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History of The Grand Jury
The English origin of the grand jury commonly is traced to the Assize of Clarendon, issued by Henry II in 1166. The Assize required that criminal accusations thereafter be ‘‘presented’’ by juries composed of twelve ‘‘good and lawful men’’ selected from the township. The Assize was designed to strengthen royal judicial authority. The jurors were familiar with the local scene and could present charges that otherwise might not be known to the crown’s representatives. They were required to accuse all whom they suspected and faced substantial fines if they failed to make appropriate accusations. Following the jury’s accusation, the defendant was subjected to trial, typically by ordeal.
By the end of the fourteenth century, the English criminal justice process had turned to trial by jury rather than by ordeal, and the original jury had been divided into two separate juries. The trial of guilt was before a twelve-person petit jury, and the accusatory jury was expanded to twenty-three persons, chosen from the entire county. This jury became known as le grand inquest, which probably explains its eventual title of grand jury. At this point, the grand jury remained essentially an accusatory body that assisted the Crown in ferreting out criminals. Accusations were either initiated by the jurors themselves, acting on the basis of their own knowledge or information received from complainants, or were initiated by a representative of the Crown, often a justice of the peace, who supported his accusation with the testimony of witnesses who appeared before the grand jury. Where the accusation was initiated by the jury itself, the jury’s written charge was titled a ‘‘presentment.’’ Where the accusation was based on a case placed before the jury by the Crown’s representative, the jury’s charging document was titled an ‘‘indictment.’’ The Crown’s representative ordinarily would place a proposed indictment before the grand jury, and if the jury found the Crown’s evidence sufficient to proceed, it issued the indictment as a ‘‘true bill.’’ If it found the evidence insufficient, it returned a finding of ignoramus (‘‘we ignore it’’) or, in later years, ‘‘no bill.’’
It was not until the late seventeenth century that the grand jury, refusing to indict two prominent critics of the king, achieved its reputation as a safeguard against the oppression and despotism of the Crown. In the case of Stephen Colledge, charged with making treasonous remarks, the grand jury refused to indict, notwithstanding considerable pressure from the Lord Chief Justice. In the case brought against the earl of Shaftesbury, the Crown’s representative sought to place more pressure on the grand jury by presenting witnesses publicly rather than privately before the jurors alone, as had been past practice. The jurors nevertheless refused to indict. Colledge was subsequently indicted by a different grand jury, convicted, and executed, and the earl of Shaftesbury fled the country to avoid a probable indictment by a new grand jury. The grand jury nevertheless had established its reputation as an independent screening agency capable of resisting the pressure of the Crown.
This view of the grand jury as the ‘‘people’s panel’’ was reinforced in the American colonies, where grand juries refused to indict numerous opponents of the Crown. Thus, the infamous prosecution of John Peter Zenger for seditious libel was brought by a prosecutor’s information—a charging instrument issued by the prosecutor alone—because grand juries twice refused to issue indictments. It was with such cases in mind that those who drafted the Bill of Rights required grand jury review of prosecutions. The first clause of the Fifth Amendment prohibits prosecutions for all serious crimes ‘‘unless on a presentment or indictment of a Grand Jury.’’ The reference to presentments recognized the grand jury’s continued authority to bring accusations on its own initiative. Indeed, the colonial grand juries had exercised that authority even against the wishes of the Crown.
At the start of eighteenth century, the grand jury was a key participant in the criminal justice processes of both the states and the federal government. As commentators later noted, the grand jury provided both the ‘‘shield’’ and the ‘‘sword’’ of the criminal justice system. In screening proposed indictments put before it by the prosecution (or private complainants), it shielded potential defendants from mistaken or vindictive prosecutions. In pursuing through its own investigative powers possible crimes that had come to its attention through the jurors’ knowledge of the community, it provided a sword against criminals whose activities might otherwise have escaped prosecution. Moreover, particularly in western states, the grand jury took on a broader ‘‘public watchguard’’ role as it investigated and issued public reports on governmental misfeasance that did not involve criminal behavior (a practice that continues today in many states).
