Restoring the Grand Jury
Kevin K. Washburn
University of New Mexico - School of Law
Fordham Law Review, Vol. 76, 2008
Harvard Public Law Working Paper No. 07-13
Minnesota Legal Studies Research Paper No. 07-40
Though it is enshrined in the Constitution, the grand jury today is one of the least respected institutions in American criminal justice. In recent years, scholars and lawyers have treated the grand jury like doctors think about the appendix: an organ that is part of our constitutional make-up, but not of much use. Some scholars have proposed reforms that are ostensibly designed to re-invigorate this institution. However, most of the proposed reforms seem only very loosely related to the fundamental purpose of the grand jury. In an era in which plea bargains have made trials rare, the grand jury has the potential to serve a crucial role in insuring popular legitimacy in the criminal justice system in a way that trial juries cannot. In light of all the criticism, however, the grand jury seems to be failing in that role. This article theorizes that, as the United States has become more diverse, the grand jury has lost its role as the voice of the community. The grand jury has become instead a microscosm of the melting pot in which each community's voice is lost amid a cacophony of voices from other communities within the same jurisdiction. Since a grand jury functions by majority vote and is now generally drawn from the entire jurisdiction, the grand jury no longer serves as a counter-majoritarian force of the local community against central authority. The loss of this function may have had the most serious impacts on citizens in minority communities where legitimacy issues are most salient. Ironically, the root of this problem may lie in efforts to insure diverse representation in criminal justice - through unthinking adoption of the principle that trial juries should be drawn from panels representing a fair cross-section of the community. No jurisdiction is just one community, and no grand jury can serve its purpose of representing any community if it is drawn from all communities. The way to restore the grand jury's purpose may be to rebuild the grand jury's original role as a local check on central authority. This article proposes that grand juries be reconstituted so that each grand jury represents a neighborhood, or, in other words, an actual community of people who are likely to share common concerns about local issues of criminal justice.
Number of Pages in PDF File: 56
Keywords: criminal procedure, grand jury, fair cross section of the community
JEL Classification: K14, K42Accepted Paper Series
Date posted: September 5, 2007 ; Last revised: July 6, 2010
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