"It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past."1
The Fifth Amendment guarantees all federal criminal defendants indictment by grand jury, which is generally thought of as an institution designed to protect individuals from unwarranted prosecution. In many states, however, grand juries have the power to conduct investigations and release public reports accusing individuals of misconduct or criminal activity even if they are not indicted. Because of its historical role as an institution composed of laymen designed to screen criminal charges, the Supreme Court has exempted the grand jury from most of the procedural protections that are afforded to defendants in criminal trials. This Note examines the history of grand jury reports and their modern use and argues that the historical justification for the lowered procedural protection afforded to subjects of grand jury investigations does not apply when the grand jury issues a public report. It concludes by identifying the procedural protections that should be extended to subjects of grand jury reports.
In at least half of the states, grand juries are empowered to issue written reports in cases in which no criminal activity is charged.2 While the grand jury historically issued indictments after a prosecutor presented sufficient evidence to establish probable cause that criminal activity had occurred, its reporting authority is vastly different. An indictment serves as a formal charging document that initiates judicial adjudication of criminal accusations.3 In contrast, a grand jury report does not formally accuse anyone of a crime and is instead a written document most commonly addressed to the court that has empanelled the grand jury.4 These reports have historically focused on a wide array of public concerns ranging from accusations of political corruption or misconduct to the care of local roads and bridges.5 Most states that permit grand juries to issue reports provide for limited judicial review of the reports to ensure that the grand jury has not exceeded its legal authority.6 If the judge determines that the written report is appropriate, it will be filed as a public record.7
The reporting authority of grand juries dates back to the colonial era,8 but grand jury reports have become more controversial in modern times.9 Through the grand jury, prosecutors gain broad investigative powers that otherwise would not be available, such as the right to compel witnesses to testify without an attorney.10 Subjects of investigation are denied some due process rights of trial, such as the right to confront accusers, the right to testify, the right of an open and public adjudication, and the right to examine the fairness and the accuracy of the report's findings by examining the grand jury's minutes.11 The subject of an investigation has no constitutional right to receive exculpatory evidence from prosecutors and present it to the grand jury.12 Despite limited safeguards for individual rights, grand juries are often empowered to issue public written reports that are critical of specific individuals.13 Thus, the existence of grand jury reports presents the potential for violation of an individual's rights and damage to her reputation, often with little power for the courts to prevent such harm from occurring.
Part II of this Note traces the history of grand jury reports, and Part III analyzes the arguments that have been advanced in favor and against their use. Part IV analyzes the reforms that several states have enacted and discusses concerns regarding fairness and political accountability that still remain. Part V concludes that grand jury reports that criticize specific individuals or accuse them of a crime without an indictment cannot be justified absent procedural protections and suggests which protections are essential to ensure fairness. …