Page 1       TOP OF DOC








JULY 27, 2000

Serial No. 114

Printed for the use of the Committee on the Judiciary

 Page 2       PREV PAGE       TOP OF DOC
For sale by the U.S. Government Printing Office
Superintendent of Documents, Congressional Sales Office, Washington, DC 20402

HENRY J. HYDE, Illinois, Chairman
GEORGE W. GEKAS, Pennsylvania
HOWARD COBLE, North Carolina
BOB BARR, Georgia
JAMES E. ROGAN, California
LINDSEY O. GRAHAM, South Carolina
MARY BONO, California
 Page 3       PREV PAGE       TOP OF DOC

JOHN CONYERS, Jr., Michigan
BARNEY FRANK, Massachusetts
HOWARD L. BERMAN, California
MELVIN L. WATT, North Carolina
ZOE LOFGREN, California
MARTIN T. MEEHAN, Massachusetts
WILLIAM D. DELAHUNT, Massachusetts

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
 Page 4       PREV PAGE       TOP OF DOC
BOB BARR, Georgia
LINDSEY O. GRAHAM, South Carolina

MELVIN L. WATT, North Carolina
BARNEY FRANK, Massachusetts
JOHN CONYERS, Jr., Michigan



    July 27, 2000


    Hutchinson, Hon. Asa, a Representative in Congress From the State of Arkansas, and presiding chairman, Subcommittee on the Constitution
 Page 5       PREV PAGE       TOP OF DOC


    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


    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

 Page 6       PREV PAGE       TOP OF DOC
    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

    Material submitted for the record


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.
 Page 7       PREV PAGE       TOP OF DOC

    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.


    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.''
 Page 8       PREV PAGE       TOP OF DOC

    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.
 Page 9       PREV PAGE       TOP OF DOC

    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.
 Page 10       PREV PAGE       TOP OF DOC

    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.
 Page 11       PREV PAGE       TOP OF DOC

    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.


    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.
 Page 12       PREV PAGE       TOP OF DOC

    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.
 Page 13       PREV PAGE       TOP OF DOC

    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.
 Page 14       PREV PAGE       TOP OF DOC

    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.
 Page 15       PREV PAGE       TOP OF DOC

    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.


 Page 16       PREV PAGE       TOP OF DOC
    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.
 Page 17       PREV PAGE       TOP OF DOC

    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.
 Page 18       PREV PAGE       TOP OF DOC

    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.
 Page 19       PREV PAGE       TOP OF DOC

    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:]


    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.
 Page 20       PREV PAGE       TOP OF DOC


    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).
 Page 21       PREV PAGE       TOP OF DOC

    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.

 Page 22       PREV PAGE       TOP OF DOC

    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.
 Page 23       PREV PAGE       TOP OF DOC

    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.
 Page 24       PREV PAGE       TOP OF DOC

    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.


    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.
 Page 25       PREV PAGE       TOP OF DOC

    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.

 Page 26       PREV PAGE       TOP OF DOC

    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.
 Page 27       PREV PAGE       TOP OF DOC

    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.''
 Page 28       PREV PAGE       TOP OF DOC

    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.
 Page 29       PREV PAGE       TOP OF DOC

    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.
 Page 30       PREV PAGE       TOP OF DOC

    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.
 Page 31       PREV PAGE       TOP OF DOC

    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.
 Page 32       PREV PAGE       TOP OF DOC

    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.
 Page 33       PREV PAGE       TOP OF DOC

    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.
 Page 34       PREV PAGE       TOP OF DOC

    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.
 Page 35       PREV PAGE       TOP OF DOC

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.

 Page 36       PREV PAGE       TOP OF DOC
    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.
 Page 37       PREV PAGE       TOP OF DOC

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.
 Page 38       PREV PAGE       TOP OF DOC

    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.
 Page 39       PREV PAGE       TOP OF DOC

    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.


    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.
 Page 40       PREV PAGE       TOP OF DOC

    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.


    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.

 Page 41       PREV PAGE       TOP OF DOC
    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.
 Page 42       PREV PAGE       TOP OF DOC

    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.
 Page 43       PREV PAGE       TOP OF DOC

    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.
 Page 44       PREV PAGE       TOP OF DOC

    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:]


    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 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)
 Page 45       PREV PAGE       TOP OF DOC

    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.
 Page 46       PREV PAGE       TOP OF DOC

    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.
 Page 47       PREV PAGE       TOP OF DOC

    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.
 Page 48       PREV PAGE       TOP OF DOC

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.
 Page 49       PREV PAGE       TOP OF DOC


    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)
 Page 50       PREV PAGE       TOP OF DOC

    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.

 Page 51       PREV PAGE       TOP OF DOC
    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.
 Page 52       PREV PAGE       TOP OF DOC

    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.

 Page 53       PREV PAGE       TOP OF DOC
    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.

 Page 54       PREV PAGE       TOP OF DOC

    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.
 Page 55       PREV PAGE       TOP OF DOC

    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.
 Page 56       PREV PAGE       TOP OF DOC

    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.
 Page 57       PREV PAGE       TOP OF DOC

    [The prepared statement of Mr. Henning follows:]


    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.


    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.
 Page 58       PREV PAGE       TOP OF DOC

    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 role, that it simply follows a prosecutor's lead in mindlessly handing up indictments. Professor Leipold's excellent article, Why Grand Juries Do Not (and Cannot) Protect the Accused, 80 CORNELL L. REV. 260 (1995), explains very clearly why grand juries are not an effective means to screen cases from prosecution. Therefore, it is the investigatory function, unmentioned in the Constitution, that is the grand jury's more important role in the criminal justice system.

    In American history, grand juries have occasionally served as watchdogs of governmental misconduct, and even more rarely thwarted prosecutorial overzealousness by refusing to indict. The accusatory function declined in importance during the nineteenth century when a number of states authorized prosecutors to file complaints directly with the court to initiate a criminal prosecution. In Hurtado v. California, 110 U.S. 516 (1884), the Supreme Court held that states need not charge capital crimes by a grand jury indictment, and this federal right is one of only two criminal protections in the Bill of Rights not applicable to the states.

    The development of a large body of professional prosecutors in the twentieth century has enhanced the grand jury's investigatory role. Federal criminal prosecutors do not have independent authority to compel the production of documents or the appearance of witnesses, so they must work under the auspices of the grand jury. As the Department of Justice made economic and organizational crimes—such as money laundering, fraud, and RICO—a priority over the past thirty years, the significance of the grand jury in federal law enforcement increased because its broad authority to compel the production of evidence and the testimony of witnesses is unmatched. While the accusatory function may be largely an anachronism, the grand jury today plays an integral part in the investigation of criminal conduct, especially white collar crimes.
 Page 59       PREV PAGE       TOP OF DOC

    The key to the grand jury's investigatory power is the authority to issue subpoenas that require the recipient to turn over evidence and appear before the grand jury to testify, on pain of criminal contempt if there is no basis for a refusal to comply. The label ''grand jury investigation'' is a misnomer because the grand jurors themselves have little to do with the investigatory process of issuing subpoenas, reviewing records, and interviewing witnesses. The prosecutors in the United States Attorney's Office and the investigative agencies—primarily the Federal Bureau of Investigation—control the scope and pace of the investigation. Prosecutors routinely issue subpoenas, usually without informing the grand jurors; a grand jury subpoena can be issued without the jurors even being aware that an investigation exists. In most United States Attorney's Offices, there is a set of blank subpoenas that prosecutors, legal assistants, and support staff can fill out at any time, often upon the request of an investigative agent without further inquiry. In my experience, many subpoenas for records employ boilerplate language describing the documents or material sought, and little thought is given to the breadth of the subpoena—at least not until a recipient objects. In complex white collar crime investigations involving a large number of documents, the vast majority of the records subpoenaed are never shown to the grand jury, only those that the prosecutor deems relevant to the investigation. It is common for prospective grand jury witnesses to meet with prosecutors for an interview before the grand jury session. While there is nothing wrong with any of these procedures, the prosecutor's control of the process means that the grand jury's role is mainly that of an observer and not a participant, even though technically it is the grand jury that has the authority to compel the production of evidence and appearance of witnesses.

    While the recipient of a subpoena can challenge it in court, the threshold for enforcement of a grand jury subpoena is quite low. In United States v. R. Enterprises, the Supreme Court held that under Rule 17(c) of the Federal Rules of Criminal Procedure a subpoena is enforceable ''unless the district court determines that there is no reasonable possibility that the category of materials the Government seeks will produce information relevant to the general subject matter of the grand jury's investigation.'' 498 U.S. 292, 301 (1991). The investigative powers exercised by prosecutors under the auspices of the grand jury are subject to little external constraint because the Supreme Court has acknowledged that a grand jury is ''free to pursue its investigations unhindered by external influence or supervision so long as it does not trench upon the legitimate rights of any witness called before it.'' United States v. Dionisio, 410 U.S. 1, 17–18 (1973). The grand jurors often are only ''along for the ride'' in investigations that fall largely outside the control of the judiciary, even though the courts are responsible for calling the grand jury into existence and charged with enforcing its demands for information.
 Page 60       PREV PAGE       TOP OF DOC


    The Constitution provides a panoply of rights to individuals before they are charged with a crime. The Fourth Amendment prohibits unreasonable searches and seizures, and under Miranda and its progeny custodial interrogations must be preceded by a litany of warnings to inform suspects that they may cut-off all questioning. Through the remedy of the exclusionary rule, the Supreme Court has fashioned a potent means of enforcing these constitutional restrictions on the investigation of criminal conduct that is aimed at deterring the police from violating an individual's constitutional rights. Given that the grand jury is an investigatory body, one might think that the same protections would be afforded in that proceeding. While witnesses retain their Fifth Amendment privilege against self-incrimination, the Supreme Court has rejected all efforts to extend to grand jury proceedings the constitutional protections that are available in other police investigations. Among the Court's decisions in this area are:

 United States v. Dionisio: a grand jury subpoena is not a ''seizure'' subject to the reasonableness requirement of the Fourth Amendment.

