Review by a grand jury is meant to protect suspects from inappropriate prosecution by the government, since grand jurors are drawn from the general population.. In federal courts, the ju
Trang 1and several media outlets declared him the unofficial winner However, vote tallies from the late afternoon and early evening revealed that Bush had closed the gap By the evening of November 7, the totals showed that although Gore had won the popular vote, Bush won the ELECTORAL COLLEGE Gore immediately requested
a recount of the votes in the state of Florida, where voting procedures had caused a great deal of controversy For the next month, the results of the election hung in the balance as both sides postured in a series of court disputes However, the U.S Supreme Court,
inBUSH V.GORE, 531 U.S 98, 121 S Ct 525, 148
L Ed 2d 388 (2000), overturned an order by the Florida Supreme Court requiring a recount
of ballots in several counties Gore then conceded the election to Bush
In 2001 Gore accepted a position at the Columbia Graduate School of Journalism as a visiting professor He has also accepted teaching positions at universities in his home state of Tennessee Although many observers expected him to run again for president in the 2004 elections—and although a number of grassroots organizations had urged his running—Gore announced in December 2002 that he would not enter the race.“I personally have the energy and drive and ambition to make another campaign, but I don’t think it’s the right thing for me to do,” he said in an interview with the CBS program 60 Minutes “I think that a campaign that would be a rematch between myself and President Bush would inevitably involve a focus on the past that would in some measure distract from the focus on the future that I think all campaigns have to be about.”
By 2006 Gore had reinvented himself as a leading, vocal environmentalist That year, his global warming documentary, An Inconvenient Truth, was wildly popular It became the third highest grossing documentary of all time An Inconvenient Truth won Gore and the other filmmakers an Academy Award for best docu-mentary and numerous other awards The film was not Gore’s only media work He was also the creator of Current TV, an interactive cable network targeted at young people In addition, Gore was the co-organizer of July 7, 2007, Live Earth: The Concert for a Climate in Crisis This media event in which live concerts took place
on all seven continents and aired world-wide to raise awareness about environmental issues
With the success of An Inconvenient Truth,
as well as its companion book of the same name, Gore was repeatedly asked if he would run for president in 2008 He denied any further political ambitions and never sought the presidency in 2008 He found it easier to push for environmental change outside of political office However, call for Gore to run only increased after he was the co-winner of the 2007 Nobel Peace Prize for his environmental work Instead, Gore has continued his activist work and he joined the venture capital firm, Kleiner Perkins Caufield & Byers, as a partner in November 2007 For all his success and influence, Time magazine named him
runner-up to person of the year in 2007 His most recent book, Our Choice: A Plan to Solve the Climate Crisis, was pubished in November 2009
FURTHER READINGS Gore, Al 2007 The Assault on Reason New York: Penguin Press.
“Gore Says He Won’t Run in 2004.” 2002 CNN.com: Inside Politics Available online at <www.cnn.com/2002/ ALLPOLITICS/12/15/gore/index.html> (accessed Au-gust 18, 2009).
Turque, Bill 2000 Inventing Al Gore: A Biography Boston: Houghton Mifflin.
GOVERNMENT INSTRUMENTALITY DOCTRINE
A rule that provides that any organization run by
a branch of the government is immune from taxation
GOVERNMENT NATIONAL MORTGAGE ASSOCIATION The Government National Mortgage Associa-tion (GNMA), also known as Ginnie Mae, is a corporation wholly owned by the federal government Created by the Housing and Urban Development Act of 1968, 825 Stat
491, GNMA is designed to support the federal government’s housing programs by establishing
a secondary market for the sale and purchase of residential mortgages
During the late 1960s, the federal govern-ment expressed concern that available credit for low-income housing was insufficient to meet the growing demand In response, GNMA began issuing certificates to obtain additional funds for government-backed, low-income mortgages GNMA certificates entitle their holders to receive
a portion of the income derived from a
128 GOVERNMENT INSTRUMENTALITY DOCTRINE
Trang 2residential mortgage pool approved by the
government
A residential mortgage pool consists of a
group of mortgages that are issued by private
lenders, including commercial banks and
sav-ings and loan institutions Each mortgage pool
includes 1,000 residential mortgages
The revenue generated by the sale of these
pools helps make additional credit available
for low-income residential mortgages insured by
government agencies such as the Federal Housing
Administration (FHA), the Department of
Veter-ans Affairs (VA), and the Farmers Home
Admin-istration TheDEPARTMENT OF HOUSING AND URBAN
DEVELOPMENT, which is responsible for
administer-ing GNMA, oversees the entire program
GNMA mortgage pools and
mortgage-backed SECURITIES (MBSs) are considered stable
investments by securities dealers and investors
alike The timely payment of principal and
interest on each mortgage is guaranteed by
GNMA and the full faith and credit of the federal
government GNMA enjoys unlimited authority
to borrow funds from the U.S Treasury in order
to make good on this guarantee
By developing a stable and viable secondary
market for government-backed residential
