The ever thoughtful Chief Judge Sol Wachtler famously, and indeed somewhat scornfully, maintained that “a grand jury could indict a ham sandwich.” Ever since, those who toil in the professional provinces of the “criminal world,” if you will, have wondered whether there is really any benefit to criminal justice—or more particularly to criminal defendants—in a system that permits felonies to be prosecutable only by grand jury indictment. This is, of course, the current state of affairs unless a defendant pleads guilty before an indictment.

Basically, Judge Wachtler’s comment was an observation on how the grand jury as now applied has lost its original historical “protective” purpose. The grand jury system was intended in 1215 at Runnymede, when King John was held hostage, to protect defendants from misguided and haphazard prosecutions, but it has systematically failed over time to do so. Hence, the indicted ham sandwich, which is actually innocent (the Hebrew Bible injunction notwithstanding).

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