Demythologizing the Historic Role of the Grand Jury
![handle is hein.journals/amcrimlr10 and id is 709 raw text is: DEMYTHOLOGIZING THE HISTORIC ROLE
OF THE GRAND JURY*
HELENE E. SCHWARTZ**
INTRODUCTION
The grand jury is one of the oldest and most respected institutions
in the common law. Although it was conceived as a means to con-
solidate royal power,1 it came to be treasured as the shield by which the
subject was rendered secure against oppression from unfounded prose-
cutions of the Crown. 2 Blackstone praised the English judicial system,
which wisely placed this strong and twofold barrier, of a presentment
and a trial by jury, between the liberties of the people and the pre-
rogative of the crown. ' Conscious of their full possession of rights,
liberties and immunities of British subjects, 4 the American colonists
adopted this same grand jury as an essential safeguard against arbi-
trary and malicious prosecution. The American grand jury, both
federal' and state is intended to act as did its English progenitor. 7
* For the spirit behind this article, the author is indebted to the great biblical
exegeticist, Rudolf Bultmann. In his work, Kerygma and Myth, Bultmann suggests
that the Bible embodies a truth which is quite independent of its mythical setting,
and that it is the duty of the scholars to strip the Kerygma [the preaching] from its
mythological framework, or to demythologize it. R. BULTMANN, KEYGMA AND
MYTH 3 (1961). The thrust of the present discussion is to demythologize the grand
jury's role as a shield between the accused and the accuser.
A.B., 1962, Brown University; LL.B., 1965, Columbia University School of Law;
Appellate counsel in United States v. Dellinger, appeal docketed, No. 18295, 7th Cir.,
Feb. 20, 1970, discussed infra; Co-author, A. KINOY, H. ScHwMARz & D. PETERSON,
CONSPtRACY ON APPEAL: APPELLa BRIEF ON BEHALF Or m CHICAGo EIGHT (Center for
Constitutional Rights, New York 1971). Member of the Faculty of Rutgers Law
School. Member of the Bar of New York.
1 See notes 14-16 and 35-39 infra and accompanying text.
2Charge to Grand Jury, 30 F. Cas. 993 (No. 18,255, C.C.D. Cal. 1872).
8 4 W. BLAcESToNE, COMMENTARIES* 349.
4 J. STORY, CoNsTrunoN § 165 (5th ed. 1891).
5 Hale v. Henkel, 201 U.S. 43, 59 (1906) (the grand jury stands between the prose-
cutor and the accused.); Hurtado v. People, 110 U.S. 516, 522 (1884), quoting witb
approval from Jones v. Robbins, 74 Mass. 329 (1857) (the grand jury is justly regarded
as one of the securities to the innocent against hasty, malicious and oppressive public
prosecutions, and as one of the ancient immunities and privileges of English liberty.);
In re Grand Jury, January, 1969, 315 F. Supp. 662, 671 (D. Md. 1970) ([tlhe grand
jury is both a sword and a shield.); United States v. Olmstead, 7 F.2d 756, 758 (W.D.
Wash. 1925) (the Constitution of the United States, as well as the constitutions of all
the states, show it [the grand jury] is adopted as a means of protection to the citizen
as well as a necessary aid to public justice.). See also Orfield, The Federal Grand Jury,
22 F.R.D. 343, 349 (1959).
[701]](ViewImageLocal?handle=hein.journals/amcrimlr10&div=41&collection=&method=preview&ext=.png&size=3)
What Is HeinOnline?
Contact us for annual subscription options:
Already a HeinOnline Subscriber?
profiles profiles most
Demythologizing the Historic Role of the Grand Jury
Contact us for annual subscription options:
Already a HeinOnline Subscriber?
profiles profiles most