By Roger A Fairfax, Jr. Full text here.
For the first 150 years of our constitutional history, a valid grand jury indictment was deemed to be a mandatory prerequisite to a federal court’s exercise of criminal subject matter jurisdiction. Under that view of the Grand Jury Clause, a defendant in a federal felony case could neither waive nor forfeit the right to grand jury indictment. A critical examination of the historical evidence reveals that the legal realist criminal procedure reform project of the early twentieth century advanced a pragmatic critique of the usefulness of the grand jury that culminated in a provision of the Federal Rules of Criminal Procedure allowing for waiver of grand jury indictment for the purpose of facilitating a pre-indictment guilty plea, a procedural efficiency mechanism still used with regularity in federal courts today. The reformers were able to secure the waiver provision—despite serious constitutional concerns—by shaping a pro-efficiency modern understanding of the grand jury that obscured—but did not disprove—the grand jury’s jurisdictional significance. This Article argues that the reformers prompted the subversion of the mandate of the Grand Jury clause, and burdened our legal consciousness with a diminished respect for the grand jury that affects our understanding of the grand jury’s place in the constitutional structure to this day. This Article recovers the “jurisdictional heritage” of the grand jury and criticizes the modern understanding for its unjustified dismissal of the grand jury’s jurisdictional significance. The Article places blame for the continued confusion in the federal courts regarding the relationship of grand jury and jurisdiction squarely on the weak historical and logical underpinnings of the modern understanding. The Article also contextualizes the grand jury’s jurisdictional heritage within the broader contemporary discussion of “pro-defendant” formalist or originalist approaches to defining criminal procedural rights recently applied by the Supreme Court. Finally, the Article argues that the failure to account properly for the jurisdictional heritage of the grand jury frustrates the grand jury’s fulfillment of its role in the constitutional design.