SPEAKERS CONTENTS INSERTS
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67–333
2000
CONSTITUTIONAL RIGHTS AND THE GRAND JURY
HEARING
BEFORE THE
SUBCOMMITTEE ON THE CONSTITUTION
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED SIXTH CONGRESS
SECOND SESSION
JULY 27, 2000
Serial No. 114
Printed for the use of the Committee on the Judiciary
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For sale by the U.S. Government Printing Office
Superintendent of Documents, Congressional Sales Office, Washington, DC 20402
COMMITTEE ON THE JUDICIARY
HENRY J. HYDE, Illinois, Chairman
F. JAMES SENSENBRENNER, Jr., Wisconsin
BILL McCOLLUM, Florida
GEORGE W. GEKAS, Pennsylvania
HOWARD COBLE, North Carolina
LAMAR S. SMITH, Texas
ELTON GALLEGLY, California
CHARLES T. CANADY, Florida
BOB GOODLATTE, Virginia
STEVE CHABOT, Ohio
BOB BARR, Georgia
WILLIAM L. JENKINS, Tennessee
ASA HUTCHINSON, Arkansas
EDWARD A. PEASE, Indiana
CHRIS CANNON, Utah
JAMES E. ROGAN, California
LINDSEY O. GRAHAM, South Carolina
MARY BONO, California
SPENCER BACHUS, Alabama
JOE SCARBOROUGH, Florida
DAVID VITTER, Louisiana
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JOHN CONYERS, Jr., Michigan
BARNEY FRANK, Massachusetts
HOWARD L. BERMAN, California
RICK BOUCHER, Virginia
JERROLD NADLER, New York
ROBERT C. SCOTT, Virginia
MELVIN L. WATT, North Carolina
ZOE LOFGREN, California
SHEILA JACKSON LEE, Texas
MAXINE WATERS, California
MARTIN T. MEEHAN, Massachusetts
WILLIAM D. DELAHUNT, Massachusetts
ROBERT WEXLER, Florida
STEVEN R. ROTHMAN, New Jersey
TAMMY BALDWIN, Wisconsin
ANTHONY D. WEINER, New York
THOMAS E. MOONEY, SR., General Counsel-Chief of Staff
JULIAN EPSTEIN, Minority Chief Counsel and Staff Director
Subcommittee on the Constitution
CHARLES T. CANADY, Florida, Chairman
HENRY J. HYDE, Illinois
ASA HUTCHINSON, Arkansas
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SPENCER BACHUS, Alabama
BOB GOODLATTE, Virginia
BOB BARR, Georgia
WILLIAM L. JENKINS, Tennessee
LINDSEY O. GRAHAM, South Carolina
MELVIN L. WATT, North Carolina
MAXINE WATERS, California
BARNEY FRANK, Massachusetts
JOHN CONYERS, Jr., Michigan
JERROLD NADLER, New York
CATHLEEN CLEAVER, Chief Counsel
BRADLEY S. CLANTON, Counsel
JONATHAN A. VOGEL, Counsel
PAUL B. TAYLOR, Counsel
C O N T E N T S
HEARING DATE
July 27, 2000
OPENING STATEMENT
Hutchinson, Hon. Asa, a Representative in Congress From the State of Arkansas, and presiding chairman, Subcommittee on the Constitution
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WITNESSES
Beale, Sara Sun, professor of law, Duke University School of Law
Henning, Peter J., associate professor of law and director of graduate studies, Wayne State University Law School
Leipold, Andrew D., professor of law, University of Illinois College of Law
Lynch, Loretta E., United States Attorney for the Eastern District of New York, U.S. Department of Justice
Robinson, James K., Assistant Attorney General, Criminal Division, U.S. Department of Justice
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Beale, Sara Sun, professor of law, Duke University School of Law: Prepared statement
Henning, Peter J., associate professor of law and director of graduate studies, Wayne State University Law School: Prepared statement
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Leipold, Andrew D., professor of law, University of Illinois College of Law: Prepared statement
Lynch, Loretta E., United States Attorney for the Eastern District of New York, U.S. Department of Justice: Prepared statement
Robinson, James K., Assistant Attorney General, Criminal Division, U.S. Department of Justice: Prepared statement
APPENDIX
Material submitted for the record
CONSTITUTIONAL RIGHTS AND THE GRAND JURY
THURS, JULY 27, 2000
House of Representatives,
Subcommittee on the Constitution,
Committee on the Judiciary,
Washington, DC.
The subcommittee met, pursuant to call, at 1:20 p.m., in Room 2237, Rayburn House Office Building, Hon. Asa Hutchinson presiding.
Present: Representatives Asa Hutchinson and Melvin L. Watt.
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Staff present: Jonathan A. Vogel, counsel, Subcommittee on the Constitution; Susana Gutierrez, clerk, Subcommittee on the Constitution; Anthony Foxx, minority counsel, Subcommittee on the Constitution; and Sampak Garg, minority counsel, Committee on the Judiciary.
OPENING STATEMENT OF PRESIDING CHAIRMAN HUTCHINSON
Mr. HUTCHINSON. This subcommittee hearing will come to order, and I am here in behalf of Chairman Canady, and I want to explain to the panelists that we were waiting—there is other things going on in Congress, and the ranking member had a markup, so we are pleased to proceed now. And I am going to read this statement in behalf of Chairman Canady, which will be submitted for the record. But we convene today to conduct oversight on the issue of Consitutional Rights and the grand jury.
The Federal grand jury system is enshrined in the fifth amendment to the United States Constitution. The fifth amendment states, in pertinent part: No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger.
Although the modern Federal grand jury is the direct descendant of an English institution, the Federal grand jury system has evolved somewhat. While the English forerunner of the grand jury served primarily as a prosecutorial and investigative arm of the Crown designed to enhance the government's authority, the modern Federal grand jury serves—in the words of the United States Supreme Court in Branzburg v. Hayes—''the dual function of determining if there is probable cause to believe that a crime has been committed and of protecting citizens against unfounded criminal prosecutions.''
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Today, this subcommittee convenes to hear testimony on the history of the Federal grand jury system—its origins and its evolution—and to discuss the plethora of constitutional issues that arise within the Federal grand jury system. We will hear from two Federal prosecutors, including the head of the Justice Department's Criminal Division, and three distinguished law professors who have taken a keen interest in and who have written about the Federal grand jury system. And I might add, that I understand we will probably hear some discussion about recommendations and proposals in reference to reform of the grand jury system. So I look forward to your testimony and that discussion today. And with that, I yield to the ranking member, Mr. Watt, for any comments he would have.
Mr. WATT. Thank you, Mr. Chairman, and I want to thank Mr. Canady, the Chair of the subcommittee, for convening this subcommittee hearing, and apologize to all of you for being late. Unfortunately, I am also in the middle of a markup of a bill in the Banking Committee on which I serve, and in fact, I am going to have to run back down there to finish that markup and, hopefully, get back here in time to hear some of the testimony.
This is a tremendously important issue, and a number of people have spent a great deal of time trying to find the appropriate delicate balance that we are constantly searching for quite often in legal and other context. And I believe this hearing is the start of a more intensive discussion and evaluation of what that appropriate balance is, and I think we need to have that discussion, because there is a lot of mistrust, a lot of feeling on the part of some people that the grand jury process is out of control, not balanced. And we need, in order for us to legislate, if we are going to do it, we need to know the facts and know the factors that we need to take into account, and we need to hear those factors from a balance perspective. And I think the composition of this hearing panel will help us in that direction.
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I want to, especially, issue—not that everybody is not welcome—but issue a special welcome to Professor Beale from Duke University Law School in my State. And I won't discriminate against Ms. Lynch. I have got the two roses in the middle of the thorns here, you see, because I know Ms. Lynch is also from North Carolina, or has very, very strong North Carolina ties, because Reverend Lynch—is that your father—must be your father.
Ms. LYNCH. Father and younger brother—two of them.
Mr. WATT. I think I know the old one. Reverend Lynch was a very renowned minister in what used to be in my congressional district in Durham, North Carolina; no longer is there in my congressional district, but who knows, it might be changed again. So I have to be nice to Ms. Lynch. I might get that part of the district back. So I want to especially welcome them—not to diminish the role of the other participants, but a special welcome to the two of them. And thank you for convening the hearing. If I have to slip out, I really do have to slip out to go finish a markup, and then I will be back as soon as I can possibly get back.
Mr. HUTCHINSON. Thank you. And with that, let me introduce the panel. I will go ahead and give you an introduction for everyone, and then we will come back and start with Mr. Robinson.
Our first witness this afternoon is James K. Robinson, the Assistant Attorney General for the Criminal Division at the U.S. Department of Justice. Mr. Robinson has served in that position since June 1998. The work of the Criminal Division includes the investigation and prosecution of cases concerning other corruption, organized crime, labor racketeering, narcotics trafficking, fraud, money laundering, computer crime, espionage, child exploitation, terrorism, and violent crimes, and probably a few other things. The Division also provides assistance to 94 United States Attorneys Offices throughout the country. Before he joined the Justice Department, Mr. Robinson served as Dean and Professor of Law at Wayne State University Law School.
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Following Mr. Robinson is Loretta E. Lynch. United States Attorney for the Eastern District of New York. As United States Attorney, Ms. Lynch oversees an office of more than 150 attorneys—a little bit larger than the office I had in Arkansas a few years back—who represent the Federal Government in matters both civil and criminal. Ms. Lynch began her career in the Eastern District of New York, prosecuting narcotics and violent crime cases, including the prosecution of members of a violent Asian street gang in an 8-week murder and racketeering trial.
Our third witness on this panel is Professor Sara Sun Beale, of Duke University School of Law. Professor Beale served in the Office of Legal Counsel and the Office of the Solicitor General, the U.S. Department Justice, before joining the faculty at Duke University in 1979. Professor Beale is the co-author of several books, including Grand Jury Law and Practice in Federal Criminal Law and its Enforcement.
The fourth witness is Professor Peter J. Henning, who is an associate professor of law and director of graduate studies at Wayne State University Law School. Professor Henning was a trial attorney with the Criminal Division of the U.S. Department of Justice before he became a professor at Wayne State University in 1994. He is the author of Prosecutorial Misconduct in Grand Jury Investigations, which was published by the South Carolina Law Review.
Our fifth and final witness this afternoon is Professor Andrew D. Leipold of the University if Illinois College of Law. Professor Leipold clerked for Justice Louis Powell, Jr. at the United States Supreme Court and litigated with the law firm of Morgan, Lewis, and Bachius in Philadelphia before joining the faculty at the University of Illinois in 1992. He is the author of Why Grand Juries Do not and Cannot Protect the Accused, which was published by the Carroll Law Review.
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Thank each of you for being here this afternoon, and I would ask that if you could summarize your testimony in 5 minutes. We won't be extraordinarily strict, but after we complete the round of testimony, then we will have a question and answer, and we will have more discussion about it, because you might be able to elaborate on some of your points. So with that, I recognize Mr. Robinson to proceed.
