its early stages the grand jury was a group of men called together from each township to report to the King from their own knowledge what crimes had been committed and by whom. Grand jury accusation led to trial by ordeal or compurgation. This system underwent gradual transformation long before its use in the American colonies, by which time it had come to be viewed as a protection against oppressive prosecution by the Crown. As one author noted after the English grand jury had been abolished: An "obituary of the English grand jury might read: 'Born in 1166 to increase accusations of crime, lived to be termed a palladium of justice, and died in 1933 of inutility on a wave of economy.'" Elliff, "Notes on the Abolition of the English Grand Jury" 29 Journal of Criminal Law & Criminology 3 (1938-39), quoted in Calkins, supra at 428. The Fifth Amendment of the United States Constitution provides in part that, "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury . . ." In spite of the fact that a reading of the Amendment would suggest that the principal function of the grand jury is to protect the accused, the courts have made it clear that the grand jury still serves a more traditional function:

"The Grand Jury is both a sword and a shield of justice-a sword because it is the terror of criminals, a shield because it is the protection of the innocent against unjust prosecution. But these important powers obviously create equally grave responsibilities to see that such powers are in no wise perverted or abused. With its almost limitless powers, a Grand Jury might, unless motivated by the highest sense of justice, find indictments not warranted by the evidence and thus become a source of oppression to our citizens." The Federal Grand Jury Handbook, 8, cited in United States v. Cox, 342 F. 2d 167, 186, n.1 (5th Cir. 1965) (Wisdom, J., concurring specially).

The effectiveness with which the grand jury performs its functions as sword and shield of justice depends to a large extent on the powers and limitations found in the Constitution, Federal statutes, court rules, and common law. Traditionally, calls for grand jury reform have been directed at its accusatory functions, charging that the procedure was too expensive, too cumbersome and too docile to be effective in most cases. Recently criticism has shifted to its investigatory functions. The principal purpose of this report is to examine the characteristics of the present Federal grand jury system with an eye to its problems, the proposed solutions to these problems, and some limited evaluation of the solutions offered.

Organization

Function of the court.-In order to properly understand the powers and nature of the grand jury it is important to appreciate the relationship between the grand jury and the court. This was graphically described in an authoritative opinion written by Judge Fee of the United States District Court for the Northern District of California:

"The grand jury is an arm or agency of the court by which it is appointed. The grand jurors are officers of the court. The United States Attorney, his assistants, the United States Marshal and his deputies and bailiffs, appointed by him to guard their deliberations, and modernly, the reporters who record their proceedings are likewise officers of the court. Thus there can be no support for the position that the grand jury is an independent planet divorced from the court.

"Upon this basis, it is urged with much insistence that the grand jury who returned the indictments in this case acted contrary to instructions in considering these cases. The proceedings shown in the record are not, in the opinion of the court, compatible with such a conclusion. The grand jury were in session for months considering this matter, so it must be assumed there was tacit acquiescence at least. While the court may exercise an influence over the proceedings, there is neither a method whereby an indictment by a grand jury can be peremptorily required, nor, on the other hand, is there any method of preventing the presentment of an indictment except by summary discharge.

"There are various methods by which the court may exercise control. An independent judiciary has power to exercise this authority without negation by higher courts or outside agencies. The judge may discharge a grand jury at any time, for any reason or for no reason, and whether they have finished the matter in hand or not. He may give instructions which do not constitute precedents and which cannot be controlled or corrected by appellate courts. These may be political manifestoes. They may be entirely erroneous. These may include cautions and admonitions to fit local conditions and guard against dangers which the

