Abstract

http://ssrn.com/abstract=1012441
 
 

Citations (1)



 
 

Footnotes (246)



 


 



The Jurisdictional Heritage of the Grand Jury Clause


Roger Fairfax


George Washington University - Law School


Minnesota Law Review, Vol. 91, p. 398, 2006
GWU Legal Studies Research Paper No. 348
GWU Law School Public Law Research Paper No. 348

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.

Number of Pages in PDF File: 62

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

JEL Classification: K14

Accepted Paper Series


Download This Paper

Date posted: September 7, 2007  

Suggested Citation

Fairfax, Roger, The Jurisdictional Heritage of the Grand Jury Clause. Minnesota Law Review, Vol. 91, p. 398, 2006; GWU Legal Studies Research Paper No. 348; GWU Law School Public Law Research Paper No. 348. Available at SSRN: http://ssrn.com/abstract=1012441

Contact Information

Roger Fairfax (Contact Author)
George Washington University - Law School ( email )
2000 H Street, N.W.
Washington, DC 20052
United States
Feedback to SSRN


Paper statistics
Abstract Views: 798
Downloads: 97
Download Rank: 159,920
Citations:  1
Footnotes:  246

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo7 in 0.266 seconds