mortgages, GNMA has originated more than
$2.8 trillion in securities trading The revenue
generated through this secondary market has
enabled millions of low-income families to
purchase homes and provided the U.S Treasury
with annual receipts sometimes exceeding $400
million
In 1994 President BILL CLINTON outlined the
National Homeowners Strategy, which spurred
GNMA to undertake an intense and sweeping
review of its practices and programs In
addition, GNMA has been working to satisfy
internal mandates that require it to enhance its
customer service, improve its relations with
other businesses, and better market its
securi-ties GNMA has incorporated the latest
tech-nology and automation to achieve these goals
and has hired consultants to market its
residential mortgage pools
GNMA continues to streamline its
docu-mentation procedures and make efforts to
eliminate paperwork, such as accepting
electron-ic confirmation of insurance rather than relying
on paper insurance certificates It has begun an
ambitious program to increase home ownership
by minority families Since its inception in 1968, GNMA has given more than 35 million families access to affordable mortgage costs
GNMA’s mortgage-backed securities (MBSs) fared better than others during the housing FORECLOSURE and mortgage crisis of 2008 and early 2009 because GNMA’s are the only ones to carry the full faith and credit GUARANTY of the United States government In fact, as investors fled the private mortgage securities market (led
by private lenders without government backing) following its collapse, GNMA actually grew in
2009 It announced that for the first six months
of 2009, it had provided nearly $207 billion of liquidity to the MBS secondary market, com-pared with $107 billion for the first six months
of 2008
FURTHER READINGS Benson, John D 1991 “Ending the Turf Wars: Support for a CFTC/SEC Consolidation ” Villanova Law Review 36.
Ginnie Mae 2009 Available online at tp://www.ginniemae.
gov/about.asp?section=about; website home page:
http://www.ginniemae.gov/ index.asp (accessed Sep-tember 10, 2009).
Hadaway, Beverly L., and Paula C Murray 1986 “Mortgage Backed Securities: An Investigation of Legal and Financial Issues ” Journal of Corporation Law 11.
Malloy, Robin P 1986 “The Secondary Mortgage Market: A Catalyst for Change in Real Estate Transactions ” Southwestern Law Journal 39.
CROSS REFERENCES Corporations; Credit; Guarantor; Foreclosure; Mortgage
GOVERNMENT PRINTING OFFICE Since the mid-nineteenth century, one govern-ment establishgovern-ment has existed to fill the printing, binding, and distribution needs of the federal government Established on June 23,
1860, by CongressionalJOINT RESOLUTIONNo 25, the Government Printing Office (GPO) has provided publication supplies and services to the U.S Congress, the executive departments, and all other agencies of the federal govern-ment The definition of the duties set forth in the 1860 resolution has stayed essentially the same over the years, with only one amendment
in all that time, 44 U.S.C.A § 101 et seq
The GPO is overseen by the Congressional Joint Committee on Printing The head of the GPO works under the title public printer and is appointed by thePRESIDENT OF THE UNITED STATES with the consent of the Senate The public printer is also legally required to be a“practical
GOVERNMENT PRINTING OFFICE 129
Trang 3printer versed in the art of bookbinding” (44 U.S.C.A § 301)
The GPO uses a variety of printing and binding processes, including electronic photo composition; letterpress printing; Linotype and hand composition; photopolymer platemaking;
offset photography; stripping, platemaking, and presswork; and manual and machine book-binding The GPO also provides supplies such
as blank paper and ink to federal agencies, prepares catalogs, and sells and distributes some publications to civilians
The GPO offers catalogs that detail publica-tions available to the public All catalogs are available from the superintendent of documents
at the GPO The GPO Sales Publications Reference File, which is issued biweekly on magnetic tape, lists the author, the title, and subject inform-ation for each new publicinform-ation A more
comprehensive listing, the Monthly Catalog of U.S Government Publications, serves as an index
to all the publications handled by the GPO The GPO also offers two free catalogs for people who are interested in new or popular pub-lications: U.S Government Books and New Books The first lists the titles of best-selling govern-ment publications, and the second is a bimonthly listing of government publications for sale The approximately 20,000 publications listed
in these catalogs can be purchased by mail from the GPO’s superintendent of documents In addition, the books and catalogs published by the GPO can be purchased at the approximately two-dozen GPO bookstores open to the public Most of the bookstores are located in govern-ment hub cities such as Washington, D.C., Atlanta, Chicago, Dallas, Houston, and Los Angeles Publications are also available for public
Government Printing Office
Public Printer
Deputy Public Printer
Chief Management Officer Acting Superintendent
of Documents Chief of Staff
Chief Technology
Officer
Inspector General
Congressional
Relations
Equal Employment Opportunity
General Counsel Quality Assurance
Library Services &
Content Management
Publication &
Information Sales
Official Journals of Government
Plant Operations
Security & Intelligent Documents
Agency Accounts
& Marketing
Operations Support Print Procurement Information Technology
and Systems
Environmental Services
Labor Relations
Human Capital
Acquisitions
Finance &
Administration
Communications
Office
ILLUSTRATION BY GGS
CREATIVE RESOURCES.
