EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Friday, August 27, 2021

My New Article: "Rectifying Wrongful Convictions Through the Dormant Grand Jury Clause"

I have posted the working draft of my new article, "Rectifying Wrongful Convictions Through the Dormant Grand Jury Clause" (forthcoming, George Washington Law Review), on SSRN. Here is the abstract:

In 1995, Lamar Johnson was convicted of a murder in St. Louis. Twenty-two years later, St. Louis Circuit Attorney Kimberly Gardner created a Conviction Integrity Unit (CIU) to review possible wrongful convictions. After reviewing Johnson’s case, the CIU concluded that Johnson was innocent. Then, consistent with her special responsibility as a prosecutor to seek to remedy wrongful convictions, Gardner filed a motion for a new trial. The court, however, denied the motion, holding that there was no enabling legislation in Missouri authorizing CIUs to seek relief for wrongful convictions. Gardner is not alone in her inability to rectify wrongful convictions. While the number of CIUs has increased, most jurisdictions still do not have such a unit, and several CIUs exist in states that, like Missouri, lack enabling legislation.

Conversely, it has perhaps never been easier for prosecutors to commence criminal proceedings that culminate in wrongful convictions. The Fifth Amendment Grand Jury Clause provides that no person shall be subjected to a trial for felony charges unless there is a grand jury presentment or indictment. The grand jury’s historical mission was “to clear the innocent, no less than to bring to trial those who may be guilty,” and yet grand juries now return indictments in approximately 99% of cases. Meanwhile, the use of presentments waned in the wake of the Civil War and was effectively declared dead in the criminal charging context in 1946. Historically, however, grand jury presentments were used not only to accuse wrongdoers of criminal behavior but also to call attention to issues of public concern. With the demise of presentments in the criminal charging context, this other historical function of the grand jury has largely fallen into disuse.

This Article advances the original thesis that there is a dormant Grand Jury Clause that prosecutors can use to revive the common law power of presentment and fulfill their responsibility to rectify wrongful convictions. Under this dormant Grand Jury Clause, a prosecutor who believes her office previously secured a wrongful conviction can take the case to a grand jury. If the grand jury agrees with the prosecutor, it can submit a wrongful conviction presentment to a judge, who can vacate the conviction under the inherent power of the court. By doing so, prosecutors can restore some of the glory of the common law grand jury and create a powerful new tool to right wrongs.

Any feedback is welcome and appreciated.



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Great thinking!

Posted by: LINNETTE GARBER | Aug 28, 2021 4:42:50 AM

So what is a presentment? Sorry to be the dummy in the room :(

Posted by: Paul | Nov 8, 2021 4:13:01 AM

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