The Democratic Prosecutor: Explaining the Constitutional Function of the Federal Grand Jury
55 Pages Posted: 14 Sep 2006 Last revised: 17 Sep 2015
Abstract
In The Democratic Prosecutor, I address the basic question whether the constitutional function of grand jury indictment is prosecutorial or judicial in nature - a question the Supreme Court has not resolved.
Under the Fifth Amendment, no serious federal criminal charge may be brought without agreement of a body of citizens sitting as a grand jury. But the Court has endorsed contradictory principles to explain the grand jury's indictment function. For some purposes, the Court sees the grand jury in the prosecutorial role of asserting criminal charges. For others, however, it treats the grand jury as a judicial body that reviews the evidentiary sufficiency of criminal charges. These tasks, which suggest competing prosecutorial and judicial roles, lead to a degree of institutional schizophrenia. While this divergence is reflected in many problematic areas of grand jury doctrine, it lies at the heart of a recent split within the Ninth Circuit over what grand jurors should be instructed about their role.
Working from this debate, The Democratic Prosecutor suggests a resolution to the broader conceptual problem in federal grand jury doctrine. It posits that expressly recognizing the grand jury as a "democratic prosecutor" is a simple but powerful conceptual shift that brings coherence to a confusing area of law, explains the vision that motivates the Supreme Court's current grand jury doctrine, and reveals the flawed premise of rules that grant judicial status to grand jury indictments.
Keywords: Criminal Procedure, Grand Juries, Criminal Law
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