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William & Mary Law Review





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There is near-universal agreement that the engine of the modern American criminal justice system is plea bargaining.'Given the ubiquity of plea bargaining, the Supreme Court and the rest of the legal community have begun setting their sights on how the practice might be better regulated. At the same time, many hold the view that the grand jury has outlived its usefulness in the administration of criminal justice and is a relic of a time gone by. Even before recent calls for the abolition of the grand jury in the wake of high-profile cases that seemed to cast the institution in a bad light, serious questions arose regarding the necessity of a body that seemed superfluous in an era in which most criminal cases end in guilty pleas.

This Article, written for the William & Mary Law Review Symposium, "Plea Bargaining Regulation: The Next Criminal Procedure Frontier," considers how plea bargaining might be better regulated and whether the grand jury could play a role in the regulation of plea bargaining-namely, in the determination of the factual basis for pre-indictment guilty pleas and the reasonableness, fairness, and propriety of plea bargains and plea agreements. In this way, the Article evaluates whether the grand jury may serve as a popular accountability mechanism for defense counsel, prosecutors, and judges in the guilty plea process.

Part I of this Article examines the recent recognition of the influence and ubiquity of plea bargaining in modern criminal justice and the procedural and substantive safeguards courts have begun to impose in order to regulate the guilty plea process. This Part highlights the lack of popular participation in this "world of guilty pleas," and calls for ways to maintain the lay role in the disposition of criminal cases. Part II of this Article proposes a thought experiment. What if we deployed the grand jury in the guilty plea process? Could the supposedly underutilized grand jury provide the vehicle desired for regulation of the plea bargaining regime and inject the popular participation missing in today's criminal justice system? In particular, might the grand jury have a role to play when the court determines whether there is a factual basis for the guilty plea and reviews the terms of the plea agreement?

Part III recognizes the significant practical challenges to the use of the grand jury for these purposes and considers practical and philosophical objections to this proposal-particularly those raised by a number of thoughtful and prominent trial judges interviewed by the author. The Article concludes with thoughts on what these judges believe are the most pressing needs for reform in the plea bargaining regime and which solutions are most compelling.



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