Over the eighteenth century, two major developments substantially altered the use of the grand jury to screen potential charges and to investigate possible criminal activity. First, sharp criticism of the grand jury as a costly and inefficient screening body produced a strong movement to eliminate the requirement of prosecution by indictments, and to give prosecutors the option of instituting prosecution by a prosecutor’s information supported by a magistrate’s finding of probable cause at a preliminary hearing. In 1859, Michigan became the first state to adopt such a reform, and in 1884, the Supreme Court in Hurtado v. California, 110 U.S. 516 (1884), upheld the authority of the states to authorize felony prosecutions by information following a preliminary hearing bindover. Hurtado reasoned that the Fourteenth Amendment’s due process clause (prohibiting the deprivation of life, liberty, or property without due process of law) required adherence only to ‘‘fundamental principles of liberty and justice which lie at the base of all our civil and political institutions,’’ and prosecution by indictment was not such a fundamental principle. Admittedly, the indictment process, by requiring grand jury screening provided a valuable safeguard against the arbitrary exercise of prosecutorial authority; but other modes of proceeding could also provide such protection, as illustrated by the preliminary hearing and as recognized in the English common law, which had authorized prosecution of all misdemeanors and certain felonies without indictments. Following Hurtado, there was a gradual movement of the states away from mandatory prosecution of felonies by indictment, although that did not become a majority position until the twentieth century.
Second, a combination of the establishment of professional police forces and the granting to public prosecutors of a virtual monopoly over the decision to prosecute (largely eliminating private prosecutions) significantly altered the grand jury’s investigative role. The growth of police investigative capacity lessened the need for grand jury’s use of its investigative authority. Where private complainants sought an investigation and prosecution, they went to the police rather than to the grand jury. Indeed, in many jurisdictions, the authority of the grand jury to charge by presentment was eliminated. Cases came to the grand jury through the prosecutor, and when the special investigative powers of the grand jury were needed, they were exercised at the direction of the prosecutor, who served as the jury’s legal advisor.
The grand jury retained the authority to initiate an investigation that the prosecutor opposed or to carry an investigation beyond what the prosecutor requested, and such ‘‘runaway’’ grand jury investigations did occur on rare occasions (usually by a grand jury that obtained judicial appointment of a special prosecutor). In large part, however, the grand jury investigations that came to bolster the modern grand jury’s reputation as an engine for uncovering corruption in government, combating white collar crime, and undercutting organized crime were initiated and led by prosecutors. The same was true of those investigations that sullied the grand jury’s reputation by suggesting that its investigative authority had been used for partisan political purposes. During the Vietnam War era, a flurry of such investigations at the federal level, directed at the alleged criminal activity of radicals (but seemingly operating more to harass than to produce supportable indictments), led to the adoption of reform legislation in various states. That legislation enhanced the rights of grand jury witnesses, providing, for example, that they could be accompanied by their attorneys in testifying before the grand jury. In the federal system, such reform legislation failed to gain legislative support, although the Justice Department did adopt as internal policy guidelines several requirements protective of witnesses and the targets of investigation (e.g., advising witnesses of their rights).
Certain elements of the legal structure of the grand jury relate primarily to either one or the other of its functions, but there are three basic structural features that influence both its screening and investigative roles—jury composition, jury independence, and the secrecy of jury proceedings.
Grand Jury Composition
In most jurisdictions grand jurors are drawn from the same constituency, and selected in the same manner, as the jury panel for petit jurors. The federal system and a majority of the states use a random selection system, where jurors are selected at random from a voter registration list or similar list. A smaller group of states use a ‘‘discretionary’’ selection system, under which jurors are selected by local judges or jury commissioners, usually on the basis of recommendations by various community leaders. Both selection systems seek representation reflecting a cross section of the community. The U.S. Supreme Court has long held that an indictment is constitutionally invalid if issued by a grand jury chosen through a racially discriminatory selection procedure. Many authorities conclude that the Court also would invalidate an indictment if the grand jury selection procedure failed to meet the other basic nondiscrimination requirement, that the jurors be drawn from a ‘‘fair cross section’’ of the community.
Grand Jury Independence
Relationship to The Prosecutor
Independence from the prosecutor is, of course, basic to the grand jury’s shielding function. In its investigative function, although the grand jury is expected to work in cooperation with the prosecutor, some degree of independence also is assumed. Thus, the legal structure of the grand jury seeks to ensure the jury’s independence of the prosecutor, while allowing the jurors, as a group of laypersons, to take advantage of the professional expertise of the prosecutor. The prosecutor’s position as the ‘‘legal advisor’’ to the grand jury illustrates these dual objectives. The prosecutor serves as the primary source of advice on issues of law arising in grand jury proceedings, but the grand jury always retains the authority to seek further legal advice from the court. Similarly, although the prosecutor must be available to examine witnesses who testify before the grand jury, many jurisdictions also recognize a right of the grand jurors to exclude the prosecutor if they so desire.
