Edition: U.S. / Global

Grand Juries Can Defend Rights of the Accused; Who Made It So?

Published: January 19, 1990

To the Editor:

Judge Sol Wachtler's ''Grand Juries: Wasteful and Pointless'' (Op-Ed, Jan. 6), exemplifies the erosion of our constitutional rights in the name of speed, efficiency and expediency.

The practical effect of the judge's plan would be to give the awesome power of charging a person with a crime and then bringing him or her to trial to a prosecutor only. Judicial review would be minimal. No witness would be placed under oath, subject to direct or cross-examination to establish probable cause that a crime was committed or that the accused committed it. The witness would be neither seen nor heard until the day of trial, months after the accusation.

True, the grand jury system has been eliminated in many places, but it is not clear this has benefited anyone but the state.

It is true, as the judge writes, ''the grand jury is by design a one-sided affair . . . the grand jury almost invariably does what the prosecution wants.'' But whose design is it, and does it have to be one-sided?

The appellate courts, of which Judge Wachtler is a part, and the legislature have made it one sided. There is a line of cases, in which Judge Wachtler participated, that severely limit the degree to which a defense or exculpatory evidence may be presented to a grand jury. The discretion of district attorneys to limit the type of evidence that an accused or potentially accused can ask a grand jury to hear has been expanded by the appellate courts. It is judicially made case law that has expanded the powers of the district attorney in the grand jury. This state of affairs is no random accident. The one-sidedness of the grand jury system exists by judicial, legislative and prosecutorial design. It need not remain that way.

The grand jury should not be eliminated.

Certainly the system the judge advocates would be cheaper, swifter and more efficient. Fairness and the erosion of justice would be the price paid.


Brooklyn, Jan. 7, 1990