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Abstract:
The grand jury possesses an unqualified power to decline to indict - despite probable cause that alleged criminal conduct has occurred. A grand jury might exercise this power, for example, to disagree with the wisdom of a criminal law or its application to a particular defendant. A grand jury might also use its discretionary power to send a message of disapproval regarding biased or unwise prosecutorial decisions or inefficient allocation of law enforcement resources in the community. This ability to exercise discretion on bases beyond the sufficiency of the evidence has been characterized pejoratively as grand jury nullification. The dominant substantive critiques of grand jury nullification attack the grand jury's discretion in this regard as bad criminal justice policy at best and subversive of the rule of law at worst. Any acknowledgement of the grand jury's discretionary power often is accompanied by concerns regarding the damage that critics perceive it to levy upon the criminal process. This Article argues that such concerns largely are unfounded and derive from a fundamental misunderstanding of the scope of the grand jury's discretion and its function in the constitutional structure. The Article defends grand jury discretion against the critique that it is necessarily inconsistent with the rule of law. It contends instead that grand jury discretion actually buttresses the rule of law by facilitating the grand jury's structural role in the constitutional design as a check on the three branches of government and as a moderator of criminal law federalism. In addition, the Article maps the spectrum of discretion that is exercised by various actors throughout the criminal process and argues that the grand jury's discretionary power represents an appropriate, if not optimal, allocation of that discretion. Finally, the Article argues that grand jury discretion is desirable because it can enhance the administration of criminal justice - not only from an individual rights perspective but also from crime control and efficiency perspectives.

grand jury, discretion, sufficiency of the evidence, probable cause, nullification, indictment, efficiency, crime control

Abstract:
Appellate harmless error review, an early twentieth-century innovation prompted by concerns of efficiency and finality, had been confined to non-constitutional trial errors until forty years ago, when the Supreme Court extended the harmless error rule to trial errors of constitutional proportion. Even as criminal procedural protections were expanded in the latter half of the twentieth century, the harmless error rule operated to dilute the effect of many of these constitutional guarantees - the right to jury trial being no exception. However, while a tradeoff between important process values and the Constitution's protection of individual rights is inherent in the harmless error rule, recent applications of appellate harmless error review to certain jury-related constitutional errors have exceeded the scope of the initial compromise. Highlighting the current trend of application of appellate harmless error review to jury verdicts based on fewer than all of the required elements of a charged offense, this Article maintains that the Supreme Court's willingness to sacrifice individual criminal defendants' jury trial and due process rights at the altar of efficiency and finality has subverted the constitutional function of the jury itself, and has undermined the jury's institutional role. The Article calls for the constitutional recognition of the jury's core institutional interests, and argues for the inclusion of certain jury-related constitutional errors in the category of those structural errors not susceptible to appellate harmless error review.

criminal procedure, procedural reform, jury, harmless error, structural error, elements, efficiency, finality, due process rights, jury trial right

Abstract:
For the first 150 years of our constitutional history, a valid grand jury indictment was deemed to be a mandatory prerequisite to a federal court's exercise of criminal subject matter jurisdiction. Under that view of the Grand Jury Clause, a defendant in a federal felony case could neither waive nor forfeit the right to grand jury indictment. A critical examination of the historical evidence reveals that the legal realist criminal procedure reform project of the early twentieth century advanced a pragmatic critique of the usefulness of the grand jury that culminated in a provision of the Federal Rules of Criminal Procedure allowing for waiver of grand jury indictment for the purpose of facilitating a pre-indictment guilty plea, a procedural efficiency mechanism still used with regularity in federal courts today. The reformers were able to secure the waiver provision - despite serious constitutional concerns - by shaping a pro-efficiency modern understanding of the grand jury that obscured - but did not disprove - the grand jury's jurisdictional significance. This Article argues that the reformers prompted the subversion of the mandate of the Grand Jury Clause, and burdened our legal consciousness with a diminished respect for the grand jury that affects our understanding of the grand jury's place in the constitutional structure to this day. This Article recovers the "jurisdictional heritage" of the grand jury and criticizes the modern understanding for its unjustified dismissal of the grand jury's jurisdictional significance. The Article places blame for the continued confusion in the federal courts regarding the relationship of grand jury and jurisdiction squarely on the weak historical and logical underpinnings of the modern understanding. The Article also contextualizes the grand jury's jurisdictional heritage within the broader contemporary discussion of "pro-defendant" formalist or originalist approaches to defining criminal procedural rights recently applied by the Supreme Court. Finally, the Article argues that the failure to account properly for the jurisdictional heritage of the grand jury frustrates the grand jury's fulfillment of its role in the constitutional design.

grand jury, indictment, waiver, criminal procedure, procedural reform, criminal jurisdiction, federal rules of criminal procedure