REPRODUCED BY
PERMISSION OF GALE,
A PART OF CENGAGE
LEARNING.
130 GOVERNMENT PRINTING OFFICE
Trang 4perusal at select depository libraries around the
United States
Owing to the large volume of documents
produced by the various federal agencies, the
GPO does not handle all of the printing and
binding services for the government In some
instances, the GPO takes bids from commercial
suppliers and awards contracts to those with the
lowest bids From there, the GPO serves as a
connection between ordering agencies and
con-tractors The booklet How to Do Business with the
Government Printing Office provides a
back-ground and instructions for contracting with
the GPO and submitting bids The booklet can be
requested from any GPO regional printing
procurement office Any printing or binding
contract inquiries can be directed to one of
13 offices, located in Atlanta; Boston; Chicago;
Columbus, Ohio; Dallas; Denver; Hampton,
Virginia; Los Angeles; New York; Philadelphia;
St Louis; San Francisco; and Seattle
Since the mid-1990s many of the
docu-ments published by the GPO have been
available in electronic formats During the
mid-1990s, GPO distributed CD-ROM
pro-ducts containing government documents to
thousands of American libraries Many of these
documents are now available through GPO’s
Web site, known as GPO Access The site
contains hundreds of thousands of individual
documents from the various federal
depart-ments and agencies It has become particularly
useful for attorneys who need to locate such
information as administrative regulations and
LEGISLATIVE HISTORYof federal statutes
FURTHER READINGS
“Keeping America Informed: The United States Government
Printing Office.” Available online at http://www.access.
gpo.gov/congress/gpopub250-2.pdf; website home page:
http://www.access.gpo.gov (accessed July 27, 2009).
U.S Government Manual Website Available online at http://
www.gpoaccess.gov/gmanual/index (accessed July 21,
2009).
U.S Government Printing Office 2001 Guide to Federal
Publishing Washington, D.C.: Government Printing
Office.
CROSS REFERENCES
Congress of the United States; Legislative History.
GRAB LAW
State statutory provisions and common-law
principles that govern the aggressive use of legal
and equitable remedies, such as attachment and
garnishment, by creditors to collect payment from debtors
State laws governing debtor and creditor transactions emphasize the importance of prompt action by creditors to ensure payment
of the debtor’s outstanding debts For example, the first creditor to attach the debtor’s property
is most likely to be paid The quicker the creditor acts to seize or “grab” the debtor’s assets, the greater the chance the creditor’s claims will be satisfied As a result, grab law has come to designate aggressive, but legal, methods used by creditors to enforce their rights to payment against delinquent debtors
GRACE PERIOD
In insurance law, a period beyond the due date of
a premium (usually thirty or thirty-one days) during which the insurance is continued in force and during which the payment may be made to keep the policy in good standing The grace period for payment of the premium does not provide free insurance or operate to continue the policy in force after it expires by agreement of the parties Grace period may also refer to a period of time provided for in a loan agreement during which default will not occur even though a payment is overdue
GRADUATED TAX Tax structured so that the rate increases as the amount of income of taxpayer increases
GRAFT
A colloquial term referring to the unlawful acquisition of public money through questionable and improper transactions with public officials
Graft is the personal gain or advantage earned by an individual at the expense of others
as a result of the exploitation of the singular status of, or an influential relationship with, another who has a position of public trust or confidence The advantage or gain is accrued without any exchange of legitimate compensa-tory services
Behavior that leads to graft includesBRIBERY and dishonest dealings in the performance of public or official acts Graft usually implies the existence of THEFT, corruption, FRAUD, and the lack of integrity that is expected in any transaction involving a public official
GRAFT 131
Trang 5GRAND JURY
A panel of citizens that is convened by a court to decide whether it is appropriate for the govern-ment to indict (proceed with a prosecution against) someone suspected of a crime
An American institution since the colonial days, the grand jury has long played an important role in CRIMINAL LAW The FIFTH AMENDMENT to the U.S Constitution says that a person suspected of a federal crime cannot be tried until a grand jury has determined that there is enough reason to charge the person
Review by a grand jury is meant to protect suspects from inappropriate prosecution by the government, since grand jurors are drawn from the general population It has been criticized at times as failing to serve its purpose
The grand jury system originated in twelfth-century England, when King Henry II enacted theASSIZEof Clarendon in order to take control
of the courts from the Catholic Church and local nobility The proclamation said that a person could not be tried as a criminal unless a certain number of local citizens appeared in court to accuse him or her of specific crimes
