CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Thursday, November 9, 2023

Litt on Children as Grand Jury Witnesses

Lucy Litt has posted Underage and Unprotected: Federal Grand Juries, Child Development, and the Systemic Failure to Protect Minors Subpoenaed as Witnesses (University of Cincinnati Law Review, Vol. 92, No. 89, 2023) on SSRN. Here is the abstract:

Grand juries in the United States were originally intended to protect people from unwarranted criminal prosecution by the government; however, criticism of federal grand juries in the U.S. throughout the past five decades demonstrates that these deliberative bodies protect prosecutors at the expense of the people subjected to their investigations. Worse still, federal grand jury proceedings circumvent fundamental constitutional rights, direct judicial oversight, and many of the procedural protections of criminal trials; they enable prosecutors to strip unaccused individuals subpoenaed solely for witness testimony of their safety, rights, and liberty. Prosecutorial misconduct has received increasingly widespread attention, especially in recent years, with some prosecutors championing “progressive prosecution” reforms. Nonetheless, federal grand jury proceedings continue to occur in secrecy, subject to minimal judicial review or oversight by design.

Within this often overlooked and under-observed system, children subpoenaed as federal grand jury witnesses do not have access to an attorney while inside the federal grand jury room. They face skilled prosecutors, interrogation, manipulation, and skeptical grand jurors entirely on their own. This is problematic for any grand jury witness, but it is especially problematic for minors.


The lack of explicit protections or oversight for minors subpoenaed to testify before grand juries leaves children especially vulnerable to one of the most coercive, terrifying, and unaccountable processes in the U.S. criminal legal system. While most case law about federal grand jury subpoenas of minors involves either child custody issues or children who witness violent acts committed against their loved ones, this Article approaches the issue through a lens informed by scholarship, positing that the federal criminal legal system disproportionately targets Black and Brown young men and adolescents within the “gang” prosecution context. Presumably, Black and Brown minors are, or could be, disproportionately targeted by federal prosecutors to provide grand jury witness testimony for “gang-related” pre-indictment investigations as well.

With public discourse regarding gang databases, the use of certain rap lyrics in criminal legal proceedings, and generalized notions of notorious gangs, such as MS-13, on the rise nationwide, and with local government leaders in cities—including Boston; Chicago; Washington, DC; Los Angeles; New Orleans; and New York—returning to disproven “gang” policing and prosecution tactics, the rights of minors subpoenaed as federal grand jury witnesses warrant urgent attention.

https://lawprofessors.typepad.com/crimprof_blog/2023/11/litt-on-children-as-grand-jury-witnesses.html

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