of what had been the
well-recognized powers of common law grand juries: powers of unrestrained
investigation and of independent declaration of findings. The committee that
drafted the Federal Rules of Criminal Procedure provided no outlet for any
document other than a prosecutor-signed indictment. In so doing, the drafters
at least tacitly, if not affirmatively, opted to ignore explicit constitutional
IV. THE LOST PRESENTMENT POWER OF THE GRAND JURY
The Fifth Amendment to the United States Constitution requires that no
person shall be held to answer for a capital or otherwise infamous crime except
by a presentment or indictment of a grand jury.
What all authorities recognize as a "presentment," however, has been
written out of the law and is no longer recognized by the federal
A presentment is a grand jury communication to the public concerning the
grand jury's investigation. It has traditionally been an avenue for expressing
grievances of the people against government.[91 ] In early American
common law, the presentment was a customary way for grand juries to accuse
public employees or officials of misconduct. While an
"indictment" was normally thought to be invalid without the signature of a
government prosecutor, a presentment required no formal assent of any entity
outside the grand jury. In early America, a presentment was thought to be an
indictment without a prosecutor's signature and a mandate to a district
attorney to initiate a prosecution.
According to Professor Lester B. Orfield, who served as a member of the
Advisory Committee on Rules of Criminal Procedure, the drafters of Rule 6
consciously decided that the term "presentment" should not be used in the Rules
— even though the term appears in the Constitution.
"Retention," wrote Orfield, "might encourage the use of the 'run-away' grand
jury as the grand jury could act from their own knowledge or observation and
not only from charges made by the United States attorney."
A presentment is generally drafted from the knowledge and findings of
the jurors themselves, rather than a prosecutor, and signed individually by
each juror who agrees with it. A presentment at common law stood public with or
without approval of a prosecutor or court. In the early days of the Republic,
the Attorney General hinted that a federal prosecutor was obliged to indict
upon the presentment by the grand jury. Thus, Rule 6 represented
a monumental — and deliberate — change of grand jury
practice. Orfield's peculiar use of the term "runaway" grand
jury in the committee notes may mark both the advent of this term into the
legal lexicon and the loss to history of true grand jury
With the Federal Rules, the grand jury was drastically altered, in what
can only be seen as an immense assault on the grand jury as an institution, if
not an absolute coup d'etat upon it. The rule drafters deliberately
pigeonholed the citizen grand jury into a minor role of either approving or
disapproving of a prosecutor's actions. With the enactment of Rule 6, the
federal government's undeclared war on the grand jury was almost won. What
remained of the federal grand jury as a free institution was left to the
federal courts to whittle away even further.
The federal courts were quick to uphold the federal rules when it came
to deciding matters relating to the grand jury. In almost cyclical logic, the
federal courts have claimed in near unison that presentments accusing
unindicted persons of crime cannot be allowed, absent judge or prosecutor
approval, "past unchallenged practice" notwithstanding. Thus,
hundreds of years of grand jury jurisprudence was overthrown by
Justification for hobbling grand juries in this manner was based on the
argument that those who are accused in grand jury documents are denied due
process rights that the courts have a duty to protect.[102 ] It was
argued that allowing the continuance of common law grand jury powers would
expose countless persons — many of them government agents — to
unanswerable accusations in the public eye. Protecting public
officials from public scorn thus won out over upholding the traditional powers
of federal grand juries. Numerous avenues for innocent persons to fight such
accusations are available. Nevertheless, courts during the
latter twentieth century have appeared to uniformly adopt the "protect people
from grand jury accusations" rationale for barring the federal grand juries
from issuing presentments.
Another aspect of the grand jury's lost powers that has received little
consideration in the legal literature is that of grand jury's loss of power to
turn on the government and publicly exonerate a suspect. With curtailment of
the grand jury's power to accuse without prosecutorial sanction also came
curtailment of the grand jury's power to formally and publicly exonerate. This
loss of power also serves the interests of modern government by allowing a
prosecutor to resubmit a matter to a new grand jury, a practice which almost
always can produce a true bill eventually — even against a ham
One principle example in American history of a political persecution
that was exposed by the presentments of grand juries is the almost unbelievable
story of Aaron Burr. After what can only be described as a
bizarre political career, Burr found himself disliked by both
the Federalists and the Republicans. The United States Attorney
for Kentucky, a staunch Federalist aligned with his own party's strongest rival
President Jefferson, moved that a grand jury be summoned to consider charges
against Burr for his alleged attempt to involve the United States in a war with
Spain. This grand jury from Republican-dominated Kentucky
returned an "ignoramus bill," declining to indict Burr on the
evidence. Going even further, the grand jury issued a written
declaration directed to the court in which they declared that Burr failed to
exhibit "any design inimical to the peace and well-being of the
A second grand jury was indubitably spurred by Jefferson
himself. The second proceeding convened in Mississippi
Territory to consider similar treason charges against Burr relating to his
expedition down the Mississippi River. It was alleged that Burr
intended to capture New Orleans, a city of nine thousand people protected by a
thousand United States soldiers, using sixty unarmed men in ten
boats. The Mississippi grand jury not only declined to indict
Burr in the affair, but returned presentments which clearly labeled the
government's attempted charges as a vindictive prosecution. The
presentment concluded that "Aaron Burr has not been guilty of any crime or
misdemeanor against the laws of the United States or of this
Territory." Furthermore, the grand jury declared that the
arrests of Burr and his co-travelers had been made "without warrant, and . . .
without other lawful authority," and represented a "grievance
destructive of personal liberty." In resounding condemnation,
the grand jury pronounced its regret that "the enemies of our glorious
Constitution" had rejoiced at the attempted persecution of Aaron Burr and
expressed the opinion that such prosecutorial misconduct "must sap the vitals
of our political existence, and crumble this glorious fabric in the
The grand jury's presentment power was thus used not only to accuse
wrongdoers when government prosecutors refuse to do so, but to publicly
declare the innocence of a targeted suspect in the very face of
opposition by the prosecution. Ironically, the Mississippi grand jury was a
"runaway" by today's standards. Nevertheless, a grand jury acting in such way
offered preciously the type of protection envisioned by the Framers when they
included the institution in the Bill of Rights as a check on the power of the
Even more enlightening in comparison with the canons of modern criminal
procedure, the Mississippi grand jury's presentment included a bold attack
on the prosecution itself — an occurrence scarcely imaginable today.
