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Thursday, July 07, 2005

Beware the Grand Jury

Grandjury1_1Over at Balkinization, I’ve posted some of my thoughts about grand juries.  The short version: I don’t like them.  They merely serve as a very powerful tool for prosecutors, and they give the government too much power to conduct inquests into people’s private lives.  Unfortunately, we can’t just readily abolish the grand jury anytime soon, as it is provided for in the Fifth Amendment to the Constitution.  But in my post, I argue that the grand jury subpoena power is an end-run around the Fourth Amendment.  I critique the Supreme Court for its shortsighted decision not to apply the Fourth Amendment to grand jury subpoenas.  I’m sure I’ll get a lot of criticism for my argument, but I think that some substantial limits on grand jury power are in order – the first being to limit grand jury subpoena power to abide by the same standards as a Fourth Amendment search warrant.

Posted by Daniel Solove on July 7, 2005 at 12:03 AM in Constitutional thoughts, Criminal Law, Information and Technology | Permalink

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Comments

prosecutorial powers are great until you are the one indicted by a grand jury where its ok for the witnesses to lie, unconstitutionally obtained information can be twisted to support the prosecutors claims. Grand Jury equals "guilty" before one enters a trial. Why do you think the "Feds" have such a high conviction rate? All the bull thats allowed leaves little room to fight, most defendants plead. The Grand Jury should be abolished.

Posted by: tracey | Jul 20, 2007 2:23:43 AM

Great post. There's no question that grand juries are nothing but arms of the state. Yet these extensions of the prosecutorial power are not bound by the Fourth Amendment.

How can anyone reconcile current grand jury practice and procedure with the Bill of Rights? Of course, repealing the 4th, 5th, and 6th Amendments would be great for prosecutors. But until we amend the Constitution, the grand jury system must be reformed.

Grand juries, like every other branch of the government (and, in practice, that's what the grand jury is) should be required to comply with the Constitution. That seems like a pretty uncontroversial (indeed, trite) proposition. Yet it's one that it met with great opposition.

Why should the grand jury, which some historians believe was meant to serve as a bulwark between the government and its citizens but which today is undoubtedly an arm of the prosecutor's office, be immune from constitutional restraints?

Posted by: Mike | Jul 7, 2005 4:37:34 PM

Great post. There's no question that grand juries are nothing but arms of the state. Yet these extensions of the prosecutorial power are not bound by the Fourth Amendment.

How can anyone reconcile current grand jury practice and procedure with the Bill of Rights? Of course, repealing the 4th, 5th, and 6th Amendments would be great for prosecutors. But until we amend the Constitution, the grand jury system must be reformed.

Grand juries, like every other branch of the government (and, in practice, that's what the grand jury is) should be required to comply with the Constitution. That seems like a pretty uncontroversial (indeed, trite) proposition. Yet it's one that it met with great opposition.

Why should the grand jury, which some historians believe was meant to serve as a bulwark between the government and its citizens but which today is undoubtedly an arm of the prosecutor's office, be immune from constitutional restraints?

Posted by: Mike | Jul 7, 2005 4:35:51 PM

I agree with Orin - what's so bad about a powerful prosecutorial tool? It could be good that you have to be interviewed without an attorney present, esp. when we're talking about crime. It is true that grand juries probably aren't rights protective, as was initially envisioned, but that would only matter if you were an originalist-non-textualist.

My former colleague Ric Simmons has a nice article on grand juries, though, observing that if you wanted rights protective ones you might design them the way New York has done, where there's a tradition of refusing to indict, etc. If that's what you're after.....

Posted by: david | Jul 7, 2005 10:19:17 AM

Dan,

One response to your point is Bill Stuntz's: that law enforcement needs this broad power because it's quite difficult to investigate any document-based criminal offenses without it. White collar crime cases generally require the government to obtain and comb through documents to figure things out if there is probable cause to believe a crime occured, and the subpoena power is the power to get the documents. The power is a broad one, but it's broad by necessity, as it's not clear how criminal investigators can proceed in white collar crime cases without it.

Orin

Posted by: Orin Kerr | Jul 7, 2005 12:17:49 AM

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