Over 40 years ago, a special State Bar Association committee undertook a study of the grand jury system in New Jersey, and concluded with a recommendation that the system as it then existed be abolished and replaced with an adversary probable-cause hearing. Given the magnitude of the proposed change and the lack of any apparent urgency at the time, it is not surprising that no legislative action was taken. Recent events, though, have revived the controversy. The system today is still that which the committee addressed decades ago. The reasons for change have finally come into sharp focus, and the need for a new system, or at least a new investigation, is now compelling.

What is remarkable about the recent events in Missouri and Staten Island is how the grand jury system worked in a manner radically different from how it traditionally operates. There is no need here to revisit the historical origins of the grand jury, designed to act as a bulwark between the citizen and arbitrary and vindictive action by the prosecuting authority, which in the old days took the form of the Crown. Despite its beneficent origins, the system, as transported to the United States, morphed over time into quite a different creature. That change was best exemplified by the statement of former Chief Judge of the New York Court of Appeals, Sol Wachtler, later quoted in the novel “Bonfire of the Vanities,” that a prosecutor could, if he wanted, “indict a ham sandwich.” (Ironically, as we know, Wachtler himself was later indicted.)

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