Washington, DC, May 2, 2006 --  

Throughout the sea of federal courthouses northwest of the U.S. Capitol, a small army of federal prosecutors is running amok. The 350 assistant U.S. attorneys for the District of Columbia¹ swarm throughout the Judiciary Square neighborhood, using subpoenas to force citizens into secret questioning by law enforcement authorities without their lawyers present, despite the fact that nobody has even been indicted.

Tragically, these prosecutors are not working in violation of the law. They are simply exploiting a constitutional mechanism for their own advantage: the federal grand jury. As a federal grand juror in the middle of my month-long service, I've seen the system's shortcomings become painfully obvious.

Americans are far more familiar with trail juries, made famous by television shows like Perry Mason and countless John Grisham novels. But grand juries bear little resemblance to their better-known cousins. In Washington, the hearings take place not in a court, but in a U.S. Attorney's office building without a judge or defense lawyer present. The key official in the room is the federal prosecutor, who relentlessly questions frightened witnesses before a court reporter and a jury of 23 laypersons.

The purpose of the grand jury is clearly described in the Fifth Amendment to the Constitution: "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand jury..." A grand jury is responsible for deciding which felony criminal cases may be pursued by the federal government -- it's intended to be a check on government power.

This purpose has been lost. Federal grand juries voted to indict 99.93 percent of cases brought by prosecutors between over a five year period in the last decade, according to Justice Department figures.² This astounding rate of approval is high enough to make even Saddam Hussein's campaign manager blush.

Based on our track record, my grand jury is poised to break the 99.93 percent indictment average. It's not hard to understand why. For six hours per day, five days per week, the only legal authority in the room is one of an ongoing parade of prosecutors. Jurors naturally see the prosecutor -- the most knowledgeable legal professional in the room -- as an authority figure. And they aim to please. It is typical to hear jurors imploring each other to cut off deliberations and vote, in order to help out the prosecutor.

Unconscionably, grand jurors are given no access to independent legal advice. Prosecutors have the job of interpreting the law before we vote. Often, cases come down to hair-splitting distinctions between greater and lesser charges. Even when making a good-faith effort to explain the law, a prosecutor has a huge conflict of interest.

When selecting witnesses, it is the prosecutor, not the grand jury, who decides who gets subpoenaed. Do other witnesses have another story to tell? The grand jurors will never know. Prosecutors commonly present only one witness, despite many witnesses being mentioned in the police report or other testimony. Prosecutors are also under no legal obligation to present any evidence that would exonerate the target of their case.

There's a dirty secret about grand juries. Their Constitutionally-mandated purpose of citizen oversight has become nothing more than window dressing. Prosecutors love grand juries for their subpoena power. They force people to be questioned under oath without their lawyer present -- something that the police are not allowed to do. This questioning violates of the spirit of the Fourth Amendment, which protects Americans from searches without a warrant. From a prosecutor's perspective, grand jury members are merely an annoyance -- an artifact of the modern interrogation system that must be managed.

This isn't an exaggeration. On at least one occasion, I have seen a prosecutor conclude his case, request and receive a vote to indict, then ignore the vote and continue to subpoena witnesses. How is a grand jury serving its purpose of approving indictments when prosecutors continue questioning after an indictment is approved? Such cases show that prosecutors have moved beyond exploitation of the grand jury system and engaged in outright abuse.

Reform proposals for federal grand juries have been kicked around for decades. About half of states have eliminated grand juries, usually in favor of preliminary hearings before a judge.³ But since the Bill of Rights requires federal grand juries, they cannot be eliminated without a Constitutional amendment.

The solution is to reform them. The much abused subpoena powers of the grand jury -- never mentioned in the Constitution -- should be eliminated.⁴ Witness counsel should present during grand jury questioning of their clients. A Judge or other legal advisor -- independent of the prosecutor's office -- should be assigned to educate the grand jurors on the finer points of the law.

Many of these reforms have already been adopted by the states that retain grand juries -- 21 states allow witness counsel to be present during questioning.⁵ As long as the federal government fails to adopt such common-sense reforms, the grand jury provision of the Bill of Rights will continue to be used as a tool to violate the very civil liberties it was intended to protect.

Notes:

1. United States Attorney's Office for the District of Columbia, Website, as posted May 2, 2006

2. Legal Times, Grand Jury: Power Shift? April 12, 1999

3. American Bar Association, Frequently Asked Questions About the Grand Jury System, as posted May 2, 2006

4. The Cato Institute, A Grand Fa?ade, How the Grand Jury Was Captured by Government, May 13, 2003

5. National Association of Criminal Defense Lawyers, The Commission to Reform the Federal Grand Jury, May 18, 2000