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judge believes exist at the moment. The court may also refuse process to the grand jury if it believes that the inquiry is improper for any reason. The court may refuse to authorize expenses to the grand jury and thus prevent the employment of investigators or independent counsel. Finally, it may discipline the attorneys, the attendants or the grand jurors themselves for breach of the secrecy surrounding the body. These powers protect the independence of the trial judges so that they are not hampered in the control of the courts over which they preside. "But, to balance that independence of the judge, the grand jury developed a stubborn tenacity of its own. Ever since they wrote "Ignoramus" upon the bill of indictment presented by the Crown against the Earl of Shaftesbury, it has been held an inviolable tradition that they need follow the orders or instructions of the judge neither as to what they consider nor as to whom they indict or fail to indict. The grand jury is similar to the trial jury, who may convict notwithstanding positive instructions to acquit and who may pardon notwithstanding a direction to find guilty. Unquestionably, the grand jury are under no necessity to follow the orders of the prosecutor. They can present an indictment whether he will or not. Indeed, they may make a presentment contrary to the direct orders of judge, the prosecutor for the King or the Chief Executive. United States v. Smyth, 104 F. Supp. 283, 291–94 (N.D. Cal. 1952) (footnotes omitted) (a copy of the full opinion is attached).

Selection.-Selection of grand jury panels has undergone few changes since 1166. Henry II used basically the same procedure in the Assize of Clarendon to increase accusations of crime as had been used earlier by William the Conqueror to prepare the Domesday Book, that is, gathering information “upon the oath of twelve knights, or, failing knights, twelve good and lawful men, of every hundred. and the oath of our lawful mean of every vill." 2 Pollock & Maitland, History of English Law 642 (2d ed. 1923); 1 Stephen, A History of the Criminal Law of England 251 (1883). At a very early date the responsibility of choosing those to be named to the grand jury fell to the sheriff, 1 Holdsworth, History of English Law 148 (1903); 2 Hale, Pleas of the Crown 154 (1st Amer. ed. 1847). Selection of the grand jury by the sheriff of the county continued for some time and was used generally in colonial America (although in some of the New England colonies grand jurors were elected at town meeting), Younger, The People's Panel 5-26 (1963). Until fairly recently federal law with respect to the selection, qualifications and exemptions of grand jurors was determined primarily by reference to the law of the state in which the grand jury was to sit. 1 Stat. 88 (1789); 2 Stat. 82 (1800); 5 Stat. 394 (1840); 21 Stat. 43 (1879); 28 U.S.C. 411 (1946). Selection of both grand and petit juries is now governed by 28 U.S.C. 1861-1869. Section 1861 states that, ". . . all litigants in Federal courts entitled to trial by jury shall have the right to grand and petit juries selected at random from a fair cross section of the community in the district or division wherein the court convenes ..." Discrimination on the basis of race, color, religion, sex, national origin or economic status is prohibited, 28 U.S.C. 1862. Moreover the unreasonable, systematic exclusion of any “cognizable group" with "distinct attitudes" is prohibited. In addition to the discrimination prohibited in 28 U.S.C. 1862, federal courts have rejected discrimination on the basis of age and educational level (within the range of those eligible to serve) United States v. Butera, 420 R.2d 564 (1st Cir. 1970); Simmons v. Jones, 317 F. Supp. 397 (S.D. Ga. 1970) (although it does not follow that a particular age or education grouping will have sufficiently distinct characteristics to justify a holding that their underrepresentation is improper, see, United States v. Cohen, 275 F. Supp. 724 (D. Md. 1967) affirmed sub nom. United States v. DiTommaso, 405 F.2d 385 (4th Cir. 1968); United States v. Gargan, 314 F. Supp. 414 (W.D. Wis. 1970), affirmed sub nom. United States v. Gast. 457 F.2d 141 (7th Cir 1972)). An improperly selected grand jury may be challenged by a defendant or the United States Attorney General, 28 U.S.C. 1867. While grand jury witnesses will not ordinarily be permitted to challenge the make up of the grand jury, such a challenge is permitted if he is a member of the improperly underrepresented group. Carter v. Jury Commission of Greene County, 396 U.S. 330 (1970): Turner v. Fouche, 396 U.S. 346 (1970), or has been held in contempt for his conduct before the grand jury. United States ex rel. Chestnut v. Criminal Court of the City of New York, 442 F.2d 611 (2d Cir. 1971).

