Reforming the Grand Jury to Protect Privacy in Third Party Records

Abstract

In late 2014, two grand juries returned controversial no bill decisions in police killings, one in Ferguson, Missouri, and one in New York City. These outcomes have renewed calls for grand jury reform, and whatever one thinks of these particular processes and outcomes, such reform is long overdue. One logical source of reform to better respect privacy in records, which would have incidental benefits beyond this privacy focus, would be the newly enacted American Bar Association Standards for Criminal Justice on Law Enforcement Access to Third Party Records (LEATPR).

But LEATPR exempts from its requirements access to records via a grand jury subpoena, and, perhaps more surprisingly, potentially exempts access via a “functionally equivalent prosecutorial subpoena.” The impetus for this exemption was a concern that applying LEATPR’s requirements to the grand jury, or even to its functional equivalent, is unnecessary and might radically undermine longstanding systems of criminal investigation in perhaps unforeseeable ways. This Article addresses whether this exception can be justified by reviewing each of the four main regulatory mechanisms of LEATPR and examining whether grand jury procedures provide an adequate substitute. In finding that they do not, this Article indicates how to improve the grand jury process. These improvements would of course not resolve the very difficult and multifaceted social ills reflected in the controversy over recent grand jury decisions, but they could begin to restore the legitimacy of this once-revered but now-maligned institution.

Keywords: fourth amendment, grand jury, subpoena, search

JEL Classification: K14