This group of citizens, known as the grand assize, was very powerful: It had the authority to identify suspects, present evidence personally held by individual jurors, and determine whether to make an ACCUSATION Trial was by ordeal, so accusation meant that conviction was very likely (Trial by ordeal involved subjecting the DEFENDANT to some physical test to deter-mine guilt or innocence For example, in ordeal
by water, a suspect was thrown into deep water:
if he or she floated, the verdict was guilty; if the suspect sank, the verdict was innocent.) The grand assize was not designed to protect suspects, and it changed very little over the next five hundred years Then, in 1681, its reputation began to evolve An English grand jury denied King Charles II’s wish for a public hearing in the cases of two Protestants accused of TREASON for opposing his attempts to reestablish the Catholic Church The grand jury held a private session and refused to indict the two suspects
This gave the grand jury new respect as a means
of protection against government bullying (although ultimately in those particular cases, the king found a different grand jury willing to indict the suspects)
After this small act of rebellion, the grand jury became known as a potential protector of
people facing baseless or politically motivated prosecution The early colonists brought this concept to America, and by 1683, all colonies had some type of grand jury system in place Over the next century, grand juries became more sympathetic to those who resisted British rule In 1765, for example, a Boston grand jury refused to indict leaders of protests against the STAMP ACT, a demonstration of resistance to colonialism
The grand jury was considered important enough to be incorporated into the U.S Constitution, and has remained largely un-changed Grand juries are used in the federal and most state courts Federal grand juries use a standard set of rules States are free to formulate their own pretrial requirements, and they vary greatly in the number of grand jurors they seat, the limits they place on the deliberations of those jurors, and whether a grand jury is used at all federal courts use a grand jury that consists
of 23 citizens but can operate with aQUORUMof
16 Twelve jurors’ votes are required for an INDICTMENT States use a grand jury consisting of
as few as five but no more than 23 members Grand juries are chosen from lists of qualified state residents ofLEGAL AGE, who have not been convicted of a crime, and who are not biased against the subject of the investigation
The usual role of a grand jury is to review the adequacy of evidence presented by the PROSECUTOR and then decide whether to indict the suspect In some cases, a grand jury decides which charges are appropriate Generally, grand jurors do not lead investigations, but can question WITNESSES to satisfy themselves that evidence is adequate and usable The prosecutor prepares a BILL OF INDICTMENT(a list explaining the case and possible charges) and presents evidence to the grand jury The jurors can call witnesses, including the target of the investiga-tion, without revealing the nature of the case They call witnesses by using a document called a SUBPOENA A person who refuses to answer the grand jury’s questions can be punished for contempt of court However, no witness need answer incriminating questions unless that witness has been granted IMMUNITY In federal courts, the jurors may accept hearsay and other evidence that is normally not admissible at trial
If the grand jury agrees that there is sufficient reason to charge the suspect with a crime, it returns an indictment carrying the
132 GRAND JURY
Trang 6words true bill If there is insufficient evidence
to satisfy the grand jury, it returns an
indict-ment carrying the words no bill
Seldom do grand juries issue documents
However, when given a judge’s permission to do
so, they may use a report to denounce the
conduct of a government figure or organization
against whom an indictment is not justified or
allowed This occurred in 1973, when U.S
district court judge John J Sirica allowed the
grand jury investigating the WATERGATE scandals
to criticize President Richard Nixon’s conduct in
covering up the involvement of his
administra-tion in the June 17, 1972, BURGLARY of the
Democratic National Committee headquarters in
the Watergate Apartment and Hotel complex
The judge recommended that the report be
forwarded to the House Judiciary Committee to
assist in proceedings to IMPEACH the president
Many states allow the issuance of grand jury
reports, but limit their use: The target must be
a public official or institution who can be
denounced only where statutory authority exists,
and the resulting document can be released
publicly only with a judge’s approval
In February 1996, for the first time in
history, a first lady of the United States was
required to appear before a grand jury.HILLARY
RODHAM CLINTONtestified for four hours before a
federal grand jury on the disappearance and
reappearance of billing records related to her
representation of a failed investment institution
that was under scrutiny when she was an
attorney in Arkansas Her testimony was part
of the WHITEWATER investigation, which
exam-ined past financial dealings of Hillary Rodham
Clinton, PresidentBILL CLINTON, and others
Critics have complained that the grand jury
offers witnesses and suspected criminals
insuf-ficient protection The cause of the controversy