 United States v. Calandra: evidence subject to the exclusionary rule as the product of an unlawful search in violation of the Fourth Amendment may be used by a grand jury to determine probable cause.

 United States v. Mandujano: a witness subpoenaed to testify before the grand jury need not be provided with a Miranda-type warning regarding the right to silence.
 Page 61       PREV PAGE       TOP OF DOC

 United States v. Washington: a witness appearing before a grand jury need not be warned that he is a ''target'' of the investigation.

 United States v. Doe (Doe II): an order directing a witness to sign a waiver of confidentiality for foreign bank records was not compelled testimony in violation of the witness' Fifth Amendment privilege against self-incrimination.

    With almost no protection available in grand jury investigations through the specific protections of the Fourth and Fifth Amendments, defendants sought dismissal of indictments by alleging that prosecutorial misconduct tainted the grand jury process. The Supreme Court, however, rejected all efforts to use claims of prosecutorial misconduct in the grand jury as a means to review any aspect of the grand jury's decision to indict, including the conduct of the prosecutor. The linchpin for understanding how the Court has limited judicial review of the prosecutor's conduct in grand jury is its decision in Costello v. United States, 350 U.S. 359 (1956).

    Costello involved the prosecution of an organized crime figure for tax evasion through what is known as the ''net worth'' method, which requires the government to produce a large body of evidence showing a disparity between the income declared on the tax return and the amount of the defendant's expenditures. While the government produced over 140 witnesses at trial, the grand jury only heard the testimony of three investigators who summarized the case against the defendant. The defendant alleged a violation of his Fifth Amendment right on the ground that the grand jury relied solely on inadmissible hearsay. The Supreme Court rejected that argument, holding that an ''indictment returned by a legally constituted and unbiased grand jury . . . if valid on its face, is enough to call for a trial of the charge on the merits.'' 350 U.S. at 363. In Costello, the Court refused to inject what it viewed as unnecessary formality into a process otherwise ''unfettered by technical rules.''
 Page 62       PREV PAGE       TOP OF DOC

    Costello precludes a court from inquiring into the substance of the government's evidence used to secure an indictment, and by implication prohibits a court from examining how that evidence came before a grand jury. Simply put, once a grand jury indicts a defendant, the Supreme Court bars any challenge to the process if that would involve scrutinizing the contents or basis of a facially valid indictment. Judicial review of the adequacy of the evidence supporting an indictment would necessarily include examination of the process by which the prosecutor gathered and presented the evidence. The Court saw no benefit in permitting defendants to challenge the prosecutor's conduct when that would entail reviewing the sufficiency of the evidence or adequacy of its presentation to the grand jury, especially when the trial will resolve the fundamental issue of guilt and the indictment is only a probable cause determination.

    In light of Costello's prohibition on judicial review of facially valid indictments, it is impossible to fashion a remedy for prosecutorial misconduct in a grand jury investigation if that claim would require a court to take into account the impact of the violation on the grand jury decision to indict. A court cannot inquire about the weight of the evidence the grand jurors considered, or how the investigation proceeded apart from the misconduct. A grand jury may consider a wide variety of evidence, and the probable cause standard for deciding whether to hand up an indictment is quite low so measuring the impact of a violation would be difficult. The only remedy available, therefore, would be dismissal of the indictment without any inquiry into the effect of the misconduct on the grand jury, i.e. a prophylactic rule. Yet, if the grand jury has sufficient evidence to indict but a court precludes the government from prosecuting the defendant, there is a substantial cost in the failure to vindicate society's right to seek redress for criminal conduct. Lower courts refer sometimes to the need to deter future prosecutorial misconduct by ordering dismissal, but the impact of the remedy is felt by society and at best only indirectly by the prosecutor.
 Page 63       PREV PAGE       TOP OF DOC

    Dismissal is quite different from applying the exclusionary rule, which only eliminates evidence flowing directly from the constitutional violation. While suppression of evidence may preclude further prosecution, often the government has other evidence to prove its case. Fashioning a remedy for prosecutorial misconduct short of outright dismissal, such as ordering the government to reindict the defendant before a new grand jury, would be ineffectual. A prophylactic rule requiring dismissal of the indictment and preclusion of further proceedings against the defendant is a very high price to pay for misconduct whose impact on the grand jury process may have been minimal. The harm suffered by a defendant from prosecutorial misconduct may have little to do with the decision to indict, yet with no realistic remedy short of dismissal a court would either have to ignore the misconduct or levy a severe penalty on the government and society.

    The Supreme Court has avoided imposing any constitutional limitations on prosecutors in the conduct of grand jury investigations because there is no way to provide a remedy tailored to address the harm, if any, from the violation. The effect of a prophylactic rule would exceed the benefits it would provide. This is especially so because the probable cause standard is so low that it is often unlikely that a constitutional violation would have much effect on the grand jury, and any harm from the misconduct can be addressed at trial. The lack of an appropriate remedy has led the Court to reject efforts by lower courts to create rules governing the prosecutor's conduct of grand jury investigations through the application of the judiciary's inherent supervisory power. While judges have authority over the conduct of the prosecutor in the courtroom, the Court has precluded use of the supervisory power to control the manner in which the grand jury investigation proceeds and the type of evidence the prosecutor can—or must—present to secure an indictment.
 Page 64       PREV PAGE       TOP OF DOC

    The effect of the Court's prohibition on the creation of rules limiting prosecutorial control of grand jury investigations is demonstrated by its decision in United States v. Williams, 504 U.S. 36 (1992). The Court rejected the Tenth Circuit's rule, issued under its supervisory power, requiring prosecutors to present exculpatory evidence to a grand jury or risk dismissal of the indictment. The Court held that because the grand jury is not required to listen to any evidence, the judiciary could not prescribe rules regarding what evidence the prosecutor must present to it. While the result certainly sounds incongruous—prosecutors are free to ignore exculpatory evidence and present only what they want the grand jury to hear—it is consistent with the approach set forth in Costello. The Court will not permit any inquiry into the substance of the grand jury's decision, thereby protecting the conduct of prosecutors in gathering evidence and presenting it to the grand jury even if that results in perceived unfairness in the proceeding.


    A picaresque description of prosecutorial domination of the grand jury is that any decent prosecutor could secure the indictment of a ham sandwich. The Supreme Court's refusal to constrain the conduct of grand jury investigations through constitutional or judicial rules reinforces the view that the grand jury is subject to prosecutorial manipulation. Williams' stark rejection of a seemingly fair rule for conducting grand jury investigations heightens the perception of prosecutorial domination because even evidence of purported innocence need not be brought before the grand jury.

 Page 65       PREV PAGE       TOP OF DOC
    Assertions that prosecutors in fact misuse the process can be overblown, and generally are not supported by empirical data showing widespread abuse of authority. Defendants often assert claims of prosecutorial misconduct in grand jury investigations for tactical reasons, to gain discovery of the government's case or to distract the prosecutors. The fact that prosecutors can—and even sometimes do—misapply their authority does not necessarily mean that the grand jury system is flawed.

    The Supreme Court's decisions on the conduct of the grand jury make it clear that there are no constitutional constraints on the investigatory process comparable to the limitations imposed under the Fourth and Fifth Amendments in police investigations. Similarly, lower courts cannot prescribe such rules on their own authority. Direct challenges to prosecutorial misconduct in a pending criminal proceeding are virtually impossible to raise because there are no grounds for asserting a claim that a court can hear. Redress can only be sought in a separate proceeding, apart from the prosecution in which the alleged misconduct took place. Congress—not the courts—can provide the means to address the issue of prosecutorial conduct of grand jury investigations, if it chooses.

    Some proposals to reform the grand jury process focus on enhancing the independence of the grand jury in its determination whether to hand up an indictment. Suggestions for reform include allowing witnesses to bring counsel into the grand jury during their testimony and to require prosecutors to present exculpatory evidence, overturning the effect of Williams. The accusatory function, however, is much less important than the exercise of the grand jury's investigatory power through the prosecutor. I am not aware of evidence that prosecutors, with any regularity, seek to indict individuals who are clearly not guilty of a criminal offense, so changes targeted at the grand jury's accusatory function are unlikely to be of much importance in protecting innocent individuals.
 Page 66       PREV PAGE       TOP OF DOC

    The question is whether there is a need for additional rules proscribing the prosecutor's control of grand jury investigations. Reform proposals that seek to formalize the grand jury's decision-making process miss the real issue of providing a means for redressing prosecutorial misconduct when it occurs during the investigation. Most misconduct transpires outside the actual presence of the grand jury, so changing what occurs in the grand jury room is unlikely to have much effect on any problems arising in an investigation. The principal areas where prosecutors have acted improperly in the investigative stage, and which Congress may wish to consider, are:

 Rule 6(e) violations: The leaking of information about a current investigation to the media by any prosecutorial authority is reprehensible. Rule 6(e)(2) of the Federal Rules of Criminal Procedure prohibits disclosing ''matters occurring before the grand jury,'' but the Rule has been narrowly interpreted by some courts so that prosecutors can disclose many details of an investigation without violating the secrecy requirement. Congress can address this issue by clarifying the scope of the grand jury secrecy rule.