It was thus the grand jury's power over its presentments, rather than
its indictments, that made it so fearsome. The effectiveness of early American
grand juries in ferreting out the shortcomings of public officials "can be
gauged from the long lists of grand jury presentments" of early
America. "Very little escaped the attention of the grand
jurymen," which even took notice of the failures of town
councils to provide stocks or a whipping post to punish
The enactment in 1946 of the Federal Rules of Criminal Procedure has
greatly decreased the power of federal grand juries. While widely thought of as
a gift to defense attorneys at the time, the codification of
grand jury practice into Rule 6 of the Federal Rules of Criminal Procedure has
largely confined the grand jury to its present state of impotence and has done
little to protect defendants from the modern "runaway" federal government.
Present federal grand jury practice, which forbids grand jurors from issuing
presentments without consent of a federal prosecutor, is unconstitutional and
violative of the historical principles on which the creation of the grand jury
† Roger Isaac Roots, J.D., graduated from Roger Williams University
School of Law in 1999 and Montana State University-Billings (B.S., Sociology)
in 1995. He is founder of the Prison Crisis Project, a not-for-profit prison
and criminal justice law and policy think tank based in Providence, Rhode
Island. He would like to thank David Cicilline, Margaret Curran, Jonathan
Gutoff, and Duane Horton for their thoughtful advice and assistance regarding
1. See, e.g., STEPHEN A. SALTZBURG & DANIEL J. CAPRA,
AMERICAN CRIMINAL PROCEDURE 696 (5th ed. 1996) (reprinting New Jersey's model
grand jury instructions which contain the open acknowledgment of this:
"Citizens in general have only a vague idea of what a grand jury is and what
its functions are."); see also Susan W. Brenner & Gregory G.
Lockhart, FEDERAL GRAND JURY: A GUIDE TO LAW AND PRACTICE 2 (1996)
("Surprisingly, given the power it wields, the grand jury, is an
often-overlooked and little understood phenomenon in American law.").
2. Only occasionally does the public become privy to criticisms of the
grand jury process. A recent source of popular unrest concerning the grand jury
process surrounded the 1998 impeachment of President Bill Clinton for perjury
and obstruction of justice offenses. Other noteworthy criticism of the process
involved former Labor Secretary Raymond Donovan, who was acquitted on fraud
charges, see Ray Jenkins, Editorial, He Could Indict the Easter
Bunny, BALTIMORE SUN, January 29, 1996, at 7A, available in 1996 WL
6602238, and when 23 Colorado grand jurors went public in 1992 to complain that
a United States Attorney's indictment did not properly reflect their views,
see Editorial: The Eternal Flats Grand Jury The Issue: Should Jurors Be
Allowed to Release Their Report? Our View: Yes, At Least In Part If Not In
Full, ROCKY MOUNTAIN NEWS, July 7, 1997, at 40A. Former Texas governor John
Connally also bitterly criticized the system after his indictment —
followed by swift acquittal — on charges that as Secretary of the Treasury
he took bribes from lobbyists. See Jenkins, supra. Donovan was
widely quoted after his acquittal as asking, "Where do I go to get my
reputation back?" Id.
3. See, e.g., Wood v. Georgia, 370 U.S. 375, 390 (1962)
(describing the operation and purpose of the grand jury).
4. See Fred A. Bernstein, Note, Behind the Gray Door:
Williams, Secrecy, and the Federal Grand Jury, 69 N.Y.U. L. REV. 563, 578
(1994) (stating that commentators disagree only on what to call the grand jury:
"indictment mill," "rubber stamp," "tool," or "playtoy" have all been
5. Modern grand jury proceedings are normally conducted in the grand
jury room, but at common law they could be conducted in private houses or other
places for protection of the witnesses. See, e.g., United States v.
Smyth, 104 F. Supp. 283, 300 (N.D. Cal. 1952); United States v. Gilboy, 160 P.
Supp. 442, 458-59 (M.D. Pa. 1958). However, modern grand jury charges tend to
limit this power, or even overtly conceal it from the grand jurors. See,
e.g., Louis E. Goodman, Charge to the Grand Jury, 12 F.R.D. 495,
499-501 (N.D. Cal. 1952) (arguing against such freedom of movement and ordering
the grand jury to "hold its meetings and conduct its investigations and
deliberations in quarters provided by the Court and in no other places").
6. See Tony Mauro & Kevin Johnson, Grand Jury 'Very
Lonely' For Witnesses, USA TODAY, March 3, 1998, at 1A (stating that during
Independent Prosecutor Kenneth Starr's grand jury proceedings against President
Clinton, there were up to a "half-dozen" government attorneys and staff people
sitting opposite the witness).