is the set of rules that govern the operation of
federal grand juries For example, a prosecutor
manages the work of the grand jury, which
some say is contradictory since the job of
prosecutor is to prove a defendant’s guilt
Another contradiction, according to critics, is
that a defense attorney does not represent the
suspect Instead, prosecutors may be required in
state grand jury proceedings to present, on
behalf of the suspect, information that they feel
is exculpatory (so strong that it could create a
REASONABLE DOUBT that the suspect committed
the crime); however, the U.S Supreme Court
has held that federal prosecutors are not required to do so in federal grand jury proceedings (United States v Williams, 504 U.S 36 [1992]) In arguing that a suspect should be charged, prosecutors may make arguments and use information that would normally not be admissible during a trial
Witnesses who are called before a grand jury are not allowed to have an attorney present when they testify This holds true for a witness who may be a suspect A final concern is that grand juries meet in secret, and a formal record
of federal grand jury proceedings is not usually provided to the suspect even after indictment
Critics of the current system claim that justice is ill served by these rules They say that ambitious prosecutors may be tempted to misuse the powers of a nonprofessional grand jury to harass, trap, or wear down witnesses
For example, activists who opposed theVIETNAM WAR during the 1960s and 1970s accused the JUSTICE DEPARTMENT of abusing the grand jury system as it searched for information about political dissidents The activists believed that the department used the power and secrecy of the grand jury to intimidate witnesses and fish for evidence Members of the news media, the business community, and organized labor, have also criticized the institution
Supporters of the current system say that the secrecy of the grand jury’s work prevents several things, including a suspect from escap-ing, attempts to influence jurors, and the coaching or intimidation of witnesses Suppor-ters also contend that the system encourages candid testimony and protects the privacy of innocent suspects who are later cleared Re-garding witnesses’ lack ofLEGAL REPRESENTATION, supporters of the STATUS QUO point out that delay, disruption, and rehearsed testimony would lessen the efficiency of the grand jury’s work and would result in a MINITRIAL Similar arguments have been made against limiting evidence that would not be admissible at trial
In addition, federal courts have held that because the rights of a suspect are adequately protected during trial, where the strength or weakness of evidence determines the verdict, no examination of grand jury indictment proceed-ings is necessary
Grand juries also face criticism in the area
of jury selection, especially with high-profile cases Criticism focuses on bias and a lack of
GRAND JURY 133
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Be Abolished?
Though the grand jury has existed in
the United States since the colonial
period, and the FIFTH AMENDMENTto the
U.S Constitution requires its use in
federal criminal proceedings, it has come
under increasing attack Critics charge
that it no longer serves the functions the
Framers intended, and therefore should
be abolished Defenders admit there may
be some problems with it, but contend
that these can be remedied
Critics aim their attacks at both
federal and state grand juries They note
that a grand jury has two functions One
is to review evidence of criminal
wrong-doing and to issue an INDICTMENT if the
evidence is sufficient The other is to be
an investigative arm of the government,
helping the PROSECUTOR gather evidence
Critics contend that in both areas
contemporary grand juries have failed
In reviewing evidence of criminal
wrongdoing, a grand jury is supposed to
act as a shield against ill-conceived
or MALICIOUS prosecutions Yet critics
charge that grand juries typically
rubber-stamp the prosecution’s moves, indicting
anyone the prosecutor cares to bring
before it
Historically the grand jury was not
dominated by a professional prosecutor
Without a strong attorney leading the
way, the grand jury was forced to be
independent and diligent in reviewing
evidence brought before it
Critics note that many states
abol-ished all or part of the grand jury’s
jurisdiction at the end of the nineteenth
century, in large part because the process
had come increasingly under the control
of prosecutors States acknowledged that
a professional criminal prosecutor did
not need a grand jury’s assistance in the
charging process The prosecutor was
capable of making an independent,
DISINTERESTEDreview of the need to bring
charges Though 48 states have grand
juries as part of their criminal justice
system, many of these judicial bodies are
now reserved for serious felonies, usually first-degreeMURDER
Those who favor ABOLITION of the grand jury argue that the domination of the prosecutor has led to a passivity that destroys the legitimacy of the grand jury concept Most grand jurors have little background in law and must rely on the prosecutor to educate them about the applicable law and help them apply the law In addition, at the federal level, there are very complex criminal laws, like the Racketeer Influenced and Corrupt Orga-nizations statute Even lawyers find many