 Attorney-Client Privilege: In the past decade, a number of lawyers have been called as witnesses in investigations of their clients and seen the execution of search warrants at their offices that seek information related to their clients. There are significant questions regarding the scope of the attorney-client privilege when a lawyer is called before a grand jury to testify about a client. Some districts require judicial approval of subpoenas to lawyers if the information sought relates to a client, and that may be a worthwhile area for Congress to explore. For law office searches, the Department of Justice guidelines on the subject may not give adequate protection to privileged information in files seized pursuant to a warrant, and procedures for neutral determination of privilege issues should be considered.
 Page 67       PREV PAGE       TOP OF DOC

 Improper Investigative Tactics and Biased Decisions: The Hyde Amendment (18 U.S.C. §3006A) is a significant step in permitting vindicated defendants to seek a form of redress for prosecutorial misconduct in the institution or prosecution of criminal charges. The adjudication of a claim for attorney's fees under the statute requires judicial scrutiny of the prosecutor's tactics, including pre-indictment actions in the investigation, to determine if the government's position was ''vexatious, frivolous, or in bad faith.'' That is the type of judicial review prohibited under the Supreme Court's decisions if a defendant raised it as a ground to dismiss an indictment. The statute is not clear, however, regarding when one is a ''prevailing party'' who can seek attorney's fees. For example, can a subpoena recipient who successfully quashes a subpoena seek attorney's fees as a prevailing party, or is the statute limited to those charged with crimes? Congress may wish to consider whether to extend explicitly the attorney's fee provision to pre-indictment proceedings, such as Rule 17(c) motions to quash subpoenas or Rule 41(e) motions for return of property improperly seized.


    I appreciate this opportunity to provide a brief overview of my understanding of the relationship of the grand jury to the Constitution, and analysis of why the Supreme Court has taken such a hands-off approach to the conduct of prosecutors in leading grand jury investigations. I will be happy to answer any questions the Members of the Subcommittee on the Constitution may have.

    Mr. HUTCHINSON. Thank you. And now, Professor Leipold.

 Page 68       PREV PAGE       TOP OF DOC

    Mr. LEIPOLD. Representative Hutchinson, Representative Watt, counsel, thank you for inviting me. Not surprisingly, criticizing the grand jury turns out to be a lot easier than fixing whatever problems we find. As the committee knows, over the last few decades there have been periodic efforts to revamp the institution, not a one of which has resulted in the kind of dramatic change the critics were looking for. Some of the reform proposals have to do with the types of information that is submitted to a grand jury; for example, proposals to require prosecutors to reveal to the grand jury information favorable to the accused. Other types of reforms have been procedural reforms, allowing counsel in the grand jury room, for example. And of course, there have been occasional calls to abolish the grand jury by amending the Constitution, an idea that, fortunately, has never gotten very far.

    My colleagues to my left are better positioned than I am to talk about the wisdom of specific changes. What I would like to do is offer a threshold suggestion about how we proceed with future reform efforts. My suggestion picks up on what Professor Henning and what Ms. Lynch talked about, and that is the notion of grand jury secrecy. Before we go too far down the reform road, we ought to decide how high a value we place on keeping grand jury proceedings confidential. The reason for this suggestion is that almost every reform—almost every reform, I should say—in one way or another has implications for secrecy. And I think it would be unfortunate either to make changes that inadvertently opened the door to the grand jury room when that is not what we intended; or the other problem, passing new rules but then having judges not allow witnesses, targets, subjects to get access to the information that they need to prove that these rules have been violated.
 Page 69       PREV PAGE       TOP OF DOC

    Let me see if I can sharpen that last point. It turns out that one of the problems with grand jury practice now—at least, one of the things that defense counsel are concerned about—is not that we don't have enough rules, or not that we don't know how to make grand jury practice different. It is that if prosecutors do something wrong in the grand jury room, defense counsel often have no way of finding out when that occurs because of the secrecy requirement. So for example: a witness may think that a grand jury subpoena is seeking irrelevant information, that this is just a burdensome, harassing subpoena on the part of the grand jury. The problem is you can't find out what the subject under investigation is, and because courts require a very high preliminary showing before you can get a subpoena quashed on relevance grounds, we end up with a rule that defendants have no effective way to enforce it.

    My suggestion is before we pass more rules that are similarly difficult to enforce, we should decide how serious we are about monitoring and enforcing these rules, stated differently we should ask how serious are we about letting someone who is currently outside the grand jury room getting access to grand jury materials—in short, who is going to monitor. The logical choice would be judges, but courts, as you have know, have been very reluctant to get too deeply into the substance of grand jury practice. The only other party who has an interest in monitoring prosecutorial conduct is defense counsel. And here, the interests that secrecy serves are obviously most at risk.

    The best way to address this tension between secrecy on the one hand and a witness', or target's, or subject's need for information on the other, is be explicit, perhaps in the Federal rule of criminal procedure, about how and under what circumstances witnesses, subjects, and targets can get access to grand jury material. That way we can confront directly this balance between secrecy and information, and reach if not a consensus, at least a clear decision on how we resolve that tension.
 Page 70       PREV PAGE       TOP OF DOC

    I should add that I am not convinced that we are at a bad place now. This is not a suggestion that we really do need to make some or all of the reforms that have been proposed, even though I am less convinced than Mr. Robinson that the grand jury serves an effective screening function. I also worry a lot about reforms interfering with the investigative powers. To be a little bit flip about it, I worry more about white collar crime and terrorists than I do about prosecutors, and so I would be very hesitant to engage in any type of sweeping reform, at least on the base of available evidence. But if we are going to have rules, my suggestion is to craft rules that can be enforced. That means we must figure out how much secrecy we are willing to do without.

    There are a couple of other suggestions I have, but I will leave that for my written comments. I would be happy to answer any questions, and I thank you for your attention.

    [The prepared statement of Mr. Leipold follows:]



    Few parts of the criminal justice system have been as routinely criticized, or have withstood the criticism better, than the grand jury. Although the 5th Amendment to the Constitution requires that all serious criminal charges be subjected to grand jury review, modern commentators are nearly unanimous in concluding that the institution does not protect suspects from weak or unfounded accusations. Rather than imposing a significant check on the government's charging decisions, the belief is that grand jurors invariably approve any indictment the prosecutor puts before them. As one cliche has it, ''If you gave grand jurors a napkin, they'd sign it.''
 Page 71       PREV PAGE       TOP OF DOC

    Grand juries are also responsible for investigating crimes, and this function has also come under frequent attack. Here the claim is that the institution—and by extension the prosecutors who fully control the investigations—is too effective. The grand jury's power to gather evidence is nearly unrestrained, and critics allege that this authority is used with distressing frequency to harass witnesses as well as suspects.

    Although these criticisms have been made for over a century,(see footnote 34) the courts and Congress have been reluctant to regulate grand jury practice. Federal courts routinely turn away efforts to compel prosecutors to follow certain practices or to present certain kinds of evidence.(see footnote 35) Congress also has been hesitant to intervene. Although it has passed laws regarding jury selection and secrecy, there are relatively few statutory constraints on the nature of the information the jurors should consider, or on the scope, subject matter, or procedures to be followed in an investigation.(see footnote 36)

    The most serious reform effort in modern times came in the 1970s on the heels of the alleged grand jury abuses by President Nixon's Justice Department. During this period Congress considered numerous changes, including at least four bills to amend the Fifth Amendment to abolish the grand jury requirement.(see footnote 37) In the course of Congressional hearings there was a great deal of testimony on the grand jury's shortcomings, but ultimately only marginal changes were made. This combination of pointed criticism and small alterations is characteristic of the grand jury debate; as a result, the grand jury continues to operate today much as it did at the end of the 19th century.
 Page 72       PREV PAGE       TOP OF DOC

    This lack of oversight means that the primary protection against grand jury abuse is the good judgment of the United States Attorney's offices. To a large degree this confidence seems justified. Despite the apparent lack of screening, prosecutors still obtain convictions in roughly 85% of the cases where an indictment is returned, suggesting (without proving) that most of the cases presented for review are meritorious.(see footnote 38) And while there are persistent complaints that prosecutors use the investigative powers in overbroad and intrusive ways, it is hard to evaluate these complaints. Those being investigated have an incentive to exaggerate the burdens, and the secrecy of the proceedings makes it hard to assess the concerns.

    Of course, even if the incidences of abuse are low, the harm caused by overreaching when it does occur is great; the power to accuse someone of a crime and the power to investigate every aspect of a person's life are too serious to be complacent. Continued monitoring of grand jury behavior is essential, and the numerous reforms that have been suggested over the years are worthy of careful and continued study.

    The point of these comments today, however, is to urge caution. Identifying problems with the institution is relatively easy; finding workable solutions is far more difficult. As noted below, many of the core problems raised by current practice are directly related to the grand jury's unusual features—its secrecy, its ex parte nature, its uniquely broad jurisdiction—making it hard to fix the perceived problems without fundamentally altering the nature of the institution. Any dramatic change in the structure or the process, particularly given the resource constraints that routinely plague the justice system, should occur only after sustained study, and should perhaps be made as part of a comprehensive review of pretrial practice, rather than piecemeal.
 Page 73       PREV PAGE       TOP OF DOC

    Set forth in the next section are three specific concerns about current reform efforts, concerns that may help give context to this important debate.


    Attempts to change grand jury practice typically fall into one of two categories. In the first are proposals to better control the evidence presented at the hearings. Common recommendations in this category are: (a) that prosecutors be required to present to the grand jury evidence that the government knows will exonerate the suspect; (b) that prosecutors be prohibited from presenting evidence that a court has already ruled was illegally obtained; (c) that subject and targets be permitted to testify before the grand jury on request. (Neither the Constitution nor the Rules of Criminal Procedure prevent or require these practices, although the U.S. Attorney's Manual is consistent with each.(see footnote 39)) A second type of reform seeks to change the procedures a prosecutor must follow. Typical proposals in this group are a requirement that witnesses be given Miranda-like warnings before they testify, and most dramatically, a rule that would allow witnesses to bring lawyers with them into the grand jury room.(see footnote 40)

    Those who engage in grand jury practice are better positioned to speak to the wisdom of specific changes. But there are three threshold suggestions offered below that may be worth considering, points that could provide a useful backdrop for the discussion.