7. See CHARLES H. WHITEBREAD & CHRISTOPHER SLOBOGIN, CRIMINAL
PROCEDURE: AN ANALYSIS OF CASES & CONCEPTS 546 (3d ed. 1993) (stating that
the grand jury has authority to act as a "watchdog" over government
8. See FED. R. CRIM. P. 7(c)(l) (requiring that all indictments
be "signed by the attorney for the government"). See also id. Advisory
Committee Note 4 explaining Subdivision (a) of the same Rule (stating that
grand jury "presentments," or non-government-approved accusations, "are
obsolete, at least as concerns the Federal courts").
9. MARVIN ZALMAN AND LARRY SIEGEL, CRIMINAL PROCEDURE: CONSTITUTION AND
SOCIETY 643 (2d ed. 1997) (emphasis added).
10. See Stuart Taylor, Jr., Taking Issue: Enough of the Grand
Jury Charade, LEGAL TIMES, May 18, 1992, at 23 (describing grand jury
subpoenas and indictments as "essentially unilateral decisions by
11. If the Fifth Amendment grand jury right has any purpose at all, it
is to place a check on the prosecutorial power of the federal government.
See Hale v. Henkel, 201 U.S. 43, 61 (1906) ("[Grand juries] are not
appointed for the prosecutor or for the court; they are appointed for the
government and for the people . . . .") overruled in part sub nom.
Murphy v. Waterfront Comm'n, 378 U.S. 52 (1964). Unfortunately, modern
grand jury practice tends to assume the existence of some affinity
between the attorneys for the government and the grand jurors they present
their cases to.
12. This writer has sought in vain to trace the term to its origins.
Nothing about "runaway" grand juries appears in legal dictionaries, Supreme
Court opinions, or any major legal encyclopedia. The first widely disseminated
mention of the term "runaway grand jury" appears to be Professor Orfield's
references to the term by the Advisory Committee's Reporter in 1946. See
infra note 14 and accompanying text. The case law is similarly sparse of
references to "runaway" grand juries until recently. But see United
States v. Worcester, 190 F. Supp. 548, 559 (D. Mass. 1960) (stating rather
imaginatively that "[a] grand jury can roam almost at will. It often does. What
else is meant by the phrase 'a runaway grand jury'?"); Fields v. Soloff, 920
F.2d 1114, 1118 (2d Cir. 1990) (stating that "runaway" grand juries existed in
the 1930s in New York); In re Martin-Tragona, 604 F. Supp. 453, 459-60
(D. Conn. 1985) (admonishing that "'[r]unaway grand juries'. . . may have a
certain romantic allure, but federal law leaves little or no room for that
species of romance"); United States v. Procter & Gamble Co., 174 F. Supp.
233, 236 (D.N.J. 1959) (mentioning that a "runaway" grand jury is an unusual
See also the discussion of "runaway" grand juries in the book,
MARVIN E. FRANKEL & GARY NAFTALIS, THE GRAND JURY: AN INSTITUTION ON TRIAL
107-116 (1977) and the discussion in the widely-consulted hornbook WAYNE R.
LAFAVE & JEROLD H. ISRAEL, CRIMINAL PROCEDURE 631 (2d ed. 1992) (stating
that "it takes a most unusual case for a grand jury to act as a "runaway" and
indict notwithstanding the prosecutor's opposition).
13. See infra notes 71-84 and accompanying text.
14. See Lester B. Orfield, The Federal Grand Jury, 22
F.R.D. 343, 346 (1959).
15. See, e.g., United States v. Williams, 504 U.S. 36, 49 (1992)
(citation omitted) (emphasis omitted); Note, Powers of Federal Grand Juries,
4 STAN. L. REV. 68, 69 (1951) ("The grand jury was appointed to protect
community welfare, not merely to aid prosecutor or court.").
16. See Williams, 504 U.S. at 48 (citing United States v. R.
Enters, Inc., 498 U.S. 292, 297 (1991).
17. Prior to the 20th Century, the grand jury itself was often the
initiator of investigations and conducted their activities in both shield and
sword functions essentially the same way. See BRENNER & LOCKHART,
supra note 1, at 26.
18. See generally DAVID BURNHAM, ABOVE THE LAW: SECRET DEALS,
POLITICAL FIXES AND OTHER MISADVENTURES OF THE U.S. DEPARTMENT OF JUSTICE
passim (1996) (stating that the U.S. Justice Department now operates
with few structural limitations and has become increasingly unaccountable).
19. Properly speaking, the Fifth Amendment right to indictment applies
only to the federal government. The right to indictment by grand jury is one of
the only provisions of the Bill of Rights that has not been incorporated to the
States by the Supreme Court. The Supreme Court first rejected incorporation of
the right in Hurtado v. California, 110 U.S. 516, 538 (1884) and has
reaffirmed its holding in subsequent decisions.
A few examples of practices and cases involving state grand juries are
included in this paper for illustration. In general, however, this paper will
concentrate on federal grand juries. Grand jury practice varies so widely among
the states that it is difficult to provide a comprehensive treatment of that
topic in this comment. See BRENNER & LOCKHART, supra note 1,
20. U.S. CONST, amend. V.
21. WHITEBREAD & SLOBOGIN, supra note 7, at 546.
Historically, the grand jury was regarded as a primary security for the
innocent against malicious and oppressive persecution. See Wood v.
Georgia, 370 U.S. 375, 389-391 (1962).
22. See 1 ORFIELD'S CRIMINAL PROCEDURE UNDER THE FEDERAL RULES
392 (Mark S. Rhodes ed., 2d ed. 1985) [hereinafter ORFIELD'S];
Under the Constitution the grand jury may either present or indict.