The grand jury, at least theoretically, also has the final say on the evidence presented before it. Some jurisdictions require the grand jury to listen to any witnesses presented by the prosecutor, but others still recognize the common law authority of the grand jury to refuse to hear such evidence. In all jurisdictions, the grand jury is free to seek additional evidence beyond that offered by the prosecutor. Jurors have authority to ask witnesses questions that go beyond the prosecutor’s examination, and they also have authority to require the prosecutor to subpoena additional witnesses. Available data indicate, however, that grand juries only infrequently exercise their authority to override the prosecutor in determining the scope of their proceedings.
Relationship to The Court
Although often characterized as an ‘‘independent body,’’ the grand jury is also recognized to be an ‘‘arm of the court.’’ The court cannot order the grand jury to indict or refuse to indict, but in most jurisdictions it can substantially influence what matters are considered by the grand jury. Thus, many states recognize the authority of the judge impaneling the grand jury to require the grand jury to undertake a particular investigation or to consider particular evidence where necessary to prevent a miscarriage of justice. More significantly, the prosecutor’s authority to compel witnesses to testify before the grand jury rests on the use of judicially enforced subpoenas, and the court may refuse to enforce subpoenas if it determines that they are being misused. Since the impaneling judge is not present during the grand jury proceedings and is unaware of the particulars of grand jury activity, the exercise of judicial supervision to preclude grand juror or prosecutorial misconduct depends upon that conduct being brought to the judge’s attention by the prosecutor, the grand jurors, a subpoenaed party, or other persons familiar with the proceedings.
In United States v. Williams, 504 U.S. 36 (1992), the Supreme Court suggested that federal courts have very limited supervisory control over the grand jury. The federal courts may use that limited authority to ensure that the grand jury abides by limits imposed under the Constitution, federal statutes, or the Federal Rules of Criminal Procedure. However, the federal courts may not create their own ‘‘common law’’ limits upon grand jury proceedings, as they do for their own trial court proceedings, as that would be inconsistent, the Court noted, with the ‘‘grand jury’s functional independence from the judicial branch’’ (504 U.S. 48).
Grand Jury Secrecy
The requirement that the grand jury hear evidence in a closed proceeding grew out of the Crown’s attempt to pressure the grand jury in the earl of Shaftesbury’s case by presenting its witnesses at a public hearing. By the time of the adoption of the Fifth Amendment, it was firmly established that all grand jury proceedings were to be secret, with only the final result, if an indictment, made known to the public. The secrecy of the proceedings no longer was designed simply to protect the jurors from improper pressures. As noted by the Supreme Court in United States v. Procter and Gamble Co., 356 U.S. 677 (1958), grand jury secrecy came to be justified on several grounds:
(1) to prevent the escape of those whose indictment may be contemplated; (2) to insure the utmost freedom to the grand jury in its deliberations, and to prevent persons subject to indictment or their friends from importuning the grand jurors; (3) to prevent subornation of perjury or tampering with the witnesses who may testify before grand jury and later appear at the trial of those indicted by it; (4) to encourage free and untrammeled disclosures by persons who have information with respect to the commission of crimes; (5) to protect the innocent accused who is exonerated from disclosure of the fact that he has been under investigation, and from the expense of standing trial where there was no probability of guilt. (356 U.S. 682)
Although the justifications for secrecy continue to be accepted, there has been a gradual movement over the years toward narrowing its scope. This movement has been supported by two lines of reasoning: (1) that the former, broader requirements often went beyond what was needed to serve the justifications for secrecy; and (2) that it is necessary to balance against those justifications other, equally important interests.
Perhaps the most significant loosening of secrecy requirements has occurred in the exemption of the grand jury witness from the obligation of secrecy. In all jurisdictions, the prosecutor, grand jurors, and grand jury stenographer are prohibited from disclosing what happened before the grand jury, unless ordered to do so in a judicial proceeding. In the vast majority of jurisdictions, witnesses are no longer under such an obligation. They may disclose what they wish to whomever they wish. A major objective of grand jury secrecy is to keep a target from learning of the investigation, and thus to preclude his probable flight or attempt to tamper with witnesses.
