The bench and the bar overstate the importance of the grand jury in deciding whether there should be a criminal prosecution. In fact, the decisions of the grand jury in Ferguson, Mo., and in the case involving the death of Eric Garner in New York, raise the question of whether the criminal justice system can really function without the requirement of a grand jury proceeding altogether.
It is true that the institution is specifically provided for in the Fifth Amendment with respect to federal prosecutions and is considered a part of due process, encompassed by the Fourteenth Amendment. The history of the grand jury is rooted in the common and civil law, going back to pre-Norman England and was promulgated during the reign of Henry II. American judges have expounded that the grand jury is an integral part of our constitutional heritage, brought to this country with the common law. The Framers, most of them trained in English law, required the grand jury as a basic guarantee of individual liberty.1
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