STATEMENT OF JAMES K. ROBINSON, ASSISTANT ATTORNEY GENERAL, CRIMINAL DIVISION, U.S. DEPARTMENT OF JUSTICE
Mr. ROBINSON. Thank you very much, Mr. Hutchinson. I appreciate this opportunity today to discuss this very important topic. I, also, on a personal note, as you noted, in my previous life I was a law school dean, and it is nice to be outnumbered by academics again on this panel. One of the disclaimers I have to make is that I was involved in hiring Professor Henning when I was Dean at Wayne, so you should know that, but I didn't know he was coming. I had nothing to do with him coming here.
Mr. HUTCHINSON. Then you will both be in agreement today?
Mr. ROBINSON. Not necessarily. If I am in agreement with everybody on my former law school faculty, it would be for the first time, I think. But in any event, this is a very important topic. There has been a lot of discussion about it. As Mr. Watt indicated, our Federal grand jury system is older than our Nation. Because it is fundamental to our Federal Criminal Justice System, we can and we should examine the system to make sure that it functions both fairly and effectively.
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What we would like to do, Ms. Lynch and I have submitted a lengthy statement, and I will summarize my views briefly, and then she would like to make a few additional comments. We would like to share with you what we believe to be the basic elements and goals of our grand jury system and to provide you with an overall view of how the system is working from our perspective to protect individual interests, along with the public interest, in bringing criminal offenders to justice.
In addition, we are aware that the Criminal Defense Bar has proposed to change the way in which the Federal grand jury functions in a number of ways, and I would like to comment to a certain extent on those matters. It is our firmly held view that these proposals, some of them would severely damage the effectiveness of the grand jury system and could well impede its vital work. In this regard, I should indicate that I have had a variety of hats over the last 32 years, where I have been a member of the Bar, a period as the United States Attorney in Detroit, and my current position with the Department of Justice. But for a good deal of that time, I was also the chair of a litigation department in a large firm doing among other things, white collar criminal defense work, and also, working in a State that had a grand jury system similar to many others that had counsel in the grand jury, and so I have had a variety of ways in which to look at some of the issues that are being considered here.
When our Nation ratified the Bill of Rights, the grand jury was given a central position in the new government as the sole means by which the United States may initiate Federal felony charges. The United States grand jury is a body of 16 to 23 ordinary citizens that serves to protect the innocent and indict those toward whom the evidence leads with regard to criminal activities. It has four defining characteristics, which I will just mention briefly and then proceed to talk about how they are operating today.
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First, the Federal grand jury conducts its work in secret. Second, it has been given very broad powers, investigative powers and powers with regard to authorizing charges. Third, the grand jury is an independent body. And fourth, the grand jury is considered to be non-adversarial. In the words of the Supreme Court, is axiomatic, that the grand jury sits not to determine guilt or innocence but to assess whether there is adequate basis for bringing a criminal charge.
The matters that come before modern day Federal grand juries are, generally, the product of substantial investigation and assessment by Federal investigators and prosecutors. Before a matter is presented to a grand jury, it undergoes a thorough screening process in our United States Attorneys offices or by Federal prosecutors in Washington. Generally, a matter begins with an investigative agency, such as the FBI or the DEA, which makes an initial determination as to whether a matter should be referred to a Federal prosecutor. Once the referral is made, the Federal prosecutors decide whether it merits further investigation and review.
A significant percentage of matters presented for examination by Federal prosecutors are declined for Federal prosecution. Even if the matter has sufficient merit, the United States Attorneys offices and Federal prosecutors may seek additional information from investigative agencies or submit it for further review within the U.S. Attorneys Office or at Main Justice by other prosecutors or supervisors before deciding whether to proceed before a Federal grand jury.
Although the standard for returning an indictment is only probable cause, the United States Department of Justice has traditionally, and for a long period of time, employed a much higher standard of that in making charging decisions. The United States Attorneys manual provides that a prosecutor may present a case to a grand jury for indictment only if he or she believes that the person's conduct constitutes a Federal offense and that admissible evidence will probably be sufficient to obtain and sustain conviction.
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Because of this thorough review, the high standard of controlling submission of matters to the grand jury set out in the U.S. Attorneys manual, approximately 99 percent of matters presented to grand juries result in indictments. And I think it has often been said that grand juries easily indict people and rarely refuse to indict, but it is my strong belief that that is because they are rarely presented with situations in which there hasn't been this careful screening that has occurred.
These matters that ultimately come before grand juries are often complex, detailed, and facts intensive. They are brought to protect citizens of the United States from narcotics trafficking, white collar and organized crime, environmental degradation, terrorism, and civil rights abuses, among many other crimes.
Mr. HUTCHINSON. Mr. Robinson, let me interrupt you. Your 5 minutes expired and I just want to make sure you are able to make the key points that you have. If you could take a little bit longer and just summarize the key points that you want to make.
Mr. ROBINSON. I will do that. And I guess, by summary, if I had to say it in one sentence with regard to the proposed reforms, and I will talk about one of them briefly, it is that if it ain't broke, don't fix it. And it is our strong belief that the system isn't broken. And the fact of the matter is that while a lot of where you stand on this issue depends on where you sit, and I understand why Federal prosecutors are interested in preserving the system and why criminal defense lawyers would like a little—like to get in the grand jury room and a variety of these other proposals. But I think that whenever we are about to consider the possibility of taking an institution that has worked so well for the American people over so many years, the burden of demonstrating that the system is broken ought to be borne by those who suggest that there really needs to be substantial reform. There are a variety of mechanisms already built in the system to deal with potential abuses and I would be glad to discuss that in the question and answer.
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Let me just briefly address one of the major proposals for reform, and then I will turn it over, obviously, to my colleagues. And that is the proposal that has related to the notion of counsel in the grand jury. And we believe that this issue has been addressed, even fairly recently, by the Federal Judiciary through its rule-making process, and I think that the conclusions reached there by Federal judges and prosecutors who serve on those, and defense attorneys who serve on that committee, was the correct one. And that is that the proposal for having counsel in the grand jury is one that would substantially diminish the effectiveness of the grand jury system, create the possibility of collateral litigation, and create problems that we can talk about in greater detail.
So we do have serious concerns about some of these proposals, but I fully agree with Mr. Watt. These issues are important. It is important for the country to have these issues examined, for the Congress to look at these issues, to hear from prosecutors, defense attorneys, and academics, and that we have a thorough debate on these questions. And as I say, we have gone into some detail in our written submission and would be happy to answer any questions. And I appreciate the little extra time that you provided me on this.
Mr. HUTCHINSON. Thank you, Mr. Robinson, and your complete statement will certainly be made a part of the record, as will all the witnesses. Ms. Lynch.
STATEMENT OF LORETTA E. LYNCH, UNITED STATES ATTORNEY FOR THE EASTERN DISTRICT OF NEW YORK, U.S. DEPARTMENT OF JUSTICE
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Ms. LYNCH. Thank you Congressman Hutchinson, Congressman Watt, counsel. I would like to thank you today for the opportunity to speak on behalf of myself and the other 92 U.S. Attorneys, all of whom take very seriously our oath and our obligation to protect the citizens of this country. The grand jury serves an important role in fulfilling that obligation. Some of the Criminal Defense Bar's proposed changes, however, would seriously undermine the grand jury's function in that role, and they would make it difficult, if not impossible, to prosecute many important cases in areas such as terrorism, civil rights, narcotics, and the environment. These proposals would also seriously undermine grand jury secrecy, and thus, really serve a challenge to the rights and, in fact, the safety of witnesses. I would like to spend my time focusing on just a few examples of that.
In the area of terrorism, I think we can safely say that there really is no more current or widespread threat to our country today than from terrorist activity. It is a new threat that we are working on all fronts to combat. The terrorist organizations whose members have been prosecuted to date have monitored criminal proceedings very closely. In fact, we have learned of various coconspirators going so far as to debrief witnesses after their grand jury appearances in terrorist bombing investigations. We have also seen cases where targets or subjects in the terrorism context are represented by house counsel; that is to say, counsel for the organization as opposed to the individuals. This is also frequently encountered in the organized crime context.
Allowing those lawyers into the grand jury to observe the questioning of witnesses, to view the exhibits, to take notes, would enable them to disclose extremely sensitive material to other subjects, other targets, as well as to approach and possibly intimidate other witnesses. To make a grand jury transcript available to witnesses, as is one possible proposal, who are themselves not bound by the secrecy provisions of the grand jury rules would also seriously undermine our ability to prosecute these cases. They would provide terrorist organizations with an invaluable road map of areas of interest to the prosecution; indeed, the entire investigation. Grand jury transcripts could be—and I dare say would be—placed on the Internet, providing greater access to the media, but more importantly, to coconspirators. Broadcasting the names, the dates, and the locations involved in sensitive international terrorism investigations could effectively shut down those investigations.
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Turning to the 72-hour notice proposal, another proposal being considered, or being set forth, that would also seriously impede law enforcement's ability to respond to immediate threats of terrorism. For example, you may recall the recent spate of threats during the millennium celebration, and you may recall that they involved the arrest of an individual who was actually smuggling detonators and explosives across the border into this country from Canada. It was necessary to react swiftly to any and all potential leads. In such circumstances, it may be necessary to question witnesses on extremely short notice.
An advance notice requirement not only would deprive the government of that flexibility, but it would make responding to terrorist threats and possible imminent attacks much more difficult. Moreover, the notice requirement may afford terrorists the opportunity to flee before appearing in the grand jury, thereby, depriving us of our ability to bring them to justice.
The grand jury is particularly important in civil rights investigations. I refer the subcommittee to a recent case involving the investigation of several police officers for an assault on an unarmed civilian and subsequent attempts to obstruct the very grand jury investigation into that case. During the course of that investigation, it was vital that police officers who were on the scene give testimony in the grand jury as to what they saw.
Congressmen, I can tell you there is no more reluctant witness than a police officer being called to give testimony against a fellow officer; yet, that is often the most effective way, and frankly, often the only way in which such cases can be made. We must find out what happened, and we must be able to question those officers in the grand jury.
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A particular issue was raised here because officers are often represented by attorneys provided by their union, who may themselves represent a number of potential witnesses. The presence of a police union lawyer in the grand jury could, therefore, inhibit officers from testifying freely and truthfully. In addition, this lawyer could reveal the course of the investigation to the other targets, or facilitate the coaching or the intimidation of witnesses, or even the obstruction of justice. Similarly, providing transcripts to witnesses would negate the confidentiality of the proceedings and inhibit these witnesses who may themselves be pressured by targets of the investigation to obtain their transcripts and share them with them.
In another recent case, a drug trafficker was considering cooperating with the government, including testifying in the grand jury. The potential cooperator specifically asked the prosecutors whether his attorney would know what he said before the grand jury. He was glad to find out that his attorney would not be allowed in the grand jury and would only learn of his testimony if he chose to reveal it. The cooperator specifically said that he was concerned that his attorney, who represented other drug dealers, would reveal his cooperation to those other clients, thereby placing his family's life in danger.