However, a witness questioned about another is now free to inform that person of the grand jury’s interest in his activities. The witness exemption was adopted partly because it was thought that requiring secrecy of the witness was unrealistic and unenforceable, particularly where the target is a relative or friend of the witness.
Another significant change in secrecy requirements has been the gradual expansion of the disclosure made to the indicted defendant. At one time, the defendant had no access to the testimony before the grand jury that led to his indictment. Today, however, in almost every jurisdiction, if a witness who testified before the grand jury later testifies at trial, the defendant will be given a transcript of the grand jury testimony of that witness for possible impeachment use. Roughly a dozen states take the further step of providing the defendant with a complete transcript of all relevant testimony before the grand jury. Insofar as secrecy requirements encourage otherwise reluctant witnesses to assist the grand jury, that encouragement is likely to be lost through extensive postindictment disclosures.
Grand Jury Screening
The Fifth Amendment provides that except in certain military cases, ‘‘no person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury.’’ The reference to ‘‘otherwise infamous crimes,’’ has been interpreted, in light of historical practice, as encompassing all felonies (offenses punishable by imprisonment for a term exceeding one year). Thus, the net effect of the Fifth Amendment provision is to establish grand jury screening as the constitutional right of any person charged in a federal court with a felony offense. Since the provision is designed to protect the interests of the defendant, it does not require grand jury review when the defendant knowingly and voluntarily waives the use of an indictment. In such cases, and in prosecutions for misdemeanors, the federal prosecutor ordinarily will proceed by information.
Only eighteen states continue to make a grand jury indictment mandatory for all felony prosecutions (absent a voluntary waiver). Most do not allow waiver for capital offenses, so such prosecutions always are brought by indictment. Four additional states require prosecution by indictment for capital offenses or both capital and life-imprisonment offenses, but not for other felonies.
The remaining twenty-eight states permit prosecution by information for all felonies. These states grant the prosecutor the option of proceeding by indictment, but in several states that option is entirely theoretical, as grand juries do not exist. In most of the states permitting the information option, convening a grand jury is a realistic option, but one that is rarely used. Prosecutors proceed by indictment rather than information only where they have a special reason for doing so (e.g., the case was originally brought to the grand jury because the prosecutor had need for its investigative authority, the prosecutor desires to avoid the preliminary hearing that would be required if the prosecutor proceeded by information, or the case is politically sensitive and the prosecutor seeks to share responsibility for the charging decision with the grand jury). However, an occasional prosecutor in a state permitting prosecution by information may have a general preference for proceeding through the grand jury and bring most felony charges by indictment.
Presenting The Prosecutor’s Case
The prosecutor’s grand jury presentation ordinarily begins with an explanation of a proposed indictment and a summary of the evidence that will be offered to support it. The evidence is then presented through the testimony of witnesses or the introduction of documents. In many jurisdictions (but not the federal), the prosecution has an obligation to produce, in addition to supporting evidence, any further evidence that it knows to be exculpatory. Thus, if a lineup produced conflicting eyewitness identifications, the prosecutor must make the jury aware of that conflict and not simply present the one eyewitness who identified the accused. The prosecutor’s disclosure obligation is limited, however, to evidence obviously exculpatory and material. The prosecutor need not assume the role of a defense counsel and introduce all the evidence that a defense counsel might have wished to offer.
Although grand jury proceedings are secret, persons often are informed—for example, after being arrested—that charges against them will be presented to the grand jury. The grand jury proceeding is not an adversary proceeding, however, and those persons have no right to present their own evidence to that body. The potential defendant may request the opportunity to testify before the grand jury, but conventional wisdom deems that a risky tactic, as it subjects the potential defendant to cross-examination by the prosecution in a setting in which neither counsel (in most jurisdictions) nor the judge (in all jurisdictions) is present. Should such a request be presented, most jurisdictions hold that the grand jury can reject or grant the request at its discretion. Several states, however, give the potential defendant a right to testify if he so chooses, and they may permit him to be accompanied by counsel.
