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Justice or Politics?
accidental, or otherwise scarred
by gratuitously high-handed or
perverse employment of the grand
jury’s great authority. (Published by
Hill & Wang, New York, 1977.)
While in Multnomah County there
is no reason to believe this abuse is
common or even exists, the public
should be aware that the potential for
harm is real. In an atmosphere of
secrecy, where there is no public record,
the tone, attitude or conduct of the
prosecutor may leave such a mark upon
a jurist’s mind that an impression of a
subject’s guilt remains whether or not an
indictment is handed down. Remarks to
that effect may become public and find
their way into the media, rendering a
person condemned by opinion rather
than by rule of law.
Ambitious
prosecutors can
conduct these
proceedings in
a manner
which threatens
the rights
o f individuals
who are being
investigated or
subpoenaed as
witnesses._______
In addition, there is a basic question
of fairness. At a preliminary hearing,
the accused has the right to counsel, is
confronted by adverse witnesses, can
cross-examine witnesses, and can
present his own case. With the grand
jury, no such right exists. Likewise,
under the court’s proceedings, a record
is kept, but with the grand jury there is
work can be remedied by regulating the
role as is already done in legislative
hearings and administrative proceedings.
none. Given the disparity of the two
proceedings and the potential for
different outcomes, should the decision
of how to proceed be left entirely to the
predilections of one elected official?
Some critics have suggested that a
way around these inequities and the
potential for abuse is to abolish grand
juries all together. England did so in
1933 and more recently, so did the state
of Minnesota. But such radical surgery
takes with it all the benefits the grand
jury provides.
c. A witness called before a grand
jury should uniformly be informed of
his or her rights, the subject of the
inquiry and of the possible dangers to
him or herself. Failure to comply with
this routine instruction would mean that
testimony taken in such circumstances
could not be used later.
Some critics have
suggested that a
way around these
inequities and
the potential
for abuse is to
abolish grand
juries all together.
d. Though Oregon requires that
evidence presented before a grand jury
be also admissible in court, the State
requires no formal record of the
proceedings. A record should be kept,
except for deliberations by the grand
jurors. It would include not only
testimony given by witnesses but also
the instructions and directions of the
prosecutor. Again, as Frankel and
Naftalis observe,
The knowledge that a record
is being kept is a sobering
prophylactic against casual,
slipshod, or malevolent
behavior. (IBID)
The record would not have to be
transcribed except in deserving cases
or upon motion by the defendant.
e. There are bills pending in
Congress which would require that
federal grand jurors be instructed in
their duty by a judge rather than left
to the sole charge of the prosecution.
Questions of immunity, the rights
of witnesses, and rules of evidence
would be outlined in an effort to give
those impaneled a sense of their
independence. Similarly, the State
should consider implementing this
procedure.
A greater degree of change might
be to assign a presiding judge or
independent counsel to the jurors. With
their own resources, grand juries are in
a position to review a total body of
information rather than relying upon
evidence presented at the district
attorney’s discretion. Under this
proposed arrangement, the current dual
proceedings system would disappear.
The work of die judge at a preliminary
A less extreme approach would be to
institute reforms. Below are a few
modest proposals:
a. Some guidelines on when grand
juries are to be called should be
considered. As stated earlier, rape
victims and abused children may need to
be protected by the secrecy which grand
juries allow. In most other instances,
however, fairness requires that the
treatment of cases should be uniform,
complying with a logic which all the
players understand. Without guidelines,
nothing but the district attorney’s good
judgement or character prevents the
grand jury from being used for political
ends or to harass the unorthodox and the
unpopular.
b. A witness should have the right
to have a lawyer present in the grand
jury room. Arguments that the presence
of counsel would delay the grand jury’s
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