Joel: G'day Doug. Last you and I spoke we were discussing nothing less than the Rule of Law, what many consider to be the very cornerstone of Anglo-American law and justice.
Doug: The Due Process clause of the 5th Amendment. One of the few concepts in law that actually helps keep the wolves in government from our throats. When it's observed, anyway.
Joel: Exactly. Of course, there are two other very important sections of that oft-abused amendment, the Criminal Procedures Clause and the Takings Clause. Shall we go through these today?
Doug: No time like the present.
Joel: To begin with the Criminal Procedures Clause – which basically covers the Grand Jury, Double Jeopardy and Self-Incrimination sections of the amendment – there's been quite an erosion of individual rights over the years.
Do you want to start with the Grand Jury idea?
Doug: Sure. The idea of the Grand Jury is actually very old, with origins dating back to the Magna Carta. It basically began as a tool of the Crown, compelling unpaid citizens to enforce the King's Law.
Over time, however, they came to be seen as an important check against tyrannical power. By the time the American Founders were framing their constitution, this was the common perception on both sides of the pond – that Grand Juries would act as a kind of bulwark of freedom against overzealous governments and their prosecutorial impulses.
Of course, as with most things in the Bill of Rights, this concept too has become degraded. Although the US is the only country in the world that still uses Grand Juries – mostly at the federal level, but also in about half the states – the Supreme Court long ago decided that they weren't a necessary component of Due Process, despite it being explicitly outlined in the 5th Amendment. In fact, the Supreme Court has ruled that federal Grand Juries need not even adhere to trial rules of evidence, or be told of evidence exculpating the defendant. It's actually not rational. If a jury is intelligent enough to be empanelled, they should be intelligent enough to view all the relevant facts. Not just the ones the government's prosecutors select.
Because prosecutors essentially control what information a courtroom hears, a Grand Jury can be led to, in the words of one former Chief Judge of the New York Court of Appeals, "indict a ham sandwich."
So yes, the system has predictably deteriorated. What was once seen as a safeguard against governmental overreach has, over time, been interpreted out of relevance. Grand juries are largely tools of the state that give a patina of justice to the charade of prosecutors building their reputations.
Joel: The same can be said for much of the rest of that Criminal Procedures Clause, I guess? What about the idea of protection against self-incrimination, something most people recognize from Cop & Court shows as "pleading the 5th"?