Results 1 to 1 of 1

Thread: If It's Not a Runaway, It's Not a Real Grand Jury

  1. #1

    If It's Not a Runaway, It's Not a Real Grand Jury

    If It's Not a Runaway, It's Not a Real Grand Jury
    by Roger Roots


    (Decoded: if a Grand Jury is owned by an attorney, it is not de jure. Something to due with merger of law and equity--if you allow it? Is there any rule that requires 12 free citizens to ask permission to form a grand jury? Are court rules binding upon the courts or upon the people? Is the merger of law and equity required by free citizens--mus they always proceed under such a merger? Rather than having hostility toward attorneys, perhaps self-inspection is due for the Citizen for determining just how they have allowed things to progress to the current state of affairs.)

    Name:  shutterstock_11267617-800x430.jpg
Views: 45
Size:  97.4 KB


    I. INTRODUCTION
    The doings of American grand juries are notoriously misunderstood and unknown by most sectors of the public.[1] Generally, the grand jury process escapes obscurity only when indictments are made public and when, for whatever reason, grand jury "leaks" are disclosed in the news media.[2] In theory, the grand jury is supposed to act as a check on the government — a people's watchdog against arbitrary and malevolent prosecutions.[3] By and large, however, federal grand juries rarely challenge federal prosecutors.

    Today, critics are nearly unanimous in describing the alleged oversight function of modern grand juries as essentially a tragic sham.[4] The Framers of the Bill of Rights would scarcely recognize a grand jury upon seeing the modern version conduct business in a federal courthouse.[5] In modern federal grand jury proceedings, the government attorney is clearly in charge and government agents may outnumber the witnesses by six-to-one.[6]

    A "runaway" grand jury, loosely defined as a grand jury which resists the accusatory choices of a government prosecutor, has been virtually eliminated by modern criminal procedure. Today's "runaway" grand jury is in fact the common law grand jury of the past. Prior to the emergence of governmental prosecution as the standard model of American criminal justice, all grand juries were in fact "runaways," according to the definition of modern times; they operated as completely independent, self-directing bodies of inquisitors, with power to pursue unlawful conduct to its very source, including the government itself.[7]

    Before the Federal Rules of Criminal Procedure — which made independently-acting grand juries illegal for all practical purposes — grand juries were understood to have broad powers to operate at direct odds with both judges and prosecutors.[8] One recent criminal procedure treatise sums up the inherent inconsistency of the modern grand jury regime:

    In theory, the grand jury is a body of independent citizens that can investigate any crime or government misdeed that comes to its attention. In practice, however, the grand jury is dependent upon the prosecutor to bring cases and gather evidence. Except in rare instances of a "runaway" grand jury investigation of issues that a prosecutor does not want investigated, the powers of the grand jury enhance the powers of the prosecutor.[9]

    Thus, while the grand jury still exists as an institution — in a sterile, watered-down, and impotent form — its decisions are the mere reflection of the United States Justice Department.[10] In practice, the grand jury's every move is controlled by the prosecution, whom the grand jury simply does not know it is supposed to be pitted against.[11]

    The term "runaway grand jury" did not appear in legal literature until the mid-twentieth century.[12] The reason for this is that the term would have been inapplicable in the context of previous generations: every American grand jury known by the Constitution's Framers would be considered a runaway grand jury under modern criminal procedure. Constitutional framers knew criminal law to be driven by private prosecution and did not contemplate the omnipresence of government prosecutors.[13] Additionally, early American common law placed far more power and investigative judgment in the hands of grand juries than does the criminal procedure of the twentieth century.

    Name:  Year1946.png
Views: 27
Size:  88.4 KB
    Although in 1946 the drafters of the Federal Rules of Criminal Procedure looked with horror at the prospect of grand juries that "could act from their own knowledge or observation,"[14] long-standing common law precedent upholds the power of grand juries to act "independently of either the prosecuting attorney or judge."[15] At common law, a grand jury could freely "investigate merely on [the] suspicion that the law [was] being violated, or even because it want[ed] assurance that it [was] not."[16] In light of the historic independence of the grand jury, the perfidy of the Federal Rules Advisory Committee in limiting the institution through codification can only be seen as willful subversion of well-settled law.[17] A truly independent grand jury — which pursues a course different from the prosecutor — is today so rare that it is an oddity, and a virtual impossibility at the federal level since Rule 6 was codified in 1946.

    The loss of the grand jury in its traditional, authentic, or runaway form, leaves the modern federal government with few natural enemies capable of delivering any sort of damaging blows against it.[18] The importance of this loss of a once powerful check on the "runaway" federal government is a focus that has remained largely untouched in the legal literature.

    This article examines the historic decrease in the powers of the American grand jury during the twentieth century. It introduces the subject of the grand jury in the context of the constitutional language which invoked it, and then compares the modern application of the institution at the federal level with its common law model.[19] Tracing the historic evolution of the grand jury as an anti-government institution in the English common law until its "capture" by the government in the mid-twentieth century, this article will demonstrate how the role of the grand jury has changed considerably over time. Finally, this article will argue that the modern loss of "runaway" or independent grand juries is unconstitutional and recommend a restoration of the grand jury's historic powers.

    II. THE GRAND JURY'S HISTORIC FUNCTION
    The Fifth Amendment to the United States Constitution requires that "[n]o person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury."[20] Constitutional framers considered this protection "a bulwark against oppression" due to the grand jury's historic powers to investigate the government and deny government indictments.[21] The grand jury of the eighteenth century usually consisted of twenty-three people acting in secret who were able to charge both on their own (an accusation known as a "presentment") and upon the recommendations of a prosecutor.[22] In addition to its traditional role of screening criminal cases for prosecution, common law grand juries had the power to exclude prosecutors from their presence at any time and to investigate public officials without governmental influence.[23] These fundamental powers allowed grand juries to serve a vital function of oversight upon the government.[24] The function of a grand jury to ferret out government corruption was the primary purpose of the grand jury system in ages past.[25]

    (source/more)

    Related:
    Last edited by allodial; 07-08-16 at 02:20 AM.
    All rights reserved. Without prejudice. No liability assumed. No value assured.

    "The object in life is not to be on the side of the majority, but to escape finding oneself in the ranks of the insane." -- Marcus Aurelius
    "It is the glory of God to conceal a thing: but the honour of kings is to search out a matter." Proverbs 25:2
    Prove all things; hold fast that which is good. Thess. 5:21.

Posting Permissions

  • You may not post new threads
  • You may not post replies
  • You may not post attachments
  • You may not edit your posts
  •