And then just briefly, in the environmental context, a whistle blower employee anonymously told the EPA about company managers who explicitly directed employees to hide evidence of hazardous waste that was contaminating the drinking water aquifer at a military site. This employee testified before the grand jury, and ultimately, two other individuals plead guilty to making false statements. But in light of this company's direct efforts to pressure employees, it is highly unlikely that the whistle blower would have come forward and given full testimony had company counsel been with him. And in fact, when the company learned of his actions, he was fired.
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Congressmen, I greatly appreciate the opportunity to share my views and I look forward to your questions. Thank you.
[The prepared statement of Mr. Robinson and Ms. Lynch follows:]
PREPARED STATEMENT OF JAMES K. ROBINSON, ASSISTANT ATTORNEY GENERAL, CRIMINAL DIVISION, U.S. DEPARTMENT OF JUSTICE, AND LORETTA E. LYNCH, UNITED STATES ATTORNEY FOR THE EASTERN DISTRICT OF NEW YORK, U.S. DEPARTMENT OF JUSTICE
Mr. Chairman and members of the Subcommittee, thank you for the opportunity to appear before you today. The Department of Justice is pleased to participate in this hearing on the grand jury. Our federal grand jury system is older than our nation. As a core institution adopted in this nation's earliest days, the grand jury has been the primary instrument used to investigate and charge federal crimes for over two hundred years. Because it is fundamental to our federal criminal justice system, we can and should carefully and regularly examine the grand jury system to make sure that it functions both fairly and effectively.
We would like to share with you today what we believe are the basic elements and goals of our grand jury system, provide you with an overview of how the system is working, and explain the safeguards that the Department of Justice and the courts have put in place to protect individual interests along with the public's interest in bringing criminal offenders to justice. In addition, we are aware that the criminal defense bar has proposed to change the way the federal grand jury functions. It is the Department's view that many of these proposals would eviscerate the effectiveness of the grand jury and impede its vital work. Once you have examined these proposals in detail, we believe that you will conclude, as we have, that it would be detrimental to our system of justice to change a system that so well serves the public interest.
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I. BASIC ELEMENTS AND GOALS OF THE FEDERAL GRAND JURY SYSTEM
The grand jury was brought to this country with the English common law. When our nation ratified the Bill of Rights, the grand jury was given a central position in the new government as the sole means by which the United States may initiate felony charges. The United States grand jury, like its English progenitor, is a body of ordinary citizens that serves to protect the innocent and indict those towards whom evidence leads. It has four defining characteristics.
First, the federal grand jury conducts its work in secret. As early as the 17th century, jurors could not be required to divulge to anyone, including the courts, the evidence upon which they had acted. The Supreme Court of the United States and the lower courts have articulated specific reasons for this secrecy. In particular, it prevents those who may be indicted from absconding, ensures that the grand jury is not restrained in its deliberations, and prevents persons subject to indictment or their associates from importuning the grand jurors. The secrecy also prevents subornation of perjury or tampering with the witnesses who may testify before the grand jury and later appear at the trial of those indicted by it, encourages free and untrammeled disclosures by persons who have information with respect to the commission of crimes, and protects 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. See, e.g., U.S. v. Proctor & Gamble Co., 356 U.S. 677 (1958).
Second, the grand jury is vested with broad powers. Traditionally, the grand jury has been accorded wide latitude to inquire into violations of criminal law. It can subpoena witnesses and documentary evidence, take testimony under oath, and compel testimony by providing immunity. The Supreme Court has repeatedly stated that the grand jury's investigative power must be broad if its public responsibility is adequately to be discharged, and thus the Court has insisted that the grand jury remain free to pursue its investigations unhindered by external influence or supervision. See, e.g., Branzburg v. Hayes, 408 U.S. 665, 700 (1972).
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Third, the grand jury is independent from other branches of government. Although it is grounded in the Bill of Rights, it has been described as belonging to no one branch of the institutional government. The grand jury is separate from the executive branch and thus the authority of the prosecutor to seek an indictment is coterminous with the authority of the grand jury to entertain the prosecutor's charges. In our criminal justice system, the power of the prosecutor is derived from, and dependent on, the power given to him by the grand jury. There is no judge or other judicial officer present during the grand jury proceedings. Although judicial review is available where there have been claims of abuse or irregularity, review of the substance of the proceedings is disfavored by the courts. As such, the Supreme Court has held that for a court to review a grand jury indictment on the ground that there was insufficient evidence ''would run counter to the whole history of the grand jury institution.'' Costello v. U.S., 350 U.S. 359, 364 (1956).
Fourth, the grand jury is non-adversarial. Three years prior to the ratification of the Fifth Amendment, an early United States court explained that it is not the grand jury's function ''to enquire . . . upon what foundation [the charge] may be denied,'' or to try the suspect's defenses, but instead to examine ''upon what foundation [the charge] is made'' by the prosecutor. U.S. v. Williams, 504 U.S. 36, 52 (1992), citing Respublica v. Shaffer, 1 U.S. (1 Dall.) 236 (O.T. Phila. 1788). In the words of the modern Supreme Court, ''it is axiomatic that the grand jury sits not to determine guilt or innocence, but to assess whether there is adequate basis for bringing a criminal charge.'' Williams, 504 U.S. at 51.
II. THE FUNCTIONING OF THE MODERN DAY FEDERAL GRAND JURY
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Today's grand jury continues to implement the fundamental governmental role of securing the safety of the person and property of the citizen. Branzburg v. Hayes, 408 U.S. 665, 700 (1972).
The matters that come before our modern-day federal grand jury are generally the product of substantial investigation and assessment. Before a matter is presented to a grand jury, it undergoes a thorough screening process in our United States Attorneys' offices. Generally, a matter begins when an investigative agency, such as the Federal Bureau of Investigation or the Drug Enforcement Administration, makes an initial determination as to whether a matter should be referred to the United States Attorney's office. Once a referral is made, the United States Attorney's office decides whether it merits further investigation and review. If there is insufficient evidence, or some other defect in the case, the matter may be immediately declined. If the matter has sufficient merit, the United States Attorney's office may seek additional information from the investigating agency or submit it for further review within the office by other prosecutors or supervisors. Ultimately, the United States Attorney's office must decide whether to proceed to the grand jury. The United States Attorneys' Manual (USAM) states that a prosecutor is to present a case to the grand jury for indictment only if he or she ''believes that the person's conduct constitutes a Federal offense and that the admissible evidence will probably be sufficient to obtain and sustain a conviction.'' USAM 9–27.220. If this high standard is satisfied, the United States Attorney's office may submit the indictment to a grand jury for decision.
Because of this thorough review, and the high standard controlling submission of matters to the grand jury, prosecutors refer only meritorious matters to the grand jury. On an annual basis, a significant percentage of all matters referred to United States Attorneys' offices are declined, and are never presented to a grand jury. Cases in which there is insufficient evidence, no compelling federal interest, or other fundamental flaws are routinely screened out. Because of the exhaustive analysis undertaken by federal prosecutors, approximately 99% of the cases referred to the grand jury result in indictments, and 90% of these cases ultimately result in conviction of the defendant. Of this remaining 10%, less than 2% represent acquittals.
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Those matters that ultimately come before grand juries are often complex, detailed, and fact-intensive. They are brought to protect the citizens of the United States from narcotics trafficking, white-collar and organized crime, environmental degradation, terrorism and civil rights abuses, among other crimes. Each year, there are anywhere from 850 to 1360 federal grand juries convened to hear approximately 25,000 matters.
Although the volume of cases that is presented to federal grand juries is high, the number of cases of alleged prosecutorial overreaching is extremely small. While federal grand juries across the nation hear tens of thousands of matters each year, problems have been cited in a minuscule number of cases. A recent report by the National Association of Criminal Defense Lawyers (NACDL) cited 12 cases of alleged prosecutorial abuse in the federal system over the course of the last 19 years. From 1993 to 1999 there were 179,193 criminal matters heard by federal grand juries. In that same time period, the NACDL cites four instances of alleged abuse. Notwithstanding our good record, the Department of Justice takes very seriously any allegations of prosecutorial overreaching and does not tolerate such behavior. We must be careful, however, not to make drastic changes based on such scant evidence of problems.
The complex nature of the matters charged, and the fact that all felony charges must be brought via a grand jury indictment, make the federal grand jury system unique, and distinguish the system from the many different systems that have been put in place at the state level. The Fifth Amendment grand jury right is inapplicable to the states. Unlike other parts of the Bill of Rights, the right to a grand jury has never been applied to the states through the Fourteenth Amendment. Hurtado v. California, 110 U.S. 516 (1884). Moreover, most states do not require—either through their state constitutions or by statute—the use of a grand jury for felony cases. Of those states that do require the use of the grand jury, many utilize it only for certain types of crimes. Consequently, states utilize the grand jury in comparatively few cases. By contrast, federal prosecutors must use the grand jury in every felony case, unless the defendant has waived grand jury indictment. Thus, the state experience is not a reliable harbinger for the federal system. For this reason, in 1999 the United States Judicial Conference declined to rely on states' experiences with grand jury reform when the Conference studied, and ultimately rejected, proposed reforms to the federal system.
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In short, our federal grand jury system is a sound institution, serving the multitude of interests that the public, individuals, the federal government, and our courts have in investigating serious violations of federal law and bringing offenders to justice.
III. SAFEGUARDS BUILT INTO FEDERAL GRAND JURY SYSTEM
The Department of Justice and the federal courts have taken steps to ensure that our policies and practices before federal grand juries appropriately balance the rights of the individual and fairness to the accused with the need to protect our citizens against grave dangers.
First, federal prosecutors generally undergo training on grand jury practice. In the last seven years, the Department has sponsored more than two programs each year for federal prosecutors that focus on practice before the grand jury. Additionally, there are numerous annual trainings for federal prosecutors that include instruction on grand jury policies and procedures. Also, since 1961, the Department has provided federal prosecutors with the Grand Jury Practice Manual, which provides detailed, additional guidance specific to federal grand jury practice. This practical handbook on grand jury practice has recently been revised and will be distributed to federal prosecutors nationwide.
Second, the USAM directs prosecutors to protect the rights of subjects and targets during grand jury proceedings. The USAM sets forth the policies and procedures relevant to the work of federal prosecutors. It requires prosecutors to accord to all grand jury witnesses certain warnings and procedural benefits that surpass in significant respects those mandated by law. Moreover, the USAM regulates the behavior of prosecutors by enumerating over two hundred actions—including the charging of certain offenses—that cannot be undertaken without prior permission from the Department of Justice.
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Third, any individual who believes that a prosecutor has acted inappropriately in a grand jury context has a range of options to address overreaching. A witness can seek to quash a subpoena or obtain a protective order, suppress grand jury testimony at trial, expunge prejudicial language from an indictment, or obtain disciplinary action against a prosecutor. In cases where the defendant alleges sufficiently egregious conduct, the court may dismiss the indictment either on due process grounds or as an exercise of its supervisory powers.
