so in the nineteenth century. Then, as in Blackstones day, the grand jury played a substantial role, receiving the"suit of any private prosecutor"and deciding whether it warranted further proceedings he grand jury screened the trivial or the unfounded complaints from those that had substance. Today, the grand jury's role makes little sense because we assume that a state official has already screened cases for merit and substance. In a world of private prosecution, the function was both sensible and essential: in the two decades bracketing the Civil War, Philadelphia grand juries dismissed almost two-thirds of all charges brought before them, a statistic unthinkable y We live in a world so different it is hard to capture the operating assumptions of a century ago. The bureaucratization of criminal justice created executive officers who now do the work of apprehension, investigation, and screening that once took plac principally within the judicial system. Apprehension and investigation are now the jobs of professional law enforcement-a sector that did not exist before the middle of the nineteenth century and that became fully established only in the twentieth century. Screening is the work of law enforcement and professional prosecutors Even criminal defense is now a responsibility largely assumed by the state-albeit ith varying levels of zeal. By 1963, when the Supreme Court ruled that states were constitutionally obligated to give lawyers to indigent felony defendants, most states were Iready doing so: the effect of Gideon was to require the small number of holdouts to meet the by-then common practice. Because the vast majority of criminal defendants are indigent--the figure is over 80% in state felony cases-in most criminal trials today all of the participants other than the defendant, the jury, and some of the witnesses are on the government payroll. The question being debated, moreover, is whether the government should forcibly house and employ, at prison wages, the defendant as well. In a powerful sense the state now"owns" the entire apparatus of criminal investigation and adjudication. The state owns it because the state pays for it. In twenty-first-century Los James Comey, Deputy Attorney General, Letter to the Editor, Rights and the Patriot Act, N.Y. TIMES, Apr 28.2004.atA20 34 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND*300 See Steinberg, supra note 9, at 574. As we discuss later in this essay, the grand jury today does play a role largely unrelated to screening: it allows prosecutors to question witnesses under oath before charges are brought. It therefore serves as a partial substitute for the general unavailability of depositions in criminal cases. But it provides this substitute only for prosecutors, and without the check provided by the presence of opposing counsel during questioning. Once the grand jury is understood as essentially a discovery device, not a screening device, these stark differences from the rules governing depositions the civil side become harder to justify. See notes 94-108 and accompanying text, infr See, e.g., David A Sklansky, The Private Police, 46 UCLA L REV. 1165, 1193-1217(1999) Gideon v. Wainwright, 372 U.S. 335(1963) See CARoLINE WOLF HARLoW, U.S. DEPT OF JUSTICE, BUREAU OF JUSTICE STATISTICS SPECIAL REPORT: DEFENSE COUNSEL IN CRIMINAL CASES 1(2000); STEVEN K. SMITH CAROl J. DEFRANCEs, U.s DEPT OF JUSTICE, BUREAU OF JUSTICE STATISTICS SELECTED FINDINGS: INDIGENT DEFENSE 1, 4(19967 so in the nineteenth century. Then, as in Blackstone’s day, the grand jury played a substantial role, receiving the “suit of any private prosecutor” and deciding whether it warranted further proceedings.13 The grand jury screened the trivial or the unfounded complaints from those that had substance. Today, the grand jury’s role makes little sense because we assume that a state official has already screened cases for merit and substance. In a world of private prosecution, the function was both sensible and essential: in the two decades bracketing the Civil War, Philadelphia grand juries dismissed almost two-thirds of all charges brought before them, a statistic unthinkable today.14 We live in a world so different it is hard to capture the operating assumptions of a century ago. The bureaucratization of criminal justice created executive officers who now do the work of apprehension, investigation, and screening that once took place principally within the judicial system. Apprehension and investigation are now the jobs of professional law enforcement—a sector that did not exist before the middle of the nineteenth century and that became fully established only in the twentieth century.15 Screening is the work of law enforcement and professional prosecutors. Even criminal defense is now a responsibility largely assumed by the state—albeit with varying levels of zeal. By 1963, when the Supreme Court ruled that states were constitutionally obligated to give lawyers to indigent felony defendants, most states were already doing so: the effect of Gideon was to require the small number of holdouts to meet the by-then common practice.16 Because the vast majority of criminal defendants are indigent—the figure is over 80% in state felony cases17—in most criminal trials today all of the participants other than the defendant, the jury, and some of the witnesses are on the government payroll. The question being debated, moreover, is whether the government should forcibly house and employ, at prison wages, the defendant as well. In a powerful sense the state now “owns” the entire apparatus of criminal investigation and adjudication. The state owns it because the state pays for it. In twenty-first-century Los James Comey, Deputy Attorney General, Letter to the Editor, Rights and the Patriot Act, N.Y. TIMES, Apr. 28, 2004, at A20. 13 4 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND *300. 14 See Steinberg, supra note 9, at 574. As we discuss later in this essay, the grand jury today does play a role largely unrelated to screening: it allows prosecutors to question witnesses under oath before charges are brought. It therefore serves as a partial substitute for the general unavailability of depositions in criminal cases. But it provides this substitute only for prosecutors, and without the check provided by the presence of opposing counsel during questioning. Once the grand jury is understood as essentially a discovery device, not a screening device, these stark differences from the rules governing depositions on the civil side become harder to justify. See notes 94-108 and accompanying text, infra. 15 See, e.g., David A. Sklansky, The Private Police, 46 UCLA L. REV. 1165, 1193-1217 (1999). 16 Gideon v. Wainwright, 372 U.S. 335 (1963). 17 See CAROLINE WOLF HARLOW, U.S. DEP’T OF JUSTICE, BUREAU OF JUSTICE STATISTICS SPECIAL REPORT: DEFENSE COUNSEL IN CRIMINAL CASES 1 (2000); STEVEN K. SMITH & CAROL J. DEFRANCES, U.S. DEP’T OF JUSTICE, BUREAU OF JUSTICE STATISTICS SELECTED FINDINGS: INDIGENT DEFENSE 1, 4 (1996)