Academic journal article Harvard Law Review

Restoring Legitimacy: The Grand Jury as the Prosecutor's Administrative Agency

Academic journal article Harvard Law Review

Restoring Legitimacy: The Grand Jury as the Prosecutor's Administrative Agency

Article excerpt

Within weeks of each other in 2014, a grand jury in Ferguson, Missouri, and another in Staten Island, New York, both declined to indict police officers in the deaths of unarmed black men: Ferguson's eighteen-year-old Michael Brown and New York's forty-three-year-old Eric Garner. (1) Nationwide protests involving thousands erupted in the wake of the grand juries' decisions. (2) The protests fostered widespread criticism of the institution of the grand jury, prompting calls for its abolition as part of broader criminal justice reform. But federal and state grand juries have long been the subject of immense criticism from scholars, defense attorneys, and activists. (3) The recent controversies merely drew public attention to flaws in the grand jury system that had been there all along. In 1972, Professor James Shannon wrote:

   [T]he grand jury has lost its historical identity as a shield
   protecting innocent citizens from unwarranted charges by officers
   of the law, and has become a shield protecting officers of the law
   from possible criminal charges by the citizenry. The grand jury has
   thus become in effect an administrative agency, executing in
   secrecy and with unlimited discretionary power, the policies, also
   determined in secret, of law enforcement officers who continue to
   maintain the fiction that the grand jury is a free and autonomous
   body impartially ferreting out objective truth. This proposition is
   simply no longer believable. (4)

These words, written over four decades ago, nevertheless mirror the scathing contemporary criticism of the grand jury and its role in today's criminal justice system. But a particular line in Shannon's critique deserves further exploration: "The grand jury has thus become in effect an administrative agency." The recent high-profile grand jury decisions have damaged the grand jury's legitimacy in the eyes of the public and have provided an opportunity to explore the ways in which the grand jury resembles an administrative agency. Because the grand jury is the "administrative arm" of the prosecutor, responsible for converting charges into indictments, it is appropriate to consider lessons from the quest for legitimacy in the administrative-agency context.

Part I of this Note will delve into the structure of the grand jury as it currently stands, including the grand jury's core characteristics of secrecy and dependence on the prosecutor. Part II will define the term "legitimacy," using recent high-profile grand jury cases to elaborate on criticisms of the grand jury system. Part III will highlight the similar legitimacy concerns raised by grand juries and administrative agencies--such as lack of transparency, arbitrariness, and failure to incorporate the community's voice--as well as address distinctions between the two. Lastly, Part IV will discuss solutions to the legitimacy issue in the agency context--enhanced political accountability and measures to avoid the appearance of arbitrariness--and the applicability of such solutions to grand juries.


The use of grand juries is ubiquitous: federal grand juries are enshrined in the Fifth Amendment, (5) and while not required under most state constitutions, all states use the grand jury to either indict or investigate. (6) In light of the grand jury's ubiquity, this Part will discuss the grand jury's primary functions, which are to return indictments when the prosecutor's case meets the probable cause standard and to represent the community's voice in the criminal justice system. This Part will then discuss the significant influences of prosecutorial control and grand jury secrecy, which impair the grand jury's ability to adequately serve its roles.

A. The Dual Function of the Grand Jury

Although states vary significantly in details such as the number of grand jurors who hear each case and which criminal charges require a grand jury indictment, the typical grand jury process is for the prosecutor to present evidence, including witness testimony, after which the grand jury deliberates and votes on "whether there is probable cause that the accused committed the crime and should stand trial. …

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