미국 대배심 제도의 현황 및 개선 논의

Abstract

Rendering the right decision in the investigation and indictment procedure is pivotal in achieving criminal justice. To that end, all nations by various means seek to accomplish this goal. Examples of this would include nations endowing exclusive charging authorities to the prosecutor while others allow lay citizens to participate in the actual procedure. Citizen participation always carries the risk of undermining the efficacy of the criminal justice system but it can also facilitate the average citizen's understanding of and increase trust in the system. Historically, the grand jury has been the institution by which citizens can play an active role in the investigation and charging process. Beginning in the colonial period, the American grand jury protected the citizen's right in investigation and charging procedure and served as a check on the validity and efficacy of public functions. Despite much doubt regarding the objectivity of the grand jury as a mere organ of the prosecution as well as concern about its efficiency, its role has for the most part proved to be positive. The grand jury by taking part in the actual investigation and then deciding whether or not to indict has been a check on the power of the police and prosecution in major cases. In the United States the grand jury operates in different forms. Some jurisdictions require grand jury indictments for felonies while others make them optional. In addition, there are many variations among jurisdictions in ensuring procedural rights in grand jury procedures. However, basic procedures such as beginning an investigation by way of subpoena and reaching indictment decisions through jury deliberations remain common. In the United States, the necessity for grand jury reform such as enhancing jury independence and ensuring procedural rights of the witness and defendant have long been and continues to be proposed. The mere separation of investigative power from charging power can hinder efforts in achieving criminal justice goals. Using the American model as a base for our nation, it would be expedient to allow for different organizations to exercise these powers independently. Furthermore, policies in which citizens can take on decisive roles in the investigation and charging process must be established and efforts to improve continue. By careful study of the various grand jury models in the United States, Korea has a good foundation in which to develop a grand jury model that would be most suitable to our nation. Specifically a model that would allow for optional grand jury indictments and where procedural rights are ensured.