1. The Shortcomings of Statistics
Those who claim that grand juries fail to screen effectively often point to statistics to support this view.[74] Most commonly, they note that an extremely high percentage of cases submitted to grand juries result in indictments. The numbers are impressive: during fiscal 1984, for example, federal grand juries returned 17,419 indictments and only sixty-eight no bills,[75] an astounding 99.6% success rate. Statistics from other years are in accord.[76] Even in the rare instances when the grand jury refused to indict, it is not clear that the jurors were rejecting the prosecutor's recommendation; in some of these cases even the prosecutor apparently agreed that a true bill should not be returned.[77] For some critics these numbers are persuasive evidence of the grand jury's ineffectiveness.[78]
Yet even brief reflection shows how unhelpful these figures are. That grand juries nearly always return true bills may indeed demonstrate that jurors simply approve whatever charges the government submits, but it could also show that grand juries are a great success. A review of the prosecutor's decisionmaking leading up to the request for an indictment shows why.
Federal prosecutors know that virtually all of their charging decisions must be approved by the grand jury. Thus, in deciding which charges to bring, the prosecutor must determine not only which accusations can be proven at trial, but also which accusations will result in an indictment. If we assume that prosecutors as a group will normally decline to present charges to a grand jury that they think will be rejected, we would expect that prosecutors would submit only those cases that are sufficiently strong to survive a grand jury's review. Thus, regardless of whether the grand jury is serving as an effective screen, we would expect a high percentage of the cases presented to lead to indictments.[79]
Indeed, contrary to the suggestion of critics, there would be cause for concern if grand juries refused to indict in a high percentage of cases. A high rejection rate would mean either that the prosecutor failed to evaluate the case properly, and therefore could not determine in advance whether a case was strong or weak,[80] or that the grand jury was so unpredictable that reasonable prosecutors could not anticipate when a true bill would be returned. In the former case the grand jury might be thought to be fulfilling its screening role, despite the prosecutor's troubling performance, but in the latter case the higher percentage of no bills would not be a reliable sign that the screening function was working.