A. Assess the Impact of Reform Proposals on Grand Jury Secrecy
 Page 74       PREV PAGE       TOP OF DOC

    One problem with many of the reform is that to a greater or lesser extent they would undermine the secrecy of the grand jury room. By tradition and by rule,(see footnote 41) grand jury proceedings are closed to the public, the press, defense counsel, and suspects; the only people permitted in the room are jurors, the prosecutors, a court reporter, a translator, and the witness under examination. Except for the witness, each of the participants is forbidden on pain of contempt from disclosing matters that occur before the grand jury. In general, this prohibition continues even after the indictment is filed.

    The Supreme Court has identified several reasons for this veil of secrecy: (1) prevent the escape of those who are under investigation; (2) protect the grand jurors from being pressured by the suspect or his friends; (3) prevent potential witnesses from being tampered with; (4) encourage witnesses to testify freely; and (5) protect the innocent suspect from having his reputation harmed if no indictment is returned.(see footnote 42) In short, secrecy is thought to be an important feature that allows grand juries to search for the truth, vindicate the innocent, and uncover crimes without pressure from suspects or the public.

    Each of the proposals noted above (and many others) would test our commitment to institutional secrecy. Any proposal that tries to dictate what type of evidence must be presented to the jurors—evidence favorable to the accused, for example—would require someone other than the prosecutor to review grand jury material to ensure compliance. The two choices for reviewer are the court and defense counsel, neither of which is an appealing alternative. Courts have steadfastly resisted efforts to involve them in the substance of the grand jury's work, in large part because of the delay and resource commitment this would entail.(see footnote 43) The other choice for monitoring compliance with a new rule is defense counsel, and here the ability to maintain secrecy would be at its lowest. The only way that suspects would have a meaningful chance to raise a potential rule violation would be to have access to the transcript, but this obviously would undermine many of the interests in secrecy the Court has identified. (Thus, for example, grand jury witnesses might be less forthcoming if they knew that after the indictment was returned the defense would have access to their testimony.)
 Page 75       PREV PAGE       TOP OF DOC

    It is worth noting that this problem already arises with efforts to enforce existing rules. Today a suspect who believes that the prosecutor has violated a grand jury rule can seek access to the transcript, but typically a court will require a preliminary showing of the violation before ordering disclosure. Suspects are thus in the difficult position of being unable to claim a violation without knowing what occurred in the grand jury room, but cannot discover what occurred without first claiming a violation. Reforms that fail to address the tension between the government's interest in secrecy and the suspect's need for evidence to support a claim will simply compound the problem.

    Even proposals that would not require direct disclosure of grand jury material would have implications for secrecy. One of the benefits of a closed proceeding is that a suspect can be investigated quietly, without tipping the government's hand. Notifying a target or subject of the investigation could easily undermine this interest, as would permitting a witness to bring a lawyer into the grand jury room. Some lawyers—those who represent both a corporate target and corporate employees who are called as witnesses, for example—could learn a great deal from being in the room during the questioning, information that could be passed on to other targets or subjects.

    The point is not that these proposals are a bad idea, nor is it that secrecy should be our highest value. The point instead is that any proposal designed to curtail prosecutorial overreaching will have consequences for grand jury secrecy and the interests it protects, simply because enforcing these rules would often require revealing the substance of the proceedings to some other party. In considering the costs and benefits of any reform, this is a cost that needs to be weighed explicitly in the balance.
 Page 76       PREV PAGE       TOP OF DOC

B. Recognize the Limits of the Institution

    Some of the concerns about grand juries may be the product of unrealistic expectations. Reform proposals often seem based on the assumption that if grand juries were just given more evidence, or if prosecutors had a bit less influence over the proceedings, the jurors then would be able to effectively screen the government's charging decisions. This belief is probably unfounded. In my view, the basic structure of the grand jury makes it inevitable that the jurors will be unable to make a reasoned decision about the prosecutor's case.(see footnote 44)

    The barriers to a grand jury's ability to screen cases are not obvious because its task seems so simple. Jurors listen to the government's case and then are asked a single question: whether there is probable cause to believe that the suspect committed a specified crime. The problem is that this is a question grand jurors are not qualified to answer. Whether probable cause exists is ultimately a legal determination about the sufficiency of the evidence—has the prosecutor put forth enough information to get above the legal threshold established by the probable cause standard? In submitting a case to the grand jury, we are asking non-lawyers with no experience in weighing evidence to decide whether a legal test is satisfied, and to do so after the only lawyer in the room, the prosecutor, has concluded that it has been. Because jurors lack any expertise in making this assessment, it becomes not only predictable but also logical that they will return a true bill in nearly every case, not because they are a rubber stamp but because they have no benchmark against which to evaluate the evidence, and thus no basis for rejecting the government's recommendation to indict.

 Page 77       PREV PAGE       TOP OF DOC
    The point can be made more easily by comparing the role of grand jurors to that of trial jurors. It might be argued that trial jurors make a similar ''sufficiency of the evidence'' decision when they decide whether the prosecution has proved its case beyond a reasonable doubt. But in fact, a grand jury's determination of probable cause is qualitatively different than a trial jury's verdict, and these differences are crucial to the ability (or inability) of the two panels to perform their respective functions.

    One justification for having lay-citizens serve on trial juries is that we believe non-lawyers are at least as good as judges at weighing the facts and deciding which of the competing versions of the case is correct. Indeed, the adversary system is based on the idea of presenting two ''biased'' versions of the same event and letting a neutral decision maker decide where the truth lies. Jurors are well-suited for this task: weighing credibility and spotting logical flaws in testimony do not require any special skill, and thus conclusions of lay jurors will usually lead to an accurate finding of whether the defendant committed the crime.

    Contrast this with the grand jury's role. Unlike a trial, which is designed to present conflicting facts to the jury, a grand jury hearing is structured to avoid conflicting facts. The grand jurors are presented with a single version of the events surrounding the crime (the prosecutor's), and asked to make a legal judgment about the quantum of evidence. In virtually every other context such decisions are left to judges. Summary judgment and judgments as a matter law in civil cases, as well as judgments of acquittal in criminal actions take the ultimate decision away from the jury and give it to the judge when the facts are not contested and a legal finding is required. The grand jury moves in the opposite direction: the legal decision is taken from the court and given to a jury,(see footnote 45) but limits the jurors to a version of the events that has not been subject to cross-examination or other adversary testing.
 Page 78       PREV PAGE       TOP OF DOC

    Requiring prosecutors to disclose to the grand jury evidence that is favorable to the accused, or restricting the evidence the jury can consider to that which would be admissible at trial, or letting the target testify on request might sharpen the quality of the evidence presented, but the baseline problem would remain. As every lawyer knows, it is not just the facts but also an advocate's presentation of them that helps juries make decisions. As long as grand jury proceedings remain ex parte—and no realistic reform proposal has ever suggested otherwise—it will continue to be the rare case when grand jurors will be able to make an informed decision to reject the prosecutor's recommendation to indict. The result is that prosecutors as a group will continue to feel relatively unconstrained in their charging decisions.

    In short, expecting grand jurors to screen out unfounded charges in an ex parte proceeding may be expecting too much. Dramatic changes designed to make the process more adversarial can surely be made, but the costs of such a change would be quite high. Grand jury proceedings would start to resemble a ''mini-trial'' on the merits (in which case they would closely mimic preliminary examinations), with all the attendant resource demands. Just as importantly, a more adversarial process would take us quite far from the historical understanding of what a grand jury should do. This type of fundamental change should be made, if at all, as part of an overall reevaluation of the institution, not as a consequence of incremental reform.

C. Focus on the Investigative Powers Rather than the Screening Function

    Many of the common reform proposals focus on the grand jury's ability to screen cases. This orientation is mildly surprising, since the grand jury feature that causes the most popular discontent is the investigative powers. There are frequently expressed concerns that unwary witnesses, ignorant of the subject about which they will be questioned and forced to testify without the guiding hand of counsel, are at times induced to incriminate themselves in crimes.(see footnote 46) More generally, the grand jury's broad authority to subpoena witnesses, compel testimony, and demand the production of documents and records can be burdensome on witnesses, subjects, and targets alike.
 Page 79       PREV PAGE       TOP OF DOC

    Judicial recognition of the federal grand jury's enormous investigative powers is long-standing and deeply rooted. The power to force witnesses to appear and testify were firmly established at the time the 5th Amendment was ratified,(see footnote 47) and numerous statutes and rules since that time have confirmed this authority. The breadth of the investigative power is equally well-settled: the grand jury is entitled to ''every man's evidence,'' and the power to search for crime is virtually unconstrained:

The function of the grand jury is to inquire into all information that might possibly bear on its investigation until it has identified an offense or has satisfied itself that none has occurred. As a necessary consequence of its investigatory function, the grand jury paints with a broad brush. . . . [I]ts operation generally is unrestrained by the technical procedural and evidentiary rules governing the conduct of criminal trials.(see footnote 48)

    The reason there are so few limits on this power is that the grand jury plays such an important role in the federal government's crime-control efforts. Grand jury investigations have been remarkably successful in uncovering organized crime, white collar offenses, and official corruption. The power to subpoena and immunize witnesses means that the government can compel the production of evidence that would otherwise be unavailable;(see footnote 49) in the absence of this authority, law enforcement officials must depend on a cooperative citizenry for information and search warrants to gather physical evidence, neither which has been a satisfactory way to investigate large, complex criminal schemes.(see footnote 50)

 Page 80       PREV PAGE       TOP OF DOC
    The success of grand juries in uncovering crime makes it politically difficult to limit the investigative powers, but there are other, more subtle barriers to reform. One problem is finding an appropriate remedy. Many of those who feel aggrieved by grand jury investigations are not themselves the target of the investigation and thus are never charged, making the usual remedy—quashing the indictment—ineffective. The recipient of an overreaching subpoena may go to court to resist compliance, but this route is time-consuming and expensive, often making acquiescence the path of least pain. And even when the burden of an overreaching investigation falls on a criminal suspect, quashing the indictment often seems like a disproportionate response.