In order to substantiate a claim of prosecutorial abuse, a defendant can petition the court for a copy of the grand jury transcript. Rule 6 of the Federal Rules of Criminal Procedure mandates the recording of all matters occurring before the grand jury (other than its deliberations or voting), including the examination of all witnesses and all remarks by the prosecutors. When such a petition is made, the court may review the transcript in camera and, if allegations of abuse are substantiated, may issue to the defendant a copy of relevant parts of the transcript. In addition, regardless of whether any prosecutorial impropriety is alleged, defendants receive the transcripts of testimony by any witnesses who testify at trial. Defendants also receive information about any exculpatory evidence that was revealed during the grand jury proceedings. Although it is typically defendants who petition the court for copies of transcripts, the law provides that any witness can, upon a showing of particularized need, receive a transcript of the grand jury proceeding. These safeguards ensure that the courts can ferret out incidents of prosecutorial overreaching. Our confidence that existing safeguards provide adequate protection in the grand jury setting was echoed last year by the Judicial Conference of the United States when it relied on the existence of such safeguards in its most recent rejection of proposed grand jury reforms.
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IV. ASSESSING THE NEED FOR REFORMS TO OUR FEDERAL GRAND JURY SYSTEM
Our grand jury system has changed very little over the last two hundred years because it works: it protects our citizens from crime and it protects the rights of the accused. There have, nonetheless, been intermittent calls for reform of the grand jury system. Most recently, the NACDL has announced its support for legislation to dramatically overhaul the operations of our federal grand jury system. The NACDL proposal is broken down into ten individual recommendations. We would like to address individually the proposals that have been made to alter the grand jury system and the specific problems with each proposal.
Proposal 1: Allow counsel to accompany and advise his or her client inside the grand jury room.
It has long been the prevailing practice that counsel may not accompany the witness inside the grand jury room. The proposal to allow defense counsel to be permitted inside the grand jury room has been considered—and rejected—by previous Congresses. Proponents of this change argue that counsel is necessary to protect the witness's rights and to deter prosecutorial abuse. As we stated earlier, the grand jury is not a part of the adversarial criminal justice process. It is solely a screening tool to determine whether there is an adequate basis for bringing a criminal charge. We believe that allowing witness counsel to accompany a witness to a grand jury proceeding, would, as a practical matter, destroy the effectiveness of our federal grand jury system.
First, the presence of an attorney in the grand jury room would interfere with the basic function of the grand jury—to thoroughly investigate allegations of violations of federal criminal law. The entire purpose of calling witnesses before the grand jury is to elicit whatever pertinent facts the witness knows. It is essential that witnesses provide truthful, full, unfettered and unsuggested testimony. If counsel were present, the witness might simply look to him or her for guidance on how to respond. A witness may be more likely to repeat the words his attorney whispered to him or her, rather than provide truthful and exhaustive testimony in his or her own words.
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Second, the presence of counsel for the witness has the potential to change the federal grand jury from a body that investigates and charges federal crimes into one that determines guilt or innocence—and the process from an informal back and forth discussion to an adversarial proceeding. It is not the role of witness counsel to assist the grand jury in its search for truth. Rather, counsel has the responsibility to zealously represent his or her client and protect interests that are often inconsistent with the role of the grand jury. In particular, to the extent that a complete and truthful answer would arguably prejudice the witness in any way, counsel for the witness would not want his or her client to answer. Counsel would likely object to questions he or she regards as irrelevant, overbroad, or technically defective—objections that have historically had no place in grand jury investigations. With counsel present, these proceedings would devolve to arguments about evidentiary issues and other procedural concerns that have no place in the grand jury. Grand jurors themselves regularly pose questions to witnesses. These questions would undoubtedly fail to comport with technical requirements of guilt-determining proceedings; repeated objections by counsel would both disrupt the proceedings and chill grand jurors from making inquiries.
Some counsel might go further than representing a client and attempt to disrupt the proceeding itself. If counsel were present in the grand jury room without the presence of a judge, there would be the potential for some counsel to make frivolous objections, confer with their clients in stage whispers, refer to prejudicial material and otherwise act to impede the proceedings. We doubt that the restrictions on counsel proposed by the NACDL would prevent this disruptive behavior. Even with strict rules, counsel could still communicate through his or her client and disrupt the proceedings. At the same time, we are also deeply skeptical that adequate remedies exist to control disruptive counsel. Some have suggested that the offending counsel could be excluded from the grand jury room. We believe—and the Judicial Conference has stated—that courts would rightly be extremely reluctant to interfere in the attorney/client relationship by ordering that a witness's counsel be removed. In addition, there may be a substantial constitutional difficulty with ordering a witness to obtain other counsel against his wishes. The Judicial Conference has also voiced its concern that attorneys would not abide by the rules. In its 1999 report, the Conference adopted the following comment by a group of Second Circuit judges: ''[e]xperience in criminal trials demonstrates that many lawyers simply would not adhere to the idealistic conception that they would limit themselves to advising their clients in sotto voce.''
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Third, the problems associated with the presence of counsel in the grand jury would result in repeated court intervention—and thus in significant delays and use of court resources. Every disagreement between a prosecutor and a witness' counsel would require an appearance before a judge who could control counsel only through the court's contempt powers. This would spawn protracted—and costly—litigation and lengthy delays. The grand jury must be free to act expeditiously to investigate crimes.
Delays that may be acceptable in other contexts are uniquely damaging in the grand jury system. Although limited extensions can be obtained with court approval, grand jury proceedings are limited to eighteen months. In our many complex cases, such as organized crime, terrorism and white collar crime, the grand jury needs its full tenure to adequately conduct its investigative and charging functions. The inevitable inclination of witnesses to consult their attorneys before every question would render the proceedings sluggish. Coupled with the breaks to litigate disruptions by counsel, these delays would detract from the time allotted to the grand jury to complete its work.
Fourth, the admission of counsel into the grand jury would place in jeopardy the secrecy that is so key to the effectiveness of the grand jury. Counsel, privy to the secret testimony presented in the grand jury room, could use this information to tailor the later testimony of other witnesses and thwart the investigation. Counsel could also discern the direction of the investigation and prepare later witnesses accordingly. This would certainly compromise the ability of the grand jury to elicit truthful, untainted testimony. It would also create an additional source for the release of secret information to the public. Like witnesses, counsel are not required to keep grand jury information confidential under Rule 6(e). Nothing would prevent counsel from sharing this information with the subjects, targets, prospective witnesses or the press. Counsel could use their access to make misleading comments that could influence future witnesses or trial jurors. Furthermore, having counsel in the grand jury room further complicates the investigation of grand jury leaks because it expands the universe of potential sources. Dissemination of such sensitive information at the grand jury stage would make the already difficult job of securing testimony from recalcitrant or reluctant witnesses more difficult and, in some cases, impossible. It could also encourage suspects to flee prior to an indictment.
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Fifth, the presence of counsel in the grand jury room would make it difficult for a witness to testify candidly about his or her employer, business, union, organization or syndicate whose activities are under investigation. In many of our cases, these witnesses are represented by a ''company lawyer.'' Individual witnesses who possess relevant information are often willing to cooperate in the investigation and provide testimony against their employers. However, this cooperation may be premised on the condition that their cooperation not become known—at least until trial—to the employer, fellow union members, or others who may cause them harm. If the attorney were present in the grand jury room, the witness would actually be unable to cooperate for fear of reprisal. The witness would not be able to decline the presence of counsel without tipping off the organization or syndicate to his cooperation. Furthermore, the witness could not realistically cooperate outside of the grand jury setting because the failure to be called in front of the grand jury would itself be noticeable. In these cases, permitting counsel in the grand jury room would have the ironic effect of paralyzing those witnesses willing to cooperate and chilling candid testimony.
Similar problems arise in cases of multiple representation—where one attorney, or a group of closely associated counsel, represent more than one grand jury witness. This is particularly common in investigations of organized criminal enterprises, business frauds, antitrust violations and other white collar offenses. Multiple representation creates the opportunity to thwart a legitimate investigation by obtaining valuable information from one client that can be used to advise other clients on how to tailor their responses in light of earlier testimony. This type of planning and fine-tuning of testimony can seriously mislead the grand jury and wholly undermine its work. In order to do tremendous damage to the grand jury's investigation, all counsel need to do is sit quietly during the proceeding and then use the information outside of the grand jury room.
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Proponents of change have asserted that states that permit witness counsel in the grand jury room have not experienced these anticipated difficulties. Assuming for the sake of discussion that such assertions are true, as we stated earlier, the state experience is not a reliable predictor for federal proceedings. Most state prosecutors are not required to proceed through the grand jury and therefore states use grand juries infrequently. Also, there is a substantial difference in the nature of crimes prosecuted in the state and federal systems. While there are some states that regularly prosecute complex crimes, as a general matter, most state crimes do not necessitate the exhaustive use of the grand jury's investigative powers that federal cases require. Typically, the state caseload is dominated by cases that utilize government witnesses such as police officers. Because these witnesses work with the government, they will be unlikely to bring attorneys into the grand jury room or do anything to compromise the government's case. In contrast, the federal caseload includes organized crime, white collar crime, narcotics cases, environmental crimes, civil rights cases, and other complex matters in which the grand jury must sift through considerable evidence, hear from numerous witnesses—many of whom are hostile to the government's case—and determine who to charge. The types of dangers enumerated above are significantly more likely to occur in these cases.
Finally, we should note that there is no discernible problem of unfairness or prosecutorial misconduct to rectify through the presence of counsel in the grand jury room. Today, every grand jury witness is free to consult with his or her counsel during grand jury proceedings. It is long-standing grand jury practice to permit the witness to step outside of the grand jury room to consult with counsel for any reason and at any time. Moreover, federal prosecutors routinely instruct grand jurors not to be prejudiced against a witness who exercises the right to consult with counsel. In addition, grand jury proceedings are recorded and judicial review of alleged prosecutorial misconduct is available. It is not necessary to have counsel monitor the proceedings in order to secure this information.
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In short, the presence of counsel in the federal grand jury would certainly interfere with our ability to effectively charge and prosecute serious federal crimes and our ability to protect the public from dangerous felons. It would be a dangerous step for Congress to take and one that the Department opposes, as it has under both Democratic and Republican administrations for more than 20 years. We would stress that similar proposals were opposed by Attorneys General Bell, Civiletti, Levi, Smith, and Meese, and are today opposed by Attorney General Reno.
Proposal 2: Requirement that federal prosecutors disclose exculpatory evidence to the grand jury.
Proponents of grand jury change advocate that federal prosecutors be required to disclose any exculpatory evidence to the grand jury.
