"The grand jury . . . historically has been regarded as a primary security to the innocent against hasty, malicious and oppressive prosecution; it serves the invaluable function in our society of standing between the accuser and the accused."

Hogwash.

There was not much left of the grand jury’s role as a check on prosecutors when Chief Justice Earl Warren wrote these words 30 years ago, in Wood v. Georgia. There is almost nothing left of that role now, as Justice Antonin Scalia made clear in his little-noticed opinion on May 4, in United Stales v. Williams. The 5-4 Supreme Court decision strongly suggested that courts may never dismiss an indictment on the ground that the prosecutor refused to share exculpatory evidence-no matter how compelling-with the grand jury.

Scalia’s categorical assertion of "the grand jury’s functional independence from the judicial branch" also bespeaks a broader agenda of locking the grand jury into its modern role as the docile tool of executive-branch prosecutors by foreclosing any possibility of meaningful judicial supervision.

The Williams decision makes it clearer than ever that Congress should act to make the grand jury a real check on prosecutors-or, if it won’t, that all of us should put an end to the grand-jury charade.

By this I mean the habit of lawyers, judges, journalists, and others of routinely using the "grand jury" prefix to lend a false patina of solemn, communitarian legitimacy to investigations, subpoenas, and indictments that are, in fact, essentially unilateral decisions by prosecutors.

The grand jury’s role as rubber stamp has, of course, long been a commonplace among lawyers, as has the old saw that you could get a grand jury to indict a ham sandwich. The late U.S. District Judge William Campbell of Chicago put it well in a 1973 article: "Today, the grand jury is the total captive of the prosecutor who, if he is candid, will concede that he can indict anybody, at any time, for almost anything, before any grand jury."

While the Supreme Court used to give lip service, at least, to the ideal of the grand jury as the citizens’ shield against oppression, the Williams majority studiously avoided doing even that. It also ignored what the dissenters called "the countless forms of prosecutorial misconduct that may occur inside the secrecy of the grand jury room."

The grand-jury charade is too little understood, however, by ordinary citizens, by journalists- who often describe "grand-jury investigations" as though the 23 grand jurors really played an independent role-and even by judges, who use the "grand jury" rubric to bless sweeping fishing expeditions that they might blush to allow were the prosecutors standing naked before the court.

Take the Supreme Court’s 1991 opinion in United States v. R. Enterprises: "The grand jury occupies a unique role in our criminal justice system. . . . [T]he grand jury can ‘investigate merely on suspicion that the law is being violated, or even just because it wants assurance that it is not.’ . . . The function of the grand jury is to inquire into all information that might possibly bear on its investigation until it has identified an offense or has satisfied itself that none has occurred. . . . [T]he Government cannot be required to justify the issuance of a grand jury subpoena by presenting evidence sufficient to establish probable cause.”

Would this license to rummage through anyone and everyone’s papers on demand, without probable cause and virtually without limitation, in total secrecy and without judicial supervision, sound reasonable if rephrased to describe what is really going on? Try crossing out "the grand jury" everywhere those words appear, substituting "the politically appointed federal prosecutor," and reading it again.

But we can’t seem to kick the habit of pretending that grand juries are more than an arm of the prosecution. So it is that retired Judge Malcolm Wilkey, the Justice Department’s "special counsel" investigating the phony House Bank scandal, successfully contended in court papers that "the grand jury needs immediate access to the information on accounts for which there were overdrafts.”

"The grand jury needs immediate access"? A buck will get you five that most or all of Wilkey’s grand jurors never even saw the subpoena that he issued in their names and never will see most (if any) of the House members’ checks through which Wilkey’s aides down at the Justice Department have been rummaging.

The potential of the grand-jury charade to abet oppression is even greater now than it was a decade or two ago, because of the alarming erosion of other protections for defendants and witnesses at all stages of the criminal-justice process.

War after war on crime, drugs, and individual freedoms has given prosecutors a potent arsenal of weapons to force even innocent suspects, once indicted, to plead guilty.

A grand-jury indictment-which obviates any need to convince a judge that probable cause exists to charge the defendant-has always been pretty devastating. But now, under the new bail laws, the new mandatory sentencing laws, the racketeering laws, the money-laundering laws, and all the others, a grand jury’s rubber stamp on a prosecutor’s indictment often amounts to a license to threaten any defendant who has the temerity to insist on his innocence with dire consequences: pretrial incarceration; confiscation of all his assets, including any that might be used to pay a lawyer, and, should he lose at trial, a long mandatory prison term.

Indeed, the courts are becoming rubber stamps, too, with no discretion to second-guess the breadth of the subpoenas that prosecutors draft or the charging decisions by which prosecutors determine defendants’ prison terms in advance of trial.

Given the awesome power to strip suspects of their liberties exercised by prosecutors garbed in grand-jury camouflage, Congress should act to give grand jurors a real function.

It could start by overruling the Williams decision and requiring dismissal of any indictment voted by any grand jury that was not given clearly important exculpatory evidence in the prosecution’s possession. Congress should also require judges to instruct grand jurors forcefully that part of their job is to….