    A second, and related, problem is that the standards for quashing a subpoena are government-friendly. A target or witness who wants to complain that the prosecutor is seeking irrelevant information, for example, must first convince a court that there is ''no reasonable possibility that the category of materials the Government seeks will produce information relevant to the general subject of the grand jury's investigation.''(see footnote 51) Given that no one outside the grand jury room has access to the precise knowledge of what is being investigated, the success rate of these motions is predictably low.(see footnote 52)

    Despite these problems, some changes can and probably should be made. Basic rules of fair treatment for witnesses—sufficient advance notice of subpoenas, warnings to witnesses about the dangers of self incrimination,(see footnote 53) and perhaps an easier standard for showing the unreasonableness of a subpoena(see footnote 54)—could relieve some of the burdens without interfering with legitimate law enforcement efforts. In addition, rules that require prosecutors to act in an ethical and honorable manner may simply duplicate current Department of Justice standards, but to the extent the rules give teeth to the requirements they are probably desirable. These are admittedly small steps, but on balance, the risks of interfering with the very effective investigative function are high enough to justify caution about proposals for more sweeping change.
 Page 81       PREV PAGE       TOP OF DOC


    To summarize: We should begin by recognizing that the unusual nature of the grand jury—its secrecy, its ex parte procedures, its enormous investigatory authority—make it hard to reform without fundamentally altering the nature of the institution. And while fundamental change may be the best way reach some of the goals we seek, centuries of practice, resource constraints, and a strong societal interest in uncovering crime will make dramatic change difficult to achieve. To the extent large-scale reform is contemplated, the interrelated nature of the pre-trial process suggests a system-wide review, rather than one that focuses only on the grand jury.

    The core suggestion of these remarks is that any discussion of specific reforms be preceded by a full consideration of the role secrecy plays in grand jury proceedings. Nearly all reforms will touch on this subject in one way or the other, making it critical to know how far our commitment to secrecy extends. Beyond that, smaller, more measured changes—perhaps by promulgating rules that confirm the prosecutorial responsibilities already recognized by the Department of Justice—would probably best take account of the grand jury's limited ability to carry out its screening function while still preserving its ability to carry out its investigative tasks.

    Mr. HUTCHINSON. Thank each of you for your illuminating testimony, and I will recognize the ranking member, Mr. Watt, for time and questions, 5 minutes, and we will certainly be flexible in today's panel. Mr. Watt.

 Page 82       PREV PAGE       TOP OF DOC
    Mr. WATT. Thank you, Mr. Chairman. Could somebody enlighten me a little bit, maybe one of the professors, about the historical basis for the investigative grand jury as opposed—I mean, I see the Constitutional basis for the indictment process. Obviously, that can't be revised without amending the Constitution, but how did we get to what you all are so heartily endorsing as something that is so critical—how did we get to a situation where we kind of take for granted an investigative grand jury?

    Ms. BEALE. Well, Mr. Watt, my suggestion is that we, basically, borrowed the English grand jury as a whole. And the investigative function actually developed first in the English context, and later, the grand jury took on as a dual character. So that by the time it was transplanted to, first, the colonies, and then into the fifth amendment, it was understood to have this dual character, including its original function, which was an investigative prosecutorial function. So while it is true that the text of the fifth amendment reflects only the idea that it would serve as a protection, I think it is pretty clear that the framers understood the nature of the institution that had been functioning, first in England, and then in the colonies.

    And all the writing, the pamphlets, for example, that were available during the Revolutionary period, the writing by—if you go back and look at what books were available in the colonies at the time the fifth amendment was drafted, you will see that it was understood to have this dual character; shield and sword, the investigative, as well as the protective function.

    Mr. LEIPOLD. Some of it, by the way, is because originally there was no professional police force or prosecutors, and so the grand juries were really the only way to figure out who was committing crimes. Grand Jurors were expected to come to the grand jury room with information about who in their community was violating the law. And so the investigative function really was, in part, a function of no police and no prosecutors to speak of.
 Page 83       PREV PAGE       TOP OF DOC

    Mr. HENNING. And with the 20th century and the development of a professional prosecutorial force, the grand jury was the only way to get the information. Federal prosecutors are not empowered in the criminal area to call people in. I mean, they can invite them to come in, but there is no statutory authority for them to compel someone to come in. A number of States provide that.

    Mr. WATT. But obvious circumstances in which the investigative part have overtaken what would be regarded as the Constitutional part—I mean, are there situations where you investigate and don't pursue an indictment, Ms. Lynch, Mr. Robinson?

    Ms. LYNCH. Yes. In fact, as part of the investigative powers of the grand jury, I think we have to really step back and look at what is the purpose of that investigative role. It really is to determine whether or not a crime has been committed. And if so, who is the person, or who is the entity, that we believe may be responsible. And to that effect, the investigative powers are fairly broad, as has been noted. But there, in fact, are times when indictments are not brought against people who may have been subjects or targets.

    Mr. WATT. Do you start the process not even intending to do an indictment, just using the process solely as an investigative process?

    Ms. LYNCH. Well, no. I wouldn't characterize it in that way, because the investigative process really contains in it the prosecutor's view that there has been a serious violation of a Federal nature and that the people that you intend to target, or whom they develop as targets later on, may, in fact, be the culpable parties. It is not the type of process where you simply investigate—''is there any environmental crime in New York going on.'' And primarily, because of internal screening that Mr. Robinson referred to, and also the fact that the purpose for going in the grand jury is to really provide redress for a serious wrong. I mean, the goal really is to look and see where can we deploy Federal resources to protect people who have been victimized by a wide variety of crimes.
 Page 84       PREV PAGE       TOP OF DOC

    So certainly, that isn't to say that during the course of an investigation, other areas or avenues may not open up. But again, you may have a view of the culpability of someone, and the evidence as presented to a grand jury may not rise to the level of an indictment, in which case, it is not returned. I would also just add that this, in my view, greatly posits the need for the confidentiality requirements, because as has been noted, an indictment is certainly a very strong instrument. But in many contexts, an investigation can be a very strong indicator against someone's character. We take great steps not to have that kind of information leak out.

    Mr. WATT. Unfortunately, we just called for a vote—actually, two votes—and I don't want to keep you all here for another 45 minutes waiting on us to get back, so I have two more questions which I would ask maybe if I just put the questions that maybe you all could respond to in writing.

    The first is is there—how practical is it to think of having two different sets of standards? You have cataloged about five or six different instances in which you think privacy is very important and, you know—terrorism, police, misconduct, discrimination, drugs, environment. Is it practical to think about having two different sets of rules?

    And second, it seems to me that the U.S. Attorneys manual is operating on a higher standard than the grand jury standard. Would it be practical to raise the grand jury standard to the standard that the U.S. Attorneys manual is operating on?

    If you could answer those in writing, then we won't have to hear the answers and you won't have to sit and wait. And I will yield back.
 Page 85       PREV PAGE       TOP OF DOC

    Mr. HUTCHINSON. Thank you, Mr. Watt. And I am going to go ahead. I think we have enough time for me to get in a few questions before we have to go vote.

    First, following up on what Mr. Watt was saying—and I am not an academic, so you might have to help me out. Under the Constitution, it guarantees the protection from the accusatory function and it requires the grand jury to be used in order to present indictment, but it does not require the grand jury to be used in the investigative function. Am I correct in that? And therefore, I guess my question is, is there any Constitutional problem if bifurcating the system, where you use the grand jury to use as a shield and follow the Constitution in terms of the accusatory function, but separate out the investigative function, similar to what they do in many State systems? Now, I am not advocating that. I am just asking, is there a Constitutional problem in that?

    Mr. ROBINSON. Perhaps Professor Beale and the other academics might be able to address that better. I think it would require some study to determine whether or not you could basically carve that out in light of the history and background of the Constitution. And I would defer on that to——

    Mr. HUTCHINSON. Does anybody believe we can't do that?

    Ms. BEALE. I am not sure. I think it is a very interesting question, and the way I would begin analyzing it is what does grand jury mean in the fifth amendment. And it would be similar to, in article III, what does it mean to have a court. So what functions are intrinsic part of a judicial function that can't be taken away by Congress, let's say, and still have a court perform its article III function. So I think that is the question. How far can you go changing the character of the grand jury until it is not a grand jury anymore. And I think there is a little sense in the history, although, I probably want to think about this more, that the character is intertwined, that in the course of its investigation and deliberation, the grand jury not only figures out who should be accused, but who shouldn't be accused. And so is it possible, entirely, to divorce that function? Perhaps, but I am not certain.
 Page 86       PREV PAGE       TOP OF DOC

    Mr. HUTCHINSON. Has there been any law review articles or publications on that? Nobody has written about that issue?

    Ms. BEALE. Not that I am aware.

    Mr. HUTCHINSON. Okay.