All jurisdictions require that the testimonial privileges of a witness be recognized in grand jury proceedings. Beyond that, there is considerable variation in the applicability of rules of evidence that would govern at trial. A small group make these evidentiary rules fully applicable. Among indictment jurisdictions, those that generally favor application of the rules of evidence will recognize one or more broad exceptions to the rules of evidence. Those exceptions typically are designed to remove the burden of testifying from persons whose testimony ordinarily would not present a significant credibility issue (e.g., forensic experts).
Most indictment jurisdictions, and many information jurisdictions, simply refuse to apply the rules of evidence (other than testimonial privileges) to grand jury proceedings. In these jurisdictions, prosecutors may use any type of evidence without regard to whether it could be used at trial. Thus, prosecutors need not have key witnesses themselves testify, but may simply introduce statements the witnesses gave to the police, even though those statements would be inadmissible hearsay at trial. In Costello v. United States, 350 U.S. 359 (1956), the Supreme Court held that the prosecutorial practice of relying entirely on hearsay did not violate the Fifth Amendment. The Court stressed that historically, the grand jury was a ‘‘body of laymen’’ whose ‘‘work was not hampered by rigid procedural rules’’ (350 U.S. 362).
Standard for Indictment
In many states the grand jury is directed to indict only if the evidence before it establishes probable cause to believe that the accused committed the felony charged; in others, it is directed to indict ‘‘when all the evidence taken together, if unexplained or uncontradicted, would warrant a conviction of the defendant.’’ The first standard is very much like that applied by a preliminary-hearing magistrate. The second is a somewhat more rigorous standard, being similar to the standard applied by a trial judge in ruling on a motion for directed acquittal. No matter which standard applies in the particular jurisdiction, the jurors need not be unanimous in their conclusion that it is met. At common law, a vote of a majority (twelve out of twenty-three jurors) was sufficient to indict. Many jurisdictions now permit smaller grand juries, but require a somewhat higher percentage of votes for indictment (for example, twelve out of sixteen).
In some jurisdictions, generally those applying the rules of evidence, a defendant may challenge an indictment as not supported by sufficient evidence. To sustain such a challenge, the court must find that the evidence before the grand jury, even if read in a light most favorable to the state, did not meet the applicable standard for indictment. Other jurisdictions refuse all challenges to the sufficiency of the evidence before the grand jury. They stand by the standard suggested in Costello, that ‘‘an indictment returned by a legally constituted and unbiased grand jury, . . . if valid on its face, is enough to call for a trial on the merits’’ (350 U.S. 363).
Few criminal justice issues have been the subject of such prolonged and heated debate as the comparative merits of prosecution by indictment and prosecution by information. Critics of prosecution by indictment tend to fall into two categories. First, there are those who see the screening grand jury as no more than a rubber stamp for the prosecutor. They point to various indictment jurisdictions in which grand juries have refused to indict in less than three percent of their cases. The legal structure of the grand jury, these critics argue, gives it only theoretical independence; in light of the prosecution’s ready access to investigative resources, its legal expertise, and its close working relationships with the grand jurors, it is inevitable that the grand jurors will follow the prosecution’s lead on whether the evidence is sufficient to proceed.
Supporters of grand jury screening offer a quite different reading of grand jury independence and the statistics on refusals to indict. They argue that a low rate of refusals to indict simply indicates that prosecutors, respecting independent grand jury review, have themselves eliminated the weaker cases. The success of grand jury screening, supporters note, is evidenced by the high percentage of indictments that produce convictions and the very small percentage that result in dismissals for want of substantial evidence (opponents respond that dismissals on the prosecutor’s own motion and negotiated pleas to lesser offenses are more common, and they may cover flaws in grand jury screening). Reference is also made to the experience in jurisdictions in which prosecutors do not screen so carefully and in which grand juries have refused to indict in as many as 15 percent of their cases.
A second group of critics acknowledge that the grand jury has some value as a screening agency, but believe that preliminary hearing is a better screening procedure. They contend that an independent magistrate, an adversary proceeding, and an open hearing clearly make the preliminary hearing the more effective procedure for eliminating unwarranted prosecutions. Grand jury supporters respond that the grand jury is the better screening agency because its strength lies where screening is most needed—in those cases where special factors, such as the involvement of politics or racial animosity, will probably result in unjust accusations. Lay participation permits the grand jury to evaluate the prosecution’s case in light of community notions of justice and fairness. Indeed, the grand jury has the recognized authority to ‘‘nullify’’ the law by refusing to indict, notwithstanding legally sufficient evidence.