Presentment is the process whereby a grand jury initiates an independent
investigation and asks that a charge be drawn to cover the facts if they
constitute a crime. Since the grand jury may present, it may investigate
independently of direction by the court or the United States Attorney.
Proceeding by presentment is now obsolete in the federal courts. Id.
Orfield's noted that "the common law powers of a grand jury
include the power to make presentments, sometimes called reports, calling
attention to actions of public officials, whether or not they amounted to a
crime." Id. at 392 n.16 (citing In re Grand Jury 315 F. Supp. 662
(D. Md. 1970).
23. See, e.g., Hale v. Henkel, 201 U.S. 43, 64 (1906)
(recognizing that common law authority stood for the proposition that "none but
witnesses have any business before the grand jury, and that the solicitor may
not be present, even to examine them"). Although widespread practice in the
federal system had been to allow a government attorney to present evidence to
the grand jury, this was by no means a steadfast rule.
24. See WHITEBREAD & SLOBOGIN, supra note 7, at 546
(stating that the grand jury had the ability to both investigate the government
and to deny a government indictment).
25. See ORFIELD'S, supra note 22, at 389; In re
Special February 1975 Grand Jury, 565 F.2d 407 (7th Cir. 1977); United
States v. Smyth, 104 F. Supp 283, 288 (N.D. Cal. 952). When functioning
properly, the grand jury is supposed to be an ever-present danger to tyranny in
government. See ARTHUR TRAIN, THE PRISONER AT THE BAR 128 (1926)
(stating that the grand jury filled a need as a barrier between the powerful
and the weak and as a tribunal before which the weak could accuse the powerful
of their wrongs).
26. See Fred A. Bernstein, Note, Behind the Gray Door:
Williams, Secrecy, and the Federal Grand Jury, 69 N.Y.U. L. REV. 563,
27. Bernstein, 69 N.Y.U. L. REV. at 622.
28. Id. at 623.
29. For statistical evidence of grand jury capture, see infra
notes 39-47 and accompanying text.
30. See Note, 69 N.Y.U. L. REV. at 577.
31. Id. at 577-78.
32. Id. at 578-89 (stating that the procedural decline of the
grand jury has occurred as the federal system was straining to keep up with an
increasing number of criminal prosecutions).
33. Id. at 578.
34. Id. at 578-79.
35. William J. Campbell, Eliminate the Grand Jury, 64 J. CRIM. L.
& CRIMINOLOGY 174 (1973).
36. United States v. Dioniso, 410 U.S. 19, 23 (1973) (Douglas, J.,
37. See Mark Kadish, Behind the Locked Door of an American
Grand Jury: Its History, Its Secrecy, and Its Process, 24 FLA. ST. U. L.
REV. 1-78 (1996).
38. See Note, 69 N.Y.U. L. REV. at 578.
39. BURNHAM, supra note 18, at 359.
42. Taylor, supra note 10, at 23.
43. BURNHAM, supra note 18, at 360. Although statistics like this
are impressive, it should be noted that statistics alone cannot adequately
measure the effectiveness of grand juries in screening prosecutions
effectively. One critic of statistical approaches has pointed out a number of
problems with using numbers of true bills to describe grand jury
[E]ven a brief reflection shows how unhelpful these figures are. That
grand juries nearly always return true bills may indeed demonstrate that jurors
simply approve whatever charges the government submits, but it could also show
that grand juries are a great success. A review of the prosecutor's
decisionmaking leading up to the request for an indictment shows why.
Federal prosecutors know that virtually all of their charging
decisions must be approved by the grand jury. Thus, in deciding which charges
to bring, the prosecutor must determine not only which accusations can be
proven at trial, but also which accusations will result in an indictment. If we
assume that prosecutors as a group will normally decline to present charges to
a grand jury that they think will be rejected, we would expect that prosecutors
would submit only those cases that are sufficiently strong to survive a grand
jury's review. Thus, regardless of whether the grand jury is serving as
an effective screen, we would expect a high percentage of the cases presented
to lead to indictments.
Indeed, contrary to the suggestion of critics, there would be cause
for concern if grand juries refused to indict in a high percentage of
44. Andrew D. Leipold, Why Grand Juries Do Not (and Cannot) Protect
the Accused, 80 CORNELL L. REV. 275-76 (1995). BURNHAM, supra note
45. U.S. DEPT. OP JUSTICE, NATIONAL INSTITUTE OP JUSTICE: OFFICE OF
DEVELOPMENT, TESTING AND DISSEMINATION, GRAND JURY REFORM: A REVIEW OF KEY
ISSUES 21 (1983).
46. Id. at 22.
47. Leipold, 80 CORNELL L. REV. at 269.
48. Statistical figures showing a higher prevalence of grand jury
reluctance to follow the government in ages past are almost nonexistent.
However, a table of felony arrests in New York County between 1900 and 1907
found on page 111 of the 1926 book The Prisoner at the Bar by Arthur
Train provides some rare illumination. In those seven years, some 5,214 out of
57,241 people were arrested by the police on felony charges whom New York state
grand jurors decided not to indict. Interestingly, the rate of indictment rose
significantly in those seven years. See TRAIN, supra note 25, at
49. The National Association of Criminal Defense Lawyers, for example,
has promoted a grand jury "bill or rights" to be enacted by Congress, which
would include these and other reforms. See Gerald B. Lefcourt, High Time For
A Bill of Rights For the Grand Jury, 22 APR CHAMPION 5 (Apr., 1998). Lee
Hamel, a former federal prosecutor in Houston, has gone even further by
suggesting that Congress should specifically make it a crime for the
prosecution to mislead a grand jury by such conduct as withholding exculpatory
evidence. Lee Hamel, Prosecutorial Responsibility, TEXAS LAWYER, June
15, 1992, at 13.