of these laws difficult to fathom, yet grand jurors are expected to understand them and apply them to intricate fact situations Not surprisingly, charge the critics, the grand jury tends to follow the prosecution’s advice
Critics point out that though the Fifth Amendment requires a grand jury indictment for all federal crimes, the accused may waive this requirement and accept charges filed by a prosecutor alone
on all but capital crimes Waivers are frequent, and most prosecutions of even serious offenses are initiated by federal prosecutors Therefore, critics argue that
it makes no sense to take additional time and money for a grand jury to convene and participate in a hollow ritual
For its critics the grand jury has declined from a proactive community voice to a passive instrument of the prosecution Though the U.S Supreme Court may talk about the historic importance of the grand jury in Anglo-American justice, few academics defend the institution based on its current performance Faced with this poor per-formance, the critics argue that abolition
is the best course It would make the prosecutor directly accountable for the charging decision and remove the illu-sion that grand jurors are in control
Defenders of the grand jury ac-knowledge that there are problems with the modern system, but insist the grand
jury is worth saving Despite its short-comings the grand jury still allows citizens to help make important com-munity decisions Though critics may deplore prosecutorial domination of grand juries, they overgeneralize when they call the grand juries rubber stamps for the state Congress recognized the competency and importance of citizen input when, in the ORGANIZED CRIME
Control Act of 1970 (18 U.S.C.A §§
3332–3333), it authorized the creation of
“special” grand juries to investigate organized crime, return indictments if warranted, and issue reports on the results of their investigations
Supporters also believe that the critics overemphasize the importance of the grand jury in acting as a shield against government OPPRESSION The key function of the grand jury is to enhance the legitimacy of the criminal charges that are returned Prosecutors use the grand jury to gain community support for charges that might otherwise be perceived as based on racial bias, political motivation, or prosecutorial vindictive-ness A grand jury review may also help a prosecutor avoid bringing charges where the formal requisites of a crime are present but the community’s moral sense would regard charges as unjust
Some supporters of the grand jury admit that it could be improved by severing the close tie between prosecutor and jurors They point out that Hawaii provides grand juries with their own attorney Such a “grand jury counsel” provides independent legal advice and acts as a buffer between jurors and prosecutors This, in turn, makes grand juries more independent and gives their indictments more credibility Some scho-lars have argued that though using such a system nationwide would cost more, the added expense would be a small price to pay to reinvigorate the grand jury and restore it to its proper role as a voice of the community
134 GRAND JURY
Trang 8balance in the selection process The
require-ment that grand juries be unbiased has evolved
since 1807, when Vice President AARON BURR
was indicted as a traitor Burr insisted that
the evidence against him be heard by an
“impartial” jury as guaranteed in the SIXTH
AMENDMENTto the Constitution He successfully
challenged many jurors on the all-Republican
grand jury that had been selected Burr was
willing to accept jurors who were familiar with
some details of his famous case but who
claimed they had not drawn any conclusions
about it (Although he was indicted, Burr was
eventually acquitted at trial.)
In the early twenty-first century, an
unbi-ased grand jury means one that comprises
people who have no prior familiarity with the
facts of the case Critics of this requirement say
that it greatly limits the quality of people who
are chosen to sit, since many intelligent,
engaged, and otherwise ideal candidates for a
grand jury also follow the news On June 24,
1994, a California state judge dismissed a grand
jury that was considering whether to indict
former athlete and media personalityO.J.SIMPSON
for theMURDERof his ex-wife and her friend The judge was responding to concerns, of both the prosecutor and the defendant, that grand jurors had been exposed to PRETRIAL PUBLICITY that might prejudice them—such as transcripts of
911 calls made by Simpson’s ex-wife after he broke down the back door to her house
After numerous struggles to balance grand juries racially and by gender, federal CASE LAW provides that “a defendant may challenge the array of grand jurors on the ground that the grand jury was not selected, drawn or sum-moned in accordance with law, and may challenge an individual juror on the ground that the juror is not legally qualified” (Estes v
United States, 335 F.2d 609, cert denied, 379 U.S 964, 85 S Ct 656, 13 L Ed 2d 559)
There have been suggestions that the federal grand jury should be abolished, but this action seems unlikely because it would change theBILL
OF RIGHTS for the first time In addition, the investigative and indicting roles of the courts have to be performed by some entity, and an alternative entity may be less desirable than the grand jury Some states have abolished grand
Hearsay Evidence: Admissible before
a Grand Jury?
