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1 J. Marshall J. Prac. & Proc. 18 (1967-1968)
The Fading Myth of Grand Jury Secrecy

handle is hein.journals/jmlr1 and id is 28 raw text is: THE FADING MYTH OF GRAND JURY SECRECY By RICHARD CALKINS* In the past decade there has emerged an entirely new evaluation of the doctrine of grand jury secrecy. The recent United States Supreme Court decision of Dennis V. United States' strongly suggests that this once inviolable doctrine is no longer to be sterilely applied without giving consideration to counter- balancing factors of both public and private interests. It will, therefore, be the intent of this article to analyze the path taken by the doctrine of grand jury secrecy, culminating in the Dennis decision, as a basis for prognosticating its future direction. HISTORICAL BACKGROUND OF GRAND JURY SECRECY A cursory analysis of the historical background of grand jury secrecy indicates that its purpose was not to protect wit- nesses appearing before it, but to shield the accused from the abuses of the Crown. At the inception of the grand jury, in 1166, there was no secrecy surrounding its deliberations; its activities were open to the public, and it functioned solely in the interest of the Crown.2 The Grand Assize, as the grand jury was then called, was invoked to augment the power of the Crown by acting as a public prosecutor for the purpose of ferreting out specific crimes. By 1368 a wholly distinct body emerged, called le graunde in- quest, which lodged all criminal charges against defendants whether or not private accusers came forward. The Grand Assize, by this time, had gone through a period of diminishing importance. Significantly, le graunde inquest adopted the cus- * Member of the Illinois Bar Instructor, John Marshall Law School, Associate with Law Firm of Chadwell, Keck, Kayser, Ruggles & McLaren, Chicago, Illinois. 1 384 U.S. 855 (1966). 2 The Assize of Clarendon issued by Henry II in 1166 is given by many authorities as the precursor to the modern day grand jury. However, other commentators suggest that it was not until 1368, toward the end of the reign of Edward III, that the modern practice of returning a panel of twenty-four men called le graunde inquest was established, and that this latter body was the real forerunner to our present grand jury. It should also be noted that similar accusing bodies may have been utilized by the Athenians before the Christian era, by the Saxons who settled in England in the Fifth and Seventh centuries, and by the Scandanavians in the Eighth century. For a discussion of this historical background, see I HOLDSWORTH, A HISTORY OF ENGLISH LAW, 312-27 (3d ed. 1922); STEPHEN A HISTORY OF THE CRIMI- NAL LAW OF ENGLAND, 184-86, 250-58 (1883); EDWARDS, THE GRAND JURY 26 (1906).

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