Academic journal article The Review of Litigation

Quiet No Longer: Opening the Door for Empowered Juries and Transparency

Academic journal article The Review of Litigation

Quiet No Longer: Opening the Door for Empowered Juries and Transparency

Article excerpt

I. INTRODUCTION........................................................................135

II. PAST: FEDERAL GRAND JURY SYSTEM....................................136

A. History.............................................................................136

B. Role..................................................................................140

III. Present: Federal Grand Jury System..............................143

A. Jury Instructions..............................................................145

1. Process......................................................................145

2. The Handbook for Federal Grand Juries...................146

3. The Model Jury Charge and Oath.............................148

B. Secrecy.............................................................................151

C. Difficulty in Evaluating Efficacy of System.....................153

IV. Future: Proposed Reforms.................................................156

A. Jury Empowerment..........................................................157

B. Open Records Provided by Statute..................................158

V. CONCLUSION............................................................................160

I. INTRODUCTION

The federal grand jury system is wrought with debate in the American legal community. It seems nearly nothing can be agreed upon regarding the system: some find it a venerable constitutional protection promised by our forefathers,* 1 and others a relic of the past outliving its usefulness in the current day.2 Even seemingly immune aspects, such as its history or its role, are subject to dispute. The rigorous debate, however, is focused on the present state of the federal grand jury system. Courts have fiercely defended the system over the cries of academics concerned about its efficacy and utility. These debates stem from the difficulty in evaluating the system holistically and on an individual level.

Much of the grand jury system has remained unchanged over the last two hundred years. Avoiding change is less feasible as technology and society change rapidly. The grand jury system must become more transparent and accessible to the public. The system must empower its jurors in order to ensure that it is serving as the intended check on the government's charging powers. Reforms designed to empower jurors can be made by the judiciary through the information given to the jury and the process followed by judges. Reforms to the requirement of secrecy, however, are legislative in nature and would need to be instituted by Congress.

II. PAST: FEDERAL GRAND JURY SYSTEM

A. History

The grand jury system has its roots in England's Assize of Clarendon of the twelfth century.3 Rather than a protection for the individual, the grand jury served as tool for the king to gain more power from the other courts of the time.4 The jurors were tasked with accusing criminals, and any failure to accuse a "known" criminal would lead to heavy fines for the jurors.5 After the grand jury, the accused would stand trial by ordeal, rarely resulting in a good outcome for the accused.6 While the original grand jury was no more than a tool for the Crown, the grand jury became more independent in the following centuries.7 By the fourteenth century, the petit jury, which evolved out of the grand jury,8 became a staple of the court system and was responsible for determining guilt. This left the grand jury as solely an accusatory body.9 10

The grand jury's reputation for independence comes from a seventeenth century case.1 The Earl of Shaftesbury and his ally, Stephen Colledge, were each charged with treason against the crown.11 King Charles II put intense pressure on the grand juries to indict, but when the charges were brought, the grand jury refused.12 While these cases are drawn out as examples of the independent grand jury system,13 the story as such is incomplete. …

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