While the U.S. Attorneys' Manual specifically provides for an internal
policy to present exculpatory evidence to the grand jury, See DEPARTMENT
OF JUSTICE, U.S. ATTORNEYS' MANUAL, 9-11.233, no binding statutory or case law
now imposes a legal obligation. The enactment of such legislation enforceable
upon government attorneys would not seem to infringe on the rights and powers
of the grand jury. But see BRENNER & LOCKHART, supra note 1,
at 18 (stating that such a limitation on the prosecutor may implicate the
separation of powers if it is considered to interfere with the exercise of the
executive function). See id. ("[I]t remains to be seen whether Congress
can be persuaded to review allegations of prosecutorial misconduct, and, if so,
whether such intervention would violate the separation of powers.").
50. In some state jurisdictions, including California and South
Carolina, grand juries can hire experts such as accountants to assist them in
conducting special investigations, especially where the activities of public
officials are being investigated. See U.S. DEPT. OF JUSTICE, NATIONAL
INSTITUTE OF JUSTICE, MONOGRAPHS: GRAND JURY REFORM: A REVIEW OF KEY ISSUES 23
51. See ABA GRAND JURY POLICY AND MODEL ACT 5, 11 (2d ed. 1982)
(enunciating in Principle No. 22 the duty of court to give written charge to
jurors completely explaining their duties and limitations).
52. BRENNER & LOCKHART, supra note 1, at 4.
56. Id. at 289-90 (citations omitted).
57. See FRANKEL & NAFTALIS, supra note 12, at 10.
58. See Mark Kadish, Behind the Locked Door of an American
Grand Jury: Its History, Its Secrecy, and Its Process, 24 FLA. ST. U. L.
REV. 9 (1996).
59. See id; Note, Powers of Federal Grand Juries, 4 STAN.
L. REV. 77 (1951). [T]he grand jury developed at a time of small rural
communities, when the government had not yet assumed responsibility for
enforcing the criminal law. Private persons could initiate prosecutions. The
grand jury ensured that privately instituted proceedings would not go forward
until a representative body of men of the neighborhood had checked the facts
and found a reasonable basis for prosecution.
60. Note, 4 STAN. L. REV. at 77.
In 1906 the United States Supreme Court dealt with the question of
whether grand juries could be restricted from straying into investigations of
issues not formally presented to them by prosecutors. See Hale v.
Henkel, 201 U.S. 43 (1916). The Court held that it was "entirely clear . . .
under the practice in this country," that grand jurors may proceed upon either
their own knowledge or upon the examination of witnesses brought before them,
"to inquire for themselves whether a crime cognizable in the court has been
committed." Hale, 201 U.S. at 65. Thus, in some respects, the "runaway"
grand jury, though not given such a name at the time, has been upheld by the
nation's highest court. It is therefore debatable whether the modern Federal
Rules of Criminal Procedure, which have limited federal grand jury action since
1946, are constitutional. See infra notes 87-128 and accompanying text
(discussing the constitutionality of Rules 6); See also FRANKEL &
NAFTALIS, supra note 12, at 111 (mentioning that Rule 6's language
"sounds like an inescapable and unambiguous barrier to the grand jury's
proceeding without an attorney. . . . [b]ut people learned in the law have seen
means of escaping and possibly overriding barriers that appear insurmountable
at first. While the barriers here still stand, the debate may not be
61. See, Hale, 201 U.S. at 63 (citations omitted).
65. See Mark Kadish, Behind the Locked Door of an American
Grand Jury: Its History, Its Secrecy, and Its Process, 24 FLA. ST. U. L.
REV. 10 (1996).
66. Kadish, 24 FLA. ST. U. L. REV. at 10.
67. Id. at 10-11.
68. See FRANKEL & NAFTALIS, supra note 12, at 11.
71. Id. at 12.
74. Richard Calkins, The Fading Myth of Grand Jury Secrecy, 1 J.
MARSHALL J. PRAC. & PROC. 18, 19 (1967).
75. See FRANKEL & NAFTALIS, supra note 12, at 15.
78. See Fred A. Bernstein, Note, Behind the Gray Door:
Williams, Secrecy, and the Federal Grand Jury, 69 N.Y.U. L. REV. 563, 596
79. See FRANKEL & NAFTALIS, supra note 12, at 15.
80. In the federal system, the powers of the grand jury have never been
as broad as those known by colonial pre-Revolutionary grand juries for a
variety of reasons. First, the federal government itself was historically one
of very limited criminal jurisdiction, so the call for federal grand juries was
not as common or strong as at the state level.
Second, the fact that federal cases tend to involve crimes that are more
complex than those of state prosecutions made independence of individual grand
jurors over the area of expertise less likely. See BRENNER &
LOCKHART, supra note 1, at 18. Also, federal grand juries were
traditionally distanced from the sort of "public affairs" investigations into
community life that drew the attention of state grand juries. Id. at
81. While the Grand Jury Clause of the Fifth Amendment invokes the
"Grand Jury," nothing in the text provides any indication as to just what a
grand jury is or what type of grand jury is required. This meaning must be
garnered from the common law. See United States v. Warren, 26 F. Supp.
333, 334 (E.D.N.Y. 1939).
But which common law? Is the grand jury as required by the Fifth
Amendment the common law grand jury known in the colonies in 1776? In England
in 1776? In the United States when the Bill of Rights was ratified in 1789?