One of the difficulties with existing federal law concerning the selection of grand jury panels is that it obviously prohibits the selection of "blue ribbon" grand jury panels to investigate criminal activity of a highly complicated, official. or politically sensitive nature. Moreover, under 28 U.S.C. 1863, each district

court must devise a plan for the random selection of jurors in which it may provide for the exemption of certain occupational classes. e.g., attorneys, where "their exemption is in the public interest." This seems to greatly reduce the likelihood that a particular grand jury will possess the expertise to proceed independently. Although reduction of the grand jury's independence may reduce its ability to check both official corruption and official persecution, this seems to be a case where the "shield of justice" has been strengthened even though it may result in a weakening of the "sword of justice." For when the selection of the grand jury is anything but a random selection from a cross section of the community, it becomes more difficult to guarantee that the grand jury will not be selected to reflect the political, corrupt, or racial bias of those who choose them, see. Schwartz, "Demythologizing the Historic Role of the Grand Jury" 10 American Criminal Law Review 701, 725–32 (1972), discussing the case involving Judge Samuel Chase.

Size.-"Every grand jury impaneled before any district court shall consist of not less than sixteen nor more than twenty-three persons. . . ." 18 U.S.C. 3321. At early common law: "The sheriff of every county [was] bound to return to every session of the peace, and every commission of oyer and terminer, and of general goal delivery, twenty-four good and lawful men of the county, some out of every hundred, to inquire, present, do, and execute all those things, which on the part of our lord the king shall then and there be command of them ** As many as appear upon this panel are sworn upon the grand jury, to the amount of twelve at the least, and not more than twenty-three; but twelve may be a majority *** But to find a bill [of indictment] there must be at least twelve of the jury agree: for so tender is the law of England of the lives of the subjects, that no man can be convicted at the suit of the king of any capital offense, unless by the unanimous voice of twenty-four of his equals and neighbours; that is, by twelve at least of the grand jury, in the first place, assenting to the accusation: and afterwards, by the whole petit jury, of twelve more, finding him guilty upon his trial". 4 Blacksontone's Commentaries 275, 279 (New ed. 1813). See, also, 2 Hale's Pleas of the Crown 161.

Neither the common law treatises nor cases give any indication of why a twenty-four man verdict was required, why the minimum number of grand jurors was set at twelve, or why it was later expanded to permit more than twelve and less than a unanimous vote for indictment, but speculation suggests some possibilities. The Supreme Court in Williams v. Florida, 399 U.S. 78, 86-90 (1970), refers to “Lord Coke's explanation that the ‘number of twelve is much respected in holy writ, as 12 apostles, 12 stones, 12 tribes, etc.' . . ." id. at 88, an explanation which may have had more logical appeal in 1166 than it obviously had a majority of the Court in 1970. In any event, it seems clear that at a time when the grand jury presented accusations to be tried by ordeal or compurgation the grand jury was composed of twelve members, no more, no less and that indictment required the concurrence of all twelve: that when the petit jury developed as a separate institution requirement that twelve grand jurors concur in the indictment was preserved; and that expansion of the permissible size of the grand jury to maximum of twenty-three was established because that was the largest number at which the twelve indicting grand jurors would still be in a majority, see. id. at 87-8, n. 20 summarizing portions of Wells, "The Origin of the Petty Jury" 27 Law Quarterly Review 347, 357 (1911). One federal court, speculating on the expansion of the grand jury, observed: "By the act of congress of March 3, 1865 (13 Stat. 500), it is provided that grand juries in the courts of the United States 'shall consist of not less than sixteen and not exceeding twenty-three person. *** and that no indictment shall be found without the concurrence of at least twelve grand jurors. The earlier authorities show that the accusing body now called the grand jury originally consisted of twelve persons, and all were required to concur. The number was subsequently enlarged to twenty-three, which was the maximum. See authorities cited, 18 Iowa, 442. Undoubtedly one reason why both at common law and by act of congress more jurors are required to be summoned, and by the act of congress to the impanelled than are necessary to find a bill, is to prevent, on the one hand, the course of justice from being defeated if the accused should have one or more friends on the jury; and on the other hand, the better to protect persons against the influence of unfriendly jurors on the panel." United States v. Williams, 28 F. Cas. 666, 670 (No. 16, 716) (C.C.D. Minn. 1871).

