Cornell Law Review

Article Title

Why Grand Juries Do Not (and Cannot) Protect the Accused


Introduction It has been praised as the greatest instrument of freedom known to our form of government 1 and as a bulwark against oppression. 2 It is closely protected by courts and Congress against those who would change its structure or practice. 3 It has existed in some form in Anglo-American law for more than 800 years 4 and is enshrined in the Bill of Rights. Nevertheless, the federal grand jury remains one of the least understood and most controversial parts of the criminal justice system. The grand jury's critics are legion: 5 they attack the institution as an anachronism, a waste of money, a tool of government oppression, and even a modern-day Star Chamber. 6 Grand juries have been abolished in a large number of states and in England, and periodic efforts are made to abolish them in the federal system. 7 And although the nominal purpose of the grand jury is to protect those accused of crimes, few defendants take comfort from its presence; indeed, the staunchest defenders of the institution are prosecutors. 8 What explains these widely divergent views? The intensity of opinion is understandable, because a grand jury proceeding is an important stage in most federal criminal cases. The Fifth Amendment requires that federal felony prosecutions begin with an indictment or presentment, 9 so unless the grand jury is convinced that the matter should proceed to trial, the case cannot proceed. From the defendant's perspective, the grand jury might be the only neutral entity to ...