Since Whitewater special prosecutor Kenneth Starr's use of the federal grand jury has the nation's attention at the moment, now is a good time to reflect on this ancient but little-understood political institution. With their deep distrust of prosecutorial abuse, the framers of the Constitution had intended the grand jury to stand between the accused and the prosecutor. Like the crown's attorney, the American prosecutor would not be able to prosecute anyone for a felony before a grand jury had heard and judged charges based on "information known personally to its members," in historian Leonard Levy's words.
The framers enshrined this protection against improper indictment within the Fifth Amendment: "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury...," guaranteeing that the right could not easily be abrogated.
The framers did not anticipate, however, just how powerful a force prosecutorial administration of the grand jury would prove to be. Modeling the American grand jury on the English one, they failed to give it any resources independent of the prosecutor. Over the centuries, the English recognized their grand jury wasn't working and, with the flexibility handed them by their unwritten constitution, abolished it in 1933. The U.S. federal grand jury, however, cannot readily be abolished, which most Americans would probably be reluctant to do anyway. After all, the idea behind the grand jury, is important and appealing - the voice and reflection of the community within criminal proceedings. Is this missing voice not at the heart of so many criticisms of the criminal justice system?
Yet the problems in the administration of the grand jury are serious. Because the grand jurors were to be good citizens using their common sense and intelligence as they sat in judgment of their fellows, many rules of criminal procedure were never applied.
Thus, then and now, the grand jury operates in secrecy beyond the view of not only the public and the press, but also of suspects and their counsel. Suspects are barred from bringing their attorneys with them into the hearings, and are not allowed to hear the testimony of witnesses against them. Nor may a suspect testify in his or her own defense. Except for the jurors, the prosecutor, the court reporter, and the witness being questioned, no one is permitted into grandjury hearings - usually not even a judge.
The rules of evidence that govern all American trials do not govern the grand jury. The prosecutor - who alone decides what evidence to present - an use information from illegal wiretaps, hidden cameras, secretly taped friends and colleagues, as well as hearsay and rumors. …