Subversion of the Grand Jury in the USA

Although the grand jury remains part and parcel of the US Constitution its role has been constrained by judgments and enactments which have not been that dissimilar to those that ultimately led to its abolition in the UK.

While the British grand jury was marginalised and pushed aside in favour of the ‘lawyerisation’ and professionalisation of legal method and policing the American grand jury has proved more resistant to such tactics due to its more entrenched standing in the US Bill of Rights. Though its role and power has been diminished and as some have claimed actually ‘captured’ by the state it still remains operational at a federal level and in about half of the states.

This capture has been effected in two main respects. Firstly, the autonomous powers of the grand jury to investigate and make presentments have been effectively suborned by police and public prosecutors. Secondly, its remaining powers to indict have been subordinated to the guidance and control of public prosecutors to such an extent that it has been claimed grand juries can be induced to indict anybody or anything - even a ‘ham sandwich’ - for little or no reason.
There have been a number of legal enactments and court rulings which have contributed to these changes though in the main they have been brought about by means of the 1946 adoption by Congress of the ‘Federal Rules of Criminal Procedure’ (FRCP).

Leo Donofrio, a New Jersey attorney, cites the work of Professor Roger Roots and Professor Lester B. Orfield to emphasise his view that the attempt by mainly leftist factions to eradicate the rights of grand juries to investigate and make presentments independently of prosecuting and judicial authorities is unacceptable. Such attempts seek legitimacy by reference to the somewhat negligent wording of the FRCP which is at odds with the actual wording of the US Constitution.

In consequence there is now an ongoing conflict within the American legal profession as to what exactly the role and powers of the grand jury are.

What some prosecutors now regard as ‘runaway’ grand juries - i.e. those that ignore attempts by prosecutors to constrain their investigatory powers - are in fact grand juries as were originally and ultimately still are mandated in the US Constitution to make presentments most especially in cases of alleged
misconduct in public office.
The Civil Grand Jury in the USA

The grand jury, with its full range of traditional duties, thrived in the American colonies and exercised even more responsibility for public administration than in England.

Grand jurors had the power to consider
presentments and indictments and to issue reports. They monitored public officials, administered public affairs and even initiated legislative policy. Until the middle of the 19th century the grand jury served a number of critical educational and participatory functions in local government in the USA.

However as governments increased in size and complexity the non-criminal administrative duties performed by grand juries were taken over usually by full time civil servants.

As a result civil grand juries in most states have withered nearly beyond recognition and remain only in a handful of states.
Justice Antonin Scalia

"Rooted in long centuries of Anglo-American history... the grand jury is mentioned in the Bill of Rights, but not in the body of the Constitution. It has not been textually assigned, therefore, to any of the branches described in the first three Articles. It "is a constitutional fixture in its own right."

"In fact, the whole theory of its function is that it belongs to no branch of the institutional Government, serving as a kind of buffer or referee between the Government and the people... Although the grand jury normally operates, of course, in the courthouse and under judicial auspices, its institutional relationship with the Judicial Branch has traditionally been, so to speak, at arm’s length. Judges’ direct involvement in the functioning of the grand jury has generally been confined to the constitutive one of calling the grand jurors together and administering their oaths of office."

From: United States v. Williams, 504 U.S. 36 at 48 (1992)
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Justice Antonin Scalia (1936-2016)
US Supreme Court Justice