Beyond Labels

A 360° Discussion of Foreign, National and Local Policy Issues

8/28: U.S. Legal System Costs

One offshoot of our discussions about the various Trump indictments has been a discussion about the U.S. legal system in general. In particular, we’ve discussed the costs to individuals of defending themselves in criminal (and civil) cases. See, for example, Rudy Giuliani.

The high cost of mounting a defense appears to generate a number of game-theory approaches to pursuing criminal and civil cases:

  • (Implicitly) using the high cost of defense as a cudgel to elicit a plea bargain, potentially from parties who are actually innocent, but cannot afford an effective defense.
  • Effectively punishing a defendant (via economic cost) who is ultimately found not guilty of the crime.

The questions we might address could include:

  • Cost of legal representation: Are public defenders (in general) a satisfactory substitute for “paid” attorneys? If not, how can the current system realistically be adjusted to make it so?
    • Should co-conspirators be restricted somehow in their ability to pay for each others’ defenses? (See, for example, Walt Nauta)
  • “Entry” into the criminal legal system. Is it too easy for a prosecutor to obtain an indictment from a grand jury? (“Easy” indictments put the accused on a path to substantial economic costs in mounting a defense.)
    • Is the grand jury process otherwise working well? poorly?
  • Civil cases. What about civil cases, in which those with substantial resources (like large corporations) can often overwhelm individuals (whether they are plaintiffs or defendants)?
    • How well do class action lawsuits address this issue?
    • What other “playing-field-levelers” might be employed?
    • Is arbitration a suitable way to reduce court costs in civil cases?
      • How (if at all) should enforced arbitration provisions in contracts be regulated?

I’m sure there will be more to cover (there always is).

See you next Monday.

1 Comment

  • This is a summary of what I’ve learned about grand juries in the US from several articles I’ve read since last Monday. The links to those articles appear at the end of this comment.

    First, an amusing factoid: Only the US and Nigeria now use grand juries to bring criminal indictments. I don’t know why other countries don’t use them, or whether other (e.g., Commonwealth) countries ever had them and, if so, why they have apparently abandoned the practice.

    Scholars date the origins of what has become the American grand jury to 10th-century England. Similar institutions existed in Scandinavia and France at around that time. English grand juries were originally tools of the monarch, but by the 17th century had evolved (by statute) into an institution more protective of the rights of citizens. By that time, an English statute required a grand jury indictment for a court to have jurisdiction over a criminal case. That is, without a grand jury indictment of an accused, there was no case for a court to try (known as “subject matter jurisdiction”).

    During the Colonial period in America, any citizen (probably only any adult male citizen) could bring a complaint to a grand jury about public works needing repair, official corruption, or a crime. The grand jury could issue an indictment if a simple majority of its 23 members had reasonable cause to believe a crime had been committed or could direct the responsible officials to make the necessary repairs.

    The requirement of a grand jury indictment appears in the US Constitution, Amendment V: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury …”, subject to some limited exceptions. “Infamous crimes” were defined by common law until Congress defined the term in a late 19th-century statute to mean crimes carrying the death penalty or imprisonment for more than one year. State grand jury constitutions and laws are similar.

    The so-called “jurisdictional requirement” of a grand jury indictment was well-settled law in the US for about 200 years, until about 2002. Until that time, the Supreme Court repeatedly held that an accused could not waive his or her constitutional right to a grand jury indictment for a court to have jurisdiction over a criminal case brought against the accused. In 1946, however, despite many serious constitutional objections by many judges, attorneys, and others, the Federal Rules of Criminal Procedure allowed the accused to waive a grand jury indictment, on the grounds that a waiver would lead to greater efficiency in the judicial system. The Supreme Court upheld the constitutionality of such a waiver in 2002.

    Akhil Reed Amar, a professor at Yale Law School and one of the Constitutional law scholars most frequently cited by US courts (and a great writer) emphasizes the role that the Founders envisioned for citizens in the judicial system. He argues (convincingly, I think) that the Founders intended citizens’ roles in grand and petit juries to provide the same sorts of checks on the official government officers in that system (judges and prosecutors) that Congress provides on the Executive Branch, that the courts provide on the legislative and executive branches, that each chamber of Congress provides on the other chamber, and that citizens provide on the Government when they vote for President and their elected representatives. He bases this view on the preeminent role of popular sovereignty that he identifies in the Constitution and the Bill of Rights and the widespread popular distrust of government officials (especially Federal officials) among many of the Founders and citizens in general.

    As an example of the power of citizens to check the power of the judiciary, In his great book on the origins of the US Constitution and the Bill of Rights, The Words That Made Us, Amar suggests that jury nullification (a decision by a petit jury not to convict a criminal defendant notwithstanding the law and a judge’s instructions about its meaning) is one way for citizens to register their dissatisfaction with the law they’ve been asked to apply. He decries the 20th-century move away from grand jury indictment as a jurisdictional requirement for a court to hear a criminal case.

    In theory, although less and less in practice, grand juries have similar power to refuse to indict a suspect, notwithstanding the law, the evidence, and witness testimony.

    In a 2016 article in the Minnesota Law Review, John Fairfax identifies the principal weaknesses of federal grand juries. Other weaknesses are identified by Heather Guerink in a paper entitled “Exploring the Criticisms of Grand Juries in the United States”:

    1. Excessive dependence on prosecutors.
    2. The low evidentiary threshold (“probable cause that a crime has been committed”) for indictment and the requirement of only a simple majority vote to indict (i.e., typically 12 out of 23 grand jurors).
    3. The ex parte nature of the proceedings (i.e., the grand jury can act without the presence of the suspect and, sometimes, without the suspect being informed of the proceedings at all).
    4. Suspects’ (and witnesses’) loss of due process rights in grand jury proceedings.
    5. The secrecy of grand jury proceedings (i.e., grand jury evidence and testimony are sealed).
    6. The absence of a requirement that the prosecutor present exculpatory evidence to the grand jury, or the right of a suspect to do so (although some states, e.g. California) have such a statutory requirement for state grand juries).

    Fairfax and Guernik propose several reforms to improve the performance and fairness of grand juries:

    1. Better instructions by judges to grand jurors regard the power of the grand jury and its independence from the prosecutor.
    2. Greater access by indicted suspects to grand jury transcripts.
    3. Better explanations to grand jury witnesses of their rights, and allowing their attorneys to be present during their testimony.
    4. Obligation of the prosecutor to present exculpatory testimony and evidence (he doesn’t mention a proposed right of a suspect to do so).
    5. Providing grand juries with the power to review plea bargains to ensure their fairness, before they are presented to a judge.

    Here are the links to the articles I read:

    1. A.R. Amar, Reinventing Juries: Ten Suggested Reforms (28 U.C. Davis L. Rev. 1170 (1994-1995) (
    2. J. Fairfax. The Jurisdictional Heritage of the Grand Jury Clause (91 Minn. L. Rev. 398 (2006)(
    3. H.Guernik, Exploring the Criticisms of Grand Juries in the United States (undated)(
    4. Wikipedia, Grand Juries in the United States (

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