When Englishmen landed in America in 1606? After all, the grand jury is a 900
year-old institution, whose operation has changed greatly over the centuries.
See generally Helene E. Schwartz, Demythologizing the Historic Role
of the Grand Jury, 10 AM. CRIM. L. REV. 701 (1972). For that matter, grand
jury operation differed greatly by region, both in England and her colonies,
throughout the Seventeenth and Eighteenth Centuries, See Goodman v.
United States, 108 F.2d 516, 518 (9th Cir. 1939) (stating that grand jury
practice has developed in widely divergent ways partly due to local custom).
Thus, any attempt to pin down "grand jury law" to a single era and venue would
simultaneously defy the common law traditions of other eras and venues. Another
problem is that the "common law" meant very little if anything in federal
jurisdiction because common law crimes were not recognized in federal courts.
See, e.g., United States v. Hudson & Goodwin, 11 U.S. (7 Cranch) 32,
The question of what common law to apply where the Constitution called
for a common law interpretation was problematic to American jurists concerning
a wide variety of topics for an entire generation after separation from the
mother country. See generally LAWRENCE M. FRIEDMAN, A HISTORY OP
AMERICAN LAW 110-15 (2d ed. 1985). While some early American courts routinely
consulted English decisions, others went so far in the opposite direction as to
prohibit the reading of English authority in their courtrooms. Id. at
111-12. Due to the paucity of published American case reports, more English
than American cases were cited in American reports for a generation after
Independence. Id. at 112. Nonetheless, by the middle of the 19th century
there developed a truly distinctive common law system in the United States.
Id. at 113 (stating that the first generation of American jurists
created a "separate language of law within the family founded in England").
For these reasons, federal grand jury practitioners must look in many
respects to the practice in the states, because state grand juries provide a
more unbroken chain of inheritance to the common law than do those
administering federal law. Federal courts have differed as to the scope of the
federal grand jury's powers. It has been said that Congress has not defined
those powers, or exact limitations on them. Application of Texas Co., 27 F.
Supp. 847, 850-51 (E.D. Ill. 1939); See also ORFIELD'S, supra
note 22, at 286 (noting that "[i]n 1809 Chief Justice Marshall, sitting as
a circuit justice, stated that there was no act of Congress conferring on
federal courts the power to summon grand juries, or describing their powers").
The Chief Judge of the Second Circuit observed that the constitutional
grand jury was one that was intended to operate substantially like its English
progenitor. United States v. deary, 265 F.2d 459, 460 (2d Cir. 1959) (stating
that the grand jury "has remained as free of court-made limitations and
restrictions as it was in England at the time the Fifth Amendment was
adopted"). Yet the practice in grand jury proceedings in the United States
deviates in many ways from that known in England. See generally Hale v.
Henkel, 201 U.S. 43 (1906). This is especially true in the finding of bills of
indictment. Thus, by English colonial standards, the modern federal grand jury
would seem to be unconstitutional. But see ORFIELD'S, supra note
22, at 390 (suggesting that "the grand jury has remained as free of court-made
limitations and restrictions as it was in England at the time the Fifth
Amendment was adopted").
82. See In re Grand Jury, 315 F. Supp. 662, 673 (D. Md. 1970)
("Federal statutes are silent on the relationship which is to exist between a
Federal Grand Jury, the District Court which summons it, and the United States
Attorney's office in the District. From 1789 to the present, Congress has made
no definitive statement concerning Grand Jury powers.").
83. While the Fifth Amendment right to indictment by grand jury extends
only to federal criminal prosecutions, numerous states provide for similar
rights in their state constitutions. Notably, however . . . the rules governing
state grand juries vary tremendously. See BRENNER & LOCKHART,
supra note 1, at 2 (noting that "[G]rand jury practice varies so widely
among the states that it is neither possible nor practical to provide a
comprehensive treatment of that topic in this volume."). See also Susan
W. Brenner, The Voice of the Commonity: A Comparison of Federal and State
Grand Juries, 3 VA. J. SOC. POL'Y L. 67 (1995) (discussing state grand jury
84. Critics of unbridled grand juries may cite a wealth of historical
precedent to support their position. For example, overzealous and overreaching
grand juries figured prominently in the era of the Sedition Acts. The
Federalists, marshals and judges who totally controlled the judicial branch of
government — blatantly packed panels with sympathizers and allowed
offensive, political charges to be delivered to these grand juries. See
Schwartz, 10 AM. CRIM. L. REV. at 723. The famous impeachment proceedings
against United States Supreme Court Justice Samuel Chase were in part initiated
because of Chase's habit of turning grand jury charges into Federalist
harangues. Id. at 727-28. Still, the failure of the grand jury to act as
a check on government persecution during this period can be attributed more to
misuse and abuse of the grand jury process than to the failure of the
institution itself. Grand juries were impaneled improperly, for an improper
purpose, and were charged improperly. Id. at 732 (stating that "such
blatantly biased panels could hardly have afforded the safeguard which grand
jurors were sworn to provide" and that "some of the nation's founders indulged
in chicanery designed to circumvent the protective barrier in order to crush
their opponents"). Even after the end of the Sedition Act hysteria, the
anti-Federalists aligned with President Thomas Jefferson abused the grand jury
process in pursuit of their hated Federalist opponents. Id. (recounting
that soon after his election as President, Thomas Jefferson "sullied his own
reputation as the defender of the people's liberties" by relying on the misuse
of grand juries to conduct a "personal vendetta against his enemy, Aaron
Burr"). Initially, Aaron Burr was completely exonerated by two separate grand
juries in two separate states before finally being indicted by a
Republican-packed grand jury in Jefferson's home state of Virginia on charges
that he "lev[ied] war upon the United States." Id. at 738. A trial jury
ultimately acquitted Burr, under the judicial supervision of none other than
John Marshall. Id.