    Mr. LEIPOLD. Actually, the person who has said perhaps the most relevant thing about it is Justice Scalia in a case called Williams. He made an extremely interesting observation when he talked about how the grand jury really is an independent Constitutional entity. It doesn't belong to the Executive, it doesn't belong to the Courts. The impression he gave was of a freestanding Constitutional thing, and this ties in, I think, with Professor Beale's point. In my view, there would be no Consitutional—there should be no Constitutional problem in separating the functions, because all the fifth amendment requires is, in effect, grand jury review.

    But what would the Court do if Congress decided to say you can only screen, you can't investigate, and we turn the investigative power over to prosecutors? I think it would be okay, but given that language in Williams, I am not 100 percent sure.

    Mr. HENNING. Well, administrative agencies have broad powers to compel production of documents and witnesses. In my checkered career, I was at the SEC, and issued subpoenas requiring documents to be turned over.

 Page 87       PREV PAGE       TOP OF DOC
    Mr. HUTCHINSON. But U.S. Attorneys can't do that outside of the scope of the grand jury.

    Mr. HENNING. No. That is right. But if a civil agency could do it, I would suspect the U.S. Attorneys Office could——

    Mr. HUTCHINSON. Let me go on. That was just an interesting question. Many of the reforms that are advocated by the Criminal Defense Bar, excluding the attendance of the attorney in the grand jury room, other than that, most of the reforms have been set forth in similar language in the U.S. Attorneys manual as a policy, Mr. Robinson. So my question is what would be wrong with codifying the U.S. Attorneys provisions in relation to the grand jury, because many of those protections you agree with, area common sense, and obviously, those are some of the things the Criminal Defense Bar advocates.

    Mr. ROBINSON. We have addressed some of those questions in our submitted testimony. I would only say this: (1) I think you would have to look at each of the proposals, because the language of the U.S. Attorneys manual is obviously written in terms of guidance. I would just—a couple of quick observations, it is one thing to take something that is guidance and designed to increase awareness and to raise the level of activity and turn it into something that would, basically, be enforceable rights. You would have to at least consider the litigation impact on these things, whether it would result in collateral litigation. Having spent a good deal of my life, in addition to the criminal side, doing civil litigation and seeing what happens in depositions and the kind of motions that can get filed, I think you would have to at least address that impact.

 Page 88       PREV PAGE       TOP OF DOC
    Mr. HUTCHINSON. Thank you, Mr. Robinson. I am going to adjourn here in just a moment, but I want to end with this question, and this goes back, Mr. Robinson. It is my understanding that over a year ago, the chairman, Henry Hyde, requested of Attorney General Janet Reno a report detailing the number of grand jury matters that have been disclosed to the President or his senior advisor since the issuance of the opinion of the Office of Legal Counsel, and that he followed it up with a supplemental request on November 24, 1999, and a subsequent letter of May 17, 2000, and it noted in that letter that in 7 months, since he first made his request, and there has been no response.

    And so my question is has the Department of Justice completed the report requested by Chairman Hyde on behalf of the Judiciary Committee, and if not, when can we expect that?

    Mr. ROBINSON. I will have to take that question back. I know work has certainly been done on that question, because I am aware of that, and I just wasn't aware—I am not aware offhand where that response is. But I will be glad to try to take it back and get you a response.

    Mr. HUTCHINSON. If you would, we would be glad to submit this entire question to you in writing. We would like to have a response to that—even if we don't get the report, we would like to have a response as to when it is coming.

    Mr. ROBINSON. Fair enough.

    Mr. HUTCHINSON. And let me tell everyone I am grateful for your participation today. It has been very instructive. We are going to leave the record open for 10 days for anyone to submit any written answers to Mr. Watt's questions, as well as mine. And do you have anything else, Mr. Watt? With that, we are going to adjourn this, and we very well might have another one down the road to hear a little bit more on this issue. Thank you very much.
 Page 89       PREV PAGE       TOP OF DOC

    [Whereupon, at 2:17 p.m., the subcommittee was adjourned.]


Material Submitted for the Hearing Record

University of Illinois at Urbana-Champaign,
College of Law,
Champaign, IL, August 7, 2000.
Hon. MELVIN L. WATT, Ranking Member,
Subcommittee on the Constitution,
Committee on the Judiciary,
House of Representatives, Washington, DC.

Re: Constitutional Rights and the Grand Jury response to questions

    DEAR REPRESENTATIVE WATT: On July 27, 2000, I testified before the Subcommittee on the Constitution on federal grand juries. During that hearing, you posed two questions and invited a response from the witnesses. Here are my answers:

    1. There was testimony about how some types of cases are particularly prone to grand jury problems and others are particularly well suited for grand jury use. You asked about the feasibility of having two sets of rules to deal with different types of cases.

    In my view, an effort to draw this type of distinction would probably be unwise. At the threshold, categorizing by rule would be difficult. Although some cases might benefit from a distinct set of rules, it would be very hard to describe these in advance. The natural way to categorize would be by the type of offense under investigation, but some drug cases will need more secrecy than others, some political corruption cases will be extremely high profile and will require extensive investigations, others less so. Creating a new distinction is likely to be so under- and over-inclusive that it may not reduce grand jury abuse much, but would create a new ground for pre-trial motion practice. I think reform resources could be better used elsewhere.
 Page 90       PREV PAGE       TOP OF DOC

    2. You asked if it would be appropriate to raise the standards of grand jury practice by rule to meet the standards now articulated in the United States Attorneys Manual. Although I think the USAM describes appropriate standards of conduct, and while I probably would support most rules that raised the bar to this level, I would urge you to be cautious about taking such a step. There is a great value to having organizations like the Justice Department set standards that are above the legal minimum, but they may be less likely to do so if they feel the legal standards will be raised to meet those guidelines. I fear that if the rules are changed once to incorporate the USAM guidelines, the Justice Department will be slow to commit new standards to writing in the future. That would be a great loss to prosecutors (both state and federal) who look to the USAM now for assistance.

    I would be happy to provide additional material on grand juries as the Committee sees fit, or provide any other assistance if it would be useful to you. Thanks again for inviting me to testify.


Andrew D. Leipold, Professor of Law.

American Bar Association,
Governmental Affairs Office,
Washington, DC, July 28, 2000.
Hon. CHARLES CANADY, Chairman,
Subcommittee on the Constitution,
 Page 91       PREV PAGE       TOP OF DOC
Committee on the Judiciary,
House of Representatives, Washington, DC.

    DEAR MR. CHAIRMAN: On behalf of the American Bar Association, I write to submit our views for the record in connection with the Subcommittee's recent hearing on the grand jury.

    The grand jury is a unique body in our legal system. It possesses awesome powers: The grand jury's work is conducted in secret. It has virtually unlimited subpoena powers. It can question witnesses without their lawyer present. Its right to inquire into possible offenses is unrestrained by technical or evidentiary rules. Courts do not generally supervise its work closely.

    Over the past 200 hundred years the grand jury has undergone great evolution. The majority of states now allow prosecution by indictment or by information, and in many states, the grand jury process has fallen into disuse. Yet use of the grand jury has increased on the federal level in recent years. It has become an important and powerful tool for investigating complex white collar crime, organized crime and political corruption.

    But the grand jury has also come under increasing criticism for being a mere ''rubber stamp'' for the prosecution without adequate procedural safeguards. Critics argue that the grand jury has largely lost its historic role as an independent bulwark protecting citizens from unfounded accusations by the government. News articles have documented numerous instances of abuses of the grand jury's broad investigative powers.

 Page 92       PREV PAGE       TOP OF DOC
    The question of fairness in grand jury proceedings has thus become an issue of special interest to the legal profession. Over the years the American Bar Association has developed thirty-one specific principles to restore the grand jury's original ''protective'' function and to eliminate abuses in the grand jury system. These ABA-supported principles include allowing counsel in the grand jury room, requiring the prosecutor to present exculpatory evidence to the grand jury granting targets the right to testify.

    I have enclosed a copy of the ABA's thirty-one grand jury reform principles for the Subcommittee's review and consideration. We believe the adoption of these due process principles—many of which have been incorporated by the Department of Justice in its Manual for U.S. Attorneys—will help to ensure that the grand jury remains an effective and fair mechanism for investigating complex crimes.


Robert D. Evans

cc: Members, Subcommittee on the Constitution



 August 1977 (181)

    BE IT RESOLVED, That the American Bar Association support in principle grand jury reform legislation which adheres to the following principles:
 Page 93       PREV PAGE       TOP OF DOC

    1. Expanding on the already established ABA policy, a witness before the grand jury shall have the right to be accompanied by counsel in his or her appearance before the grand jury. Such counsel shall be allowed to be present in the grand jury room only during the questioning of the witness and shall be allowed to advise the witness. Such counsel shall not be permitted to address the grand jurors or otherwise take part in proceedings before the grand jury. The court shall have the power to remove such counsel from the grand jury room for conduct inconsistent with this principle.

    2. Every witness before a grand jury shall be informed of his privilege against self-incrimination and right to counsel and shall be advised that false answers may result in his being charged with perjury. Target witnesses shall be told that they are possible indictees.

    3. No prosecutor shall knowingly fail to disclose to the grand jury evidence which will tend substantially to negate guilt.

    4. A prosecutor should recommend that the grand jury not indict if he or she believes the evidence presented does not warrant an indictment under governing law.

    5. A target of a grand jury investigation shall be given the right to testify before the grand jury, provided he/she she signs a waiver of immunity. Prosecutors shall notify such targets of their opportunity to testify unless notification may result in flight or endanger other persons or obstruct justice; or the prosecutor is unable with reasonable diligence to notify said persons.
 Page 94       PREV PAGE       TOP OF DOC

    6. The prosecutor shall not present to the grand jury evidence which he or she knows to be constitutionally inadmissible at trial.

