The Grand Jury. Prosecutorial Abuse of the Indictment Process

Abstract

the community believed to be guilty of criminal offenses.7 At one time the grand jury determined the guilt of the accused as well as made accusations, but eventually the accusatory and guilt* J. D., 1960, University of Chicago School of Law; Member, Hawaii and Illinois Bars. 1 See, e.g., Wood v. Georgia, 370 U.S. 375, 390 (1962), where the Supreme Court stated that the grand jury: has been regarded as a primary security to the innocent against hasty, malicious and oppressive persecution; it serves the invaluable function ...of standing between the accuser and the accused,... to determine whether a charge is founded upon reason or was dictated by an intimidating power or by malice and personal ill will. See also Dewey, Grand Jury, The Bulwark of Justice, 19 THE PANEL 3 (1941), where the grand jury is described as the bulwark of protection for the innocent and the sword of the community against wrongdoers. 2 See, e.g., United States v. Dionisio, 410 U.S. 1, 17 (1973); People v. Sears, 49 Ill. 2d 14, 33, 273 N.E.2d 380, 390 (1971); Calkins, Abolition of the Grand Jury Indictment in Illinois, 1966 ILL. L.F. 423 (1966); Campbell, Eliminate The Grand Jury, 64 J. CRIm. L. & C. 174 (1973); Schwartz, Demythologizing the Historic Role of the Grand Jury, 10 AMER. CRIM. L. REv. 701 (1972); Shannon, The Grand Jury: True Tribunal of the People or Administrative Agency of the Prosecutor?, 2 N. MEX. L. REV. 141 (1972). a See Calkins, Abolition of the Grand Jury Indictment in Illinois, 1966 ILL. L. F. 423, 424 n.6 (1966); Harno, Some Significant Developments in Criminal Law and Procedure in the Last Century, 42 J. or CRIM. LAW 422, 451 (1951). 4 See Lumbard, The Criminal Justice Revolution and the Grand Jury, 39 N.Y.S.B.J. 397, 400 (1967), where the author states: We should not forget that our District Attorneys are elected officials, that they must stand for election at stated intervals, and this makes them subject to pressures and temptations if they have the power to act alone, and there are some cases where it would not be in the public interest to give them the sole power to determine when charges should be brought. I See, e.g., Judge Frank's statement in In re Fried, 161 F.2d 453, 458-59 (2d Cir. 1947): The government further argues that an indictment founded upon illicit evidence will do the applicant no harm, since such evidence will not be admitted at the trial which follows the indictment. This is an astonishingly callous argument which ignores the obvious. For a wrongful indictment is no laughing matter; often it works a grievous irreparable injury to the person indicted. Prosecutors have an immense discretion in instituting criminal proceedings which may lastingly besmirch reputations. .... 6See generally G. ADAMS, THE ORIGINS OF THE ENGLISH CONSTITUTION 106-35 (2d ed. 1935); G. EDWARDS, THE GRAND JURY 1-44 (1906); I. W. HOLDsWORTH, A HISTORY OF ENGLISH LAW 321 (7th ed. 1956); Schwartz, Demythologizing the Historic Role of the Grand Jury, 10 AMER. CRmI. L. REv. 701 (1972). 7 See I. W. HoLDSWORTH, A HISTORY OF ENGLISH LAW 321 (7th ed. 1956); T. PLUCKNETT, A CONCISE HISTORY OF THE COMMON LAW 112 (5th ed. 1956).