Grand Jury Investigations
In contrast to their division on the use of the grand jury as a screening agency, both indictment and information jurisdictions use the grand jury as an investigative body. Although the extent of that use varies, the grand jury tends to be treated as a specialized investigative agency needed for a limited class of offenses. Compared to police investigations, grand jury investigations are expensive, time-consuming, and logistically cumbersome. However, the grand jury offers distinct investigative advantages where investigators must unravel a complex criminal structure, deal with victims reluctant to cooperate, or obtain information contained in extensive business records. Criminal activities presenting such investigative problems ordinarily relate to public corruption (e.g., bribery), misuse of economic power (e.g., price fixing), widespread distribution of illegal services and goods by organized groups (e.g., gambling syndicates), and threats of violence used by organized groups (e.g., extortion schemes).
The Subpoena to Testify
A major investigative advantage of the grand jury is its use of the subpoena ad testificandum, a court order directing a person to appear and testify before the grand jury. If the police wish to take a person into custody for questioning, they must have the probable cause required by the Fourth Amendment to justify the seizure of a person. Even then, the person has no duty to answer police questions. Moreover, if the person does answer and lies, his lying will not constitute a crime in most jurisdictions. If the prosecution, on the other hand, wishes to question a person before the grand jury, it may simply utilize the subpoena to testify, which avoids all of these obstacles. A subpoena to testify can be obtained without a showing of probable cause and, in general, without even a lesser showing that the person subpoenaed is likely to have relevant information. The compulsion of a subpoena to testify has long been held not to fall within the Fourth Amendment, since it does not involve taking a person into custody. Moreover, as various courts have noted, the grand jury (or the prosecutor acting on its behalf ) may utilize subpoena authority on no more substantial grounds than ‘‘tips’’ or rumors. This enables the grand jury to serve as ‘‘a grand inquest, a body with powers of investigation and inquisition, the scope of whose inquiries is not limited narrowly by questions of propriety or forecasts of the probable result of the investigation’’ (Blair v. United States, 250 U.S. 273, 282 (1919)).
Unlike the person questioned by a police officer, the subpoenaed witness is compelled to answer questions before the grand jury unless the witness can claim an evidentiary privilege, such as the marital privilege or the privilege against self-incrimination. If the witness refuses to testify without such legal justification, the witness will be held in contempt and subjected to incarceration. Ordinarily, the recalcitrant witness will be held in ‘‘civil contempt,’’ which means the witness will be released when willing to testify, or if unwilling, when the grand jury term ends. Criminal contempt is available if the grand jury no longer has need for the witness’ testimony, and it commonly carries a jail term of several months to a few years. If the witness testifies and fails to tell the truth, the witness may be prosecuted for perjury since the testimony is given under oath. Here the potential prison term is substantially longer.
The granting of subpoena authority to grand juries rests, in part, on the premise that extensive safeguards are available to prevent misuse of that authority. Judicial discussions of subpoena authority frequently note, for example, that the grand jury witness retains the same evidentiary privileges that would be available to a witness at trial. In particular, a witness who may be involved in a criminal enterprise can always exercise the privilege against selfincrimination, refusing to respond whenever his answer might provide ‘‘a link in the chain of evidence needed to prosecute’’ (Hoffman v. United States, 341 U.S. 479, 486 (1951)). Indeed, if the witness is a potential target for indictment, the prosecutor may be required to inform the witness specifically, before he gives testimony, of his right to claim the privilege.
Courts also have stressed that the grand jury itself provides protection against misuse of the subpoena power. The grand jurors, it is noted ‘‘have no axes to grind and are not charged personally with the administration of the law’’ ( Justice Black’s dissent, U.S. 330, 346–347 (1957)). If questioning or other prosecutorial tactics offend their sense of justice, they may direct the prosecutor to discontinue (seeking the assistance of the court, if necessary). A final safeguard is the supervisory authority of the court issuing the subpoena. As the Supreme Court has noted, that court has the continuing obligation, if other safeguards fail, to prevent ‘‘the transformation of the grand jury into an instrument of oppression’’ (United States v. Dionisio, 410 U.S. 1, 12 (1973)).