The Supreme Court addressed this issue in U.S. v. Williams, 514 U.S. 36 (1992), and held that prosecutors are not required to present exculpatory evidence to the grand jury. In so holding, the Court stated that requiring the ''prosecutor to present exculpatory as well as inculpatory evidence would alter the grand jury's historical role, transforming it from an accusatory to an adjudicatory body.'' Id. at 51. Moreover, it would be contrary to Department policy and practice for a federal prosecutor to bring a case before the grand jury where substantial exculpatory evidence exists, particularly in light of the mandate that federal prosecutors only bring before the grand jury charges that they ''reasonably expect to prove beyond a reasonable doubt through legally sufficient evidence at trial.'' USAM 9–27.300. In any event, the Department has responded to concerns about exculpatory evidence by carving out a category of evidence that is provided to the grand jury. Specifically, the USAM requires a federal prosecutor who is personally aware of substantial evidence that directly negates the guilt of a subject of the investigation, to present or otherwise disclose such evidence to the grand jury before seeking an indictment. USAM 9–11.233.
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The legislative codification of this policy is undesirable. As a legal matter, the question of what constitutes exculpatory evidence is difficult to determine at this stage of the proceedings when not all of the evidence has been presented. Codification would permit defendants to challenge indictments by claiming that exculpatory evidence was not presented to the grand jury. This would create a whole new class of costly and time-consuming litigation on such difficult and fact-intensive issues as whether evidence is ''exculpatory'' and whether evidence was ''adequately'' disclosed. Moreover, judicial review of these issues is extremely problematic. Since the question of whether evidence is, in fact, exculpatory depends on the rest of the evidence in the case, the reviewing court would have to assess all of the evidence presented to the grand jury. Such a rule would also draw courts to review the quality and sufficiency of grand jury evidence—a practice that is now prohibited. See Costello v. U.S, 350 U.S. 359. By contrast, our current policy and practice allow for the disclosure of directly exculpatory evidence to the grand jury without creating these serious problems. They also reflect that the appropriate venue for evaluation of this evidence is the trial—not the grand jury.
Proposal 3: Apply the exclusionary rule to grand jury proceedings.
In order to function effectively, the grand jury needs to have the benefit of exhaustive evidence and has therefore not traditionally been bound by the evidentiary rules that control trial proceedings. In U.S. v. Calandra, 414 U.S. 338 (1974), the Supreme Court held that the exclusionary rule, which in a trial context prohibits the use of certain evidence obtained in violation of the Fourth Amendment, is inapplicable to grand jury proceedings. In so holding, the Court voiced its belief ''that allowing a grand jury witness to invoke the exclusionary rule would unduly interfere with the effective and expeditious discharge of the grand jury's duties.'' Id. at 350.
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Nonetheless, to ensure fairness to the accused, the Department has carved out a category of inadmissible evidence that federal prosecutors should not present to the grand jury. The USAM states that a prosecutor should not present to the grand jury for use against a person whose constitutional rights clearly have been violated evidence which the prosecutor personally knows was obtained as a direct result of the constitutional violation. This USAM provision, which is found at 9–11.231, reflects the Department's commitment to fairness, and exceeds what is required by law.
The Department has concerns about any legislative codification of this proposal. A prosecutor cannot know with certainty at the grand jury stage of the proceedings what evidence will be admissible at trial. Indeed, questions about admissibility are often complex and fact-intensive, and must be resolved by the court. Also, the question of admissibility may depend on later developments in the case which are not known this early in the proceeding. This proposal is likely to create a new class of litigation on this set of issues and would, in the words of the Supreme Court, would make the ''grand jury a pawn in a technical game instead of respecting it as a great historic institution of lay inquiry into criminal wrongdoing.'' U.S. v Johnson, 319 U.S. 503, 512 (1943). The USAM is a more flexible mechanism for dealing with this type of evidence and we believe it has successfully struck the delicate balance necessary in this area.
Proposal 4: Grant targets and subjects the right to testify and submit evidence to the grand jury.
In accordance with the broad power of the grand jury, it is solely within the province of the grand jury to determine what evidence it hears. Within this limitation, however, the Department of Justice already has put in place a policy to afford targets and subjects an opportunity to testify before a grand jury. The USAM states that reasonable requests by a subject or target to testify before the grand jury should ordinarily be given favorable consideration, as long as the witness waives the privilege against self-incrimination. USAM 9–11.152. Additionally, the USAM encourages prosecutors to notify targets within a reasonable time before seeking an indictment to afford the target an opportunity to testify. USAM 9–11.153.
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The Department opposes, however, the codification of an absolute right to testify or submit evidence to the grand jury and believes that such a provision would impede criminal law enforcement. The proposal that prosecutors notify targets and subjects of their right to testify would require prosecutors to inform all potential suspects that they are being investigated for violation of a federal crime. Because of the danger that a subject or target will flee, destroy evidence, or tamper with witnesses, it is not always prudent for a prosecutor to alert a subject or target that he is the subject of a grand jury investigation. Prosecutors must make difficult decisions about whether this information can safely be conveyed and the USAM provides for this discretion. Moreover, such a codification would be impossible to administer. Since the determination of who is a subject or target is often itself a product of the grand jury's investigation, prosecutors cannot always predict who will likely be a target or subject when presenting a case to the grand jury. These determinations may not be made until late in the proceedings.
The Department opposes any requirement that subjects and targets be permitted to submit written information or evidence to the grand jury. Written statements by targets or subjects are of little legitimate value to the grand jury since they are fundamentally self-serving, do not allow the jury to weigh the witness' credibility, are not made under oath, are not subject to cross-examination, and do not require the witness to waive the right against self-incrimination. There would be no guarantee that the submitted evidence would have any relevance to the grand jury investigation. This proposal would permit subjects and targets to put before the grand jury irrelevant information designed to garner sympathy or otherwise improperly influence the grand jury. A subject or target should not, as a matter of right, be permitted to provide information untested by grand jury questioning.
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Proposal 5: Provide witnesses with a transcript of their grand jury testimony.
The Department of Justice strenuously opposes any requirement that would jeopardize grand jury secrecy. Grand jury secrecy is the hallmark of effective grand jury investigations. If this secrecy is compromised, the grand jury would lose its ability to effectively and aggressively investigate cases. The automatic dissemination of grand jury transcripts would entirely subvert the Rule 6(e) secrecy rules. Nothing would prohibit the sharing of grand jury transcripts with other witnesses, subjects, targets, or the media. The dissemination of this information would undoubtedly lead to the manufacturing and fine-tuning of later testimony, witness intimidation, evidence tampering, and flight of targets. Dissemination could also undermine the ''shield'' function served by the grand jury by harming the reputation of targets who are ultimately not charged with any crime.
Adequate mechanisms already exist for witnesses and defendants to obtain copies of their transcripts. As a matter of right, defendants automatically receive transcripts of testimony by any witness who testifies at trial, and any exculpatory evidence that was revealed at the grand jury proceeding. Any witness can make a motion to obtain a transcript to substantiate a claim of prosecutorial misconduct. Additionally, any witness can receive transcripts of any or all parts of the grand jury proceeding on a showing to the court of particularized need. These provisions provide appropriate access to grand jury transcripts without fully compromising the need for secrecy.
Proposal 6: Prohibit the naming of unindicted co-conspirators.
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The Department of Justice, through the USAM, strongly disfavors the naming of unindicted co-conspirators in federal indictments. USAM 9–11.130. However, the Department has concerns about any proposal that would prohibit prosecutors from naming one or more unindicted co-conspirator in the limited instances when it is necessary to do so. In certain cases, naming an unindicted co-conspirator facilitates the admission of vital evidence at trial. Many federal cases involve sophisticated, organized criminal machines and complex conspiracies that are extremely difficult to infiltrate. In order to best protect our communities, federal prosecutors need to have in their arsenal those tools which can best further the work of federal law enforcement.
Proposal 7: Require prosecutors to give all non-immunized subjects or targets a Miranda warning.
On numerous occasions, the Supreme Court has determined that Miranda warnings are not constitutionally required for grand jury witnesses and that defendants cannot seek dismissal of indictments for failure to provide these warnings. See, e.g., U.S. v. Mandujano, 425 U.S. 564 (1976). The Court has recognized that, unlike custodial interrogations, grand juries do not present the potential for abuse that Miranda is meant to address. U.S. v. Mara, 410 U.S. 19, 46 (1973). The Court therefore asserted that to extend the Miranda concept to the grand jury ''is an extravagant expansion never remotely contemplated by this Court in Miranda.'' Mandujano at 580. Nevertheless, it has been a long-standing practice of federal prosecutors to provide Miranda-type warnings to subjects and targets in grand jury practice. USAM 9–11.151 directs prosecutors to routinely attach an ''Advice of Rights'' form, which recites the Miranda warnings, to all subpoenas that are given to targets or subjects. These warnings are routinely given on the record in the grand jury itself by the prosecutor. Where appropriate, the USAM also indicates that targets should receive an ''Advice of Status'' letter which advises them that they are under investigation. The Department believes it is appropriate to provide these warnings in the interests of fairness. However, we also believe that codification of this proposal would give defendants a dangerous tool to delay the proceedings and hinder the grand jury's work. It would be unproductive to codify this warning requirement, when existing practice works effectively.
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Proposal 8: Require 72 hours' notice for witness grand jury appearances.
Federal prosecutors routinely provide witnesses with at least 72 hours' notice—and generally much more—prior to a required appearance before the grand jury, except in those rare instances where an immediate response is justified. Moreover, federal prosecutors must seek the prior approval of their United States Attorney before using issuing a forthwith subpoena. Even in those rare cases where such subpoenas are used, a witness can seek to quash a subpoena that provides for less than 72 hours' notice. There are legitimate reasons, however, for the use of subpoenas giving less than 72 hours' notice and the Department would strongly oppose any proposal that prohibits federal prosecutors from using them. Shorter notice may be necessary if there is a risk that the witness will flee or destroy evidence, or if there is reason to believe that violent or terrorist activity is imminent. In some cases, a prosecutor may need to prevent witnesses from coordinating their testimony before appearing before the grand jury. Furthermore, it may also be necessary to recall a witness on short notice. Even a codification that contemplates exceptions will lead to unnecessary—and potentially risky—delays while the parties litigate the invocation of the exceptions. Grand jury investigations are fluid proceedings and—like all investigations of criminal activity—are time-sensitive. Where shorter notice is necessary to advance the grand jury's work, prevent the destruction of evidence, or preclude flight, it should not be compromised.
Proposal 9: Require meaningful and on the record jury instructions.
Grand jurors receive extensive guidance on their roles and responsibilities. At the inception of every investigation, a judge provides instructions to the grand jurors on the function of the grand jury and their roles as jurors. Unless the grand jury has previously been instructed, at the conclusion of the evidence the prosecutor typically reviews the elements of each offense and instructs the jurors regarding the legal framework for their evaluation of whether probable cause exists to return an indictment on each individual account. All of these instructions are given on the record. The USAM specifically directs federal prosecutors to advise the grand jurors on the law and to comport themselves in a way that is scrupulously fair. USAM 9–11.010. If a target of the grand jury investigation wishes to challenge the jury instructions, and can show adequate evidence of impropriety, he or she can apply to the court for a transcript and judicial review.
