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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.)
I. INTRODUCTION
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.[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.
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] 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:
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.)
I. INTRODUCTION
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.[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.
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] 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: