Grand jury discretion and constitutional design

Cornell Law Review

Volumn 93, Issue 4, 2008, Pages 703-763

  Fairfax Jr , Roger A ^a,b,c,d  

^a GEORGE WASHINGTON UNIVERSITY   (United States)

^b HARVARD COLLEGE   (United States)

^c UNIVERSITY OF LONDON   (United Kingdom)

^d HARVARD LAW SCHOOL   (United States)

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[No Author keywords available]

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EID: 45749133100     PISSN: 00108847     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (396)

1. See, e.g., 1 SARA SUN BEALE ET AL., GRAND JURY LAW AND PRACTICE § 1:9 (2d ed. 2005); Niki Kuckes, The Useful, Dangerous Fiction of Grand Jury Independence, 41 AM. CRIM. L. REV. 1, 2 (2004);
2. Andrew D. Leipold, Why Grand Juries Do Not (and Cannot) Protect the Accused, 80 CORNELL L. REV. 260, 294-304 (1995) (arguing that lay grand jurors are ill-equipped to make the legal conclusion that probable cause exists in a given case and therefore will accept a prosecutor's recommendation to indict).
3. See JEREMY BENTHAM, 1 RATIONALE OF JUDICIAL EVIDENCE 524 (1827);
4. JEREMY BENTHAM, 2 THE WORKS OF JEREMY BENTHAM 139-40 (John Bowring ed., 1843).
5. See Ric Simmons, Re-Examining the Grand Jury: Is There Room for Democracy in the Criminal Justice System?, 82 B.U. L. REV. 1, 30-32 (2002).
6. Cf. Darryl K. Brown, Jury Nullification Within the Rule of Law, 81 MINN. L. REV. 1149, 1150 (1997) (defining "jury nullification" as "a jury's ability to acquit a criminal defendant despite finding facts that leave no reasonable doubt about violation of a criminal statute"). As I discuss below, see infra note 10, the term "grand jury nullification" deserves careful definition and is more properly characterized as "grand jury discretion."
7. U.S. CONST. amend. V. The Grand Jury Clause has not been incorporated to apply to the states, which may choose to initiate felony criminal proceedings in other ways consistent with the Due Process Clause. See Hurtado v. California, 110 U.S. 516, 537 (1884). Although this Article focuses primarily on the federal grand jury, it will periodically discuss state grand juries, as the overwhelming majority of criminal law enforcement takes place at the state level, see Darryl K. Brown, Democracy and Decriminalization, 86 TEXAS L. REV. 223, 260 n.184 (2007), and about half of the fifty states have some form of grand jury requirement. See 2 BEALE ET AL., supra note 1, § 8.2.
8. The federal grand jury is a body of sixteen to twenty-three people, summonsed for service in much the same way as petit jurors, and selected and empanelled with the participation of both a judge and the prosecutor. See FED. R. CRIM. P. 6. Sitting for eighteen months or more, the grand jury typically hears evidence presented by the prosecutor in a variety of cases, this evidence having been subpoenaed to the grand jury in the form of testimony, documents, or physical evidence. See id. The grand jury issues its consent in the form of an indictment, which is a statement of charges against the accused. See FED. R. CRIM. P. 7(c)(1) ("The indictment . . . must be a plain, concise, and definite written statement of the essential facts constituting the offense charged ...."); 1 BEALE ET AL., supra note 1, § 1.8.
9. This dominant view assumes that the grand jury is performing a quasi-judicial function in passing upon probable cause. See Model Grand Jury Charge: Approved by the Judicial Conference of the United States, March 2005, http://www.uscourts.gov/jury/charge.html (last visited Mar. 7, 2008) [hereinafter Model Grand Jury Charge] ("The purpose of the Grand Jury is to determine whether there is sufficient evidence to justify a formal accusation against a person - that is, to determine if there is 'probable cause' to believe the person committed a crime.... [Y]ou should vote to indict where the evidence presented to you is sufficiently strong to warrant a reasonable person's belief that the person being investigated is probably guilty of the offense charged."). In her insightful article, Professor Niki Kuckes illuminates difficulties arising from the Supreme Court's lack of commitment to either a 'judicial' or 'prosecutorial' characterization of the grand jury's constitutional function and advances a resolution that casts the grand jury as a "democratic prosecutor" - a vehicle for citizen participation within the prosecution function.
10. See Niki Kuckes, The Democratic Prosecutor: Explaining the Constitutional Function of the Federal Grand Jury, 94 GEO. L.J. 1265, 1300 (2006).
11. See, e.g., ADMIN. OFFICE OF THE U.S. COURTS, HANDBOOK FOR FEDERAL GRAND JURORS 3 (1999) (instructing grand jurors that if they "find[ ] probable cause to exist, then [they] will return a written statement of the charges called an 'indictment'");
12. AM. BAR ASS'N, JUDICIAL ADMIN. SECTION, FEDERAL GRAND JURY HANDBOOK 8 (1958) (noting that an indictment is "voted by the Grand Jury when evidence is found to sustain the charge").
13. Simmons, supra note 3, at 46.
14. The term "grand jury nullification" is somewhat of a misnomer because it assumes that the grand jury's discretion is confined to sufficiency of the evidence. As is discussed below, see infra subpart II.B, this is far too cramped a conception of the grand jury's discretionary role. Also, the term has pejorative connotations, see Kuckes, supra note 7, at 1269, does not capture the essence of the enterprise of the grand jury's exercise of discretion, cf. David C. Brody, Sparf and Dougherty Revisited: Why the Court Should Instruct the Jury of Its Nullification Right, 33 AM. CRIM. L. REV. 89, 91 (1995), and unfairly yokes grand jury discretion with petit jury nullification without careful consideration. See infra subpart I.C. Accordingly, a more appropriate characterization than "grand jury nullification" is the grand jury's "exercise of robust discretion." This Article will use both characterizations to describe instances where the grand jury determines whether to indict on bases other than the sufficiency of the evidence.
15. See, e.g., HARRY KALVEN, JR. & HANS ZEISEL, THE AMERICAN JURY 429-33 (1966) (listing nonevidentiary factors upon which petit juries rest decisions regarding whether to convict or acquit, including the personal characteristics of the defendant, propriety of the prosecutorial decision, and the wisdom of the law allegedly violated).
16. See, e.g., id.
17. See NORMAN J. FINKEL, COMMONSENSE JUSTICE: JURORS' NOTIONS OF THE LAW 41-46 (1995). One possible exception, of course, may include "public confession" cases in which an individual violates a law publicly to protest a policy related to the law or the legitimacy of the law itself. One may reasonably identify jury nullification in jury acquittals in such civil disobedience cases - such as Vietnam-era draft card burning in violation of federal law - where there is no doubt (and often a confession) as to the violation of a criminal statute.
18. See, e.g., Lawrence W. Crispo et al., Jury Nullification: Law Versus Anarchy, 31 LOY. L.A. L. REV. 1, 13-16 (1997) (discussing United States v. Moylan, 417 F.2d 1002 (4th Cir. 1969));
19. David N. Dorfman & Chris K. Iijima, Fictions, Fault, and Forgiveness: Jury Nullification in a New Context, 28 U. MICH. J.L. REFORM 861, 876-77 (1995) (discussing Vietnam War resister cases). A context in which it may be less difficult to determine that a jury has relied on non-evidentiary grounds is that of strict liability offenses where there is an admission by the defendant. For example, former New York magistrate judge Morris Ploscowe has suggested that grand juries frequendy refused to indict in statutory rape prosecutions involving young couples.
20. See MORRIS PLOSCOWE, SEX AND THE LAW 178 (Ace Books 1962) (1951). This pattern of grand jury forbearance presumably would hold even where the young defendant publicly admits to the conduct violating the statute.
21. As one anonymous seventeenth-century pamphleteer noted on the subject of occasions when public perception might differ from the grand jury's assessment of the evidence, "a man cannot see by another's Eye, nor hear by another's Ear; no more can a Man conclude or infer things to be resolved, by another's Understanding or Reasoning . . . ." BARBARA J. SHAPIRO, "BEYOND REASONABLE DOUBT" AND "PROBABLE CAUSE": HISTORICAL PERSPECTIVES ON THE ANGLO-AMERICAN LAW OF EVIDENCE 66 (1991) (quoting a dialogue between "Indifference" and "Prejudice" in Ignoramus Vindicated).
22. See FED. R. CRIM. P. 29(a); Jackson v. Virginia, 443 U.S. 307, 326 (1979); Am. Tobacco Co. v. United States, 328 U.S. 781, 787 n.4 (1946); see also Roger A. Fairfax, Jr., Harmless Constitutional Error and the Institutional Significance of the Jury, 76 FORDHAM L. REV. 2027 (2008) (discussing appellate harmless-error review of jury verdicts based upon constitutionally flawed jury instructions).
23. Further complicating the problem is the fact that juries may (and often do) reach compromise verdicts, where inconsistencies in the verdict signal that the jury may have disregarded evidence sufficient to satisfy one or more counts as a compromise to reach agreement on conviction on other counts. Often, this occurs when jurors seek to limit the possible punishment to which the defendant might be exposed. See, e.g., Diane E. Courselle, Struggling with Deliberative Secrecy, Jury Independence, and Jury Reform, 57 S.C. L. REV. 203, 220-21 (2005);
24. Ethan J. Leib, Supermajoritarianism and the American Criminal Jury, 33 HASTINGS CONST. L.Q. 141, 184-85 (2006). A recent study demonstrates that some judges might succumb to the same temptation, particularly given the constraints on their sentencing discretion.
25. See Andrew D. Leipold, Why Are Federal Judges So Acquittal Prone?, 83 WASH. U. L.Q. 151, 200-18 (2005) (evaluating the hypothesis that judges may acquit more frequently when faced with having to impose severe sentences compelled by strict sentencing guidelines regimes).
26. See Leipold, supra note 1, at 288.
27. See FED. R. CRIM. P. 6(e)(2)(B)(i); United States v. Marcucci, 299 F.3d 1156, 1163 (9th Cir. 2002).
28. See Leipold, supra note 1, at 287-88, 310. The prosecutor has the best sense of the scope of evidence that the grand jury received but is perhaps the least neutral assessor of whether the grand jury has nullified. Cf. id. at 275 (explaining that prosecutors are likely to bring those cases where the prosecutor expects the grand jury will issue an indictment and to decline to bring those cases that the grand jury will reject).
29. See AM. BAR ASS'N, supra note 8, at 17.
30. See Butterworth v. Smith, 494 U.S. 624, 634-35 (1990) (finding a statute that prohibited a grand jury witness from publicly recounting one's own testimony to violate the First Amendment).
31. See, e.g., 18 U.S.C. § 3500 (2000); FED. R. CRIM. P. 26.2; Brady v. Maryland, 373 U.S. 83, 86-87 (1963) (holding that the state violates a criminal defendant's due process rights when it suppresses information that is material and favorable to the defendant's case).
32. See Chet K. W. Pager, Blind Justice, Colored Truths and the Veil of Ignorance, 41 WILLAMETTE L. REV. 373, 375-77 (2005) (discussing the view that a witness's demeanor may affect a juror's credibility assessment).
33. Cf. United States v. Marcucci, 299 F.3d 1156, 1163 (9th Cir. 2002) ("[W]e have no indication that the standard charge generally has not been given to federal grand juries . . . .").
34. Model Grand Jury Charge, supra note 7.
35. Indeed, it is difficult even for a defendant seeking to raise objections to a prosecutor's instructions to a grand jury to obtain a transcript. See FED. R. CRIM. P. 6(e)(3)(E)(ii) (conditioning disclosure of grand jury matters upon a defendant's showing that "a ground may exist to dismiss the indictment because of a matter that occurred before the grand jury"); id. 16(a)(3) (excluding grand jury transcripts from the discovery obligations imposed by this rule); Benjamin E. Rosenberg, A Proposed Addition to the Federal Rules of Criminal Procedure Requiring the Disclosure of the Prosecutor's Legal Instructions to the Grand Jury, 38 AM. CRIM. L. REV. 1443, 1448 (2001) (proposing a revision of the Federal Rules of Criminal Procedure to provide arraigned defendants with a transcript of the legal instructions given to the grand jury).
36. See Leipold, supra note 1, at 288 n.142.
37. Related to the question of when grand jury nullification has occurred is the question of how often it occurs. Although the factors mentioned above frustrate an accurate and complete quantitative assessment, the existence of significant motive and opportunity for the grand jury's exercise of its robust discretion provides a basis for concluding that the phenomenon occurs, even though there are barriers to cataloguing specific instances in a comprehensive manner. See Leipold, supra note 1, at 308 n.217; infra subpart II.B-Part III.
38. See Simmons, supra note 3, at 49 (summarizing examples of cases in which the grand jury may have rejected the prosecutor's decision to prosecute a "borderline" case).
39. See Susan W. Brenner, The Voice of the Community: A Case for Grand Jury Independence, 3 VA. J. SOC. POL'Y & L. 67, 121 (1995); Simmons, supra note 3, at 46, 51. Also, the grand jury does not necessarily need to return a no true bill to achieve its aims. The very threat of the no true bill in a particular case, or in a category of cases, may be sufficient to communicate the grand jury's message. See Leipold, supra note 1, at 308 n.217; infra Part II.
40. See, e.g., United States v. Marcucci, 299 F.3d 1156, 1163 (9th Cir. 2002) ("It would be impossible to tell whether the motivation not to indict was, for example, based on local politics, racial or other discrimination, or anti-government sentiment . . . .").
41. In their thought-provoking works on petit jury nullification, both Professor Darryl Brown and Professor Nancy Marder have delineated categories of nullification-provoking scenarios that are helpful organizing tools in the grand jury nullification context. See Brown, supra note 4, at 1171-96; Nancy S. Marder, The Myth of the Nullifying Jury, 93 NW. U. L. REV. 877, 887-902 (1999). Professor Marder has sketched out categories of petit jury nullification: (1) refusal to apply the law to a particular defendant; (2) refusal to apply a law with which the jurors disagree; (3) response to extra-legal factors such as unsatisfactory social conditions; and (4) hybrids of the first three categories. See Marder, supra, at 887-902. Professor Brown has outlined four categories, comprising nullification in response to: (1) uncorrected rule violations; (2) unjust laws or norm violations; (3) biased or unjust application of law; and (4) desires to uphold illegal or immoral community norms. See Brown, supra note 4, at 1171-96.
42. Cf. Brown, supra note 4, at 1178-79 (describing this motivation in the petit juror context); Gerard N. Magliocca, The Philosopher's Stone: Dualist Democracy and the Jury, 69 U. COLO. L. REV. 175, 178 (1998) (same).
43. The historical record indicates that the concept of petit jury review - the prerogative of juries to declare a statute unconstitutional - has been embraced at various times in America. See AKHIL REED AMAR, AMERICA'S CONSTITUTION: A BIOGRAPHY 239-42 (2005);
44. Harris G. Mirkin, Judicial Review, Jury Review & the Right of Revolution Against Despotism, 6 POLITY 36, 55-63 (1973). Certainly, a grand jury might determine that a criminal law contravenes the Constitution of the United States and decline to return an indictment for that reason.
45. See Leipold, supra note 1, at 288.
46. See Simmons, supra note 3, at 16 ("Throughout history, the grand jury maintained and enhanced its reputation because it was acting as the political voice of the people in the community. . . . [T]he grand jury wielded that power to bring about an outcome consistent with the majority view of the community at that time and place, regardless of the strength of the case or the prevailing legal standard.").
47. Cf. Brown, supra note 4, at 1183-85 (examining particular circumstances that could prompt petit jury nullification).
48. Cf., e.g., Paul Butler, Racially Based Jury Nullification: Black Power in the Criminal Justice System, 105 YALE L.J. 677, 678 (1995) (suggesting the prosecution of Washington D.C. Mayor Marion Barry as an example of a perceived biased prosecution that arguably prompted petit jury nullification);
49. Elsa Walsh & Barton Gellman, Chasm Divided Jurors in Barry Drug Trial, WASH. POST, Aug. 23, 1990, at A1 (describing racial dynamics of juror deliberations in the Barry trial).
50. See Butler, supra note 38, at 715-16 (advocating race-based petit jury nullification for nonviolent offenses but arguing for conviction of violent offenders); see also Ed Burns et al., Saving Cities, and Souls, TIME, Mar. 17, 2008, at 50 (espousing petit jury nullification in cases involving non-violent drug offenses).
51. See Brown, supra note 4, at 1191-96.
52. See LEROY D. CLARK, THE GRAND JURY: THE USE AND ABUSE OF POLITICAL POWER 20 (1975).
53. See Leipold, supra note 1, at 288 n.142, 309; Dan Markel, Against Mercy, 88 MINN. L. REV. 1421, 1457 (2004).
54. See, e.g., Charge to Grand Jury, 30 F. Cas. 992, 994-95 (C.C.D. Cal. 1872) (No. 18,255).
55. See Leipold, supra note 1, at 288; Judith M. Beall, Note, What Do You Do with a Runaway Grand Jury?: A Discussion of the Problems and Possibilities Opened up by the Rocky Flats Grand Jury Investigation, 71 S. CAL. L. REV. 617, 629 (1998) ("Grand jurors frequentiy reflected the prejudices of their community, indicting the unpopular and the politically powerless.").
56. Cf. Marder, supra note 32, at 888 (discussing the role of racial animus in the context of petit jury nullification).
57. See CLAY S. CONRAD, JURY NULLIFICATION: THE EVOLUTION OF A DOCTRINE 167 (1998).
58. See, e.g., Clay S. Conrad, Scapegoating the Jury, 7 CORNELL J.L. & PUB. POL'Y 7, 21-34 (1997).
59. OWEN FISS, The Awkwardness of the Criminal Law, in THE LAW AS IT COULD BE 133, 136 (2003) (discussing petit jury nullification).
60. Professor Fiss, of course, raises a significant challenge to the normative case for grand jury discretion. As Judge John Minor Wisdom noted, however, the ability of some grand juries to use their power for these purposes is an unavoidable by-product of the grand jury's independence. See United States v. Cox, 342 F.2d 167, 190 (5th Cir. 1965) (Wisdom, J., concurring specially); see also United States v. Marcucci, 299 F.3d 1156, 1167 (9th Cir. 2002) (Hawkins, J., dissenting) ("[R]egardless of its apparent virtues and vices, the requirement of the grand jury's independent exercise of its discretion is a fixed star in our constitutional universe."). Additionally, in communities where racial prejudice might infect the votes of a majority of grand jurors, other actors in the criminal justice system may share similar biases. See, e.g., Brown, supra note 4, at 1194-95. While this may be of little comfort, it does support the notion that grand jury deliberations are not necessarily more susceptible to bias than other exercises of unreviewable discretion throughout the criminal process. Cf. Paul H. Robinson, Fair Notice and Fair Adjudication: Two Kinds of Legality, 154 U. PA. L. REV. 335, 366-67 (2005) ("Room for the exercise of discretion also can give opportunity to malevolent influences such as racism, sexism, and the like."). Indeed, there were instances in the Jim Crow South in which grand juries returned indictments for crimes committed against African Americans but the petit jury declined to convict.
61. See, e.g., GAIL WILLIAMS O'BRIEN, THE COLOR OF THE LAW: RACE, VIOLENCE, AND JUSTICE IN THE POST-WORLD WAR II SOUTH 185 & n.14 (1999) (noting the "first lynching indictment" secured from a grand jury in Mississippi, which ended without a guilty verdict at trial); Conrad, supra note 47, at 32-33. Perhaps the most prominent example is the infamous Emmet Till case, in which an all-white jury acquitted the defendants in just over an hour.
62. See Bad News for NAACP, JACKSON DAILY NEWS, Sept. 8, 1955,
63. reprinted in THE LYNCHING OF EMMETT TILL: A DOCUMENTARY NARRATIVE 40 (Christopher Metress ed. 2002);
64. James L. Kilgallen, Defendants Receive Handshakes, Kisses, MEMPHIS COM. APPEAL, Sept. 24, 1955,
65. reprinted in THE LYNCHING OF EMMETT TILL: A DOCUMENTARY NARRATIVE 104 (Christopher Metress ed., 2002). Furthermore, the monumental changes in grand juror selection prompted by the 1968 Jury Selection and Service Act have spurred progress toward the cross-sectional ideal. See Jury Selection and Service Act of 1968, 28 U.S.C. §§ 1821, 1861-1869, 1871 (2000) (affording litigants rights to juries that are representative of the community and prohibiting discrimination against potential jurors). There is no longer a "key-man" system under which grand jurors are handpicked. See id. §§ 1861, 1863. Grand jurors are now more likely to be representative of their community. See id. §§ 1861-1863;
66. Kevin K. Washburn, Restoring the Grand Jury, 76 FORDHAM L. REV. 2333, 2369 & n.178 (2008) (noting that although "the countermajoritarian nature of the grand jury can have troubling consequences, . . . these dire consequences occurred only because significant portions of the relevant communities were denied participation as jurors in criminal justice processes"). But see FISS, supra note 48, at 136 (arguing that "even when the [petit] jury more adequately reflected a cross section of the community [the nullification] problem was not entirely eliminated" because "a conviction could be blocked by one or two jurors").
67. See generally Kim Forde-Mazrui, Jural Districting: Selecting Impartial Juries Through Community Representation, 52 VAND. L. REV. 353, 360-65 (1999) (explaining the advantages of representative juries). Of course, in the grand jury context, it typically would take twelve of the twenty-three grand jurors to block an indictment. See infra note 156.
68. See, e.g., Marder, supra note 32, at 892. For example, one may approve of grand jury nullification in an attempted criminal prosecution under the oppressive nineteenth-century slave codes but disapprove of grand juries exercising that same discretion when refusing to indict Ku Klux Klan members for clear violations of criminal civil-rights statutes. See, e.g., BLANCHE DAVIS BLANK, THE NOT SO GRAND JURY: THE STORY OF THE FEDERAL GRAND JURY SYSTEM 6 (1993); CONRAD, supra note 46, at 167-90;
69. cf. Editorial, When Jurors Ignore the Law, N.Y. TIMES, May 27, 1997, at A16 ("Nullification . . . kept fugitive slaves from being sent back to the South, when juries refused to enforce fugitive-slave laws before the Civil War. But history is also replete with examples of shameful acts of nullification, like the hung juries in the 1964 trials for the murder of Medgar Evers, the civil rights leader."). However, an observer presumably might characterize either grand jury as nullifying laws that the jurors genuinely perceived as unjust or unwise, or thwarting prosecutions the jurors subjectively believed were borne of bias. See Leipold, supra note 1, at 288 & n.142, 309. This, along with Professor Fiss's observation, see FISS, supra note 48, at 136, illustrates perhaps the central difficulty with the normative case for exercises of discretion by grand juries.
70. See Markel, supra note 42, at 1456-59; see also Stephanos Bibas, Forgiveness in Criminal Procedure, 4 OHIO ST. J. CRIM. L. 329, 341 (2007).
71. See generally Carol S. Steiker, Tempering or Tampering? Mercy and the Administration of Criminal Justice, in FORGIVENESS, MERCY, AND CLEMENCY 16 (Austin Sarat & Nasser Hussain eds., 2007) (exploring the conceptual role of mercy in discretionary judgments made in the criminal justice system);
72. Rachel E. Barkow, The Ascent of the Administrative State and the Demise of Mercy, 121 HARV. L. REV. (forthcoming 2008), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1019071 (discussing how certain exercises of mercy, including jury nullification, are weakened in the administrative state).
73. See Brown, supra note 4, at 1171-96; Butler, supra note 38, at 705-12.
74. See Brown, supra note 4, at 1183-91; Marder, supra note 32, at 888-93.
75. See Leipold, supra note 1, at 308-09.
76. See id. at 309 (noting the potential for grand jury nullification to serve as a "potent force for frustrating legitimate societal objectives"). However, as is discussed below, see infra subpart III.A, virtually every other discretion-wielding actor in the criminal justice system can make decisions on any of these bases - even those many might consider illegitimate. For an intriguing study of possible links between perceived petit jury nullification, community disrespect, and diminished compliance with the law, see Janice Nadler, Flouting the Law, 83 TEX. L. REV. 1399 (2005).
77. Compare Crispo et al., supra note 13, at 3-4 (arguing strongly against petit jury nullification, as it leads to "inconsistent application of laws, allows bad law to remain on the books, and permits juries to disregard the law without accountability"), with LYSANDER SPOONER, AN ESSAY ON THE TRIAL BY JURY 189-91 (1852) (arguing that a juror must have complete discretion to render any verdict, regardless of the defendant's potential guilt),
78. and Jack B. Weinstein, Considering Jury "Nullification": When May and Should a Jury Reject the Law to Do Justice?, 30 AM. CRIM. L. REV. 239, 240-41 (1992) (arguing that "judges can and should exercise their discretion to allow nullification by flexibly applying the concepts of relevancy and prejudice and by admitting evidence bearing on moral values").
79. See generally Teresa Conaway et al., Jury Nullification: A Selective, Annotated Bibliography, 39 VAL. U. L. REV. 393 (2004) (listing scores of articles and other commentary debating the merits of petit jury nullification).
80. See Andrew D. Leipold, Rethinking Jury Nullification, 82 VA. L. REV. 253, 297-99 (1996).
81. See id. at 306-09.
82. See id. at 260-63.
83. See infra Part II.
84. See infra Part III.
85. See infra Part IV.
86. See, e.g., DONALD L. DOERNBERG, SOVEREIGN IMMUNITY OR THE RULE OF LAW: THE NEW FEDERALISM'S CHOICE 179-83 (2005);
87. Judith N. Shklar, Political Theory and the Rule of Law, in THE RULE OF LAW: IDEAL OR IDEOLOGY 1, 1-16 (Allan C. Hutchinson & Patrick Monahan eds., 1987).
88. Allan C. Hutchinson, The Rule of Law Revisited: Democracy and Courts, in RECRAFTING THE RULE OF LAW: THE LIMITS OF LEGAL ORDER 196 (David Dyzenhaus ed., 1999) (emphasis omitted).
89. See, e.g., James L. Gibson, Changes in American Veneration for the Rule of Law, 56 DEPAUL L. REV. 593, 593 (2007) ("[American] support for the rule of law is widespread - especially compared to other nations - and . . . has not diminished in the last decade.");
90. Joseph Raz, Formalism and the Rule of Law, in NATURAL LAW THEORY 309, 309 (Robert P. George ed., 1992) ("Though not uncommonly it will be disputed whetther a violation occurred, hardly anyone will actually argue that it was justified if it took place.").
91. See, e.g., RONALD A. CASS, THE RULE OF LAW IN AMERICA 15 (2001); DOERNBERG, supra note 63, at 190-97;
92. GEOFFREY DE Q. WALKER, THE RULE OF LAW: FOUNDATION OF CONSTITUTIONAL DEMOCRACY 11-14 (1988).
93. See, e.g., John Calvin Jeffries, Jr., Legality, Vagueness, and the Construction of Penal Statutes, 71 VA. L. REV. 189, 212 (1985) ("The rule of law signifies the constraint of arbitrariness in the exercise of government power.");
94. see also FRANCIS A. ALLEN, THE HABITS OF LEGALITY: CRIMINAL JUSTICE AND THE RULE OF LAW 14 (1996) ("The notion of the rule of law is one that seeks to impose limits on and provide guidance for the exercise of official power.").
95. See, e.g., Robinson, supra note 49, at 344-45 (considering judicial discretion and observing that "[t]he danger is not just arbitrary application by judges but . . . arbitrary application by other decisions makers in the criminal justice process, with 'the potential for arbitrary and discriminatory enforcement of the penal law'" (citation omitted)).
96. JOSEPH RAZ, THE AUTHORITY OF LAW: ESSAYS ON LAW AND MORALITY 218 (1979).
97. See id.
98. See, e.g., Butler, supra note 38, at 705-06 (1995) ("The idea that jury nullification undermines the rule of law is the most common criticism of the doctrine."). Professor Butler observes that rule of law critiques of jury nullification are moral rather than legal, given the irrefutable power of the petit jury to acquit contrary to the evidence. See id. at 705.
99. Brown, supra note 4, at 1159. However, as Professor Darryl Brown persuasively explained, a post-realist conception of the rule of law, which features among its attributes an expanded notion of legitimate law-giving sources and their use in a contextual interpretation of legal rules, may accommodate the compatibility of jury nullification with the rule of law. See id. at 1159-71; see also Butler, supra note 38, at 705-14 (responding to rule-of-law critiques of principled jury nullification); Michael T. Cahill, Punishment Decisions at Conviction: Recognizing the Jury as Fault Finder, 2005 U. CHI. LEGAL F. 91, 117 (2005) (citing Brown's argument that petit jury nullification need not be seen as lawlessness).
100. See, e.g., Roscoe Pound, Law in Books and Law in Action, 44 AM. L. REV. 12, 18 (1910) (characterizing jury nullification as "the great corrective of law in its actual administration" but nonetheless referring to it as "[j]ury lawlessness").
101. See Brown, supra note 4, at 1160.
102. See id.
103. Cf. State v. Ragland, 519 A.2d 1361, 1372 (N.J. 1986) (declaring that "[j]ury nullification is an unfortunate but unavoidable power"). Professors Kaimi Wenger and David Hoffman have described ways in which petit jury nullification might perform certain functions - protective, equitable, and participatory - consistent with the rule of law. See Kaimipono David Wenger & David Hoffman, Nullificatory Juries, 2003 WIS. L. REV. 1115, 1149-56 (2003). Professor Paul Butler has questioned the conceptual legitimacy of the rule of law, arguing that "[i]f the rule of law is a myth . . . the criticism that jury nullification undermines it loses force." Butler, supra note 38, at 708.
104. See, e.g., SAMUEL WALKER, TAMING THE SYSTEM: THE CONTROL OF DISCRETION IN CRIMINAL JUSTICE, 1950-1990, at 23-25 (1993).
105. See, e.g., id.
106. See, e.g., Brenner, supra note 30, at 100-01.
107. See id.
108. See SHAPIRO, supra note 14, at 42 ("The history of grand jury [evidentiary] standards . . . is marked by frequent, and essentially political, conflicts over the proper role of the institution itself."). For more than four centuries, evidentiary standards governing the grand jury's inquiry evolved from mere rumor and "suspicion" to "probable evidence" to "satisfied belief to "prima facie" to the current "probable cause" standard. See id. at 47-48, 58-59, 78-86, 96-98. At their core, these debates in England and America were as much about the role, power, and independence of the grand jury as they were about evidentiary standards, with many attempting to frame the institution by shaping its discretion and nullification power. See, e.g., Bushell's Case, (1670) 124 Eng. Rep. 1006, 1011-12 (C.P.) (ruling that courts were powerless to jail or fine grand and petit jurors who reached decisions contrary to the court's view of the evidence). For an overview of Bushell's Case and its historical and political context, see Simon Stern, Note, Between Local Knowledge and National Politics: Debating Rationales for Jury Nullification After Bushell's Case, 111 YALE L.J. 1815, 1822-27 (2002).
109. See JOSEPH CHITTY, 1 A PRACTICAL TREATISE ON THE CRIMINAL LAW 261 (1819);
110. Thomas Y. Davies, The Fictional Character of Law-and-Order Originalism: A Case Study of the Distortion and Evasions of Framing-Era Arrest Doctrine in Atwater v. Lago Vista, 37 WAKE FOREST L. REV. 239, 427-28 (2002) (noting that the framing-era grand jury "did not merely assess whether there was probable cause for a prosecution; rather, at common law, grand jurors were usually instructed not to indict unless they were persuaded, based on the prosecutor's evidence, of the 'truth' of the accusation");
111. Thomas Y. Davies, What Did the Framers Know and When Did They Know It?: Fictional Originalism in Crawford v. Washington, 71 BROOK. L. REV. 105, 210-12 & n.333 (2005).
112. Chief Justice John Roberts recently affirmed this principle. See Transcript of Oral Argument at 16-17, United States v. Resendiz-Ponce, 127 S. Ct. 782 (2007) (No. 05-998) ("[H]istorically a significant role for the
113. See id.
114. 8 How. St. Tr. 549 (1681).
115. 8 How. St. Tr. 759 (1681).
116. See GEORGE J. EDWARDS, JR., THE GRAND JURY 28-30 (1906).
117. See id.
118. See id.
119. See Shaftesbury's Case, 8 How. St. Tr. 759; The Trial of Stephen Colledge, 8 How. St. Tr. 549; SHAPIRO, supra note 14, at 62-65.
120. See EDWARDS, supra note 87, at 28-30; SHAPIRO, supra note 14, at 62-65.
121. See Renée B. Lettow, Note, Reviving Federal Grand Jury Presentments, 103 YALE L.J. 1333, 1337 (1994); see also SHAPIRO, supra note 14, at 87;
122. Mark Kadish, Behind the Locked Door of an American Grand Jury: Its History, Its Secrecy, and Its Process, 24 FLA. ST. U. L. REV. 1, 11 (1996);
123. Ronald F. Wright, Why Not Administrative Grand Juries?, 44 ADMIN. L. REV. 465, 469 (1992) ("These [colonial] grand juries did not refuse to indict because of a lack of proof that the accused had violated a criminal statute. Rather, they refused because they fundamentally disagreed with the government's decision to enforce these laws at all.").
124. See Robert D. Rucker, The Right to Ignore the Law: Constitutional Entitlement Versus Judicial Interpretation, 33 VAL. U. L. REV. 449, 452-53 (1999). The government then side-stepped the grand jury and charged Zenger by information. See id. A petit jury later acquitted, despite the fairly clear evidence of Zenger's technical guilt. See id.;
125. see also Albert W. Alschuler & Andrew G. Deiss, A Brief History of the Criminal Jury in the United States, 61 U. CHI. L. REV. 867, 871-74 (1994).
126. See, e.g., SHAPIRO, supra note 14, at 87.
127. U.S. CONST. amend. V.
128. See, e.g., RICHARD D. YOUNGER, THE PEOPLE'S PANEL: THE GRAND JURY IN THE UNITED STATES, 1634-1941, at 49-52 (1963). See generally United States v. Navarro-Vargas, 408 F.3d 1184, 1191-94 (9th Cir. 2005) (discussing the role of the colonial grand jury).
129. See, e.g., YOUNGER, supra note 96, at 103-05, 118-33; see also Navarro-Vargas, 408 F.3d at 1199.
130. See, e.g., Kuckes, supra note 7, at 1303. As Professor Kuckes points out, the "judicial" model, which conceptually limits the grand jury to the probable cause determination, invites one to negatively characterize the grand jury's exercise of discretion. See id. at 1269.
131. See id.
132. See SHAPIRO, supra note 14, at 87.
133. Vasquez v. Hillery, 474 U.S. 254, 263 (1986).
134. Id. (quoting United States v. Ciambrone, 601 F.2d 616, 629 (2d Cir. 1979) (Friendly, J., dissenting)). To be sure, the Court has sent mixed messages in this regard, more recently implying that a grand jury may have a duty to indict when there is evidence sufficient to establish probable cause. See United States v. Cotton, 535 U.S. 625 (2002).
135. United States v. Cox, 342 F.2d 167, 189 (5th Cir. 1965) (Wisdom, J., concurring specially).
136. Id. at 190.
137. Ciambrone, 601 F.2d at 629 n.2 (Friendly, J., dissenting).
138. See, e.g., United States v. Marcucci, 299 F.3d 1156, 1168-69 (9th Cir. 2002) (Hawkins, J., dissenting); Gaither v. United States, 413 F.2d 1061, 1066 n.6 (D.C. Cir. 1969) ("Since it has the power to refuse to indict even when a clear violation of law is shown, the grand jury can reflect the conscience of the community in providing relief where strict application of the law would prove unduly harsh." (quoting 8 MOORE'S FEDERAL PRACTICE § 6.02(1) (1968))); United States v. Asdrubal-Herrera, 470 F. Supp. 939, 942 (N.D. Ill. 1979) ("Just as a prosecutor can, in the exercise of discretion, decline prosecution in the first instance, a grand jury can return a true bill or no bill as they deem fit."). Professor Herbert Wechsler, in support of a proposal to include a de minimis "defense" (Section 2.12) to the Model Penal Code, noted that "[n]othing is more common in criminal law enforcement, of course, than the exercise on the part of the prosecuting attorney, to some extent - grand juries where there are grand juries - of a kind of unarticulated authority to mitigate the general provisions of the criminal law to prevent absurd applications . . . ." Discussion of the Model Penal Code, 39 A.L.I. PROC. 61, 105 (1962). For more on de minimis stautory provisions, see Stanislaw Pomorski, On Multiculturalism, Concepts of Crime, and the "De Minimis" Defense, 1997 BYU L. REV. 51 (1997);
139. Paul H. Robinson, Criminal Law Defenses: A Systematic Analysis, 82 COLUM. L. REV. 199, 211 (1982).
140. Cf. Sparf v. United States, 156 U.S. 51, 78-83 (1895) (distinguishing between the power of a petit jury to nullify and its right to do so); Mark DeWolfe Howe, Juries as Judges of Criminal Law, 52 HARV. L. REV. 582, 588-89 (1938).
141. See, e.g., Brief for the United States at 28, United States v. Cotton, 535 U.S. 625 (2002) (No. 01-687). As the U.S. Solicitor General argued in a brief on the merits in a recent Supreme Court case, grand jury nullification is "a power that courts must tolerate for reasons of public policy" rather than "a right that courts must encourage." Id.
142. In re Kittle, 180 F. 946, 947 (S.D.N.Y. 1910) (L. Hand, J.).
143. See, e.g., United States v. Kerley, 838 F.2d 932, 938 (7th Cir. 1988) (stating that the ability to nullify is "just a power, not also a right"); Todd E. Pettys, Evidentiary Relevance, Morally Reasonable Verdicts, and Jury Nullification, 86 IOWA L. REV. 467, 503 (2001) ("While readily conceding that juries have the power to nullify, therefore, the courts have insisted that juries do not have the right to nullify."). Professor Paul Butler, who advanced a case for race-based petit jury nullification in certain circumstances, see Butler, supra note 38, at 678, does seem to require a moral justification for the petit jury's exercise of its nullification power.
144. See Paul D. Butler, Race-Based Jury Nullification: Case-in-Chief 30 J. MARSHALL L. REV. 911, 918 (1997) ("[I]t is not enough to say that there is a power to nullify; there also has to be some moral basis for this power."); see also ALLEN, supra note 67, at 14 (1996) ("We can conceive of exertions of governmental authority that are legal in the sense of being authorized by law but that offend the rule-of-law concept.").
145. Cf. Strickland v. Washington, 466 U.S. 668, 694-95 (1984) (stating that a court, when determining whether an attorney error prejudiced the defendant, "should presume . . . that the judge or jury acted according to law" and that "[a] defendant has no entitlement to the luck of a lawless decisionmaker, even if a lawless decision cannot be reviewed"). See also Daniel J. Meltzer, Deterring Constitutional Violations by Law Enforcement Officials: Plaintiffs and Defendants as Private Attorneys General, 88 COLUM. L. REV. 247, 257 n.41 (1988).
146. See, e.g., United States v. Ciambrone, 601 F.2d 616, 629 n.2 (2d Cir. 1979) (Friendly, J., dissenting).
147. Cf. Rachel E. Barkow, Recharging the Jury: The Criminal Jury's Constitutional Role in an Era of Mandatory Sentencing, 152 U. PA. L. REV. 33, 46-65 (2003).
148. See, e.g., YOUNGER, supra note 96, at 49-52, 103-05, 118-33.
149. See, e.g., Lettow, supra note 92, at 1337.
150. See discussion infra section II.B.1.
151. See United States v. Asdrubal-Herrera, 470 F. Supp. 939, 942 (N.D. Ill. 1979).
152. Indeed, one such limitation on the prerogative of the grand jury surfaced when criminal defendants asserted that the Fifth Amendment right to grand jury indictment contemplates that grand juries not be instructed that they "should" vote to indict where the government establishes probable cause, an argument that the Ninth Circuit recently considered and rejected over vigorous dissent. See, e.g., United States v. Navarro-Vargas, 408 F.3d 1184, 1199 (9th Cir. 2005); United States v. Rivera-Sillas, 376 F.3d 887, 893-94 (9th Cir. 2004); United States v. Adams, 343 F.3d 1024, 1027 n.l (9th Cir. 2003); United States v. Marcucci, 299 F.3d 1156, 1159-65 (9th Cir. 2002) (consolidating three identical challenges). Ultimately, the Ninth Circuit held that the Constitution does not mandate that the grand jury receive instruction that it may decline to indict even where it finds probable cause. See, e.g., Navarro-Vargas, 408 F.3d at 1199. For commentary on the Ninth Circuit skirmishes over the model grand jury charge, see Kuckes, supra note 7, at 1299-1300 (endorsing the dissenters' reasoning); Gregory T. Fouts, Note, Reading the Grand Jurors Their Rights: The Continuing Question of Grand Jury Independence, 79 IND. L.J. 323, 334-40 (2004) (commenting on the Marcucci case);
153. Laurie L. Levinson, Grand Jury Nullification, NAT'L L.J., June 14, 2004, at 14.
154. See Brenner, supra note 30, at 76-77 (describing confusion over institutional status of the grand jury); see also FED. R. CRIM. P. 17 (establishing subpoena power); In re Report and Recommendation of June 5, 1972 Grand Jury Concerning Transmission of Evidence to the House of Representatives, 370 F. Supp. 1219, 1222 (D.D.C. 1974).
155. See, e.g., Brenner, supra note 30, at 68-72; Kuckes, supra note 1, at 28-30.
156. See, e.g., Kuckes, supra note 1, at 28.
157. See United States v. Cox, 342 F.2d 167, 178 (5th Cir. 1965) (Rives, Gewin & Bell J.J., concurring in part and dissenting in part) ("[T]he grand jury originated long before the doctrine of separation of powers was made the constitutional basis of our frame of government. . . . Its authority is derived from none of the three basic divisions of our government, but rather directly from the people themselves." (internal quotations omitted)).
158. United States v. Chanen, 549 F.2d 1306, 1312 (9th Cir. 1977) (internal citation omitted).
159. 504 U.S. 36 (1992).
160. Id. at 47 (internal citations and quotations omitted).
161. See United States v. Navarro-Vargas, 408 F.3d 1184, 1199 (9th Cir. 2005) (quoting United States v. Chanen, 549 F.2d 1306, 1312 (9th Cir. 1977)).
162. U.S. CONST. art. III, § 2.
163. See 28 U.S.C. § 3231 (2000) ("The district courts of the United states shall have original jurisdiction, exclusive of the courts of the States, of all offenses against the laws of the United States.").
164. See FED. R. CRIM. P. 7(a) ("An offense (other than criminal contempt) must be prosecuted by an indictment if it is punishable: (A) by death; or (B) by imprisonment for more than one year."). Of course, a defendant may waive the right to grand jury indictment and allow a court to try and sentence upon an information. See Id. 7(b). There is some doubt associated with the constitutionality of this waiver provision. See generally Roger A. Fairfax, Jr., The Jurisdictional Heritage of the Grand Jury Clause, 91 MINN. L. REV. 398, 430-38 (2006).
165. See U.S. CONST. amend. V ("No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury . . . .").
166. See, e.g., HOWARD C. JOYCE, TREATISE ON THE LAW GOVERNING INDICTMENTS WITH FORMS § 32 (1908) ("[W]here there has been no presentment of . . . a bill of indictment, the fact that a person confesse[d] in court to being guilty of a crime which requires an indictment or presentment, confers no power upon the court to sentence him to imprisonment . . . ."). Although in most cases the sentencing judge's ability to render punishment will be limited to that prescribed by the legislature for crimes outlined in the grand jury's indictment, the Supreme Court has sometimes strayed from that ideal. See, e.g., United States v. Cotton, 535 U.S. 625, 633-34 (2002) (finding no plain error where the district court sentenced the defendant for conduct not charged in the indictment).
167. Although a twentieth-century jurisprudence influenced by progressive criminal law reform and a diminished respect for the efficacy of the grand jury right largely obscured this function, the jurisdictional heritage of the grand jury demonstrates the way in which the grand jury was designed to play a checking role on the judicial branch. See generally Fairfax, supra note 129.
168. U.S. CONST. art. II, § 3.
169. See United States v. Williams, 504 U.S. 36, 51 (1992) ("It is axiomatic that the grand jury sits not to determine guilt or innocence, but to assess whether there is adequate basis for bringing a criminal charge.").
170. See FED. R. CRIM. P. 7(a).
171. See Simmons, supra note 3, at 16.
172. See, e.g., Butler, supra note 38, at 678.
173. See id.
174. See U.S. CONST. art. II, § 3 & art. III, § 2.
175. See FED. R. CRIM. P. 7.
176. In fact, at the time of the Founding, the power of grand juries to present or initiate charges for federal crimes without the prompting or participation of the prosecutor was well established. While the Presentment Clause of the Fifth Amendment's Grand Jury Clause has not been repealed, the practice has fallen into obsolescence. See, e.g., Fairfax, supra note 129, at 412 n.55; see also Lettow, supra note 92.
177. See THE FEDERALIST NO. 51 (James Madison).
178. See, e.g., Kuckes, supra note 7, at 1302 ("[T]he power to 'nullify' valid charges has been described by influential commentators as 'arguably . . . the most important attribute of grand jury review from the perspective of those who insisted that a grand jury clause be included in the Bill of Rights.'" (quoting 4 WAYNE R. LAFAVE ET AL., CRIMINAL PROCEDURE § 15.2(g) (2d ed. 1999))). Interestingly, the separation of powers argument has been advanced in support of petit jury nullification as well. See, e.g., Nancy J. King, Silencing Nullification Advocacy Inside the Jury Room and Outside the Courtroom, 65 U. CHI. L. REV. 433, 454-58 (1998).
179. See THE FEDERALIST NO. 51 (James Madison);
180. Letter from Thomas Jefferson to William Duane (May 23, 1801), in 8 THE WRITINGS OF THOMAS JEFFERSON, 1801-1806, at 54 (Paul Leicester Ford ed., New York, G.P. Putnam's Sons 1897);
181. see also Rachel E. Barkow, Separation of Powers and the Criminal Law, 58 STAN. L. REV. 989, 1011-20 (2006).
182. See Brenner, supra note 30, at 71.
183. See SHAPIRO, supra note 14, at 42-43.
184. See id. at 43.
185. YOUNGER, supra note 96, at 26.
186. See SHAPIRO, supra note 14, at 87 (noting politicization of grand juries shortly before the Revolution and stating that "[g]rand juries provided a means of frustrating the policies of imperial authorities. They sometimes refused to indict political offenders and prevented the enforcement of unpopular laws."); YOUNGER, supra note 96, at 28-29 (recounting instances of grand jury nullification in the colonies during the decades before the Revolution); supra notes 92-94 and accompanying text.
187. YOUNGER, supra note 96, at 26; see also LEONARD W. LEVY, THE PALLADIUM OF JUSTICE: ORIGINS OF TRIAL BY JURY 66-67 (1999).
188. See, e.g., United States v. Datcher, 830 F. Supp. 411, 413 (M.D. Tenn. 1993) (describing founding-era attitudes toward jury nullification), overruled by United States v. Chesney, 86 F.3d 564 (6th Cir. 1996).
189. See YOUNGER, supra note 96, at 45-46; Washburn, supra note 49, at 2368-69.
190. See John P. Kaminski & C. Jennifer Lawton, Duty and Justice at "Every Man's Door": The Grand Jury Charges of Chief Justice John Jay, 1790-1794, 31 J. SUP. CT. HIST. 235, 242 (2006) (noting that, in the late 18th century, "[t]he district of the jurors was commensurate with the borders of the state").
191. See Brenner, supra note 30, at 127 ("Grand juries are by nature parochial . . . and were designed to import a local, lay perspective on the legal significance of [local] activity."); Pound, supra note 73, at 18 ("The will of the state at large imposed on a reluctant community . . . find[s] the same obstacle in the local jury that formerly confronted kings and ministers.").
192. James Wilson, The Subject Continued - Of Juries, in 2 THE WORKS OF JAMES WILSON 503, 537 (Robert Green McCloskey ed., 1967). To be sure, this communication channel worked both ways, as founding-era jurists utilized the grand jury charge as an opportunity to lecture captive audiences of prominent local citizens on political issues of the day. See YOUNGER, supra note 96, at 47; cf. Kaminski & Lawton, supra note 153, at 240-50 (describing Chief Justice John Jay's early grand jury charges).
193. Cf. Wenger & Hoffman, supra note 76, at 1153-56 (discussing how petit jury nullification can perform a communicative function). However, it must be conceded that there are certain limits to the efficacy of this communicative function. As discussed below, it can be difficult to discern why a grand jury declined to indict in a given case. Certain features of the grand jury, such as secrecy restrictions and the lack of double jeopardy protection, can hinder the actual dissemination of such a message beyond the prosecutors charged with enforcing the law. See infra section III.B.4. Furthermore, the lack of a requirement of unanimity (twelve of the twenty-three grand jurors can derail an indictment) may frustrate efforts to discern what, if anything, one can learn from a divided grand jury's failure to indict. See infra subpart III.B.
194. There are obvious dangers posed to a federal system when local grand juries are in a position to nullify congressional statutes. See, e.g., United States v. Navarro-Vargas, 408 F.3d 1184, 1203-04 (9th Cir. 2005). Concerns arise when a local grand jury is in a position to frustrate national enforcement priorities or even the protection of oppressed minorities in local communities. While the author shares those concerns, grand juries, by their design and very nature, do have that power, whether it is one we think, from a normative standpoint, should be exercised in a given case. Also, there are certain features of the grand jury, such as the ability of prosecutors to obtain review by a subsequent grand jury, that make grand jury nullification less worrisome than petit jury nullification in this regard. See infra section III.B.1.
195. See CLARK, supra note 41, at 19-20 ("The federal Constitution's provisions were adopted not only because the grand jury had a key role in the Revolution but also because many colonists were fearful of creating a powerful central government that could arbitrarily use the criminal process against its political enemies."); YOUNGER, supra note 96, at 45-46 (describing how ratifying conventions in Massachusetts, New York, and New Hampshire recommended amendment to include a grand jury requirement, which became part of the Fifth Amendment); Simmons, supra note 3, at 12 ("When the original Constitution made no provision for grand juries, eight of the thirteen original states recommended that it be amended to ensure the right to a grand jury.").
196. George C. Thomas, III, Discretion and Criminal Law: The Good, the Bad, and the Mundane, 109 PENN ST. L. REV. 1043 (2005) (stating that discretion in the criminal justice system is inevitable but that socially unacceptable applications of this discretion may be subject to constraint).
197. See ALLEN, supra note 67, at 57-77 (describing the fragmented and discretion-laden American criminal justice apparatus); Joseph B. Kadane, Sausages and the Law: Juror Decisions in the Much Larger Justice System, in INSIDE THE JUROR: THE PSYCHOLOGY OF JUROR DECISION MAKING 229, 230-31 (Reid Hastie ed., 1993) (outlining many decisions made regarding a case progressing through the justice system in addition to those by jurors);
198. James Vorenberg, Narrowing the Discretion of Criminal Justice Officials, 1976 DUKE L.J. 651 (proposing reductions in the discretion of criminal justice officials).
199. See CONG. QUARTERLY INC., POWERS OF THE PRESIDENCY 61 (2d ed. 1997) (discussing the President's role "as [a] policy-maker[]" concerning law enforcement and noting that the President determines "what types of offenses merit the greatest attention, what resources will be allocated, and what cases will be prosecuted").
200. See, e.g., WALKER, supra note 77, at 23-25; Alexandra Natapoff, Underenforcement, 75 FORDHAM L. REV. 1715 (2006) (arguing that discretion to not enforce the law sometimes is used too frequently);
201. Daniel Richman, Prosecutors and Their Agents, Agents and Their Prosecutors, 103 COLUM. L. REV. 749 (2003) (examining dynamics of interaction between federal prosecutors and law enforcement agents);
202. William J. Stuntz, The Pathological Politics of Criminal Law, 100 MICH. L. REV. 505, 579-82 (2001) (considering prosecutorial and police discretion).
203. Additionally, with respect to state law enforcement, prosecution, and trial, state constitutions may provide greater protection than the U.S. Constitution. See Robert F. Utter, State Constitutional Law, The United States Supreme Court, and Democratic Accountability: Is There a Crocodile in the Bathtub?, 64 WASH. L. REV. 19, 27 & n.54 (1989).
204. See generally Joseph Goldstein, Police Discretion Not to Invoke the Criminal Process: Low-Visibility Decisions in the Administration of Justice, 69 YALE L.J. 543 (1960) (proposing oversight of the discretion that police exercise).
205. See, e.g., Thomas, supra note 159, at 1047-48.
206. See, e.g., id. at 1048-49.
207. See, e.g., ALLEN, supra note 67, at 66-70.
208. See, e.g., Frank H. Easterbrook, Criminal Procedure as a Market System, 12 J. LEGAL STUD. 289, 299-300 (1983); Kadane, supra note 160, at 234 ("If I had to single out one decision as the most important in the entire system I would point to the decision made by prosecutors fairly early in the sequence about whether or not to prosecute at all."); Weinstein, supra note 56, at 246 ("By far the greatest nullification takes place as a result of decisions not to prosecute or reduce charges.").
209. See, e.g., Donald A. Dripps, Overcriminalization, Discretion, Waiver: A Survey of Possible Exit Strategies, 109 PENN ST. L. REV. 1155, 1175-76 (2005);
210. L.B. Schwartz, Federal Criminal Jurisdiction and Prosecutors' Discretion, 13 LAW & CONTEMP. PROBS. 64, 83 (1948);
211. Ronald Wright & Marc Miller, Honesty and Opacity in Charge Bargains, 55 STAN. L. REV. 1409, 1410-13 (2003).
212. See, e.g., United States v. Armstrong, 517 U.S. 456, 464 (1996); Bordenkircher v. Hayes, 434 U.S. 357, 368 n.2 (1978); United States v. Nixon, 418 U.S. 683, 693 (1974) (describing the Executive's "exclusive authority and absolute discretion to decide whether to prosecute a case"); KENNETH C. DAVIS, DISCRETIONARY JUSTICE 189-214 (1969); Vorenberg, supra note 160, at 678 ("The prosecutor's decision whether and what to charge is the broadest discretionary power in criminal administration.").
213. See, e.g., United States v. Navarro-Vargas, 408 F.3d 1184, 1213 (9th Cir. 2005) (Hawkins, J., dissenting); United States v. Navarro-Vargas, 367 F.3d 896, 900-02 (9th Cir. 2004) (Kozinski, J., dissenting), vacated en banc, 382 F.3d 920 (9th Cir. 2004); United States v. Cox, 342 F.2d 167, 171 (5th Cir. 1965) ("The discretionary power of the attorney for the United States in determining whether a prosecution shall be commenced or maintained may well depend upon matters of policy wholly apart from any question of probable cause."); Thomas, supra note 159, at 1044-45; see also FRANK W. MILLER, PROSECUTION: THE DECISION TO CHARGE A SUSPECT WITH A CRIME 154-280 (1969) (discussing various nonevidentiary bases for the exercise of prosecutorial discretion);
214. Wayne R. LaFave, The Prosecutor's Discretion in the United States, 18 AM. J. COMP. L. 532, 533-35 (1970) (same). One commentator has considered a "mechanism for tying the exercise of prosecutorial discretion to the availability of prison resources."
215. See Robert L. Misner, Recasting Prosecutorial Discretion, 86 J. CRIM. L. & CRIMINOLOGY 717, 720 (1996).
216. See ANGELA J. DAVIS, ARBITRARY JUSTICE: THE POWER OF THE AMERICAN PROSECUTOR 33-39 (2007) (discussing possible differences in how prosecutors decide whether to charge);
217. Sandra Caron George, Note, Prosecutorial Discretion: What's Politics Got to Do With It?, 18 GEO. J. LEGAL ETHICS 739, 751-56 (2005) (discussing the role of politics in prosecutorial discretion).
218. The U.S. Department of Justice has internal guidelines to guide the discretion of federal prosecutors. See U.S. DEP'T OF JUSTICE, UNITED STATES ATTORNEYS' MANUAL, § 9-27.000 (1997) [hereinafter U.S. ATTORNEYS' MANUAL]. However, the guidelines make clear that their existence creates no right of action or review in any external party or entity. See id. § 9-27.150;
219. see also Ellen S. Podgor, Department of Justice Guidelines: Balancing "Discretionary Justice," 13 CORNELL J.L. & PUB. POL'Y 167 (2004) (advocating reforms designed to enhance compliane with internal guidelines). An additional check on prosecutorial discretion is found in the Hyde Amendment, 18 U.S.C. § 3006A (2000), which extends a cause of action to a prevailing criminal defendant for "a reasonable attorney's fee and other litigation expenses, where the court finds that the position of the United States was vexatious, frivolous, or in bad faith." Pub. L. No. 105-119, tit. VI, § 617, 111 Stat. 2440, 2519 (1997) (codified at 18 U.S.C. § 3006A);
220. see also Daniel C. Richman, Federal Criminal Law, Congressional Delegation, and Enforcement Discretion, 46 UCLA L. REV. 757 (1999) (considering legislative control of prosecutorial discretion).
221. See, e.g., WALKER, supra note 77, at 89-92; Andrew Horwitz, Taking the Cop Out of Copping a Plea: Eradicating Police Prosecution of Criminal Cases, 40 ARIZ. L. REV. 1305, 1307 (1998).
222. See, e.g., United States v. Batchelder, 442 U.S. 114, 123-24 (1979) ("[W]hen an act violates more than one criminal statute, the Government may prosecute under either so long as it does not discriminate against any class of defendants."); Cahill, supra note 72, at 118. Indeed, prosecutors may "nullify" a criminal statute by refusing to enforce it. See generally Arthur E. Bonfield, The Abrogation of Penal Statutes by Nonenforcement, 49 IOWA L. REV. 389 (describing the "nullification by nonenforcement" phenomenon).
223. Dismissal of charges before trial can result from an assessment of the strength (or weakness) of evidence in a case, a decision to allow some sort of pretrial diversion of the defendant, see, e.g., Richard C. Boldt, Rehabilitative Punishment and the Drug Treatment Court Movement, 76 WASH. U. L.Q. 1205, 1255 (1998), or a determination that the government should agree to a plea bargain. See U.S. ATTORNEYS' MANUAL, supra note 173, § 9-27.400.
224. See, e.g., James Vorenberg, Decent Restraint of Prosecutorial Power, 94 HARV. L. REV. 1521, 1523 (1981). But see MILLER, supra note 171, at 5 (describing prosecutorial discretion as "nearly uncontrolled" save for "the fact that the prosecutor is typically an elected official and thus responsive to community opinion").
225. See supra subpart I.A.
226. See generally Renée B. Lettow, New Trial for Verdict Against Law: Judge-Jury Relations in Early Nineteenth-Century America, 71 NOTRE DAME L. REV. 505 (1996) (examining increased judicial control over civil juries in early nineteenth-century America).
227. See State v. Ragland, 519 A.2d 1361, 1372 (N.J. 1986) (declaring that "[j]ury nullification is an unfortunate but unavoidable power").
228. See Brown, supra note 4, at 1171-96; Marder, supra note 32, at 887-902; see also Nancy J. King & Susan R. Klein, Essential Elements, 54 VAND. L. REV. 1467, 1485 & n.68 (2001) (noting that petit juries might choose "to convict of a lesser offense despite clear proof of guilt on a higher offense," a practice Blackstone referred to as "'pious perjury'" (quoting WILLIAM BLACKSTONE, 4 COMMENTARIES *238-39 (1769))); supra text accompanying note 32.
229. See FED. R. CRIM P. 31(a) (mandating that in a federal criminal jury trial, "[t]he verdict must be unanimous"); Leib, supra note 16, at 141-42. Although the Constitution does not require unanimity, see Apodaca v. Oregon, 406 U.S. 404, 406 (1972), most states do require unanimous verdicts in criminal cases. See, e.g., JAMES Q. WHITMAN, THE ORIGINS OF REASONABLE DOUBT: THEOLOGICAL ROOTS OF THE CRIMINAL TRIAL 22 (2008);
230. Edward P. Schwartz & Warren F. Schwartz, And So Say Some of Us . . . What To Do When Jurors Disagree, 9 S. CAL. INTERDISC. L.J. 429, 429 (2000).
231. See, e.g., Smith v. Massachusetts, 543 U.S. 462, 466-67 (2005).
232. Of course, pursuant to the "dual sovereignty" doctrine, a second sovereign may bring a successive prosecution for acquitted conduct. See, e.g., Bartkus v. Illinois, 359 U.S. 121, 132-34 (1959). However, the U.S. Department of Justice has internal guidelines, commonly referred to as the "Petite Policy," to guide federal prosecutorial discretion with regard to the decision to initiate a prosecution for conduct previously prosecuted under the law of another sovereign. See, e.g., Rinaldi v. United States, 434 U.S. 22, 27-29 (1977); U.S. ATTORNEYS' MANUAL, supra note 173, § 9-2.031 (discussing the policy on dual and successive prosecution).
233. See FED. R. CRIM. P. 3, 4, 5.1, 41.
234. In capital and other felony cases, where the Grand Jury Clause requires indictment, the magistrate judge often may be called upon to make a probable cause determination should the grand jury not issue an indictment within a certain time frame. See, e.g., id. 5.1.
235. See id. 5.1(e).
236. See id. 5.1.
237. Cf. George R. Nock, The Point of the Fourth Amendment and the Myth of Magisterial Discretion, 23 CONN. L. REV. 1, 28-29 (1990) (considering the highly regarded position of magistrate judges). Setting bail and concomitant conditions of release is also highly discretionary, even within the "guided discretion" framework erected by many bail reform statutes of the latter half of the twentieth century. See WALKER, supra note 77, at 54-80;
238. HOWARD ABADINSKY, DISCRETIONARY JUSTICE: AN INTRODUCTION TO DISCRETION IN THE CRIMINAL JUSTICE SYSTEM 65-66 (1984).
239. See, e.g., Paul Butler, When Judges Lie (and When They Should), 91 MINN. L. REV. 1785, 1785-87 (2007);
240. M.B.E. Smith, May Judges Ever Nullify the Law?, 74 NOTRE DAME L. REV. 1657, 1661 (1999).
241. See, e.g., Leipold, supra note 16, at 200-18 (evaluating the hypothesis that judges may acquit more frequently when faced with having to impose severe sentences compelled by strict sentencing guidelines regimes). However, as Professor Robinson points out, there are barriers associated with the socioeconomic and educational background and institutional role of most judges that may make them less well equipped to make such normative judgments. See Paul H. Robinson, Legality and Discretion in the Distribution of Criminal Sanctions, 25 HARV. J. ON LEGIS. 393, 416-419 (1988).
242. See FED. R. CRIM. P. 29(a).
243. See Leipold, supra note 16. Indeed, a proposed amendment to the Federal Rules of Criminal Procedure is designed to rein in this discretion. See FED. R. CRIM. P. 29 (Proposed Amendments 2006), available at http://www.uscourts.gov/rules/Excerpt_CR_Report_Pub. July%202006.pdf#page=7 (permitting government appeal of preverdict judgments of acquittal).
244. See Smith v. Massachusetts, 543 U.S. 462, 466-67 (2005). Generally, the government cannot appeal a judgment of acquittal entered by a trial judge. The only exception is when the trial judge enters a judgment of acquittal after a jury has voted to convict. In that instance, the government can appeal the judgment of acquittal. See id. at 467.
245. See WALKER, supra note 77, at 117-18; Easterbrook, supra note 168, at 322-25. In addition to the initial sentencing decision, judges in the federal and some state systems have discretion to revisit the imposed sentence after a period of time. See, e.g., FED. R. CRIM. P. 35(b)(1) (allowing judges to modify a sentence for a defendant's "substantial assistance" with other criminal investigations); MD. R. § 4-345 (allowing court to reduce a sentence within a set period of time).
246. See, e.g., Easterbrook, supra note 168, at 322-25 (arguing, prior to the promulgation of the Federal Sentencing Guidelines, that "[t]here is as much discretion in sentencing as anywhere else in criminal procedure"); Joseph E. Kennedy, Making the Crime Fit the Punishment, 51 EMORY L.J. 753, 758-59 (2002) (noting the pre-Guidelines sentencing discretion of federal trial judges); see also WALKER, supra note 77, at 112-17; Robinson, supra note 191, at 404 (1988) (noting that even within guidelines sentencing regimes, "[s]entencing judges, who are accustomed to nearly absolute sentencing discretion, may attempt to subvert guidelines sentences that they believe are improper");
247. Kate Stith & Steve Y. Koh, The Politics of Sentencing Reform: The Legislative History of the Federal Sentencing Guidelines, 28 WAKE FOREST L. REV. 223, 225-26 (1993).
248. See, e.g., Laura I. Appleman, Retributive Justice and Hidden Sentencing, 68 OHIO ST. L.J. 1307, 1348-49 (2007);
249. Susan R. Klein, The Return of Federal Judicial Discretion in Criminal Sentencing, 39 VAL. U. L. REV. 693, 699 (2005);
250. Cynthia Kwei Yung Lee, Prosecutorial Discretion, Substantial Assistance, and the Federal Sentencing Guidelines, 42 UCLA L. REV. 105, 107 (1994);
251. see also MARVIN E. FRANKEL, CRIMINAL SENTENCES: LAW WITHOUT ORDER 5 (1973) (noting that "the almost wholly unchecked and sweeping powers we give to
252. Lisa M. Fairfax, Trust, the Federal Sentencing Guidelines, and Lessons From Fiduciary Law, 51 CATH. U. L. REV. 1025, 1056 n.220 (2002).
253. See United States v. Booker, 543 U.S. 220, 233-34 (2005) (rendering the federal Sentencing Guidelines advisory due to their incompatibility with the Sixth Amendment right to jury trial); see also Frank O. Bowman, III, The Failure of the Federal Sentencing Guidelines: A Structural Analysis, 105 COLUM. L. REV. 1315, 1316-17 (2005).
254. Shortly after Booker, it remained to be seen how much discretion the Supreme Court had returned to sentencing judges, as sentences still were subject to appellate review for "reasonableness." See, e.g., Nancy J. King, Reasonableness Review After Booker, 43 HOUS. L. REV. 325, 325-26 (2006) (accounting for sentences that fall within or without the Guidelines range). In 2007, the Court, in what fairly can be characterized as two landmark decisions, made clear that district judges indeed enjoyed much greater sentencing discretion after Booker. See Gall v. United States, 128 S. Ct. 586, 597 (2007) (holding that appellate courts must apply more deferential abuse-of-discretion standard when reviewing sentences for reasonableness, whether or nor the sentence is within the advisory Guidelines range); Kimbrough v. United States, 128 S. Ct. 558, 574 (2007) (holding that the crack versus powder cocaine disparity contained in the advisory Guidelines is not mandatory and reasonably may be considered by the judge when fashioning an out-of-Guidelines sentence);
255. Kate Stith, Arc of the Pendulum: The Exercise of Discretion in Sentencing, 117 YALE L.J. (forthcoming 2008);
256. Linda Greenhouse, Justices Restore Judges' Control over Sentencing, N.Y. TIMES, Dec. 11, 2007, at A1. Coincedentally, the day after the decisions came down, the U.S. Sentencing Commission voted unanimously to give retroactive effect to a recent amendment to the Federal Sentencing Guidelines reducing the sanction for crack cocaine offenses. See Press Release, U.S. Sentencing Comm'n, U.S. Sentencing Comm'n Votes Unanimously to Apply Amendment Retroactively for Crack Cocaine Offenses (Dec. 11, 2007), available at http://www.ussc.gov/PRESS/rel121107.htm;
257. Daryll Fears, Panel May Cut Sentences for Crack - Thousands Could Be Released Early, WASH. POST, Nov. 13, 2007, at A1.
258. See, e.g., Victoria J. Palacios, Go and Sin No More: Rationality and Release Decisions by Parole Boards, 45 S.C. L. REV. 567, 567-68 (1994).
259. See, e.g., Samuel T. Morison, The Politics of Grace: On the Moral Justification of Executive Clemency, 9 BUFF. CRIM. L. REV. 1, 14 (2005);
260. Mark Strasser, Some Reflections on the President's Pardon Power, 31 CAP. U. L. REV. 143, 143-45 (2003).
261. See Palacios, supra note 200, at 568.
262. See White v. Ind. Parole Bd., 266 F.3d 759, 766 (7th Cir. 2001); Palacios, supra note 200, at 568, 578-80. Considerations of mercy may also play a part in the executive clemency decision. See, e.g., Daniel T. Kobil, Should Mercy Have a Place in Clemency Decisions?, in FORGIVENESS, MERCY, AND CLEMENCY 36, 39-45 (Austin Sarat & Nasser Hussain eds., 2007) (considering the appropriateness of mercy as a basis for executive clemency); Barkow, supra note 51, (manuscript at 14-15) (arguing that the rise of administrative law is detrimental to the executive prerogative to grant mercy through the clemency function).
263. See Harold J. Krent, Conditioning the President's Conditional Pardon Power, 89 CAL. L. REV. 1665, 1676-79 (2001).
264. See U.S. CONST. art. II, § 2; Todd D. Peterson, Congressional Power Over Pardon and Amnesty: Legislative Authority in the Shadow of Presidential Prerogative, 38 WAKE FOREST L. REV. 1225, 1226 (2003) (stating that the Pardon Clause in the Constitution is "often described as an example of an unconfined constitutional grant of authority").
265. See, e.g., Ex parte Grossman, 267 U.S. 87, 120-21 (1925); Strasser, supra note 201, at 144.
266. See, e.g., Leonard B. Boudin, The Presidential Pardons of James R. Hoffa and Richard M. Nixon: Have the Limitations on the Pardon Power Been Exceeded?, 48 U. COLO. L. REV. 1, 1-2 (1976).
267. See King, supra note 143, at 455 & nn. 95-96; Markel, supra note 42, at 1458.
268. See, e.g., ROSCOE POUND, CRIMINAL JUSTICE IN CLEVELAND 569 (1922) (placing the "power of the grand jury to ignore the charge" among all the other discretionary judgments made throughout the criminal process).
269. See, e.g., United States v. Asdrubal-Herrera, 470 F. Supp. 939, 942 (N.D. Ill. 1979) ("Just as a prosecutor can, in the exercise of discretion, decline prosecution in the first instance, a grand jury can return a true bill or a no bill as they deem fit."); Robert T. Hall, Legal Tolerance of Civil Disobedience, 81 ETHICS 128, 132-35 (1971) (discussing the different forms of discretion for law officers, prosecutors, and judges); Thomas, supra note 159, at 1044-45 (discussing the broad discretion of police officers and prosecutors); Weinstein, supra note 56, at 246-47 ("Compared to prosecutorial nullification, grand jury refusal to indict . . . [is] of minor significance.").
270. Cf. Brown, supra note 4, at 1189-90. As Professor Brown explains in the context of petit jury nullification: We fully accept that prosecutors have discretion to apply criminal law or not according to their own judgment, into which they are readily allowed to consider moral or social policy factors well beyond the facts' relation to the statutory elements. Rare is the contention that prosecutorial discretion is "lawless," as opposed to merely ill-advised. Yet a jury making essentially the same judgment - thus double-checking the prosecutor's choice by deciding whether it finds compelling reasons to nullify rather than endorse the prosecutor's application of law - faces the traditional objections of bias, irrationality, or subversion of the democratic process. Id.
271. See supra notes 202-03.
272. See Smith v. Massachusetts, 543 U.S. 462, 466-67 (2005) (holding that the Double Jeopardy Clause "prohibits reexamination of a court-decreed acquittal to the same extent it prohibits reexamination of an acquittal by a jury verdict"); Conn. Bd. of Pardons v. Dumschat, 452 U.S. 458, 464 (1981) ("[P]ardon and commutation decisions have not traditionally been the business of courts; as such, they are rarely, if ever, appropriate subjects for judicial review.").
273. See Goldstein, supra note 164, at 178 ("Police decisions not to invoke the criminal process largely determine the outer limits of law enforcement."). But see Bruce A. Green & Fred C. Zacharias, "The U.S. Attorneys Scandal" and the Allocation of Prosecutorial Power, 69 OHIO ST. L.J. (forthcoming 2008) (manuscript at 6-7), available at http://ssrn.com/abstract=1015026 (discussing control of subordinate career prosecutors by political superiors). It should be noted, as Professor Fiss reminds, that although United States Attorneys are appointed by the President, they typically are put forward by the home-state Senators, who are elected at the state level. Therefore, the United States Attorneys "are very responsive to local politics." FISS, supra note 48, at 137.
274. See, e.g., SPENCER OVERTON, STEALING DEMOCRACY: THE NEW POLITICS OF VOTER SUPPRESSION 43-64 (2006) (discussing obstacles to full and fair democracy in the United States).
275. FED. R. CRIM. P. 5.1.
276. See FED. R. CRIM. P. 35.
277. See supra sections III.A.2, III.A.3.
278. See, e.g., Whren v. United States, 517 U.S. 806, 816-18 (1996); see also Russell L. Weaver, Investigation and Discretion: The Terry Revolution at Forty (Almost), 109 PENN ST. L. REV. 1205, 1214-15 (2005).
279. See, e.g., United States v. Armstrong, 517 U.S. 456, 463-64 (1996); Angela J. Davis, Prosecution and Race: The Power and Privilege of Discretion, 67 FORDHAM L. REV. 13, 18 (1998).
280. See, e.g., Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993) (holding that prosecutors enjoy absolute immunity surrounding charging decisions).
281. See, e.g., 2 BEALE ET AL., supra note 1, § 8:6 (2005 & Supp. 2007); GEORGE J. EDWARDS, JR., THE GRAND JURY 42 (1906) ("[I]f the grand jury improperly reject a bill, it is still competent for the district attorney to lay the matter before a subsequent grand jury, which may act otherwise. The ability of the grand jurors to work harm by the abuse of their power is, therefore, more fancied than real.").
282. See, e.g., 18 U.S.C. § 3282 (2000) ("[N]o person shall be prosecuted, tried, or punished for any offense, not capital, unless the indictment is found . . . within five years next after such offense shall have been committed.").
283. See United States v. Williams, 504 U.S. 36, 49 (1992) ("The Double Jeopardy Clause of the Fifth Amendment does not bar a grand jury from returning an indictment when a prior grand jury has refused to do so.").
284. See U.S. ATTORNEYS' MANUAL, supra note 173, § 9-11.120(A) (requiring approval by a United States Attorney before resubmission of the matter to a new grand jury).
285. See Williams, 504 U.S. at 49.
286. As discussed below, the fact that a prosecutor may press ahead with a prosecution through another grand jury may somewhat dilute the grand jury's communicative ability. See infra Part III.
287. See, e.g., Smith v. Massachusetts, 543 U.S. 462, 466-67 (2005). But see Leipold, supra note 57, at 259 (arguing for "error-correcting procedures" injury trials, including a right of appeal from acquittals).
288. See 1 BEALE ET AL., supra note 1, § 4:12.
289. See Gregory C. Sisk, Suspending the Pardon Power During the Twilight of a Presidential Term, 67 MO. L. REV. 13, 16, 21 (2002).
290. See, e.g., Allen v. United States, 164 U.S. 492, 501 (1896) (endorsing a charge to a deadlocked jury designed to prompt resolution of deliberations).
291. See 1 BEALE ET AL., supra note 1, § 4:12. Of course, the prosecutor does have considerable influence by regulating the pace at which the grand jury hears the evidence. See id.
292. See FED. R. CRIM. P. 6(g). Even when a grand jury's term expires, the prosecutor may present the matter to a new grand jury. One can find a recent example of this in the empanelment of a successor grand jury believed to be investigating circumstances surrounding baseball great Barry Bonds after the first grand jury's term expired in July 2006 amidst much anticipation. See Dave Sheinin, A New Grand Jury Impaneled for Bonds, WASH. POST, July 21, 2006, at E5. The government empaneled a successor grand jury to continue the investigation. See id.