T
B
he rules of evidence prohibit the introduction
of most hearsay evidence in a criminal trial
(Hearsay is evidence given by a person concerning
what someone else said outside of court.) However,
when Frank Costello, alias Francisco Castaglia, a
notorious organized crime figure of the 1940s and
1950s, argued that his conviction for federal income
tax evasion should be overturned because the
grand jury that indicted him heard only hearsay
evidence, the Supreme Court rejected his claim
(Costello v United States, 350 U.S 359, 76 S Ct 406,
100 L Ed 397[1956])
Prior to his trial, Costello asked to inspect the
grand jury record He claimed there could have been
no legal or competent evidence before the grand jury
that indicted him The judge refused the request
At trial, Costello’s attorneys established that three
investigating officers were the only witnesses to testify before the grand jury These officers summa-rized the vast amount of evidence compiled by their investigation and introduced computations showing, if correct, that Costello had received far greater income than he had reported Their summaries clearly constituted hearsay, because the three officers had
no firsthand knowledge of the transactions upon which their computations were based Therefore, Costello alleged a violation of the Fifth Amendment, and asked that hearsay evidence be barred from grand jury proceedings
Justice Hugo L Black, in his majority opinion, rejected these claims, noting that“neither the Fifth Amendment nor any other constitutional provision prescribes the kind of evidence upon which grand juries must act.”
GRAND JURY 135
Trang 9juries or provided alternatives For example, in some states, prosecutors are allowed to file an information, which is a formal list of charges, usually submitted with notice of some kind of PROBABLE CAUSEhearing
Other suggestions for change at the federal level may experience more success Among those promoted by groups such as theAMERICAN BAR ASSOCIATIONare:
n Better instructions from judges to jurors about the grand jury’s powers and its independence from prosecutors
n Reports by prosecutors on the performance
of the grand jury system
n Increased access to grand jury transcripts for suspects who are eventually indicted
n Expanded safeguards against abuse of witnesses, including education about their rights and the presence of their attorneys
n Notification of targets of investigations that they are targets
n Optional rather than mandatory appear-ances by targets of investigations
n An end to the requirement that prosecutors present defense evidence, and replacement with a requirement that grand jurors be informed that the defense was not repre-sented in the hearing
FURTHER READINGS Beale, Sara Sun, et al 1997 Grand Jury Law and Practice.
2d ed Eagan, MN: West.
Brenner, Susan W 1995 “The Voice of the Community: A Case for Grand Jury Independence ” Virginia Journal of Social Policy and the Law 3 (fall) Available online at http://campus.udayton.edu/~grandjur/recent/lawrev.htm;
website home page: http://campus.udayton.edu (accessed July 27, 2009).
Farrel, Lyn, ed 2002 The Federal Grand Jury New York:
Nova.
Goldstein, Howard W 1998 Grand Jury Practice New York:
Law Journal Seminars-Press.
Iraola, Roberto 2003 “Terrorism, Grand Juries, and the Federal Material Witness Statute ” St Mary’s Law Journal 34 (winter).
Leipold, Andrew D 1995 “Why Grand Juries Do Not (and Cannot) Protect the Accused ” Cornell Law Review 80 (January) Available online at http://freedomlaw.com/
GRANDJRY.html; website home page: http://
freedomlaw.com (accessed July 27, 2009).
Simmons, Ric 2002 “Re-Examining the Grand Jury: Is There Room for Democracy in the Criminal Justice System? ” Boston Univ Law Review 82 (February).
Skolnik, Sam 1999 “Grand Jury: Power Shift?” Legal Times (April 12) Available online at http://www.
truthinjustice.org/grandjury.htm; website home page:
http://www.truthinjustice.org (accessed July 27, 2009).
U.S Department of Justice, National Institute of Justice Office
of Development, Testing and Dissemination Grand Jury Reform: A Review of Key Issues Washington, D.C.: U.S Government Printing Office.
Worden, Amy 2000 “Lawyers Target ‘Lawless’ Federal Grand Juries ” ABP News Online Available online at http://www.crimelynx.com/gjref.html; website home page: http://www.crimelynx.com (accessed July 27, 2009).
CROSS REFERENCE Clarendon, Constitutions of.
