The Useful, Dangerous Fiction of Grand Jury Independence
![handle is hein.journals/amcrimlr41 and id is 11 raw text is: ARTICLES
THE USEFUL, DANGEROUS FICTION OF GRAND JURY
INDEPENDENCE
Niki Kuckes*
A fiction may be an expedient but false assumption.
Lon L. Fuller, Legal Fictions
The constitutional lore, nurtured by the Supreme Court, is that the federal grand
jury is a protective bulwark, whose central mission is to protect civil liberties
and shield citizens from unfounded or abusive criminal charges.' As a civil rights
institution, however, the grand jury is an odd one. It is championed by the
Department of Justice, which generally opposes any changes to grand jury
procedures, even though it is federal prosecutors who are ostensibly being
checked by the grand jury process. At the same time, the grand jury's operations
frequently come under attack by the criminal defense bar, whose clients' rights are
ostensibly being protected.2
Most recently, the Department of Justice found new and expanded uses for the
federal grand jury in the wake of September 11 and the Enron case. Following the
September 11 terrorist attacks on American targets, federal prosecutors have
arrested and detained numerous people without criminal charges as material
witnesses in grand jury investigations. Congress has created a federal grand jury
* Associate Professor, Roger Williams University Law School. Thanks to those who read and commented on
drafts of this article, with particular thanks to Kevin Clermont, Steve Clymer, Steve Garvey, Martha Fineman and
Bob Hillman at Cornell Law School, and to Peter Margulies, Colleen Murphy and David Zlotnick at Roger
Williams University Law School.
1. United States v. Dionisio, 410 U.S. 1, 17 (1973).
2. Compare COMMISSION TO REFORM THE FEDERAL GRAND JURY, NATIONAL ASSOCIATION OF CRIMINAL DEFENSE
LAWYERS, FEDERAL GRAND JURY REFORM REPORT & 'BILL OF RIGHTS,' 5-15 (2000) [hereinafter NACDL GRAND
JURY REFORM REPORT] (putting forth a Ten-Point Federal Grand Jury Bill of Rights), with Constitutional Rights
and the Grand Jury: Hearing Before the Subcomm. on the Constitution of the House Comm. on the Judiciary,
1061h Cong. (2000) [hereinafter Constitutional Rights Hearing] (statement of James K. Robinson, Assistant
Attorney General, Criminal Division, U.S. Department of Justice, opposing NACDL's proposed grand jury
reforms), available at http://commdocs.house.gov.
3. See, e.g., Roberto Iraola, Terrorism, Grand Juries and the Federal Material Witness Statute, 34 ST. MARY'S
LAW J. 401, 402-03 (2003). Within one federal district, judges disagreed as to whether this is a proper use of the
material witness statute, 18 U.S.C. § 3144. Compare United States v. Awadallah, 202 F. Supp. 2d 55, 82 (S.D.N.Y.
2002) (holding government lacks authority to detain a material witness to provide grand jury testimony), with In
re Application of United States for a Material Witness Warrant, 213 F. Supp. 2d 287, 300 (S.D.N.Y. 2002)
(declining to follow Adwallah's holding).](ViewImageLocal?handle=hein.journals/amcrimlr41&div=8&collection=&method=preview&ext=.png&size=3)
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The Useful, Dangerous Fiction of Grand Jury Independence
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