Right to Counsel
A primary legal reform urged by critics of grand jury investigations is the increased availability of counsel for witnesses. Because the witness is not an ‘‘accused’’ person (even if the target of the investigation), the Sixth Amendment right to counsel does not apply. Only a few jurisdictions have provisions requiring appointment of counsel to assist witnesses who are indigent. Even if a witness has counsel, the witness in most jurisdictions cannot have counsel accompany him before the grand jury. These jurisdictions view the presence of the witness’ counsel before the grand jury as disruptive and inconsistent with grand jury secrecy. They will, however, permit the witness to interrupt his testimony and leave the grand jury room for the purpose of consulting with counsel just outside the grand jury room. Counsel for witnesses claim that this practice is not adequate, because witnesses do not always realize that they need legal advice in responding to a particular question. Moreover, witnesses often are fearful that they will appear to have ‘‘something to hide’’ if they too frequently leave the room to consult with counsel. Roughly twenty states do permit witnesses to be assisted by counsel within the grand jury room. These jurisdictions strictly limit the lawyer to giving advice to the witness, thereby seeking to prevent counsel from turning the grand jury examination into an adversary proceeding by making arguments to the grand jury.
Subpoena Duces Tecum
The subpoena duces tecum (a court order directing a person to bring with him specified items in his possession) gives the grand jury the capacity to obtain physical evidence in a manner very similar to its capacity to obtain testimony. This subpoena is used primarily to obtain business records and other documents in investigations of white-collar crimes. However, it has also been used to require a suspect to provide such identification evidence as fingerprints or handwriting samples. A subpoena duces tecum, in contrast to a search warrant, does not require a showing of probable cause. Although the subpoena does direct the subpoenaed person to search his files and bring forth specified documents, it does not authorize the police or prosecutor themselves to search the premises for those files. The only Fourth Amendment limitation imposed upon the subpoena duces tecum relates to its breadth. A subpoena may not encompass such a wide range of material as to impose an unreasonable burden on the subpoenaed party.
The safeguards applicable to the subpoena ad testificandum also apply to the subpoena duces tecum. However, the privilege against selfincrimination is far less likely to apply to a subpoena duces tecum. The privilege extends only to individuals, and therefore cannot be raised, to subpoenas requiring production of documents belonging to corporations or similar entities, notwithstanding potential incrimination to the persons who authored or possessed the documents. Moreover, even with respect to personal records, the privilege tends to be limited to private documents personally prepared by the subpoenaed individual. Since the writing of the previously prepared document was not itself compelled, the only compelled testimonial element occurs in the acknowledgments that may be inherent in the act of productions—that is, acknowledging that the document exists, that it is possessed by the person presenting it, and that it is the document described in the subpoena. Where the document is not private and personally prepared, compelling those acknowledgments often will not be viewed as seeking testimony because existence, possession, and the document’s authenticity already will be known as ‘‘foregone conclusions.’’ As the privilege extends only to testimonial disclosures, it also has no applicability to subpoenas requiring production of fingerprints or similar identification evidence.
Perhaps the most significant advantage of the grand jury investigation is the availability of the immunity grant. An immunity grant is a court order that, in effect, supplants the witness’ self-incrimination privilege. Since the privilege prohibits compelling a witness to give testimony that may be used against him in a criminal case, the privilege can be rendered inapplicable by precluding such use of the witness’ compelled testimony. An immunity grant does exactly that. It directs the witness to testify and protects him against use of his testimony in any subsequent criminal prosecution.
The Supreme Court has held that to be effective, the immunity grant must guarantee against further use of both the witness’s testimony and any evidence derived from that testimony (Kastigar v. United States, 406 U.S. 441 (1972)). Moreover, if a subsequent prosecution is brought, the prosecution bears the burden of establishing that all of its evidence was derived from a source independent of the immunized testimony. As a practical matter, unless the prosecution had a fully prepared case before the witness was granted immunity, it will be most difficult to prosecute successfully for a criminal activity discussed in immunized testimony. Many states simply grant the witness what is commonly called ‘‘transactional immunity.’’ They bar any prosecution for a transaction discussed in the immunized testimony, without regard to the possible independent source of the prosecutor’s evidence.
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