The State case, cited in the Minnesota decision, was somewhat more sanguine: "The requiring of twenty-three to be summoned, though we have found no reasons

stated in the books, was probably in order to make sure of obtaining a full jury of twelve; possibly to be sure of having a few over, so that if the accused should have a friend or two upon the panel, the course of justice might not be defeated: possibly to prevent a dissolution of the jury by the death or sickness or absence of one or more of the jurors, or it may be for all these reasons combined. (See 2 Hale, Hist. Com. Law, 137, where similar reasons are assigned for requiring more than twelve jurors to be returned in civil cases.)" State v. Ostrander, 18 Iowa 435, 443 (1865).

We have been unable to determine why the minimum size of the grand jury panel was increased or why it was increased to sixteen. Presumably, the same reasons which were thought to permit increasing the size to a maximum of twenty-three were supposed to justify increasing the minimum to a number greater than needed to indict.

The history of the size of the grand jury panel is significant in considering the validity of reducing the size of the grand jury panel thereby muting what, until recently, has been one of the principal criticisms of the grand jury systemit is too expensive. However, it might be argued that the right to grand jury indictment or presentment recognized by the Fifth Amendment means indictment or presentment by a grand jury as that term was understood when it was included within the Amendment, i.e., a panel of not more than twenty-three nor less than sixteen and a requirement that twelve concur for indictment. Somewhat related to this argument is one based on due process which urges that though the particular numbers had no individual significance when the Amendment was ratified they were an integral part of the system and no matter how irrational their original selection the use of these particular numbers had been found to maximize the fairness of the system. The Supreme Court's recent decisions in Williams v. Florida, supra (holding that twelve member petit juries were not constitutionally required in State criminal prosecutions), and Colgrove v. Battin, 413 U.S. 149 (1973) (holding that twelve member petit juries were not constitutionally required in federal civil cases) suggest a contrary position.

Reduction of the size of the grand jury might also reduce the independence of the grand jury, since the greater the size of the panel the more likely it is to contain a member or members with sufficient expertise to free the grand jury from total dependence on the prosecutor's technical expertise. Moreover, the larger the grand jury the more likely it is to assert its independence in defiance of the prosecutor. In view of the fact that most recent criticism of the grand jury system is centered on the proposition that the grand jury is all too often a rubber stamp for the prosecution, reduction in the size of the panel hardly seems appropriate.

Foreman.-Rule 6(c) of the Federal Rules of Criminal Procedure states: "The court shall appoint one of the jurors to be foreman and another to be deputy foreman. The foreman shall have power to administer oaths and affirmations and shall sign all indictments. He or another juror designated by him shall keep a record of the number of jurors concurring in the finding of every indictment and shall file the record with the clerk of the court, but the record shall not be made public except on order of the court. During the absence of the foreman, the deputy foreman shall act as foreman."

Investigation

General. Under present federal law, the attorney for the United States generally uses the grand jury to pass on the question of probable cause based on the investigations of others. In such cases the grand jury is primarily an accuser and use of its investigating authority is limited. However, one of the characteristic features of the grand jury is its duty and authority to investigate. The how, what, when, who and where of its investigations are in many respects unlike those of any other official fact-finding procedure. For this reason it is the most effective investigator of certain types of cases, such as those involving political corruption or organized crime. It is the use of this special investigative authority which has been severely criticized, see, "Federal Grand Jury Investigation of Political Dissidents" 7 Harvard Civil Rights-Civil Liberties Law Review 432 (1972); Boudin, "The Federal Grand Jury" 61 Georgetown Law Journal 1 (1972).

