Starr chambers: the problem with grand juries.

Since Whitewater special prosecutor Kenneth Starr's use of the federal grand jury has the nation's attention at the moment, now is a good time to reflect on this ancient but little-understood political institution. With their deep distrust of prosecutorial abuse, the framers of the Constitution had intended the grand jury to stand between the accused and the prosecutor. Like the crown's attorney, the American prosecutor would not be able to prosecute anyone for a felony before a grand jury had heard and judged charges based on "information known personally to its members," in historian Leonard Levy's words.

The framers enshrined this protection against improper indictment within the Fifth Amendment: "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury...," guaranteeing that the right could not easily be abrogated.

The framers did not anticipate, however, just how powerful a force prosecutorial administration of the grand jury would prove to be. Modeling the American grand jury on the English one, they failed to give it any resources independent of the prosecutor. Over the centuries, the English recognized their grand jury wasn't working and, with the flexibility handed them by their unwritten constitution, abolished it in 1933. The U.S. federal grand jury, however, cannot readily be abolished, which most Americans would probably be reluctant to do anyway. After all, the idea behind the grand jury, is important and appealing - the voice and reflection of the community within criminal proceedings. Is this missing voice not at the heart of so many criticisms of the criminal justice system?

Yet the problems in the administration of the grand jury are serious. Because the grand jurors were to be good citizens using their common sense and intelligence as they sat in judgment of their fellows, many rules of criminal procedure were never applied.

Thus, then and now, the grand jury operates in secrecy beyond the view of not only the public and the press, but also of suspects and their counsel. Suspects are barred from bringing their attorneys with them into the hearings, and are not allowed to hear the testimony of witnesses against them. Nor may a suspect testify in his or her own defense. Except for the jurors, the prosecutor, the court reporter, and the witness being questioned, no one is permitted into grandjury hearings - usually not even a judge.

The rules of evidence that govern all American trials do not govern the grand jury. The prosecutor - who alone decides what evidence to present - an use information from illegal wiretaps, hidden cameras, secretly taped friends and colleagues, as well as hearsay and rumors. Nor is the prosecutor required to present the grand jury with evidence that favors the defendant, even if the evidence is exculpatory.

Even our famous protection against self-incrimination, guaranteed in the Fifth Amendment, does not necessarily govern. A prosecutor can ask a judge to grant immunity to a witness in order to compel testimony. Reluctant as she may have been, Monica Lewinsky was compelled to appear.

The combination of the grand jury's awesome power and its lack of procedural protections for the accused makes it unique within American institutions. Though it operates in the name of the people, it functions with virtually no popular oversight. Its administration is entirely in the hands of the prosecutor, who can even choose - as Mr. Starr has - to direct multiple grand juries to examine the same or similar issues, bringing new meaning to the term "jury shopping." When the grand jury investigating the Lewinsky matter was on a scheduled break at what Starr deemed to be a crucial moment, he simply called in another grand jury.

The New York Times has reported that Starr does not intend to permit the grand jury either "to vote or otherwise pass judgment on the issues covered by President Bill Clinton's testimony." He will not, says the Times, have the grand jury consider whether to indict the president. In any event, Starr has now sent his own report to Congress, and it is Congress that will have to decide whether the facts warrant impeachment.

Could there be any clearer signals that this investigation is not truly in the hands of the selected body of jurors, bringing their own personal knowledge to bear? The prosecutor may theoretically be the arm of the grand jury, but in practice, he is its master.

President Clinton's lawyers were able to use the prestige of the presidency - along with threats of litigious delays - to encourage Starr to grant the president special privileges. The president was excused from the requirement of appearing in person, with all its attendant personal humiliations. He was allowed to bring and consult with his lawyer. And he refused to answer certain questions.

But the important matter here is not whether President Clinton should have been subject to these onerous procedures, but whether any citizen should be. The federal grand jury is no longer functioning as the framers intended - as a panel of citizens reviewing charges understood by them as members of the community, standing as a protection between the prosecutor and the accused. This is an institution that should be reformed in the name of the people - and returned to them.

Julia Vitullo-Martin is the director of the Citizens Jury Project at the Vera Institute of Justice in New York City.