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76 Fordham L. Rev. 2333 (2007-2008)
Restoring the Grand Jury

handle is hein.journals/flr76 and id is 2349 raw text is: RESTORING THE GRAND JURY

Kevin K. Washburn*
Though it is enshrined in the Constitution, the grand jury is one of the
least respected institutions in American criminal justice today. Scholars
regard the grand jury just as doctors regard the appendix: an organic part
of our constitutional makeup, but not of much use. While scholars have
proposed reforms, most of them seem only loosely related to the
fundamental purpose of the grand jury. In an era of plea bargains, the
grand jury can serve a crucial role in insuring popular legitimacy in the
criminal justice system. In light of the criticism, however, the grand jury
seems to be failing in that role. This Article theorizes that, as the United
States has become more diverse, the grand jury has lost its role as the
voice of the community.  Since a grand jury functions by majority vote and
is drawn from the entire jurisdiction, the grand jury has lost its role as a
countermajoritarian force of the local community against central authority.
Ironically, the problem may have developed from efforts to insure diverse
representation in criminal justice through unthinking adoption of the
principle that trial juries should be drawn from panels representing a 'fair
cross-section of the community.  As the grand jury has become a
microcosm of the broader melting pot, each community's voice has been
lost amid a cacophony of voices from other communities within the same
jurisdiction. This has harmed citizens in poor and minority communities
where legitimacy issues are most salient. No jurisdiction is just one
community, and no grand jury can serve its purpose of representing a
community if it is drawn from all communities. Grand juries should be
reconstituted so that each grand jury represents an actual community of
people who are likely to share common concerns about local issues of
criminal justice.
IN TROD U CTION  ........................................................................................ 2335
* 2007-08 Oneida Nation Visiting Professor, Harvard Law School; Professor, University of
Minnesota Law School. The author benefited from the comments of gracious participants at
faculty workshops at the law schools of the following universities: Arizona, Arizona State,
Colorado, Harvard, Marquette, Minnesota, UCLA, Vanderbilt, and Virginia. Particular
thanks to Jack Chin, Richard Frase, Jonathon Gerson, John Goldberg, Jerry Kang, Nancy J.
King, Wayne Logan, Marc Miller, and Kevin Reitz. The author also appreciates the able
research assistance provided by Lotem Almog Levy, Mara Michaletz, Thomas Phillips, and
Michael Reif.


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