The concept of the grand jury investigation has now devolved into little more than a rubber stamp for prosecutors. Our Supreme Court has blunted countless efforts by defense attorneys to challenge the actions of prosecutors who convene grand juries to effortlessly sell litigation to an otherwise impotent audience. The original concept of the grand jury provided that selected members from the community served as an investigatory conference. Members were not specifically endowed with legal training but brought to the table a healthy curiosity, skepticism, and the power to subpoena.
Today’s grand juries have succumbed to prosecutorial domination. Our courts have deferred to the prosecutors’ unilateral actions and have largely refused to challenge the current process.
In reality, courts deem the grand jury as independent of judicial control in order to preserve its otherwise non-existent investigatory function. Meanwhile, prosecutors maintain the primary function of directing the investigation by merely regurgitating pre-determined conclusions before a largely receptive law-enforcement-biased audience.
A grand jury is a sharp tool in the prosecutor’s arsenal when the prosecutor is seeking to criminalize conduct that is merely questionable, dubious, or political. Insofar as a grand jury indictment serves to bypass the judicial oversight of a preliminary hearing, it is subject to abuse.
In Los Angeles today, our grand jury only hears those cases presented by a prosecutor; and only the prosecution’s side of the case. He or she is responsible for selecting the witnesses who will articulate the story-line the prosecutor wishes to present without regard to counter-availing evidence. As a public official and lawyer, the prosecutor commands considerable respect by the lay persons who make up the grand jury. With this power comes the inherent danger that the prosecutor may prejudice and even manipulate the grand jurors who may not appreciate the subtle insinuations embedded into the one-sided presentation leading to a practically-ensured indictment.
Quite often, prosecutors look to the grand jury to do the bidding that a simply crafted criminal complaint otherwise cannot accomplish because the process of bringing suit via complaint necessarily requires judicial oversight. In a very real sense, the grand jury has become the “tool” for prosecutors who do not wish to protect the interests of the accused. An indictment by its very nature side-steps judicial oversight and avoids having a judge determine whether a complaint is based on probable-cause.
Since prosecutors play such a significant role in the indictment procedure; and the incidence of prosecutorially instigated prejudice and abuse is a normal function of the process, the judiciary is hereby encouraged to take a more significant role to ensure that the grand jury functions as it was intended — to protect the accused.