293. Of course, this is not to say that a grand jury may not be cognizant of the same public pressures that bear on other criminal justice actors. See CLARK, supra note 41, at 23. ("The grand juries in more recent times have continued to reflect responsiveness to . . . executive pressure that labels one or another group as . . . deserving of indictment."). Grand jurors considering an indictment associated with a notorious criminal act, such as the killing of a child or terrorist activity, may feel the same compulsion of expediency that other actors who usually operate under more substantial and direct time constraints also feel.
294. See FED. R. CRIM. P. 6(g).
295. See 1 BEALE ET AL., supra note 1, § 4:12.
296. See Robinson, supra note 191, at 416 (noting that the fact that petit juries sit for only one case and then disband is an obstacle to "consistently applying abstract, normative standards").
297. See Brenner, supra note 30, at 81 ("The frequency with which grand juries are convened carries implications for . . . enhanced community voice.").
298. See, e.g., id.
299. See FED. R. CRIM. P. 6(a)(1).
300. See, e.g., JOHN GUINTHER, THE JURY IN AMERICA 89-95 (1988) (surveying empirical studies concerning sources of trial jury bias);
301. Jeffrey Abramson, Two Ideals of Jury Deliberation, 1998 U. CHI. LEGAL F. 125, 125 (referencing the jury as an institution often considered to "embod[y] the ideal of using collective reasoned discussion to attain a common verdict"); Forde-Mazrui, supra note 49, at 360-61 (1999) (discussing benefits of representative juries);
302. Jason Mazzone, The Justice and the Jury, 72 BROOK. L. REV. 35, 59 (2006) (querying whether larger juries might bring about a net gain in "participatory" benefits); cf. Ballew v. Georgia, 435 U.S. 223 (1978) (reviewing scholarly studies on petit jury size); GUINTHER, supra, at 76 (describing criticism that smaller petit juries are "less representative of the community"). But see GUINTHER, supra, at 78-79 (noting research suggesting that smaller juries have smoother and more cordial deliberations). Even with the larger number of jurors, however, there may be a concern that a grand jury may not be sufficiently representative to claim to be the voice of the community.
303. See Jon Van Dyke, The Grand Jury: Representative or Elite?, 28 HASTINGS L.J. 37, 41-44 (1976) (discussing potential grand jury manipulation). Historically, society has considered the grand jury an elite body of (usually) men, chosen by a "key man" who recommended each grand juror for service.
304. See JEFFREY ABRAMSON, WE, THE JURY: THE JURY SYSTEM AND THE IDEAL OF DEMOCRACY 99-100 (Harvard Univ. Press 2000) (1994). Although reforms have abolished such a system, see 28 U.S.C. § 1861 (2000), questions remain as to whether practical impediments stand in the way of true cross-representation in the grand jury. For example, the length of time that many grand juries must serve - eighteen months - conceivably could limit the demographic group from which grand jurors are drawn; even though grand juries meet only a few days each month, missed workdays may have a harsher impact on those lower on the economic scale. Also, the fact that grand jurors are drawn from far-ranging geographic areas means that they do not represent a "community" in any meaningful sense. See generally Washburn, supra note 49 (proposing "neighborhood grand juries" to enhance the grand jury's representative nature and effectiveness). Additionally, the fact that the grand jury does not require unanimity may work against the notion that the decision not to indict in a given case expresses the community's voice.
305. Cf. JAMES WILSON, Of Juries, in THE WORKS OF JAMES WILSON, 162, 205 (James DeWitt Andrews ed., 1896) (arguing that unanimity is central to the jury's authority as the delegate of the broader community). Because twelve grand jurors can block the other eleven from returning an indictment, a grand jury can nullify although the panel is virtually evenly divided, a concern not typically present in the context of petit jury nullification via acquittal. For insightful treatment of the petit jury unanimity rule from historical-analysis, theological, and democratic-theory perspectives, see WHITMAN, supra note 182, at 22-23, 204 (reconsidering origins of the factual proof function of a unanimity rule);
306. Richard A. Primus, When Democracy Is Not Self-Government: Toward a Defense of the Unanimity Rule for Criminal Juries, 18 CARDOZO L. REV. 1417 (1997) (mapping the implications of "interest- based" and "deliberative" democratic theories related to the unanimity rule and the jury's democratic role).
307. See Brenner, supra note 30, at 81-82, 90-91 & n.119.
308. See id. But see Easterbrook, supra note 168, at 308 (asserting that grand jurors "lack the information needed to make intelligent comparative decisions about who should be prosecuted").
309. See Brenner, supra note 30, at 90-91 (asserting that grand jury term lengths create an "independent existence [that] enhances a grand jury's ability to serve as a voice of the community and to distinguish itself from the prosecutor's office"). Obviously, however, a grand jury in the middle or latter part of its term would have a much better sense of the big picture than would a neophyte grand jury.
310. See 1 BEALE ET AL., supra note 1, § 4:14.
311. See, e.g., Andrew D. Leipold, Race-Based Jury Nullification: Rebuttal (Part A), 30 J. MARSHALL L. REV. 923, 924 (1997) (arguing that "juries are incapable of making reasoned nullification decisions" because much of the necessary information is inadmissible at trial).
312. Branzburg v. Hayes, 408 U.S. 665, 688 (1972).
313. See 1 BEALE ET AL., supra note 1, § 4:14 (2005 & Supp. 2007).
314. See Costello v. United States, 350 U.S. 359, 363 (1956); see also Brenner, supra note 30, at 83-85 (describing divergent applications of evidentiary rules in federal and state grand juries).
315. See United States v. Calandra, 414 U.S. 338, 349-52 (1974). Furthermore, the Supreme Court has declined to extend to the grand jury subpoena context the relevancy, specificity, and admissibility requirements associated with trial subpoenas. See United States v. R. Enters., Inc., 498 U.S. 292, 298-99 (1991).
316. See 18 U.S.C. §§ 6002, 6003 (1994).
317. See, e.g., Brenner, supra note 30, at 99-100 (describing grand juries that act as the "passive collaborator of a prosecutor"). Grand jury subpoenas are technically issued under the auspices of the grand jury. See 1 BEALE ET AL., supra note 1, § 6:2. However, prosecutors typically issue grand jury subpoenas to witnesses sua sponte without the input of the grand jury. See Brenner, supra note 30, at 68 ("American grand jurors generally rely on a prosecutor to present evidence to them . . . .").
318. See 1 BEALE ET AL., supra note 1, § 4:14. The question remains how the grand jury is to learn that it has this broad subpoena power. Also, one should note that the grand jury has to rely on the contempt power of the judiciary to enforce its subpoenas, as the grand jury has no independent means of compelling compliance. See FED. R. CRIM. P. 17(g).
319. See Brenner, supra note 30, at 83-86. A seventeenth-century observer of the grand jury noted that it was much better situated than the petit jury to exercise discretion because of its ability to "send for persons, or Papers." SHAPIRO, supra note 14, at 70 (quoting JOHN SOMERS, THE SECURITY OF ENGLISH-MEN'S LIVES: OR THE TRUST, POWER AND DUTY OF GRAND JURIES OF ENGLAND 86 (London, J. Almon 1761) (1681)). Although no known study examines how often self-initiated grand jury investigative requests occur, the process of grand jury requests for additional evidence can be fairly informal and requests often are simply routed through the prosecutor. Occasionally, instances of grand jury investigative initiative come to light despite the opacity of grand jury secrecy barriers; such motivated grand juries often will draw the pejorative label "runaway grand jury." See, e.g., Beall, supra note 44, at 617.
320. FED. R. CRIM. P. 6(e)(2); PAUL S. DIAMOND, FEDERAL GRAND JURY PRACTICE AND PROCEDURE § 10.01(B) (4th ed. 2001).
321. See 1 BEALE ET AL., supra note 1, § 5:1; Daniel C. Richman, Grand Jury Secrecy: Plugging the Leaks in an Empty Bucket, 36 AM. CRIM. L. REV. 339, 352-53 (1999) (citing Douglas Oil Co. v. Petrol Oil Stops Nw., 441 U.S. 211, 219 n.10 (1979)).
322. See, e.g., United States v. Navarro-Vargas, 408 F.3d 1184, 1201 (9th Cir. 2005). Of course, grand jurors are often cognizant of strong public sentiment about the desirability of a certain prosecution and may act accordingly. However, were a grand jury to resist this pressure, it would do so knowing that the identities of the grand jurors would remain secret. See id.
323. See id. at 1201-02.
324. See id.
325. See, e.g., Stephanos Bibas, Transparency and Participation in Criminal Procedure, 81 N.Y.U. L. REV. 911, 916 (2006) (explaining how a lack of transparency "impairs outsiders' faith in the law's legitimacy and trustworthiness");
326. Mark Fenster, The Opacity of Transparency, 91 IOWA L. REV. 885, 910 (2006) (discussing the tensions between transparency and secrecy in a democratic government).
327. See Fenster, supra note 260, at 910-11. The cover of secrecy might empower a grand jury nullifying for so-called improper motives to do so without public scrutiny or accountability. The grand jury has certainly been a two-edged sword in this regard. For example, secrecy rules can enable jurors to act contrary to broader public opinion and avoid decisions motivated by race prejudice, something that might be difficult for petit jurors to do because their identities and decisions are exposed to the community. Cf. O'BRIEN, supra note 49, at 185 & n.14 (noting swiftness of the grand jury proceedings and grand jurors' isolation from the broader community during deliberation as central factors to securing a rare indictment in a 1942 Mississippi lynching case). Likewise, the grand jury's anonymity and unqualified power to decline to indict has created a situation ripe for manipulation by those who would use the nullification power to protect those accused of using murder and violence to oppress racial minorities. See United States v. Cox, 342 F.2d 167, 190 (5th Cir. 1965) (Wisdom, J., concurring specially); BLANCHE DAVIS BLANK, THE NOT SO GRAND JURY 6 (1993) ("[M]embers of the Ku Klux Klan were often protected by Southern grand juries against indictment under the Civil Rights Acts"); Brown, supra note 4, at 1171; Leipold, supra note 1, at 309.
328. At certain times, grand jurors were chosen for service in ways that may have affected the grand jury's accountability. Under one such method, the "key man" system, individuals (mainly men) were specifically selected for service on the grand jury because of their stature in the community. See ABRAMSON, supra note 241, at 99-100. The Jury Selection and Service Act, passed by Congress in 1968, rendered the "key man" method illegal. See 28 U.S.C. § 1861 (2000).
329. See supra Part II. Indeed, the Framers were likely familiar with the late seventeenth-century English experience of judges fining and jailing grand juries with whose decisions they did not agree. See SHAPIRO, supra note 14, at 55-56.
330. See United States v. Navarro-Vargas, 408 F.3d 1183, 1203 (9th Cir. 2005) (observing that executive, prosecutorial, and court-made determinations that certain laws are unwise or unconstitutional are public and subject to review).
331. See Bibas, supra note 260, at 923 (explaining that "[m]uch of the criminal justice system is hidden from [the public's] view" and noting that the public is unaware of many of the decisions that law-enforcement officers make on a daily basis).
332. See, e.g., Navarro-Vargas, 367 F.3d at 902 (Kozinski, J., dissenting) (describing the lack of electoral accountability for federal prosecutors). Perhaps the policy pronouncements from the Deputy Attorney General in the wake of the politically sensitive corporate scandals of the late 1990s provide a counterexample. See, e.g., Memorandum from Larry D. Thompson, Deputy Attorney Gen., to the Heads of Dep't Components, U.S. Attorneys (Jan. 20, 2003), available at http://www.usdoj.gov/dag/cftf/corporate_guidelines. htm (setting forth a revised set of principles for prosecutors deciding whether to bring charges against a business organization).
333. See ERWIN C. SURRENCY, HISTORY OF THE FEDERAL COURTS 390-91 (2002) (noting that the Constitution gives federal judges life tenure);
334. Michael W. Bowers, Public Financing of Judicial Campaigns: Practices and Prospects, 4 NEV. L.J. 107, 107 (2003) (noting that Massachusetts, New Hampshire, and Rhode Island afford judges life tenure).
335. See GUINTHER, supra note 241, at xiii, 47 (explaining that a petit jury is composed of a group of "strangers" representing a cross section of the community and noting that the members of a jury have "no continuing function" beyond returning a verdict).
336. See, e.g., Sisk, supra note 230, at 18.
337. But see Navarro-Vargas, 408 F.3d at 1203 (arguing that prosecutors and courts are accountable for their actions because they act transparently when determining that a law is unwise or unconstitutional).