85. The Populist era of the early 20th Century saw some attempts to
revitalize the grand jury. During that period, ex-jurors acted to protect the
grand jury's powers by forming associations. The Grand Juror's Association of
New York was founded in 1912, and began publishing The Panel, a
pro-grand jury periodical, in 1924. Chicagoans founded the Grand Juror's
Federation of America in 1931, and associations apparently sprang up in other
localities. See Renee B. Lettow, Reviving Federal Grand Jury
Presentments, 103 YALE L.J. 1333, 1342 n.50 (1994).
86. Codification thrived as a trend in American law during the latter
part of the 19th and the early part of the 20th Centuries. See FRIEDMAN,
supra note 81, at 391-411. Criminal procedure, however, posed
difficulties to would-be codifiers that other areas of American law did not,
due primarily to constitutional considerations. Id. at 401 (noting the
5th Amendment grand jury requirement was a nuisance to those who sought to
codify federal criminal procedure).
87. See FED. R. CRIM. P., INTRODUCTION, PROCEDURES FOR THE
CONDUCT OP BUSINESS BY THE JUDICIAL CONFERENCE COMMITTEES ON RULES OF PRACTICE
AND PROCEDURE, 1:1: p. vii
Each Advisory Committee shall carry on 'a continuous study of the
operation and effect of the general rules of practice and procedure now or
hereafter in use' in its particular field, taking into consideration
suggestions and recommendations received from any source, new statutes and
court decisions affecting the rules, and legal commentary.
88. See Lettow, 103 YALE L.J. at 1334 (suggesting that the power
of presentment is a constitutional right of grand juries).
89. U.S. CONST. amend. V states:
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, or in the Militia, when
in actual service in time of War or public danger. U.S. CONST. amend.
90. See ADVISORY COMMITTEE NOTE 4, FED. R. CRIM. PRO. 7(a)
("Presentment is not included as an additional type of formal accusation, since
presentments as a method of instituting prosecutions are obsolete, at least as
concerns the Federal courts."). A few voices in the federal judiciary, however,
have ignored this language and allowed for "presentments" or unapproved
statements of federal grand juries to stand public regardless of the will of
federal prosecutors. For a discussion of this issue, see Phillip E. Hassman,
Annotation, Authority of Federal Grand Jury To Issue Indictment Or Report
Charging Unindicted Person With Crime Or Misconduct, 28 A.L.R. FED. 851
91. See ORFIELD'S, supra note 22, at 392 n.16 (noting that
"[t]he common law powers of a grand jury include the power to make presentments
. . . calling attention to actions of public officials, whether or not they
amounted to a crime).
92. See Hassman, 28 A.L.R. FED. at 854-57.
93. However, on occasion, grand juries have used the term "presentment"
to indicate what is commonly a grand jury report, or a statement to the court
regarding some matter but which neither recommends indictment nor initiates any
prosecution. Id. at 853 n.2.
94. Lester B. Orfield, The Federal Grand Jury, 22 F.R.D. 343, 346
95. Orfield, 22 F.R.D. at 346.
96. See Renee B. Lettow, Reviving Federal Grand Jury
Presentments, 103 YALE L.J. 1333, 1339 (1994).
97. In re Grand Jury, 315 F. Supp. 662, 673 (D. Md. 1970) ("The
Advisory Committee note does not indicate that the quoted provision was
intended to change existing practice, although of course the Rule has the
effect of law.").
98. See ORFIELD, supra note 12 at 346 (discussing the
question of where the term "runaway grand jury" originated).
99. It must be noted that the capture of the grand jury's presentment
power has never faced direct Supreme Court review as to its constitutionality.
The words of United States Supreme Court Justice Hugo Black, when dissenting
from the decision to enact the Federal Rules of Criminal Procedure, are
Whether by this transmittal the individual members of the Court who
voted to transmit the rules intended to express approval of the varied policy
decisions the rules embody I am not sure. I am reasonably certain, however,
that the Court's transmittal does not carry with it a decision that the amended
rules are all constitutional.
FED. R. CRIM. P., ORDERS OF THE SUPREME COURT OF THE UNITED STATES
ADOPTING AND AMENDING RULES, ORDER OF FEB. 28, 1966 (Black, J., dissenting).
For a thoughtful law review note on the constitutionality of Rule 6, see
Lettow, 103 YALE L.J. at 1333.
100. Phillip E. Hassman, Annotation, Authority of Federal Grand Jury
To Issue Indictment Or Report Charging Unindicted Person With Crime Or
Misconduct, 28 A.L.R. FED. 851, 857 (1976).
101. Ironically, a common argument during times when presentments were
common was that presentments were too trivial. See, e.g., TRAIN,
supra note 25, at 126 (stating that "[a]n examination of the long list
of presentments on file in the office of the clerk of Court of General Sessions
[of New York]" shows only the consumption of many working hours, with only the
most fleeting of effect on the public).
[I]n general it may be said that the only effect of a grand jury's
meddling with these things is to detract from the dignity of its office and the
importance of the work which it and it alone can lawfully do.
The lay reader will naturally be led to inquire why this archaic
institution which it costs so much time and money to perpetuate, which causes
so much unnecessary inconvenience to witnesses and offers so many technical
opportunities for delay, which frequently is ineffective and officious, and for
the most part concerns itself with the most trivial matters only, should not be
102. Id. at 126-27.
A carefully considered overview of these issues can be found in the 1976
A.L.R. Annotation by Phillip E. Hassman. Hassman, 28 A.L.R. FED. 851.
