Ever heard the expression”A grand jury could indict a ham sandwich”? As most criminal defense lawyers will tell you — and the statistics bear this out — the expression is true. As a result, the integrity and legitimacy of the grand jury system has been called into question in recent years.
In response, the National Association of Criminal Defense Lawyers (NACDL) has issued a ground-breaking report titled “Evaluating Grand Jury Reform in Two States: The Case for Reform.” You can read the full report at http://www.nacdl.org/2stategrandjury. The report focuses on two states, Colorado and New York, which have undertaken significant grand jury reform. Based on extensive study of those two states, as well as interviews with prosecutors, retired judges, and defense attorneys, the report makes the following recommendations:
1. There should be a defense representative in the grand jury room;
2. The defense is entitled to transcripts of witness’ testimony;
3. There should be advance notice for witnesses to appear;
4. Exculpatory evidence should be presented.
If you read nothing else in this report, read the Foreward written by Larry Thompson, the Deputy Attorney General under George Bush from 2001-2003. Among the most quotable passages:
“… the 94 federal grand juries across the country function more like feudal duchies, in which federal prosecutors exercise virtually unchecked power to indict. I say this having sought countless indictments before grand juries and having overseen the Justice Department’s work to promulgate uniform rules for federal prosecutions, including grand jury proceedings. Simply put, the federal grand jury exists today, for the most part, as a rubber stamp for prosecutors.”
You may be a target of a grand jury. This report will explain what your attorney has probably already been struggling to explain to you — that at this point, you have very few rights. But this report will also show that some jurisdictions have expanded the rights of targets and of grand jury witnesses — and in the process have not compormised the administration of justice. Indeed, these measures have helped return the grand jury to its role as a safeguard against unwarranted prosecution which the Founding Fathers envisioned.
I have found over the years that prosecutors tend to use the grand jury to over indict cases to force a plea. They should be reminded that their position should be to do justice and not to obtain convictions.