Grand Jury Discretion and Constitutional Design

63 Pages Posted: 22 May 2008

See all articles by Roger Fairfax

Roger Fairfax

George Washington University - Law School


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.

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

JEL Classification: K14, K41, K42

Suggested Citation

Fairfax, Roger, Grand Jury Discretion and Constitutional Design. Cornell Law Review, Vol. 93, No. 703, 2008, GWU Legal Studies Research Paper No. 406, GWU Law School Public Law Research Paper No. 406, Available at SSRN:

Roger Fairfax (Contact Author)

George Washington University - Law School ( email )

2000 H Street, N.W.
Washington, DC 20052
United States

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