Thursday, March 17, 2011
The shameful state of contemporary federal grand jury practice has attracted the attention of many scholars. Today’s grand juries (especially at the federal level, but no less so in most states) offer little or no check on government power, and no longer protect Americans from improper or unnecessary prosecutions. Although a number of reforms have been suggested over the years, the author suggests that none of them would wholly restore the institution to its constitutional role, design and purpose. This article advocates a bold reformation of Rules 6 and 7 of the Federal Rules of Criminal Procedure so that prosecutors would be barred from participating in grand jury investigations except when expressly invited by a grand jury to do so. This proposal would be most consistent with grand jury practices of the Founding period and the original intent behind the Fifth Amendment’s Grand Jury Clause.