338. See, e.g., Symposium, Overcriminalization: the Politics of Crime, 54 AM. U. L. REV. 541 (2005). But see Bonfield, supra note 175, at 390 (noting "reluctance among legislators to repeal existing enactments"); Brown, supra note 5, at 256-61 (noting that policymakers in the state systems, where the vast majority of American criminal law enforcement takes place, are more democratically responsive than their counterparts in the federal system);
339. Craig S. Lerner, Legislators as the "American Criminal Class": Why Congress (Sometimes) Protects the Rights of Defendants, 2004 U. ILL. L. REV. 599, 613, 622-27 (2004).
340. See Brown, supra note 5, at 232-33.
341. See supra section III.A.2.
342. 5 U.S.C. § 552 (2000).
343. FED. R. CIV. P. 26.
344. See, e.g., Bibas, supra note 260, at 923.
345. See id. at 912 (noting that prosecutors, along with others, "decid[e] which cases to charge, which crimes and defendants should receive probation, and what prison sentences are appropriate. They reach many of these decisions in private negotiating rooms and conference calls; in-court proceedings are mere formalities that confirm these decisions.").
346. See id.
347. See FED. R. EVID. 606(b) (prohibiting juror testimony about jury deliberations or a particular juror's mental processes during deliberations).
348. See Fong Foo v. United States, 369 U.S. 141, 143 (1962) (holding that the Double Jeopardy Clause bars retrial even if a trial judge's "acquittal was based upon an egregiously erroneous foundation"); Mannes v. Gillespie, 967 F.2d 1310, 1316 (9th Cir. 1992) (holding that the Double Jeopardy Clause bars retrial if a trial judge dismissed the charges against a defendant because of "insufficient evidence"); United States v. Giampa, 758 F.2d 928, 929 (3d Cir. 1985) (holding that a court cannot review a lower court acquittal without violating the Double Jeopardy Clause).
349. See Matthew Lynch, Closing the Orwellian Loophole: The Present Constitutionality of Big Brother and the Potential for a First Amendment Cure, 5 FIRST AMENDMENT L. REV. 234, 271 (2007) ("Because the laws do not open all political transactions and communications to the public eye, politicians may still make corrupt deals behind closed doors.").
350. Hutchinson, supra note 64, at 196 (emphasis omitted).
351. See supra subpart I.B.
352. Although some might argue that one can never be completely certain of a defendant's guilt, a prosecutor's estimation of a defendant's guilt may be stronger than that of a petit jury because of the prosecutor's other evidence. For example, a prosecutor may know of unconstitutionally obtained evidence or plea proffers that are inaccessible to the petit jurors.
353. See United States v. Navarro-Vargas, 408 F.3d 1184, 1193-95 (9th Cir. 2005) (discussing the traditional "screening function of the grand jury"). It should be noted that, in certain cases, the prosecutor may welcome a grand jury's exercise of discretion, see, e.g., HOWARD W. GOLDSTEIN, GRAND JURY PRACTICE § 4.02[2], at 4-9 (2007), particularly where action by the grand jury insulates the prosecutor from political pressure in favor of, or in opposition to, a potential prosecution. Cf., e.g., Bob Kemper, Grand Jury Refuses to Indict McKinney, ATLANTA J.-CONST., June 17, 2006, at A1;
354. McKinney Won't Be Indicted in March Incident with Capitol Police, Grand Jury Decides, CONG. Q. WKLY., June 19, 2006, at 1721.
355. See United States v. Navarro-Vargas, 367 F.3d 896, 900, 902-03 (9th Cir. 2004) (Kozinski, J., dissenting), vacated en banc, 382 F.3d 920 (9th Cir. 2004) (arguing that the grand jury is a check on prosecutorial discretion and "may consider the wisdom of the law in deciding whether to indict"). Grand jury discretion might actually serve to reduce the amount of petit jury nullification in the system. Where grand juries are cognizant of their robust discretion and, more importantly, citizens are familiar with and endorse the legitimacy of such discretion, so-called nullification might actually occur at the grand jury stage rather than the petit jury stage. Recognition of the grand jury's unique role and robust discretion may have the impact of ensuring greater fidelity by petit juries to deciding cases based solely on the evidence. Under this view, the grand jury would be the forum for considerations such as the wisdom of a law, justice ideals, or the redeeming qualities of a defendant; once the grand jury declines to derail the prosecution on such grounds, the petit jury's function is simply to test the sufficiency of the evidence and to convict a defendant if the government carries its burden of proof. See Robinson, supra note 191, at 403 ("Studies on jury nullification indicate that jurors frequently exercise their nullification power to circumvent specific rules when they believe that applying them would conflict with broad normative notions of justice.").
356. David Margolick, Law Professor to Administer Courts in State: Appointed by Wachtler to Supervise System, N.Y. TIMES, Feb. 1, 1985, at B2 (internal quotations omitted) (quoting Chief Judge Sol Wachtler of the New York Court of Appeals).
357. Of course, indictment itself adversely impacts the defendant. Indictment may diminish a defendant's bargaining power in the criminal justice system and levy a reputational, social, economic, and psychological toll upon an accused.
358. See Simmons, supra note 3, at 24 (stating that testimony of the potential defendant before the grand jury "makes sense if the grand jury is actually performing a broader, more political role"). If a defendant has been charged with a felony prior to grand jury indictment and arrested or summonsed, a defendant is obviously on notice that grand jury action is forthcoming. Even in cases in which the grand jury investigation precedes any contact with the target, a target may be placed on notice because witnesses are not bound by the same strict secrecy rules that cover almost all other aspects of a grand jury investigation. See FED. R. CRIM. P. 6(e). As a result, defendants will often become aware of a grand jury investigation through a confederate who has been subpoenaed to testify before the grand jury.
359. See Simmons, supra note 3, at 38 (explaining that prosecutors benefit from disclosure of the defendant's theory of the case so early on in the process).
360. See U.S. ATTORNEYS' MANUAL, supra note 173, § 9-11.153.
361. See Simmons, supra note 3, at 37 & n.173.
362. See id. at 37-38 (noting that a prosecutor may later use anything a defendant said in the grand jury proceeding).
363. See U.S. ATTORNEYS' MANUAL, supra note 173, § 9-11.152.
364. See Simmons, supra note 3, at 23-25. Recent trends indicate that in systems in which a defendant has the right to make a presentation to the grand jury, more grand jury targets take the opportunity to attempt to persuade the grand jury to reject charges. See, e.g., William Glaberson, New Trend Before Grand Juries: Meet the Accused, N.Y. TIMES, June 20, 2004, at N1. The absence of a double jeopardy rule in federal grand jury practice, however, makes a defendant's testimony before a federal grand jury dangerous. Even if one grand jury refuses to indict, the government could seek an indictment from a second grand jury and use any of a defendant's potentially incriminating statements from the defendant's earlier grand jury testimony.
365. Cf. Dan M. Kahan, Reciprocity, Collective Action, and Community Policing, 90 CAL. L. REV. 1513, 1538-39 (2002) (arguing that reciprocity and the promotion of trust, rather than traditional deterrence-based punishment, secure "socially desirable behavior");
366. Tracey L. Meares, Praying for Community Policing, 90 CAL. L. REV. 1593, 1595-96 (2002) (explaining that although critics of community policing contend that the alignment of police and community interests may compromise individual criminal rights, this alignment may also enable residents to "hold law enforcers accountable in order to better guide their exercise of discretion").
367. Cf. Kahan, supra note 296, at 1538-39 (concluding that fostering trust and reciprocal cooperation between the citizenry and police officers more effectively controls crime than standard policing methods do alone).
368. Cf. Edward Brunet, A Study in the Allocation of Scarce Judicial Resources: The Efficiency of Federal Intervention Criteria, 12 GA. L. REV. 701, 710 (1978) (asserting that increasingly important efficiency goals often lead to less accurate decision making).
369. Of course, in busy jurisdictions, it is not unheard of for a prosecutor to be assigned to try the case in the courtroom as the judge is taking the bench. Although these trials obviously do not receive the same amount of preparation as others, witness and court-personnel time are still a considerable cost.
370. See F. Andrew Hessick, III & Reshma M. Saujani, Plea Bargaining and Convicting the Innocent: The Role of the Prosecutor, the Defense, and the Judge, 16 BYU J. PUB. L. 189, 193 (2002) (asserting that jury nullification indicates that "the prosecutor has misallocated his resources and time in deciding to prosecute the case").
371. See Jury Selection and Service Act of 1968 § 101, 28 U.S.C. § 1861 (1968).
372. See supra section III.B.3. Conceivably, a petit jury could actually be exposed to more information than a grand jury because of the development of additional evidence during the postindictment investigation or because the prosecutor will hold back - and the grand jury may fail to request -
373. Of course, one may fairly argue that a public trial of the accused serves socially useful ends, even if petit jury nullification is likely to occur.
374. See Kuckes, supra note 7, at 1317 (concluding that recognizing the grand jury's function as a "democratic prosecutor" creates room for community values to influence prosecutorial charging decisions).
375. See supra subpart I.A.
376. See, e.g., United States v. Calandra, 414 U.S. 338, 343 (1974) ("[T]he Founders thought the grand jury so essential to basic liberties that they provided in the Fifth Amendment that federal prosecution for serious crimes can only be instituted by a presentment or indictment of a Grand Jury." (internal citations and quotations omitted)); Ex parte Bain, 121 U.S. 1, 12 (1887), overruled by United States v. Cotton, 535 U.S. 625 (2002); [pt. 3 vol. 1] BERNARD SCHWARTZ, A COMMENTARY ON THE CONSTITUTION OF THE UNITED STATES 84 (1968); SURRENCY, supra note 267.
377. See, e.g., Kuckes, supra note 1, at 1-2; Leipold, supra note 1, at 286-88.
378. See Leipold, supra note 1, at 263 ("The grand jury is frequently criticized for failing to act as a meaningful check on the prosecutor's charging decisions; according to the clichés it is a 'rubber stamp,' perfectly willing to 'indict a ham sandwich' if asked to do so by the government." (citations omitted)); see also Peter J. Henning, Prosecutorial Misconduct in Grand Jury Investigations, 51 S.C. L. REV. 1, 4-6 (1999) (considering critiques of the grand jury's lack of independence from the prosecutor).
379. See Bibas, supra note 260, at 912; Kuckes, supra note 7, at 1307-08; Adriaan Lanni, The Future of Community Justice, 40 HARV. C.R.-C.L. L. REV. 359, 369-70 (2005) (discussing "community prosecution" that "permit[s] local citizens to influence law enforcement and charging decisions traditionally left to the prosecutor's discretion").
380. See supra subpart I.B.
381. Of course, whether a petit jury or judge would have done such a thing in a given case is a matter of conjecture.
382. See, e.g., Margolick, supra note 287, at B2.
383. See FED. R. CRIM. P. 4.
384. See FED. R. CRIM. P. 5.1.
385. See FED. R. CRIM. P. 6(f); ADMIN. OFFICE OF THE U.S. COURTS, supra note 8, at 3 (noting that "[i]f the grand jury finds probable cause to exist, then it will return a written statement of the charges called an 'indictment'").
386. For example, a grand jury indictment before arrest obviates the need for a probable cause determination related to the complaint, and a grand jury indictment returned before a preliminary examination obviates the need for a probable cause determination at that stage. See FED. R. CRIM. P. 5.1(a)(2), 9(a); see also Kuckes, supra note 7, at 1281-82 (noting that courts view preliminary hearings following grand jury indictment as duplicative).
387. It remains important to note that new charges may develop by the time a case reaches the indictment stage. As a result, the grand jury often passes upon counts that judicial officers have not reviewed.
388. See EDWARDS, supra note 87, at 35.
389. See Leipold, supra note 1, at 294-304.
390. See id.
391. See Kuckes, supra note 7, at 1294-99.
392. See supra subpart II.B.
393. Leipold, supra note 1, at 307.
394. See Model Grand Jury Charge, supra note 7 ("The purpose of the Grand Jury is to determine whether there is sufficient evidence to justify a formal accusation against a person - that is, to determine if there is 'probable cause' to believe the person committed a crime. . . . [Y]ou should vote to indict where the evidence presented to you is sufficiently strong to warrant a reasonable person's belief that the person being investigated is probably guilty of the offense charged.").
395. Cf. KALVEN, supra note 11, at 498 (1966) ("Perhaps one reason why the [petit] jury exercises its very real power [to deviate from the judge] so sparingly is because it is officially told it has none."); Brody, supra note 10, at 91-93. However, it remains to be seen whether resistance - on both policy and constitutional grounds - to the notion that grand juries should exercise discretion on bases beyond sufficiency of the evidence will prevent such instructions from being implemented voluntarily or deemed mandatory under the Fifth Amendment's Grand Jury Clause. See United States v. Navarro-Vargas, 408 F.3d 1184, 1210-11 (9th Cir. 2005) (Hawkins, J., dissenting); supra note 118.
396. Leipold, supra note 1, at 310.