Abstract
In an age in which many, if not most, commentators have come to criticize the utility and practice of the grand jury system of indicting people for criminal conduct, Nebraska has reexamined its century-old practice of relying on elected prosecutors for investigating crime and charging criminals. Nebraska has, under limited circumstances, returned to the ancient system of grand jury inquest into certain conduct. Nebraska's determination was predicated on a belief, by the proponents of the use of this citizen panel, that in the class of cases where the grand jury would be the tool by which society investigated and charged, it alone could be unbiased, uncorrupted and fair.
The grand jury served the English system for ages5 and the American national government since the beginning of the republic. Over a century ago, the states began experimenting with prosecution by complaint or information as filed by local prosecutors. The United States Supreme Court, in an era long before the doctrine of incorporation, as it came to be used in the mid-twentieth century s was employed to apply the guarantees of the Bill of Rights to the states through the Fourteenth Amendment, and ruled that the states were free to use a system other than indictment by grand jury. The Court held that neither the due process of law nor law of the land commanded adherence by the states to the ancient method of charging for felony-class crimes.
How did the states come to abandon the grand jury in favor of charging by information? What was left of the 19th century grand jury system at the state level by the time Nebraska approved its second constitution, implemented it with law, and was prepared to enter the twentieth century? Why did Nebraska decide that this system which harked back to the middle ages, and was virtually abandoned, should be dusted off and restored to the criminal procedure code albeit for the limited purposes of the recent legislation?
These questions will be addressed in this article. In addition, the structure and operation of the grand jury, as it is employed in this State at the dawn of the millennium, will be explained for the benefit of practitioner and student alike. It is left for the reader to determine the wisdom of the return to the grand jury in cases in which a person dies at the hand of authorities making an arrest or having custody of a prisoner.