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64 J. Crim. L. & Criminology 174 (1973)
Eliminate the Grand Jury

handle is hein.journals/jclc64 and id is 180 raw text is: THE JOURNAL OF CRIMINAL LAW AND CRIMINOLOGY                                                   Vol. 64, No. 2
Copyright 0 1973 by Northwestern University School of Law                                  Pintled in U.S.A.

Following almost two hundred years of con-
tinuous and unwavering support of the institution
we know as the grand jury, the Supreme Court
recently announced an opinion which seems to
suggest the first leak in the dike of its regard
for that once exalted institution. Speaking for the
six-member majority in United States v. Dionisio,'
Justice Stewart acknowledged that the Grand
Jury may not always serve its historic role as a
protective bulwark standing solidly between the
ordinary citizen and an overzealous prosecu-
tor. .. .  Even stronger expressions of concern
over the continuing viability of the grand jury are
found in the dissenting opinions filed there by
Justices Douglas and Marshall. Justice Douglas, in
graciously referring to my report to the Conference
of Metropolitan Chief District Judges of the
Federal Judicial Center,3 observed that, It is
indeed common knowledge that the Grand Jury,
having been conceived as a bulwark between the
citizen and the Government, is now a tool of the
Executive.'4 Justice Marshall emphasized the
dangers facing grand jury independence as com-
pounded by the Dionisio decision itself.'
These comments are significant not only be-
cause of their source but also because they were
not germane to the resolution of the problem be-
fore the Court. The volunteered concern of the
highest judicial officers of our land over the method
* J.D., L.L.M., D.C.L., Litt.D., L.L.D.; Senior
Judge, United States District Court for the Northern
District of Illinois. Judge Campbell is presently sitting
regularly with the Court of Appeals of the Seventh
Circuit while also serving nationwide as Chairman of
Seminars for education and training with the Federal
Judicial Center.
193 S.Ct. 764 (1973). See also United States v. Mara,
93 S.Ct. 774 (1973). In both Dionisio and Mara the ma-
jority of the Court acknowledged the grand jury's
right to subpoena witnesses and also to require them
to produce nontestimonial evidence where the physical
characteristics sought to be produced are constantly
exposed to the public.
2 93 S.Ct. 764, 773 (1973).
'See Campbell, Delay in Criminal Cases, 55 F.R.D.
229, 253 (1972). See also Campbell, Proposals for fin-
provements in the Administration of Criminal Justice, 54
Ca. BAR Rze. 75 (1972).
4 93 S.Ct. 777 (1973) (Douglas, J., dissenting).
'93 S.Ct. 781 (1973) (Marshall, J. dissenting).

by which criminal prosecutions are initiated
merits the careful reflection of all Americans,
especially those involved with the administration
of justice in this country.
My thesis is simple, although I hope not sim-
plistic. The grand jury should be abolished; prose-
cution should be commenced upon an information
filed by the prosecuting offilcial and followed by a
probable cause hearing before a judicial officer,
such as a magistrate, who would determine whether
there is sufficient evidence to permit the prose-
cution to continue.
Abolition of the grand jury is not a revolu-
tionary idea. In England, from whom we borrowed
this noble institution of the past, the grand jury
was abolished except in rare cases by the Admin-
istration of Justice Act of 1933.6 Many of our own
states have to a greater or lesser degree followed
suit. According to a survey compiled in 1964, only
five states require prosecution of all crimes by in-
dictment; 22 states demand that only serious
offenses be initiated by indictment, and 23 states
permit prosecution of substantially all crimes by
either information or indictment.
In my view, the movement away from the grand
jury process was and is prompted by the realiza-
tion that the historical assumption concerning its
neutrality is no longer true. Today, the grand jury
is the total captive of the prosecutor who, if he is
candid, will concede that he can indict anybody,
at any time, for almost anything, before any grand
jury. I intend no criticism of prosecuting officials
by this observation. I am a former prosecutor. I
know that the talented and dedicated men and
women of our prosecuting offices perform a neces-
sary and laudable public function. I merely wish
here to call attention to the present states of af-
My objective is to analyze the operations of the
grand jury in the context of its stated purpose and
function, and to suggest, within the same frame-
work, an alternative method of initiating prose-
cutions which in my judgment will ultimately im-
COMON LAW 112 n. 1 (5th ed. 1956).
7 See Spain, The Grand Jury Past and Present: A
Survey, Air. Car L.Q. 119, 126-42 (1964).

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