Federal grand jury procedures and functions

Federal Grand Jury

The Fifth Amendment to the U.S. Constitution provides that charges for all capital and "infamous" crimes be brought through an indictment by a grand jury. Although the founding fathers had envisaged the primary function of the federal grand jury as protection of the citizens against tyranny by the government, its protective role has eroded over the years -- making its current function in the criminal system highly controversial. This paper outlines the basic duties of a federal grand jury and discusses some of the controversial issues facing it.

Basic Duties

The provision of the Fifth Amendment regarding grand juries has been interpreted to mean that an indictment by a federal grand jury is required for charging federal felonies. The Supreme Court has held that this part of the Fifth Amendment is not binding on the States; hence the use of grand juries is not binding on the States. (Brenner 2003) Historically, the duties of federal grand juries have included deciding whether someone should be charged for committing a crime, and investigating criminal activity and the conduct of public affairs. Over the years the public affairs function of the grand jury has been taken over by the administrative agencies, leaving the federal grand juries with investigating criminal activities and deciding whether sufficient prima facie evidence exists to warrant a trial of an accused. Investigation of civil matters is also beyond the scope of the grand juries' functions. (Ibid.)

Controversial Issues

Right to Counsel: a witness appearing before a federal grand jury is not entitled to counsel inside the grand jury room, although he or she is entitled to consult a counsel outside the grand jury room after getting permission of the grand jury. In my opinion such denial of counsel is negation of a key aspect of our justice system since the absence of a counsel exposes a witness to several risks such as self-incrimination or perjury. The criticism that presence of counsel would disrupt the proceedings o the Grand Jury can be overcome by not allowing the counsel inside a jury room to interrupt the proceedings. ("Report by Commission...," 2000)

Non-Application of Exclusionary Rule: In federal and state courts, all illegally obtained evidence is inadmissible in criminal trials. This rule does not apply to Grand Juries where virtually all evidence, even if illegally seized, is admissible. Some people have demanded that the "exclusionary law" should also apply to Grand Juries. Personally, I have reservations regarding the wisdom of applying the 'exclusionary rule' to grand juries since I believe that the rule, in its existing form, is overly protective of criminals.

Failure to Present Evidence: At present, the prosecutor is not obliged to disclose to the federal grand jury evidence that negates the guilt of the prospective defendant. This provision of knowingly withholding evidence enables the federal prosecutor to manipulate proceedings of the Grand Jury. In my opinion this rule compromises the independence of the Grand Jury and all evidence (whether favorable to the prosecutor's case or not) should be made available to the jury.