Jurisdiction.-The authority and jurisdiction of a federal grand jury is limited to the investigation of possible violations of federal criminal law committed within the district in which it is sitting, United States v. Smyth, 104 F. Supp. 283 (N.D. Cal. 1952); its powers "extend (in its effort to uncover criminal offenses

prohibited by federal law) to an inquiry into facts that occurred in another district provided that such inquiry has to do with relevant matters. For instance, if a conspiracy is what the inquiry is directed at, the acts and conduct of the alleged conspirators that may have occurred in a district other than where the grand jury is sitting may be gone into." Brown v. United States, 245 F. 2d 549, 554 (8th Cir. 1957).

"If the grand jury is charged with performing the task of determining whether cause exists upon which an indictment may be returned, it is senseless to argue that such cause must exist to conduct an investigation. Such a determination requires investigatory powers of cases without a pre-determination of the existence of good cause. In other words, the function of the grand jury is charged with performing is itself the very basis for its investigation of cases whether or not good cause does in fact exist." In re Dymo Industries, Inc., 300 F. Supp. 529, 535-36 (N.D. Cal. 1969), aff'd. United States v. Dymo Industries, Inc., 418 F.2d 500 (9th Cir. 1969).

"Grand jury investigation of cases in which violations of federal law do not actually exist is highly proper." In re Shead, 302 F. Supp. 560, 565 (N.D. Cal. 1969), aff'd. Carter v. United States, 417 F. 2d 384 (9th Cir. 1969).

The scope of a Grand Jury investigation is not limited by the probable result of its inquiry or by doubts whether any particular individual will be found properly subject to an accusation for crime. "A grand jury that begins the investigation of what may be found to be obstructions to justice *** opens up all the ramifications of the particular field of inquiry. *** And Congress certainly did not restrict a grand jury in dealing with all crimes disclosed by its investigation." [United States v. Johnson, 319 U.S. 503, 512 (1943)] “That a grand jury proceeding has no defined litigants and that none may emerge from it, is irrelevant to the issue." [Cobbledick v. United States, 309 U.S. 323, 327 (1940)]. An investigation by a Federal Grand Jury need not be preceded by any definition whatever of the crime to be investigated or the persons against whom an accusation is sought. The examination of witnesses before a Grand Jury need not be preceded by presentment, indictment or other formal charge. A witness "is not entitled to challenge the authority of the court or of the grand jury, provided they have a de facto existence and organization. ***" and it is "*** no concern of one summoned as a witness whether the offense [under investigation] is within the jurisdiction of the court or not. At least, the court and grand jury have authority and jurisdiction to investigate the facts in order to determine the question whether the facts show a case within their jurisdiction." [Blair v. United States, 250 U.S. 273, 283 (1919)]. United States v. Neff, 212 F. 2d 297, 301-302 (3d Cir. 1954).

Of course, under such a system the chances of a witness or even a defendant successfully challenging the jurisdiction are likely to be remote at best.

Under the Fifth Amendment grand jury indictment or presentment is required for prosecution of "capital or otherwise infamous crimes." Under Rule 7 of the Federal Rules of Criminal Procedure, indictment is required for offenses punishable by death, imprisonment for more than one year or imprisonment at hard labor; prosecution by either indictment or information is permitted in all other

cases.

Sources of information.-Originally the members of the grand jury panel were the exclusive source upon which the accusation of crime was based. The knowledge of the individual members may still be brought to the attention of the panel but this source has been supplemented, and to a large extent replaced, by evidence presented by the prosecuting attorney and the court with which it is associated, In re April 1956 Term Grand Jury, 239 F.2d 263 (7th Cir. 1957); Cawley v. Warren. 216 F.2d 74 (7th Cir. 1954).

The language of 18 U.S.C. 1504 imposes some restrictions on the offering of unsolicited information to the grand jury by anyone other than those acting through the attorney for the United States or the court :

"Whoever attempts to influence the action or decision of any grand jury or petit juror of any court of the United States upon any issue or matter pending before such juror, or before the jury of which he is a member, or pertaining to his duties, by writing or sending to him any written communication, in relation to such issue or matter, shall be fined not more than $1000 or imprisoned not more than six months, or both.

"Nothing in this section shall be construed to prohibit the communication of a request to appear before the grand jury."