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26 Am. Crim. L. Rev. 1457 (1988-1989)
The Right to Grand Jury Indictment

handle is hein.journals/amcrimlr26 and id is 1465 raw text is: THE RIGHT TO GRAND JURY INDICTMENT The fifth amendment of the Constitution of the United States begins: No person shall be held to answer for a capital or otherwise infamous crime, un- less on presentment or indictment of a Grand Jury.' Although obscured and overshadowed by more important clauses in the Bill of Rights,2 observers and participants in the American criminal justice system credit the grand jury with being one of the most effective tools in a prosecutor's arsenal.' Ironi- cally, the contemporary function of the grand jury distorts its historical roots; the grand jury functions less to protect individual rights against arbitrary pros- ecution and more as effective aid for zealous law enforcement.4 I. GRAitD JURY PROCEDURE Historically, a prosecutor will initiate a grand jury investigation when he has evidence of wrongdoing, no matter how slight.5 The grand jury subsequently must assess whether probable cause exists to believe that a crime has been committed.6 The prosecutor directs the grand jury investigation, determining which witnesses the grand jury will subpoena, selecting the documents or evi- dence presented and criminal charges pursued, explaining the law and instruct- 1. U.S. CONST. amend. V. In a presentment, the grand jury initiates an investigation based on its own knowledge or on submitted evidence. An indictment differs from a presentment in that the government presents a written accusation to the grand jury. 5 THE FOUNDER'S CoNsTrrUoN -295 (P. Kurlund & R. Lerner, eds. 1987) (citing 3 J. STORY, COMMENTARIES ON THE CONSTITUTION § 1778 (1893). 2. L. LEVY, ORaiaNs OF THE FwrH AmENDMENT Vii (1968). In his preface, Levy writes: The Fifth Amendment is almost synonymous with the right against compulsory self- incrimination. One who pleads the Fifth is not insisting on grand jury indictment, freedom from double jeopardy, or just compensation for property being taken by the government-all safeguarded by the same amendment. Id. 3. See, e.g., United States v. Cleary, 265 F.2d 459, 461 (2d Cir.) (grand jury conceived of as law enforcement agency), cert. denied, 360 U.S. 936 (1959). With its power to subpoena witnesses and question them in secret, the grand jury provides a vital investigative instrument to the prose- cutor. Id. 4. See Branzburg v. Hayes, 408 U.S. 665, 701-02 (1972) (investigatory power of grand jury is necessarily broad if its public responsibility is to be adequately discharged); In re Grand Jury Proceedings, 486 F.2d 85, 89-90 (3d Cir. 1973) (for all practical purposes, federal grand jury is investigatory and prosecutorial arm of executive branch of government). 5. See Blair v. United States, 250 U.S. 273, 282 (1919) (prosecutor may initiate grand jury investigation on mere rumors and tips). 6. See United States v. Calandra, 414 U.S. 338, 343 (1974) (grand jury proceeding is nonad- versarial and does not serve to adjudicate guilt or innocence). 1457

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