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The Department opposes any provision which would attempt to unnecessarily insert the court into the grand jury process. Codification of a proposal specifying the nature of grand jury instructions would certainly lead to extensive litigation. Courts would be forced to conduct mini-trials to determine, for example, whether the instructions given were in fact ''meaningful.'' Past attempts to expand the court's supervisory role over the grand jury have been repeatedly rejected by the Supreme Court as counter to the grand jury's independent role. See e.g., U.S. v. Williams, 504 U.S. 36 (1992).
Proposal 10: Prohibit the calling of witnesses who intend to invoke the right against self-incrimination.
USAM 9–11.154 states that witnesses should ordinarily be excused from testifying if they intend to invoke the Fifth Amendment privilege against self-incrimination. Moreover, federal prosecutors generally instruct the grand jury not to be prejudiced against a witness who invokes the privilege against self-incrimination. The Department opposes, however, the codification of this proposal because there are numerous legitimate reasons for the grand jury to seek the appearance of such a witness. The grand jury has the absolute right to seek non-incriminating information from the witness that does not infringe on the privilege. Even witnesses who invoke their privilege can be compelled by the court to provide non-incriminating information that advances the grand jury's investigation. Witnesses cannot use the Fifth Amendment shield merely to avoid answering questions that might discomfort or embarrass them. The grand jury also has the right to test the witness' invocation of the privilege to ensure that the decision was not coerced. In certain circumstances, there may also be some value in having the witness invoke the Fifth Amendment on the record, giving the witness an opportunity to change his mind and cooperate with the investigation. It is also appropriate to compel the witness' appearance if the prosecution is prepared to immunize his or her testimony. For these reasons, it is inappropriate to create a blanket exclusion for these witnesses.
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Overall, we have serious concerns about each of these ten proposals, notwithstanding the fact that some of them are substantively similar to current Department of Justice policy. The USAM effectively guides the work of prosecutors and federal grand jury practice. It fosters the flexibility that is so vital in a fluid system, and can be changed to reflect new court decisions. Its provisions reflect the delicate balance that our criminal justice system represents and circumscribes the conduct of prosecutors while enabling them to effectively fight crime. The USAM also provides a framework for addressing prosecutorial error short of the costly and time-consuming litigation that legal codifications of these provisions is likely to create. Federal prosecutors comply with these provisions and understand that there are ramifications for failing to do so.
V. SUMMARY
Our federal criminal justice system is a model for criminal justice systems around the world. Today's grand jury is the effective sword and shield that it has been for hundreds of years. It is not a court of law. It is, and should remain, an investigative body of ordinary citizens tasked with the critical job of investigating complex and sensitive matters and deciding who should be prosecuted. It would be wrong today to try to turn this important investigative body into an adversarial tribunal and dangerous to leave our communities unprotected by unduly hindering federal law enforcement.
The Department of Justice is not alone in its concern about these proposals. The Judicial Conference of the United States, which speaks on behalf of the federal judges who are responsible for administering the grand jury system, has repeatedly rejected attempts to substantially depart from those practices which make our grand jury such an effective tool. In a report issued in 1975, and in another report issued in 1999, the Judicial Conference voiced its belief that the claimed misconduct of government attorneys is not so prevalent as to justify changes in practice. It also stated that current law, coupled with Department practice, contains more than adequate safeguards. We join the Judicial Conference in opposing reforms that would impair our ability to protect our communities.
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We are fortunate in this country that over the past decade, crime has dropped each year and is now at its lowest level in a quarter of a century. But we cannot become complacent. We cannot weaken those very systems that protect our nation from dangerous criminals. Keep in mind that we are dealing with people who threaten our national security, offend our civil rights, traffic in narcotics and sell drugs to our children, run organized crime syndicates, and pollute and hurt our environment. Often, the federal criminal justice system is the last line of defense for vulnerable communities and thus it needs to be as strong as possible. We must not erode those institutions that have served us for hundreds of years. There are many aspects of our justice system that badly need attention and we would urge you to focus on those areas that would truly benefit from legislative reform.
Mr. Chairman and Members of the Subcommittee, that completes our prepared testimony. We appreciate the opportunity to appear before you and will be pleased to attempt to respond to your questions at this time.
Mr. HUTCHINSON. Thank you, Ms. Lynch. Professor Beale.
STATEMENT OF SARA SUN BEALE, PROFESSOR OF LAW, DUKE UNIVERSITY SCHOOL OF LAW
Ms. BEALE. Mr. Hutchinson, I would like to thank you and the committee for inviting me to testify today. I would like to focus my remarks on the history of the grand jury and a prospective on proposals to revamp traditional grand jury procedures.
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As noted in the introductory statement provided by the chairman, the modern Federal grand jury is the direct descendant of an ancient English institution. The history and development of the English grand jury is relevant in the United States today, because as the Supreme Court has repeatedly recognized, the grand juries created by the fifth amendment are intended to function in substantially the same fashion as their English ancestor. Although the grand jury has been praised as an important safeguard of individual liberty, it originated as an investigative tool designed to increase the number of criminal prosecutions, to enhance the Crown's authority, and indirectly, to raise government revenues as a result of property forfeited upon conviction.
Over time, however, the function of the English grand jury evolved and changed, and by the late 1700's, it had developed its reputation as an institution that could not only accuse the guilty, but also shield the innocent from unfounded charges. The most noteworthy development during that time was the celebrated refusal of two grand juries to indict in treason cases despite extreme pressure from the Crown, which included imprisoning the foreman in the Tower of London.
With that background, the grand jury was transplanted to the English colonies. During the Revolutionary period, grand juries refused to indict colonists for their resistance to British authority, and also actively pursued charges against British soldiers. Both the English and the Colonial experience then convinced the framers of the Constitution of the importance of the grand jury as a protection against malicious or unfounded prosecution. And accordingly, they provided for the grand jury in the Bill of Rights. The grand jury clause of the fifth amendment guarantees that no one can be brought to trial on serious Federal charges unless he or she has first been charged and indicted by a grand jury.
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The most remarkable feature then of the English grand jury and its American descendants is this dual function that developed out of the English history, which has been compared to both a shield and a sword. The sword function, the offensive investigative function, developed first, and it permits the grand jury to ferret out and reveal criminal conduct. On the other hand, the grand juries that refused to indict colonists John Peter Zanger and the participants in the Stamp Act rebellion were performing the defensive, or the shield function, standing as a protective bulwark or shield between the accused and the prosecution, in the same way that the trial jury can stand as a shield later in the process.
It was the grand jury's protective, or shield function, that led to its inclusion in the fifth amendment. But the new Federal grand juries and those provided for in the State constitutions retained this dual nature. The grand jury's traditional procedures developed in England in the 17th and 18th centuries and then were transplanted to the colonies, and ultimately, to the new grand juries that were created by the fifth amendment. They were lay bodies. They operated informally. They were not subject to the rules of evidence. They heard witnesses and deliberated in private or in secret as we would now say. If a majority of those Grand Jurors concurred, they issued an indictment. They operated exclusively as an accusatory body rather than as an adjudicated body that would weigh evidence and reach an ultimate conclusion on guilt or innocence.
There have been fundamental changes in the legal system since the development of the English colonial and early Federal grand juries and the development of their procedures. If we go back to the 1700's, at the time those procedures developed, the informality of the trial process was more or less on a par with that of the grand jury. Counsel did not play a critical role for either the prosecution or defense at that time. In contrast, the criminal justice system is now highly adversarial, professionalized, and formal. And as was referred to earlier in the proceedings, the Federal prosecutor now plays a central role in the conduct of grand jury investigations, and the grand jury stands in a different relationship to the trial process since we know that in Federal proceedings, more than 90 percent of the cases will be disposed of by plea, and there will not ultimately be an adversary adjudication in open court.
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So there are changes that have occurred in the system since the development, the gradual development, of the grand jury's traditional processes that certainly do, I think, warrant a reappraisal of the procedures that are followed in the grand jury. But it is my view that such a reappraisal of grand jury procedure also needs to take account of changes that have occurred in the grand jury's investigative function and its increased importance in Federal contemporary law enforcement.
In other words, both sides of the equation have changed. It would be difficult to conduct a successful investigation of organized crime, white collar offenses, or international drug trafficking, money laundering, or terrorism without the investigative authority of the grand jury. And obviously, the government's witnesses have already made that point. From the standpoint of investigating these offenses, the critical features of the grand jury are its ability to operate in secrecy, its authority to compel witnesses to testify and present evidence, and the ability to compel witnesses who claim the privilege against self-incrimination to testify under a grant of immunity.
Any procedural reforms then must respond not only to the critical changes in the criminal justice process overall, including the enhanced role of counsel for the defense in the proceedings as a whole and the change in the prosecutor's role, but also the grand jury's greatly increased investigative function within the contemporary Federal criminal justice system.
On the latter point, I believe that State experience is helpful but not dispositive. The nature of the offenses typically prosecuted in the State system does differ substantially from those in the Federal system. And at present, State authorities are able to refer cases at least where there is a jurisdictional overlap—and I am sure this committee is aware there is a lot of overlap of Federal criminal jurisdiction at present—and where there is this jurisdictional overlap, State authorities may refer cases to Federal prosecutors where State procedures might preclude an effective investigation. So in a sense, right now the Federal grand jury serves as an escape valve on State procedures and States handle somewhat different kinds of cases.
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The fundamental challenge in considering changes that might enhance the grand jury's screening function would be to adapt those procedures to the preliminary stage at which the grand jury operates, into its unique inquisitorial character. Grand jury procedures, obviously, cannot replicate those at trial. The grand jury serves a substantially different function at the preliminary stage than the trial does, and procedures would have to be adapted to the secret exparte character of the grand jury, which is its defining characteristic. Thank you.
[The prepared statement of Ms. Beale follows:]
PREPARED STATEMENT OF SARA SUN BEALE, PROFESSOR OF LAW, DUKE UNIVERSITY SCHOOL OF LAW
Thank you, Mr. Chairman, for inviting me to testify regarding constitutional rights and the grand jury. I would like to focus on the history of the federal grand jury and general perspectives on proposals to alter the procedures under which federal grand juries operate.
THE HISTORY OF THE GRAND JURY(see footnote 1)
The English origins of the grand jury
The modern federal grand jury is the direct descendant of an English institution whose history can be traced for 900 years. The accusing or presenting jury—the ancestor of both the modern grand jury and the trial jury—was formally made a part of English procedure at the Assize of Clarendon in 1166.(see footnote 2) Although the grand jury has been praised as an important safeguard of individual liberty, it originated as a prosecutorial tool designed to increase criminal prosecutions, enhance the crown's authority, and indirectly to raise revenues when property owned by persons convicted of crimes was forfeited to the state. The local presenting jury was summoned and required, under oath, to report each person who was accused or reputed to have committed a crime. Beginning in the 13th century the presenting jurors were fined for misconduct or errors, including the failure to indict or confusing the details of any crime. This practice, which has been compared to a ''grim spelling bee,''(see footnote 3) ensured that criminal conduct was disclosed and further augmented the crown's coffers.(see footnote 4)
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The separation of the trial and grand jury functions occurred in the middle of the 14th century,(see footnote 5) and by the end of the century the ''grande inquest,'' which closely resembled the modern grand jury, had appeared. Although it could still prefer charges based upon its own knowledge of the crime, the grand jury, like the trial jury, began to hear witnesses during this period.(see footnote 6) The practice also developed of allowing third persons, including servants of the king, to draft charges that the judge would transmit to the grand jury.
