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



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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 over.").

61. See, Hale, 201 U.S. at 63 (citations omitted).

62. Id.

63. Id.

64. Id.

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.

69. Id.

70. Id.

71. Id. at 12.

72. Id.

73. Id.

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.

76. Id.

77. Id.

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 (1994).

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 53.

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, 33 (1812).

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 practices).

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. Id.

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. V.

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 (1976).

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 (1958).

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 particularly relevant:

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 abolished ....

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 (1992).

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").

110. Id.

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." Id.

114. Schwartz, 10 AM. CRIM. L. REV. at 735.

115. Id.

116. Id.

117. Id. (emphasis added).

118. Id.

119. Id.

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 authorities.

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. Id.

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.

124. Id.

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 defense attorneys).



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