    7. The grand jury shall not name a person in an indictment as an unindicted co-conspirator to a criminal conspiracy. Nothing herein shall prevent supplying such names in a bill of particulars.

    8. A grand jury should not issue any report which singles out persons to impugn their motives, holds them up to scorn or criticism or speaks of their qualifications or moral fitness to hold an office or position. No grand jury report shall be accepted for filing and publication until the presiding judge submits in camera a copy thereof to all persons named or identifiable and such persons are given the opportunity to move to expunge any objectionable portion of said report and have a final judicial determination prior to the report's being published or made public. Such motion to expunge shall be made within ten days of receipt of notice of such report. Hearings on such motions shall be held in camera.

    9. The grand jury should not be used by the prosecutor in order to obtain tangible, documentary or testimonial evidence to assist the prosecutor in preparation for trial of a defendant who has already been charged by indictment or information. However, the grand jury should not be restricted in investigating other potential offenses of the same or other defendants.

    10. The grand jury should not be used by the prosecutor for the purpose of aiding or assisting in any administrative inquiry.
 Page 95       PREV PAGE       TOP OF DOC

    11. Witnesses who have been summoned to appear before a grand jury to testify or to produce tangible or documentary evidence should not be subjected to unreasonable delay before appearing or unnecessarily repeated appearances or harassment.

    12. It shall not be necessary for the prosecutor to obtain approval of the grand jury for a grand jury subpoena.

    13. A grand jury subpoena should indicate the statute or general subject area that is the concern of the grand jury inquiry. The return of an indictment in a subject area not disclosed by the grand jury subpoena shall not be a basis for dismissal.

    14. A subpoena should be returnable only when the grand jury is sitting.

    15. All matters before a grand jury, including the charge by the impaneling judge, if any; any comments or charges by any jurist to the grand jury at any time; any and all comments to the grand jury by the prosecutor; and the questioning of and testimony by any witness, shall be recorded either stenographically or electronically. However, the deliberations of the grand jury shall not be recorded.

    16. The prosecutor should not make statements or arguments in an effort to influence grand jury action in a manner which would be impermissible at trial before a petit jury.

    17. Expanding on the already established ABA position favoring transactional immunity, immunity should be granted only when the testimony sought is in the public interest; there is no other reasonable way to elicit such testimony; and the witness has refused to testify or indicated an intent to invoke the privilege against self-incrimination.
 Page 96       PREV PAGE       TOP OF DOC

    18. Immunity shall be granted on prosecution motion in camera by the trial court which convened the grand jury, under standards expressed in Principle 17.

    19. The granting of immunity in grand jury proceedings should not be a matter of public record prior to the issuance of an indictment or testimony in any cause.

    20. A lawyer or lawyers who are associated in practice should not continue multiple representation of clients in a grand jury proceeding if the exercise of the lawyer's independent professional judgment on behalf of one of the clients will be or is likely to be adversely affected by his or her representation of another client. If the court determines that this principle is violated, it may order separate representation of witnesses, giving appropriate weight to an individual's right to counsel of his or her own choosing.

    21. The confidential nature of the grand jury proceedings requires that the identity of witnesses appearing before the grand jury be unavailable to public scrutiny.

    22. It is the duty of the court which impanels a grand jury fully to charge the jurors by means of a written charge completely explaining their duties and limitations.

    23. All stages of the grand jury proceedings should be conducted with proper consideration for the preservation of press freedom, attorney-client relationships, and comparable values.

    24. The period of confinement for a witness who refuses to testify before a grand jury and is found in contempt should not exceed one year.
 Page 97       PREV PAGE       TOP OF DOC

    25. The court shall impose appropriate sanctions whenever any of the foregoing principles have been violated.

 August 1980 (181)

    BE IT RESOLVED, That the American Bar Association adopts three additional grand jury reform legislative principles (adding to the 25 grand jury principles approved by the ABA House of Delegates in August, 1977):

    #26—No prosecutor shall call before the grand jury any witness who has stated personally or through his attorney that he intends to invoke the constitutional privilege against self-incrimination. However, the prosecutor may seek a grant of immunity or contest the right of the witness to assert the privilege against self-incrimination. In any such case, the prosecutor shall file under seal any motion to compel the testimony of a witness who has indicated his refusal to testify in reliance upon his privilege against self-incrimination and any witness may file under seal any motion relating to or seeking to exercise or protect his right to refuse to testify. All proceedings held on such motions filed under seal shall be conducted $% in camera, $% unless the witness requests a public hearing.

    #27—The grand jury shall be informed as to the elements of the crimes considered by it.

    #28—No witness shall be found in contempt for refusal to testify before a grand jury unless (1) the witness is provided an opportunity to explain to the grand jury his refusal to testify; and (2) the grand jury thereafter recommends to the court that the witness be found in contempt.
 Page 98       PREV PAGE       TOP OF DOC

 February 1981 (181)

    BE IT RESOLVED, That the American Bar Association adopts two additional grand jury principles (adding to the 25 grand jury principles approved by the ABA House of Delegates in August, 1977, and to the three approved by the House in August, 1980):

    #29—No attorney, his agent or employee, shall be questioned by the grand jury concerning matters he has learned in the legitimate investigation, preparation or representation of his client's cause or be subpoenaed to produce before the grand jury private notes, memoranda, and the like constituting his professional work product.

    #30—The grand jury should be provided separate voting forms for each defendant in a proposed indictment, and each count in an indictment should be the subject of a separate vote.

    BE IT FURTHER RESOLVED, That the ABA recommends amendment of Rule 6(e)(3)(A)(i) of the Federal Rules of Criminal Procedure (regarding disclosure of grand jury proceedings) to prevent unauthorized disclosure of secret grand jury information for use in civil proceedings, as follows (addition italicized):

    (i) an attorney for the government for use in the performance of such attorney's duty to enforce federal criminal law; [end]

 February 1984 (181)
 Page 99       PREV PAGE       TOP OF DOC

    BE IT RESOLVED, That the American Bar Association approves the following proposed Grand Jury Reform Principle #31:

    Absent some compelling necessity, the prosecutor should not present the grand jury with a hearsay version of critical eyewitness testimony as a substitute for such testimony when it is available.

(Footnote 1 return)
This discussion is drawn from chapter 1 of Sara Sun Beale, William C. Bryson, James E. Felman, & Michael J. Elston, Grand Jury Law and Practice (2nd ed. 1997).

(Footnote 2 return)
The presenting jury was not a trier of fact in the modern sense: it did not hear evidence, and it was not asked to decide the truth or falsity of accusations. Originally it was required only to answer, under oath, whether any local person was ''accused or reputed'' to have committed certain crimes. By the end of the 12th Century, the presenting jury's function had begun to expand to include not only the accusatory function of the modern grand jury, but also the functions of the modern trial jury. After 1215, the presenting jury was required first to say whether the defendant was accused or reputed to be guilty, and then to give the ''verdict of the country'' as to guilt or innocence.

(Footnote 3 return)
Irwin Langbein, The Jury of Presentment and the Coroner, 33 Colum. L. Rev. 1329, 1331 (1933).

(Footnote 4 return)
The practice was sometimes taken to ridiculous lengths, which suggested that it was intended ''less to keep the king's peace than to replenish his coffers.'' Id. at 1330. For example, in 1321 a London presenting jury was asked to recite all the crimes that had occurred within the past forty-four years (including the exact value of the property owned by each homicide victim), and they were fined for each error. II Frederick Pollock & Frederick William Maitland, The History of English Law 646 (2nd ed. 1923).

(Footnote 5 return)
In 1352 a statute was passed that allowed a defendant to challenge any member of the trial jury who had served on the grand jury that accused him, and effectively created two separate juries.

(Footnote 6 return)
The grand jury's procedure at this point was not formalized, and witnesses were sometimes questioned in their homes or elsewhere.

(Footnote 7 return)
Edward Coke, Second Part of the Institutes of the Laws of England 46 (1797 ed.).

(Footnote 8 return)
Henry Care, English Liberties, or the Free-Born Subject's Inheritance 252 (4th ed. 1719). The original edition was published about 1680, and later editions were printed in Boston (1721) and Providence (1774). See Bernard Bailyn, Pamphlets of the American Revolution, 1750–1776, 742–43 n. 9 (1965).

(Footnote 9 return)
There is evidence that grand juries were in regular use in Virginia as early as 1625, and by 1643 grand juries had also been empaneled in Massachusetts, Maryland, Rhode Island, and Connecticut. John Locke's ''Constitution'' for the Carolinas, drawn up in 1669, provided for grand juries. Grand juries appeared somewhat later in other colonies. In Connecticut, however, the prosecutor took over most of the inquisitorial functions of the grand jury, instituting criminal proceedings by sworn information. See generally Beale et al., §1:3.

(Footnote 10 return)
Colonial grand juries gradually undertook a variety of administrative tasks, which varied from colony to colony. They investigated non criminal matters, particularly the conduct of government business, auditing government expenditures, inspecting jails and other public buildings, and advising on matters such as taxes, and the construction and maintenance of public works. In the Carolinas the grand jury even exercised legislative powers, initiating legislation to be considered in the assembly.

(Footnote 11 return)
In Massachusetts, where grand jurors were elected, Revolutionary leaders including Paul Revere and Ebenezer Hancock (John Hancock's brother) were grand jurors in the 1770s.

(Footnote 12 return)
However, under orders from the governor the New York assembly passed a law permitting prosecutions under information, and under the authority of this provision Zenger was charged with libel by information. Thus in Zenger's case, as in the English cases involving Colledge and Shaftesbury, the prosecution eventually found a way around the grand jury's refusal to indict. For an argument that the grand jury was not successful historically, and cannot currently, prevent a determined prosecutor from obtaining criminal charges against any individual, see Andrew D. Leipold, Why Grand Juries Do Not (And Cannot) Protect the Accused, 80 Cornell L. Rev. 260 (1995).