Not until the end of the 17th century did the grand jury develop its reputation as a body that not only accused the guilty but also shielded the innocent from unfounded charges. A sense of the grand jury's independence gradually developed. In 1642 Lord Coke interpreted the provision in the Magna Charta that provided no man could be taken or imprisoned but by ''the law of the land'' to guarantee that no man could be ''restrained of liberty, by petition, or suggestion to the king, or his council, unless it be by indictment or presentment of good, and lawful men.''(see footnote 7) Although there was no legal impediment to the practice of fining grand jurors for their refusal to indict, the imposition of such fines in 1667 raised a storm of protests. The Lord Chief Justice was summoned to the House of Commons, which resolved that fines and imprisonments of grand jurors were illegal, though the House of Lords did not concur. Grand juries in London blocked the king's attempts to prosecute Protestants Stephen Colledge and the Earl of Shaftesbury for treason. Both grand juries were under considerable pressure to indict. In the Colledge case the presiding judge required the jury to explain its failure to indict, and the foreman of the grand jury was subsequently questioned by the privy council and imprisoned in the Tower. The judge in the Shaftesbury case gave instructions very favorable to the crown, and told the jury they would be criminals if they did not indict. He also granted the prosecution's request that the grand jury hear witnesses in public, rather than in private as was the custom. Although Shaftesbury was eventually driven into exile and Colledge was indicted by a grand jury outside of London and ultimately executed, the London grand juries' refusal to indict in these cases was seen as a demonstration that the grand jury was a safeguard of English liberty.
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The grand jury was seen as a protection against unfounded or malicious charges, since no one could be formally charged and held for trial unless a jury of his peers agreed that there was a sufficient case against him. For example, a book originally published in 1680 stated that it was the function of the grand jury:
To preserve the Innocent from the Disgrace and Hazards which ill Men may design to bring them to, out of Malice, or through Subornation, or other sinister Ends; for so tender is the Law, of the Reputation and Life of a Man, that it will not suffer the one to be sullied . . . and the other indangered by a Trial, until first the Matter and Evidence against him have been scann'd, examined, and found by a Grand Jury, upon their Oaths, against him.(see footnote 8)
By the late 1700s the procedures of the English grand jury closely resembled those of modern federal grand juries. The grand jurors generally heard testimony and deliberated in private. Witnesses appeared before the grand jury without counsel, and as a lay body the grand jury operated informally, without attempting to follow the rules of evidence. An indictment issued if a majority of the grand jurors concurred.
The American grand jury
The English colonies adopted the system of instituting criminal charges by the grand jury's accusation,(see footnote 9) though colonial grand juries also served other needs in the new settlements.(see footnote 10) During the Revolutionary period grand juries played a role in the colonists's opposition to British rule. Grand jury charges and reports were used for patriotic propaganda, and grand juries refused to indict colonists for crimes involving resistance to British authority.(see footnote 11) For example, three successive grand juries in New York refused to indict John Peter Zenger for libel,(see footnote 12) and Massachusetts grand juries refused to indict the leaders of the Stamp Act rebellion for any offense. On the other hand, the Boston grand jury actively pursued accusations against the British soldiers who were quartered in town, indicting them for conduct such as breaking and entering private homes and waylaying private citizens. Thus royal prosecutors disliked taking cases to local grand juries, preferring to initiate charges by a prosecutor's information.
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When the new federal and state governments were constituted, the grand jury was adopted in each jurisdiction. The founders of these new governments were influenced not only by the role played by the grand juries during the Revolutionary period, but also by the most widely read English authorities, who portrayed the grand jury as one of the principal safeguards of personal liberty in the English legal system. At the federal level, the original constitution proposed to the states contained no provision regarding the grand jury. Amendments drafted in Massachusetts (by John Hancock), New Hampshire and New York proposed guaranteeing indictment by grand jury. The amendments proposed by James Madison included this guarantee, which was reworded and adopted as part of the Fifth Amendment. The grand jury clause of the Fifth Amendment provides:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger.
As the Supreme Court has repeatedly stated, the federal grand jury ''was intended to operate substantially like its English progenitor.''(see footnote 13)
The most remarkable feature of the English grand jury and its American descendants is a dual function, which has been compared to a shield and a sword. The sword function—the offensive prosecutorial function—developed first. Functioning as a prosecutorial tool, the investigative grand jury discovers and attacks criminal conduct. The grand juries that refused to indict Stephen Colledge, the Earl of Shaftesbury, John Peter Zenger, and the participants in the Stamp Act rebellion, performed the defensive or shield function, standing as a protective bulwark, or shield, between the prosecution and the accused. This is also referred to as the grand jury's screening function. While it was the grand jury's screening function that led to its inclusion in the Fifth Amendment, the new federal grand juries (and those provided for in the state constitutions) retained their dual nature.
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State grand jury practice
By the middle of the 19th Century, there was considerable debate at the state level regarding the value and appropriate function of the grand jury. Critics charged that the grand jury was an expensive and cumbersome relic that had outlived its usefulness, and there was also concern that the grand jury's inquisitorial procedures posed a threat to individual liberty.
Although no state has abolished the grand jury, reformers drafted state constitutional provisions permitting the initiation of criminal cases by information. In Hurtado v. California,(see footnote 14) decided in 1884, the United States Supreme Court upheld a state conviction initiated by information, holding that neither the Fifth Amendment nor the Due Process clause of the Fourteenth Amendment required the states to afford the right to grand jury review before trial. Today, only about one third of the states require a grand jury indictment to initiate every serious criminal charge (and a few additional states require an indictment to initiate charges that could result in a capital sentence or life imprisonment).(see footnote 15) However, all states have preserved the investigative function of the grand jury, and in most states that permit prosecutions to be initiated by information the prosecutor has the option of initiating the case through the grand jury.
In recent years the focus in many states has been on the adoption of procedural reforms intended to provide grater protection for witnesses and targets of grand jury probes, as well as reforms intended to strengthen the grand jury's defensive or screening function. Probably the most significant procedural reform has been the enactment in about one third of the states of provisions that permit witnesses to bring counsel with them into the grand jury room.(see footnote 16) A few states have adopted provisions requiring that witnesses be advised of their rights before they testify,(see footnote 17) or advised of the subject of the grand jury's investigation.(see footnote 18) Some states afford the accused the right to testify or present evidence before the grand jury.(see footnote 19) A number of states regulate the evidence received by the grand jury, requiring the grand jury to observe some or all of the rules of evidence,(see footnote 20) and requiring the prosecution to make the grand jury aware of exculpatory evidence.(see footnote 21) In order to prevent the grand jury from being used for harassment, several states have imposed limits on the number of times the prosecution may seek an indictment against an individual for a particular offense if a previous grand jury has voted not to indict that person.(see footnote 22) Grand jury procedure in these states diverges from the procedure in the federal courts, which more closely follow the procedures of the English and colonial grand juries, and the original federal grand juries that were modeled upon them.
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PERSPECTIVES ON PROPOSALS TO ALTER GRAND JURY PROCEDURES
Various groups have proposed revamping the procedures under which federal grand juries operate in order to adopt the reforms already in place in a number of states. Two of the more prominent examples are the Model Grand Jury Act proposed in 1982 by the American Bar Association and the Bill of Rights proposed this year by the National Association of Criminal Defense Lawyers' Commission to Reform the Grand Jury. Publicity surrounding the Whitewater grand jury convened by Independent Counsel Kenneth Starr has also focused public attention on the procedures followed in grand jury proceedings, and the potential for abuse.
In considering proposals to amend the procedures under which federal grand juries operate, I would urge the Committee to keep the following points in mind:
1. Fundamental changes in the legal system have occurred since the development of the English, colonial, and early federal grand juries, and it is entirely appropriate to assess whether these developments warrant changes in grand jury procedures.
Many of the reform proposals are premised on the insight that the contemporary prosecutor has unprecedented access to, and ability to influence, the grand jury. It is important to note that this change in the prosecutor's role is only one aspect of a more comprehensive change in the criminal justice process, which has become highly professionalized, formal, and adversarial.
By way of illustration, consider the changes in the trial process. For example, in the mid 1700s the records of the Old Bailey reveal that a single judge conducted 16 trials before two juries in less than three days.(see footnote 23) Of 171 criminal trials in the Old Bailey during that period, the participation of counsel can be documented in only 12 cases, and the records reveal only 2 cases in which counsel for both the prosecution and the defense appeared.(see footnote 24) It was generally understood that the witnesses could present their testimony without the aid of counsel, subject to cross-examination by the trial judge and by the defendant.(see footnote 25) Although counsel, if available, could cross-examine witnesses, counsel were not permitted to address the jury.(see footnote 26) The defendant was not permitted to give sworn testimony, but he or she could make an unsworn statement and cross examine witnesses.(see footnote 27) At this time, the relative informality of the trial process was on a par with the relative informality of the grand jury. Moreover, given the dispatch with which trials occurred, there was no great incentive to create a system of plea bargaining, and virtually all cases went to trial.(see footnote 28)
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In contrast, today's trial is much more formal, adversarial, and professionalized. The prosecution is uniformly represented by counsel, and the defendant is entitled to appointed counsel in all serious cases if he or she cannot afford to employ counsel. The rules of evidence as well as constitutional rules of exclusion are followed. On the other hand, only a small fraction of cases go to trial. More than 90% of federal criminal cases are resolved by a guilty plea entered to obtain sentencing concessions, and this percentage has been increasing under the Sentencing Guidelines.(see footnote 29)
Many of these changes appear to provide support for proposals to revamp grand jury procedure. Whereas counsel for both the prosecution and the defense played almost no role at the time the traditional grand jury procedures developed, they now play a central role in criminal proceedings. The prosecutor orchestrates the gand jury proceedings, and many observers believe that this has endangered the grand jury's independence and its ability to serve as a real check on the prosecution, and that it places unrepresented witnesses at an unfair disadvantage. Similarly, the formalization of the trial process raises the question whether the informality of the grand jury process remains appropriate, or whether the grand jury should also, to the extent possible, conform to the rules of evidence and observe the constitutional exclusionary rules. Finally, the phenomenal increase in the number of cases resolved by guilty plea means that in more than 93% of the cases the prosecution's evidence will not be reviewed after an indictment issues.
Although these fundamental changes in the criminal justice system support a reappraisal of grand jury procedures, some additional points should be kept in mind.