103. Id. at 856 (noting that one argument for allowing accusatory
presentments is that the public employee and official is "the most frequent
target" and "must be prepared to accept investigation and exposure").
104. Offended persons may, for example, challenge the statements of a
presentment by filing a motion to expunge the grand jury report, by a libel
action against the grand jurors or the United States Attorney, or possibly
through the federal civil rights statutes. Id. at 857-58.
105. See, e.g., In re Grand Jury Proceedings, 813 F. Supp. 1451
106. The effect of a public presentment exonerating a suspect on any
future proceedings by the government against the same target is difficult to
gauge. The effect of a public presentment expressing a finding that the
government has improperly pursued a case against a person before the grand jury
might well serve the interests of justice.
The ham sandwich reference is a tribute to Judge Sol Wachtler, a former
high court judge of New York, who coined the legendary criticism of grand
juries: "Any prosecutor who wanted to could indict a ham sandwich." Tony Mauro
& Kevin Johnson, Grand Jury 'Very Lonely' For Witnesses, USA TODAY,
March 3, 1998, at 2A:3. This flippant semi-truism has been popularized by
observers of grand jury law and is often repeated — only half jokingly
— by commentators.
107. After fatally wounding Alexander Hamilton in a pistol duel in 1804,
Aaron Burr traveled West to either restore his lost political clout or sabotage
the new nation in spite (historians continue to differ over the question).
See Helene E. Schwartz, Demythologizing the Historic Role of the
Grand Jury, 10 AM. CRIM. L. REV. 733-34 (1972) (briefly summarizing Burr's
efforts either to sever those states and territories west of the Allegheny
Mountains from the Union or to put more land under American domination through
an eventual attack on Mexico).
108. Indeed a political career that culminated in the murder of
one of the United States' principle Founding Fathers, Alexander Hamilton, while
Burr was vice president. Schwartz, 10 AM. CRIM. L. REV. at 733.
109. Schwartz, 10 AM. CRIM. L. REV. at 734. (stating that "the
destruction of any possibility of Burr's returning to a place of power on the
political scene was one issue on which the two parties agreed").
111. Id. at 734-35 (stating that the people of Kentucky did not
resent Burr because of his murder of Hamilton and in fact supported Burr in his
contentions with the "hated Federalist [, United States Attorney] Daviess").
112. Id. at 735 (quoting from J. COOMBS, THE TRIAL OF AARON BURR
FOR TREASON, xix (1864)).
113. Jefferson is said to have been so determined to see Burr "hanged as
a traitor [that] he was ready to abandon all constitutional" constraints in the
process. See DAVID WALLECHINSKY & IRVING WALLACE, THE PEOPLE'S
ALMANAC #2 171 ((1978):
[Jefferson] not only announced his opinion that Burr was guilty before
the jury could consider the case, but he attempted to bribe witnesses with
promises of presidential pardons if only they would testify against Burr.
Concerning this case, Jefferson was the author of this incredible statement:
"There are extreme cases when the laws become inadequate even to their own
preservation, and where the universal resource is a dictator, or martial law."
114. Schwartz, 10 AM. CRIM. L. REV. at 735.
117. Id. (emphasis added).
120. Id. at 735-36. The presentment read, in pertinent part:
The grand jury of the Mississippi Territory, on a due investigation of
the evidence brought before them, are of opinion that Aaron Burr has not been
guilty of any crime or misdemeanor against the laws of the United States or of
this Territory, or given any just cause of alarm or inquietude to the good
people of same. The grand jurors present, as a grievance, the late military
expedition, unnecessarily, as they conceive, fitted out against the person and
property of the said Aaron Burr, when no resistance had been made to the civil
The grand jurors also present, as a grievance destructive of personal
liberty, the late military arrests, made without warrant, and, as they
conceive, without other lawful authority; and they do sincerely regret that so
much cause has been given to the enemies of our glorious Constitution to
rejoice at such measures being adopted, in our neighboring Territory, as, if
sanctioned by the Executive of our country, must sap the vitals of our
political existence and crumble this glorious fabric in the dust.
121. Even in Aaron Burr's case, the power and duplicity of the Executive
finally won out over the independence of early American grand juries. After
twice failing to garner a grand jury indictment against Aaron Burr, the
Jefferson Administration moved venue to Virginia, "stronghold of Jefferson,
Madison and Monroe." Schwartz, 10 AM. CRIM. L. REV. at 736. Rutgers Law
Professor Helene Schwartz wrote: "Perhaps at no other period in his public
career did Jefferson so disgrace himself as he did in his continued but futile
efforts to permanently dispose of Aaron Burr. 'All of his professions as
apostle of "individual rights" were sunk in the abyss of Burr.'" Id.
(quoting W. McCALEB, NEW LIGHT ON AARON BURR 99 (1963)).
The Virginia grand jury, packed with Republicans, returned true bills of
indictment against Burr and his alleged co-conspirators charging that they had
levied war on the United States. Id. The matter then was sent to a trial
jury, which acquitted Burr.
122. See EDGAR J. McMANUS, LAW AND LIBERTY IN EARLY NEW ENGLAND:
CRIMINAL JUSTICE AND DUE PROCESS 1620-1692 (1993).
123. McMANUS, supra note 122, at 63.
125. See BRENNER & LOCKHART, supra note 1, at 188
(noting that one commentator described the rule as a "wide change" in prior
law, which had made access to grand jury materials virtually impossible for