Creighton law review, Vol. 33, No. 4 1999-2000, 821 school of law

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What all authorities recognize as a "presentment," however, has been written out of the law and is no longer recognized by the federal judiciary.[90]

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.[92] 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.[93]

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.[94] "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."[95]

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.[96] Thus, Rule 6 represented a monumental — and deliberate — change of grand jury practice.[97] 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[98] and the loss to history of true grand jury independence.[99]

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.[100] Thus, hundreds of years of grand jury jurisprudence was overthrown by codification.[101]

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.[103] 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.[104] 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.[105]

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 sandwich.[106]

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.[107] After what can only be described as a bizarre political career,[108] Burr found himself disliked by both the Federalists and the Republicans.[109] 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.[110] This grand jury from Republican-dominated Kentucky returned an "ignoramus bill," declining to indict Burr on the evidence.[111] 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 country."[112]

A second grand jury was indubitably spurred by Jefferson himself.[113] The second proceeding convened in Mississippi Territory to consider similar treason charges against Burr relating to his expedition down the Mississippi River.[114] 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.[115] 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.[116] 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."[117] Furthermore, the grand jury declared that the arrests of Burr and his co-travelers had been made "without warrant, and . . . without other lawful authority,"[118] and represented a "grievance destructive of personal liberty."[119] 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 dust."[120]

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 government.[121]

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.[122] "Very little escaped the attention of the grand jurymen,"[123] which even took notice of the failures of town councils to provide stocks or a whipping post to punish offenders.[124]


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,[125] 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 was premised.

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 this article.

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 suggested).

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 operations).

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").


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 prosecutors").

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 situation).

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, at 2.

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, 563-623 (1994).

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., dissenting).

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.

40. Id.

41. Id.

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 ineffectiveness:

[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 decision making 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 cases.

44. Andrew D. Leipold, Why Grand Juries Do Not (and Cannot) Protect the Accused, 80 CORNELL L. REV. 275-76 (1995). BURNHAM, supra note 18, 360.


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 III.

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 (1983).

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.

53. Id.

54. Id.

55. Id.

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.

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