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Note: The comments and questions on this page came from people who visited this website. Please feel free to send your comments and questions to Professor Brenner (brenner@udayton.edu). She will respond privately, and may ask permission to post your message on this page. No one's e-mail will be used without first obtaining their permission, and names and e-mail addresses are removed before a comment is posted. Starting in 2002, the responses posted to the site indicate which of us replied: The initials SWB mean Professor Brenner wrote the response; the initials LES mean Professor Shaw wrote the response. We are also putting the year down, to indicate when the response was posted. If no initials appear, Professor Brenner wrote the response.

 

When did the grand jury change?

Prior to the 80th decade I labored under the apprehension that Grand Juries-as safeguards against possible sovereign abuse-were off limits to "agents of the Sovereign" as well as legal counsel for the accused. In fact, trial by a jury of peers was one of the major innovations of the Magna Carta, programmed to end the arbitrary powers of King John, which he wasn't using to judiciously. This was further implemented by the Petition of Right 1628 and subsequently the Bill of Rights in 1689. Then I started reading about the federal prosecutors' control over Grand Juries. Similar complaints by legal types overheard in public places seemed to be increasingly commonplace. I even read about judges complaining "the Grand Jury would indict a ham sandwich if the prosecutor wanted them to!" My question is: when did the grand jury procedures change to permit the government to descend upon an un-sophisticated, un-represented citizen with a Chief Inquisitor and a battery of Legal Executioners in an ambience of a preliminary investigative process by peers? Though our current endeavor is "to bury Clinton, not to praise him" (excuse the paraphrase), is not this grand jury a wake up call?

Response: Part of it has been, as you pointed out in your message, a slow evolutionary process. . . . The "citizen's panel" that once stood between the citizen and the government, in the form of the prosecutor, has, I am afraid, lost much of its independence and initiative. That loss took us to the "ham sandwich" scenario you describe, and the "ham sandwich" scenario seems to have taken us to the current situation, which I find dreadful.

If you want my humble assessment of what has caused this decline in the once impressive independence and assertiveness of the grand jury, it is that citizens have become more and more ignorant of what a grand jury is. Instead of understanding that it is a people's panel, an entity that is controlled by the citizens who comprise it, they have, mistakenly, come to regard it as an instrument of the prosecutor. As a result of this mistaken perception, citizens who are called to serve on a grand jury believe they must do what the prosecutors want them to do.

I think this mistaken perception is a function both of two factors: One is the secrecy of the grand jury--until the Clinton affair, people had heard very little about grand juries and knew little about what they are supposed to do. As a result, citizens called to serve tended to assume a grand jury functioned like a trial jury, in that the jurors are to remain passive. (In trials, jurors play no active part--they sit passively and make their decision after the case has been submitted to them. They cannot influence the evidence that is presented or in any other way affect the course of the trial.) I don't see the Clinton imbroglio changing that.

The other factor works in combination with secrecy: In centuries past, grand juries were convened locally and everyone had either served on one or knew someone who had, and, as a result, people had a pretty good idea what a grand jury should and could do. They were more accessible. As society has become larger and more urbanized, the people called to serve may not know anyone who has ever served on a grand jury. This ignorance, coupled with the secrecy, means that the jurors tend to assume they should do what the prosecutors want them to do, i.e., remain passive.

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