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First, the investigative function of the grand jury, especially in the federal system, is more crucial now than it was at the time of the drafting of the Fifth Amendment, largely because of changes in the nature of the federal caseload. The principal charges tried in the Old Bailey in the mid 1700s—when the grand jury's traditional procedures were established—were common law offenses: homicide, burglary, robbery, various forms of theft, and receiving stolen goods.(see footnote 30) The proof in these cases was simple and easily presented. It typically consisted of the testimony of the victim, bystanders, co-felons who confessed, or pawnbrokers who received stolen goods from the accused.(see footnote 31) In these cases, the grand jury was serving mainly its screening function.(see footnote 32) In contrast, the contemporary federal caseload includes white collar offenses, consensual crimes (such as drug and gambling offenses, money laundering, and bribery), and organizational crimes that often sweep over both state and national boundaries. These crimes are difficult to detect and prove, and the procedures and investigative authority of the federal grand jury—its authority to subpoena witnesses to testify and produce evidence and to immunize witnesses while operating in secrecy—are critical. Given the nature of the federal caseload, the investigative grand jury plays an especially important role in federal practice.
Second, experience in the states is not necessarily a perfect predictor of the impact procedural changes will have in the federal system. As a general matter, the crimes prosecuted in the state courts correspond much more closely to the common law offenses than do the federal cases. State dockets focus heavily on crimes of violence, property offenses, and other crimes that depend less critically upon the resources of an investigative grand jury. Moreover, at present the state prosecutors have the option in many situations of referring a case to federal officials, and they frequently do so when state procedures are deemed too onerous, or the state procedures do not provide needed investigative tools.(see footnote 33) In this sense, the availability of the federal grand jury currently serves as an escape valve for the states. For example, federal officials frequently use the unfettered power of the investigative grand jury to delve into cases involving organized criminality, where state law enforcement efforts have sometimes proven ineffective.
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Thus the propriety of reforms should be judged in the context of both the changes in the criminal justice system that may call for greater protections to witnesses and targets, and the enhanced need for an effective investigative tool to root out modern criminality. Let me give just one illustration, the proposal to allow counsel to accompany a witness into the grand jury room. Proponents of allowing counsel to accompany a witness point out that an unrepresented witness is at a disadvantage when being questioned by the prosecutor, and may inadvertently waive her rights. (Moreover, allowing counsel within the grand jury room may even improve the efficiency of the proceedings, because the witness will not have to leave the grand jury room to consult with counsel.) Nonetheless, this proposal is not unproblematic, at least in one important class of cases in the federal system, those involving organized criminality. Here, the concern is that allowing the counsel to accompany each witness will provide the targets of the investigation with much greater and more precise information about the course of the grand jury's investigation and the information available to the government, as a result of joint defense agreements. To be sure, the witness could relay information to counsel outside of the grand jury room, but that information would not be as complete as would be available if counsel had been present. Providing the targets with more precise and complete information at this stage could allow them to thwart the investigation and might endanger witnesses. Moreover, in these circumstances a witness may not be as cooperative or forthcoming as he might in counsel's absence. In addressing the proposal to permit counsel to accompany witnesses inside the grand jury room, consideration should be given to this issue to determine how frequently such a situation might occur, how seriously it might impair certain types of investigation, and whether any additional changes (such as changes in the standards or procedures for disqualification of counsel) might be warranted.
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2. The fundamental challenge in developing procedures to enhance the grand jury's screening function is to adapt these procedures to the preliminary stage at which the grand jury operates, and to its unique inquisitorial character. The adversarial trial is the most refined screening device developed in the United States legal system. Grand jury procedures cannot reasonably replicate all aspects of trial procedure, both because the grand jury is intended to be a preliminary screening device serving a different function than the trial, and because the secret inquisitorial character of the grand jury is its defining characteristic. If the grand jury operated in open court under the supervision of the trial judge, and it allowed the defense to participate fully in an adversarial proceeding, it would no longer in any real sense be a grand jury. It would at that point more closely resemble the trial, or the preliminary hearing, or some hybrid of the two. On the other hand, as noted above, it is no longer the case that most or all of the cases presented to the grand jury will be presented at trial, and receive full adversarial testing. This change may warrant some greater degree of scrutiny at the grand jury stage (or the addition of a requirement for a preliminary examination).
This principle provides a basis for examining some of the reforms that have been proposed, including the requirement that the grand jury observe the rules of evidence and the exclusionary rule, the requirement that the grand jury be presented with exculpatory evidence, and the requirement that the accused be permitted to testify before the grand jury or designate evidence to be presented to the grand jury.
Mr. HUTCHINSON. Thank you, Professor Beale. Professor Henning.
STATEMENT OF PETER J. HENNING, ASSOCIATE PROFESSOR OF LAW AND DIRECTOR OF GRADUATE STUDIES, WAYNE STATE UNIVERSITY LAW SCHOOL
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Mr. HENNING. Thank you, Representative Hutchinson, and Representative Watt, and counsel. I have the same disclaimer at the beginning. I was hired by Mr. Robinson. I always like to say he got better at it as time went on as dean. But I am now in the academic camp, although, my background, I spent 3 years in the fraud section in the Department of Justice and was involved in a number of grand jury investigations. In fact, the vast majority of my time was in the investigative phase and not in the trial phase, and so I bring that background, too.
And I note also, at least from the academic side, a remarkable similarity between the three statements of the academics. Pointing out a couple of things, one is that there are two functions of the grand jury; the Constitution only mentions one, which is that you get indicted by a grand jury for capitol or otherwise infamous offenses. The more important part of the grand jury, though, is the investigative function. And in considering the types of cases that come up in the Federal system, I would divide the world, roughly, into two parts, because as an academic, I always simply things. There are the single instance cases, or the single shot cases, a bank robbery, a possession type case.
In that instance, that type of a case, which is most likely going to have to be charged by a grand jury—in that type of case, you are going to have a single witness, most likely the agent, who will come in and testify. And in fact, the strategy that we were taught in the Department of Justice is have one agent testify, have a different agent who is going to be at trial, so you don't create what is known as Brady material. And that is a very simple process. It is the accusatory function of the grand jury that is being used, but it is largely meaningless, I would say. The grand jury does indict the vast majority of the cases that are put in front of it. They are going to believe the agents, and they are, quite often, fairly simple cases.
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Reforms to the grand jury are going to have—any reforms to the grand jury system are not going to have any effect on those cases. Now, I don't know the statistics to break down how those cases break out in the total number of cases that are prosecuted federally, but any reforms are going to have a very small effect, if any effect, on those types of cases.
The other and more interesting area are going to be the economic crimes cases or the organizational type cases, terrorism type cases, bank fraud, securities fraud, the type of complex white collar crimes. And any type of reform for the grand jury in that area is going to really affect how those cases are investigated. Even though it may look like it is targeted toward the accusatory function, what is the effect going to be on the investigation of the cases.
And if you think about it, the grand jury is mentioned once in the Constitution. The important part, though, is the investigatory function. And as far as the rights of witnesses, at least under the Constitution, they don't have any rights. It is kind of like going to the dean to get a raise when there is a whole lot of nothing in the school, there is just nothing available. While witnesses don't have any constitutional rights in the grand jury, they do have the fifth amendment privilege; they don't have to testify. So any reforms, and what Mr. Watt had mentioned, you know, what is the balance here in this area.
Any type of reform is going to affect those types of cases. And so when Congress thinks about reform, it is going to be a reform that is really going to only affect white collar targets and those involved in organizational type crimes—terrorism, organized crime, it can also be environmental or corporate liability. So as Congress focuses on this issue and the issue of reforms, I think you need to take a step back and ask what is really important about the investigatory function. And in my prepared testimony, I tried to identify what I think are three areas that can also be considered by the Congress that move a bit beyond what the Defense Bar has raised, you know, having counsel in the grand jury.
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And that is certainly an important area, but also, some other things for Congress to think about would be in the area of grand jury secrecy. What about in the area of prosecutorial misconduct, too; what about leaks out of the prosecutor's office, out of the investigative agencies. The grand jury rule, Rule 6–E, says nothing gets out of the grand jury and, yet, every once in a while, you will read about something emerging. Is it coming from a witness, it is coming from a prosecutor's office? How do you define what occurs in front of a grand jury, how should that be regulated. Those types of leaks, too, tend to occur in public corruption cases. It is quite often elected officials or, at least, locally prominent officials who are involved in a case. Any kind of leak out of a prosecutor's office is going to have a substantial effect and is also quite problematic.
Another area that is becoming more prevalent is, as you have lawyers involved more in economic activity—and of course, there is a move in this area now to have lawyers and accountants work together—the more lawyers get involved, the more lawyers are going to be investigated or their clients are going to be investigated, and the Law office is going to have potential information. What about the privilege issues that come up there?
And a third area would be if there is prosecutorial misconduct, how should that be redressed? The Hyde Amendment is targeted toward, I think, largely, prosecutorial misconduct, the attempt to get attorneys' fees. But that amendment has some problems. It is a fairly short law. It is not entirely clear what the standards are, and that may be another area that Congress can consider as it looks at this area; the important part being the investigation of economic and organizational type crimes, should standards be developed and what effect will it have on those cases. Thank you.
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[The prepared statement of Mr. Henning follows:]
PREPARED STATEMENT OF PETER J. HENNING, ASSOCIATE PROFESSOR OF LAW AND DIRECTOR OF GRADUATE STUDIES, WAYNE STATE UNIVERSITY LAW SCHOOL
Chairman Hyde, Representative Canady, and Members of the Subcommittee:
I appreciate the opportunity to testify before the Subcommittee on the Constitution at this hearing on Constitutional Rights and the Grand Jury. I am an Associate Professor of Law at Wayne State University Law School in Detroit, Michigan. Prior to joining the faculty at Wayne State, I was a Trial Attorney in the Fraud Section of the Criminal Division in the United States Department of Justice. I made numerous appearances before federal grand juries in connection with investigations of bank fraud, mail and wire fraud, and money laundering.
THE INVESTIGATORY FUNCTION OF THE FEDERAL GRAND JURY
A grand jury is made up of 23 citizens chosen at random from the community. They have no special training in the law, and no resources to pursue a case on their own. While the grand jury's roots are traceable to twelfth-century England, it is a body whose role in the legal system is not entirely clear because it combines two almost antithetical functions: it investigates criminal activity (the investigatory function) and then the same group must weigh objectively the evidence to decide whether there is probable cause a person committed the crime (the accusatory function). The Constitution's sole reference to the grand jury is the Fifth Amendment guarantee that no one may be charged with a capital or ''otherwise infamous'' offense except by a grand jury indictment.
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The importance of the grand jury is not its role in deciding whether to indict a defendant, despite the fact that the Fifth Amendment specifically identifies that act as a protected right of a defendant. Indeed, the ability of the grand jurors to exercise their independent judgment regarding whether to indict a defendant has been questioned. Some commentators bemoan the grand jury's lack of real autonomy from the controlling hand of the prosecutor, assailing it as a ''lapdog,'' ''rubberstamp,'' and a ''total captive of the prosecutor.'' These criticisms focus on the grand jury's accusatory rol