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64 J. Crim. L. & Criminology 174 (1973)
Eliminate the Grand Jury

handle is hein.journals/jclc64 and id is 180 raw text is: THE JOURNAL OF CRIMINAL LAW AND CRIMINOLOGY Vol. 64, No. 2 Copyright 0 1973 by Northwestern University School of Law Pintled in U.S.A. ELIMINATE THE GRAND JURY XVILIA.AM J. CAMPRELL* INTRODUCTfON Following almost two hundred years of con- tinuous and unwavering support of the institution we know as the grand jury, the Supreme Court recently announced an opinion which seems to suggest the first leak in the dike of its regard for that once exalted institution. Speaking for the six-member majority in United States v. Dionisio,' Justice Stewart acknowledged that the Grand Jury may not always serve its historic role as a protective bulwark standing solidly between the ordinary citizen and an overzealous prosecu- tor. .. . Even stronger expressions of concern over the continuing viability of the grand jury are found in the dissenting opinions filed there by Justices Douglas and Marshall. Justice Douglas, in graciously referring to my report to the Conference of Metropolitan Chief District Judges of the Federal Judicial Center,3 observed that, It is indeed common knowledge that the Grand Jury, having been conceived as a bulwark between the citizen and the Government, is now a tool of the Executive.'4 Justice Marshall emphasized the dangers facing grand jury independence as com- pounded by the Dionisio decision itself.' These comments are significant not only be- cause of their source but also because they were not germane to the resolution of the problem be- fore the Court. The volunteered concern of the highest judicial officers of our land over the method * J.D., L.L.M., D.C.L., Litt.D., L.L.D.; Senior Judge, United States District Court for the Northern District of Illinois. Judge Campbell is presently sitting regularly with the Court of Appeals of the Seventh Circuit while also serving nationwide as Chairman of Seminars for education and training with the Federal Judicial Center. 193 S.Ct. 764 (1973). See also United States v. Mara, 93 S.Ct. 774 (1973). In both Dionisio and Mara the ma- jority of the Court acknowledged the grand jury's right to subpoena witnesses and also to require them to produce nontestimonial evidence where the physical characteristics sought to be produced are constantly exposed to the public. 2 93 S.Ct. 764, 773 (1973). 'See Campbell, Delay in Criminal Cases, 55 F.R.D. 229, 253 (1972). See also Campbell, Proposals for fin- provements in the Administration of Criminal Justice, 54 Ca. BAR Rze. 75 (1972). 4 93 S.Ct. 777 (1973) (Douglas, J., dissenting). '93 S.Ct. 781 (1973) (Marshall, J. dissenting). by which criminal prosecutions are initiated merits the careful reflection of all Americans, especially those involved with the administration of justice in this country. My thesis is simple, although I hope not sim- plistic. The grand jury should be abolished; prose- cution should be commenced upon an information filed by the prosecuting offilcial and followed by a probable cause hearing before a judicial officer, such as a magistrate, who would determine whether there is sufficient evidence to permit the prose- cution to continue. Abolition of the grand jury is not a revolu- tionary idea. In England, from whom we borrowed this noble institution of the past, the grand jury was abolished except in rare cases by the Admin- istration of Justice Act of 1933.6 Many of our own states have to a greater or lesser degree followed suit. According to a survey compiled in 1964, only five states require prosecution of all crimes by in- dictment; 22 states demand that only serious offenses be initiated by indictment, and 23 states permit prosecution of substantially all crimes by either information or indictment. In my view, the movement away from the grand jury process was and is prompted by the realiza- tion that the historical assumption concerning its neutrality is no longer true. Today, the grand jury is the total captive of the prosecutor who, if he is candid, will concede that he can indict anybody, at any time, for almost anything, before any grand jury. I intend no criticism of prosecuting officials by this observation. I am a former prosecutor. I know that the talented and dedicated men and women of our prosecuting offices perform a neces- sary and laudable public function. I merely wish here to call attention to the present states of af- fairs. My objective is to analyze the operations of the grand jury in the context of its stated purpose and function, and to suggest, within the same frame- work, an alternative method of initiating prose- cutions which in my judgment will ultimately im- I See T. PLUcKNITT, A CoNcisx HiSTORY OF THE COMON LAW 112 n. 1 (5th ed. 1956). 7 See Spain, The Grand Jury Past and Present: A Survey, Air. Car L.Q. 119, 126-42 (1964).

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