GRAND LARCENY
A category of larceny—the offense of illegally taking the property of another—in which the value of the property taken is greater than that set for petit larceny
AtCOMMON LAW, the punishment for grand larceny was death In the early 2000s, grand LARCENYis a statutory crime punished by a fine, imprisonment, or both
GRANDFATHER CLAUSE
A portion of a statute that provides that the law is not applicable in certain circumstances due to preexisting facts
Grandfather clauses, which were originally intended to prevent black people from voting, were named for provisions adopted by the constitutions of some states Such amendments sought to interfere with an individual’s right to vote by setting forth difficult requirements For example, common requirements were owner-ship of a large amount of land or the ability to read and write portions of the state and federal constitutions The name grandfather clause arose from the exceptions that were made for veterans
of the Civil War If the veterans were qualified
to vote prior to 1866, their descendants were also qualified Thus, in effect, if a person’s grandfather could vote, he could vote without further restrictions
These statutes accomplished precisely what was intended, because nearly all slaves and their descendants were disqualified from voting because they could not satisfy the statutory requirements
In the 1915 case of Guinn v United States,
238 U.S 347, 35 S Ct 926, 59 L Ed 1340, the SUPREME COURT OF THE UNITED STATES examined
a grandfather clause that was added to the Oklahoma constitution shortly following its
136 GRAND LARCENY
Trang 10admission to the Union The 1910
CONSTITU-TIONAL AMENDMENT required that prospective
voters pass a literacy test in order to qualify to
vote However, anyone who was entitled to vote
on January 1, 1866, or any time earlier under
any form of government, or who at that time
lived in a foreign country, was exempt from
satisfying the literacy test requirement The
lineal descendants of such exempted persons
also were exempt from such a requirement In
reality, the amendment recreated and
perpetu-ated the very conditions that the FIFTEENTH
AMENDMENT was intended to destroy, even
though race was never mentioned as a voter
qualification
The Court held that the clause was in
violation of the Fifteenth Amendment, which
states that “the right of citizens of the United
States to vote shall not be denied or abridged
by the United States or by any State on
account of race, color, or previous condition
of servitude.” Oklahoma argued that states had
the power to set forth voter qualifications
Therefore, the statute in controversy did not
violate the Fifteenth Amendment because race
was not mentioned as a voter qualification The
Supreme Court was in agreement that states
have the right to determine who is qualified to
vote; however, they are permitted to do so only
within constitutional limits The limit that
proscribes consideration of the race of voters
extends to sophisticated as well as
simple-minded DISCRIMINATION, and equality under the
law cannot be based upon whether a person’s
grandfather was a free man
Oklahoma undertook to change its law
following this decision The revised statute said
that everyone who was able to vote as a result
of the grandfather clause automatically
contin-ued to be eligible and those who had been
denied voting rights were given 12 days in
1916 to register to vote If they were out of the
county where they resided or if they were
prevented from registering by sickness or
unavoidable circumstances, they were given
an additional 50 days in 1916 to register After
that time black persons who tried to register
to vote were turned away, because the time to
register outside the grandfather clause had
ended in 1916
In the 1939 case of Lane v Wilson, 307 U.S
268, 59 S Ct 872, 83 L Ed 1281, the Supreme
Court rejected Oklahoma’s new scheme, calling
it another example of an attempt by a state to thwart equality in the right to vote regardless
of race or color The Court ruled that the proposed remedy, in the form of such a limited registration period, was inadequate A group of citizens who lacked the habits and traditions
of political independence deserved a greater opportunity to register to vote
The term grandfather clause in its current application refers to a legislative provision that permits an exemption based upon a preexisting condition For example, through the application
of grandfather clauses, certain prerogatives are extended to those regularly engaged in a particular profession, occupation, or business that is regulated by statute or ordinance Such a clause might allow an individual, who has been
in continuous practice in a particular profession for a specific period, to circumvent certain licensing requirements
GRANGER MOVEMENT The Granger Movement was begun in the late 1860s by farmers who called for government regulation of railroads and other industries whose prices and practices, they claimed, were monopolistic and unfair Their efforts contrib-uted to a growing public sentiment against monopolies, which culminated in the passage of the Sherman Act (orSHERMAN ANTI-TRUST ACT) of
1890, 15 U.S.C.A §§ 1–7
In 1867 the American farmer was in desperate straits Needing better educational opportunities and protection from exorbitant prices charged by middlemen, the farmers decided to form an independent group to achieve their goals
Oliver Hudson Kelley, a former employee of theAGRICULTURE DEPARTMENT, organized a group called the Patrons of Husbandry Membership was open to both men and women, and each local group was known as a Grange Each Grange chose officers, and the goal of each meeting was to present news of educational value to the farmer
Kelley traveled across the country establish-ing Granges; he found his greatest support in Minnesota The Granges soon evolved into the national Granger Movement By 1873 all but four states had Granges
The main problems confronting the Granger Movement concerned corporate ownership of
GRANGER MOVEMENT 137