(Footnote 13 return)
Costello v. United States, 350 U.S. 359, 362 (1956). Accord United States v. Dionisio, 410 U.S. 1, 17 n. 15 (1973); Ex Parte Bain, 121 U.S. 1, 11 (1887).

(Footnote 14 return)
110 U.S. 516 (1884).

(Footnote 15 return)
See Beale et al., supra n. 1, §1:2 nn. 7–8, and §8:2.

(Footnote 16 return)
For a discussion of these provisions, see Beale et al., §6:27.

(Footnote 17 return)
Id. §6:24.

(Footnote 18 return)
See Tex. Code Crim. Proc. Art. 20.18.

(Footnote 19 return)
See Beale et al., §4:18.

(Footnote 20 return)
See Beale et al., §4:19–4:20.

(Footnote 21 return)
Id. §4:16.

(Footnote 22 return)
See generally id. §8:6.

(Footnote 23 return)
John H. Langbein, Shaping the Eighteenth Century Criminal Trial: A View From the Ryder Sources, 50 U. Chi. L. Rev. 1, 115 (1983). Each jury typically heard a group of cases and then retired to deliberate. During the first jury's deliberations the second jury heard cases. See also id. at 121 & n. 494 (noting that at this time the longest trials, which were exceptional, took a day, and that no trials exceeding a day took place until 1794).

(Footnote 24 return)
Id. at 124–26 (noting that the available records do not preclude the possibility that counsel appeared in some additional cases).

(Footnote 25 return)
Id. at 126–27.

(Footnote 26 return)
Id. at 129–30 (noting that until 1836 counsel were not permitted to address the jury by making opening and closing statements). Where counsel appeared for the defense, his main function was to take over the burden of cross examination of witnesses; this allowed the accused to remain silent and prevented any inadvertent admissions. Id. at 130.

(Footnote 27 return)
Id. at 124.

(Footnote 28 return)
Id. at 121.

(Footnote 29 return)
According to the Sentencing Commission, from 1994 to 1998 the percentage of federal criminal cases in which there was a trial, rather than a guilty plea, decreased from 9.5% to 6.4%. See U.S. Sentencing Comm'n, 1998 Sourcebook of Federal Sentencing Statistics, Figure C, <http://www.ussc.gov/ANNRPT/1998/Fig-c.PDF>.

(Footnote 30 return)
Id. at 42. There were also a handful of other charges, including aiding a jailbreak and forging a will. Id.

(Footnote 31 return)
See id. at 75 (more than 30 of 171 cases in Old Bailey sample involved testimony of pawnbroker or smith acting in same role).

(Footnote 32 return)
Investigations at this time involved advertising of stolen goods, the cooperation of pawnbrokers, and a developing police force, supervised by the examining magistrate. See id. at 55–76.

(Footnote 33 return)
See generally Jamie S. Gorelick & Harry Litman, Prosecutorial Discretion and the Federalization Debate, 46 Hastings L.J. 967, 972 (1995) (advocating that prosecutorial discretion in the federal system be exercised when, inter alia, ''the federal government—by virtue of its investigative, prosecutorial or legal resources—is positioned to make a qualitative difference to the solution of the problem'' and describing examples of the exercise of such discretion when state procedural rules hamper a prosecution).

(Footnote 34 return)
See, e.g., 1 Sara Sun Beale, et al., Grand Jury Law and Practice at 1–21 to 1–22 (2d ed. 1997) (''By the middle of the 19th century . . . [c]ritics charged that the grand jury was an expensive and cumbersome relic that had outlived its usefulness. There was also concern that the grand jury's inquisitorial procedures posed a threat to individual liberty.'').

(Footnote 35 return)
The leading Supreme Court cases on this point are United States v. Williams, 504 U.S. 36 (1992) (court supervisory power may not be used to compel prosecutors to reveal exculpatory evidence to grand jury); United States v. R. Enterprises, 498 U.S. 292 (1991) (setting high standard for challenging grand jury subpoena on relevance grounds); United States v. Calandra, 414 U.S. 338 (1974) (use of illegally obtained evidence in grand jury not grounds for witnesses to refuse to answer questions based on that evidence); Costello v. United States, 350 U.S. 359 (1956) (rejecting challenges to indictment based on sufficiency of the evidence).

(Footnote 36 return)
See Jury Selection and Service Act, 28 U.S.C. §1861 et. seq.; Fed. R. Crim. P. 6. Congress has limited the use of evidence that was the product of illegal electronic surveillance. See 18 U.S.C. §2515; Gelbard v. United States, 408 U.S. 41 (1972).

(Footnote 37 return)
The proposals to amend the Fifth Amendment were introduced in 1977 as House Joint Resolutions 59 through 62. See Hearings before the Subcommittee on Immigration, Citizenship, and International Law on H.R. 94, 95th Cong., 1st Sess., at 995–1003 (1977). For a comparison of the various statutory proposals to change the grand jury, see id. at 1006–08, 1140–48; see also the proposed Grand Jury Reform Act of 1978, reprinted in Appendix to Hearings before the Subcommittee on Administrative Practice and Procedure of the Committee on the Judiciary on S. 3405, 95th Cong., 2d Sess., at 1–64 (1978).

(Footnote 38 return)
Convictions alone do not confirm the correctness of indictments. It has been alleged that prosecutors at times persuade grand juries to overcharge defendants in hopes of inducing a guilty plea to some lesser (and perhaps more appropriate) charge. The opaque nature of plea bargains makes it hard to know how often this occurs.

(Footnote 39 return)
See U.S. Attorney's Manual §9–11.233 (''It is the policy of the Department of Justice . . . that when a prosecutor conducting a grand jury inquiry is personally aware of substantial evidence that directly negates the guilt of a subject of the investigation, the prosecutor must present or otherwise disclose such evidence to the grand jury before seeking an indictment against such a person. While a failure to follow the Department's policy should not result in dismissal of an indictment, appellate courts may refer violations of the policy to the Office of Professional Responsibility for review.''); id. §9–11.231 (''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.''); id. §9–11.152 (reasonable requests to testify by subjects and targets normally should be honored).

(Footnote 40 return)
These recommendations and others have recently been advanced by the National Association of Criminal Defense Lawyers in a report found at http://www.criminaljustice.org. Many of these recommendations are similar to standards previously set forth by the American Bar Association. See ABA Standards for Criminal Justice §3–3.6 (3d ed. 1993).

(Footnote 41 return)
See Fed. R. Crim. P. 6(e).

(Footnote 42 return)
See United States v. Procter & Gamble, 356 U.S. 677, 681 n.6 (1958).

(Footnote 43 return)
See Costello v. United States, 350 U.S. 359, 363 (1956) (''If indictments were to be held open to challenge on the ground that there was inadequate or incompetent evidence before the grand jury, the resulting delay would be great indeed. . . . This is not required by the Fifth Amendment.'').

(Footnote 44 return)
A more detailed version of this argument and citations to its sources are set forth in Leipold, Why Grand Juries Do Not (And Cannot) Protect the Accused, 80 Cornell L. Rev. 260 (1995).

(Footnote 45 return)
A case may be presented to a magistrate at a preliminary examination to determine if there is probable cause to bind the case over for trial. Fed. R. Crim. P. 5.1. But if the grand jury returns an indictment before the preliminary examination, the hearing is mooted. Id., Rule 5(c).

(Footnote 46 return)
For a discussion of these and related topics see Peter J. Henning, Prosecutorial Misconduct in Grand Jury Investigations, 51 S.C. L. Rev. 1 (1999).

(Footnote 47 return)
See Blair v. United States, 250 U.S. 273, 279–81 (1919).

(Footnote 48 return)
United States v. R. Enterprises, 498 U.S. 292, 297–98 (1991) (internal quote marks and citations omitted).

(Footnote 49 return)
A grand jury may compel the testimony of witnesses who would not otherwise be required to cooperate with police. Although the witness may not be forced to testify in violation of the privilege against self incrimination, that privilege can be overcome by a grant of immunity. See 18 U.S.C. §6002, 6003.

(Footnote 50 return)
Commentators have identified several other advantages of grand juries over police investigative work, including the benefits of citizen participation and the benefits of secret proceedings. See 3 Wayne R. LaFave et al., Criminal Procedure §8.3 (2d ed. 1999).

(Footnote 51 return)
U.S. v. R. Enterprises, 498 U.S. at 301.

(Footnote 52 return)
Id. at 300 (''[W]e recognize that a party to whom a grand jury subpoena is issued faces a difficult situation. . . . A party who desires to challenge a grand jury subpoena . . . may have no conception of the Government's purpose in seeking production of the requested information. Indeed, the party will often not know whether he or she is a primary target of the investigation or merely a peripheral witness. Absent even minimal information, the subpoena recipient is likely to find it exceedingly difficult to persuade a court that 'compliance would be unreasonable.' '').

(Footnote 53 return)
There apparently is no constitutional requirement that a non-target witness be warned about the dangers of self-incrimination; the rule on targets who testify is less clear. It is the policy of the Department of Justice to advise witnesses of their right against self-incrimination before they testify if they are the target or subject of the investigation. See U.S. Attorney's Manual §9–11.151.

(Footnote 54 return)
By way of example, one court of appeals has used its supervisory power to place a preliminary burden on the government to justify a challenged subpoena. The prosecutor must file a so-called ''Schofield affidavit'' that sets forth the relevance of the subpoenaed items to the investigation. See In re Grand Jury Proceedings (Doe), 103 F.3d 1140, 1144–45 (3d Cir. 1997) (en banc).