A Grand Façade: How the Grand Jury Was Captured by Government

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The grand jury is perhaps the most mysteriousinstitution in the American criminal justicesystem. While most people are generally familiarwith the function of the police officer, the prosecutor,the defense lawyer, the judge, and the trialjury, few have any idea about what the grand juryis supposed to do and its day‐​to‐​day operation.That ignorance largely explains how some over‐​reachingprosecutors have been able to pervertthe grand jury, whose original purpose was tocheck prosecutorial power, into an inquisitorialbulldozer that enhances the power of governmentand now runs roughshod over the constitutionalrights of citizens.

Like its more famous relative, the trial jury,the grand jury consists of laypeople who aresummoned to the courthouse to fulfill a civicduty. However, the work of the grand jury takesplace well before any trial. The primary functionof the grand jury is to inquire into the commissionof crimes within its jurisdiction and thendetermine whether an indictment should issueagainst any particular person. But, in sharp contrastto the trial setting, the jurors hear only oneside of the story and there is no judge overseeingthe process. With no judge or opposing counselin the room, grand jurors naturally defer to theprosecutor since he is the most knowledgeableofficial on the scene. Indeed, the single mostimportant fact to appreciate about the grandjury system is that it is the prosecutor who callsthe shots and dominates the entire process. Thegrand jurors have become little more than windowdressing.

At present, Congress seems to be interestedonly in proposals that will further expand thepowers of the grand jury. Recent “anti-terrorism“proposals, for example, have sought to removecritical limitations on the dissemination of grandjury material. Because the grand jury can easilyfunction as a stalking horse for prosecutors tobypass the constitutional rights of individuals andorganizations, it is imperative that its powers bescaled back, not unleashed.

W. Thomas Dillard, Stephen R. Johnson, and Tim Lynch

W. Thomas Dillard is a partner in the Knoxville law firm of Ritchie, Fels, and Dillard and previously served as a U.S. attorney. Stephen R. Johnson is an associate with Ritchie, Fels, and Dillard. Timothy Lynch is director of the Cato Institute’s Project on Criminal Justice.