Twenty years ago, the American Bar Association House of Delegates overwhelmingly endorsed a comprehensive set of proposals for grand jury reform. The proposals adopted by that body were drafted by the Criminal Justice Section's Committee on the Grand Jury. It had worked for about three years on the project. Reflecting the Section's broad composition, the panel included prosecutors, defense counsel, law professors and judges, most of whom had extensive prosecutorial experience. For example, the Committee included Charles Ruff, the last Watergate special prosecutor, Seymour Glanzer, one of the original Watergate prosecutors, and Richard Kuh, the former district attorney of Manhattan. The ABA's call for reform was echoed by General Motors, Litton Industries, Bethlehem Steel, and the National Council of Churches, among many other well-established groups.1
Congress held hearings, heard many well thought-out proposals, but did nothing. In the intervening 20 years, examples of grand jury abuse, prosecutorial distortion and misconduct have gone from bad to worse. And most recently, the misuse of the grand jury process by prosecutors in the office of Independent Counsel Kenneth Starr has again focused the spotlight on the need to protect ordinary Americans from this key facet of the criminal justice system that is so rife with abuse.
Not What Founders Envisioned
The grand jury is an institution embodied in our common law traditions of due process. It emerged in England in the twelfth century. At that time, it may have been as much a tool to further the powers of the crown as it was a protective shield between citizen and crown. Yet, by the time the American colonists brought the grand jury to this country, it was clearly viewed as a citizen's body, to protect them from the whims of royal governors and English tyranny. It was according to this colonial conception of the institution -- as a means of protecting citizens -- that the Founding Fathers enshrined the right to grand jury indictment in the Constitution.2
But, far from the concept of the Founders, the federal grand jury is no longer a shield to protect citizens from being arbitrarily charged. And due to the Supreme Court's regrettable 5-4 decision in U.S. v. Williams, 504 U.S. 36 (1992), just about everything Mr. Starr has been criticized for in recent weeks will stand so long as a defendant charged by his grand jury is later given a fair trial. As long as Mr. Starr can justify his acts by passing his own giggle-test, the Williams decision permits him to grill citizen witnesses such as Marcia Lewis and Sidney Blumenthal with impunity. No judge or magistrate can check Mr. Starr's unbridled, grand inquisitor powers, nor those of any other federal prosecutor. And, as we know well, federal prosecutors do this sort of thing all the time.
Need To Correct Abuses
In a recent "Dear Colleague" letter to his fellow House members, Judiciary Committee Chairman Henry Hyde (R-IL) quoted William J. Campbell, a former federal chief judge in Chicago: "The grand jury is the total captive of the prosecutor, who, if he is candid, will concede that he can indict anybody, at any time, for almost anything before any grand jury."
Chairman Hyde was responding to the hysterical claims by the Department of Justice concerning his much-applauded amendment to the DOJ appropriations bill, to afford citizens victimized by a wrongful investigation or prosecution the opportunity to recoup reasonable attorneys' fees and other costs of defense. DOJ falsely claimed that the Hyde Amendment would cripple prosecutors' ability to do their jobs (wrongfully prosecuting citizens?). DOJ also asserted that the amendment was unnecessary because the grand jury protects citizens from wrongful prosecution!
Congress passed the Hyde Amendment, and it was signed into law November 26, 1997. The Committee Report explaining the new law explicitly states that a grand jury's indictment shall not immunize prosecutors from a finding of wrongful prosecution under the new statute. Congress clearly recognized that the federal grand jury no longer serves its historical function to protect the citizenry.
It is time for Congress to take the next step, and reform the grand jury process. Only Congress can reverse the steady erosion of grand jury independence.
Proposal for Grand Jury Reform
Congress might well start on reform by considering the following proposals:
A federal prosecutor shall not intentionally withhold clearly exculpatory information from the grand jury. Without this duty, the grand jury is simply a tool to be manipulated by a prosecutor seeking an indictment. To ensure this duty is real, courts must be given the power to review grand jury minutes and dismiss indictments (without prejudice) that result from procedures where this duty is violated.
A federal prosecutor shall not intentionally use illegally seized information in the grand jury to secure an indictment. If federal agents and prosecutors know they can use such information to secure an indictment, they will hardly be discouraged from engaging in illegal practices. Far from it. They will be encouraged to engage in such wrongdoing at the expense of fundamental citizen liberties. The federal code recognizes as much in its electronic surveillance sections: 18 U.S.C. 2515 prohibits illegally "intercepted" information from being used before a grand jury. This rule should apply to all evidence acquired by confession or search.
A target of a grand jury can approach the foreperson in writing, to offer information to the grand jury. Again, this is to ensure that the grand jury receives all the relevant information it needs to make an informed decision. Note that there is no requirement that the foreperson accept the proffered information. This simply ensures that he or she is made aware of its existence, and afforded the choice as to whether it is relevant and helpful to the important work of the grand jurors in deciding the fate of their fellow citizens.
All witnesses called before a grand jury shall be given a Miranda-type warning by the prosecutor before being questioned. Prosecutors routinely tell witnesses they are not "targets" to get them to answer questions without counsel before the grand jury, only later to indict them after they have helplessly incriminated themselves. The problem can be addressed by requiring the brief issuance to grand jury witnesses of a Miranda-type warning. This is only fair.
Complex and important legal issues face any grand jury witness. The experience is especially daunting for the typical, lay witness. An appearance before the grand jury may subject an individual to the grave danger of self-incrimination or imprisonment for contempt. A witness may inadvertently lose the precious right to assert the privilege against self-incrimination by operation of the waiver doctrine.
Witnesses called before the grand jury shall be allowed to have counsel present. Currently, when a federal prosecutor places a citizen under oath before a grand jury, the person cannot even have counsel in attendance. This is both unfair and inefficient.
Without counsel's presence, the witness is at a decided disadvantage. Inherent pressures and accompanying nervousness associated with appearing before a grand jury can make it difficult for any witness, but especially the average, lay witness, to remember counsel's instructions relative to each question from the prosecutor. A witness must make quick judgments that even a seasoned lawyer would find difficult. She is forced to make judgments, even while testifying, that will legally bind and potentially incriminate her, or subject her to a perjury charge. Her testimony can also be used at a later trial to impeach her.
The witness who wants to consult with counsel is unrealistically expected to go through a disruptive drill in the midst of questioning -- asking permission to leave, getting up, going outside the room, repeating to her attorney (from memory) the prosecutor's question, remembering her attorney's advice, and then returning to the room. The process could be repeated numerous times. This routine hurts the witness by annoying grand jurors, and raising inevitable speculation in their minds as to the purpose of the consultation. As former Watergate special prosecutor (now White House Counsel) Charles Ruff testified before Congress in the 1970s: "Most prosecutors would admit . . . that they count on the burden of leaving the room to dissuade the witness from asserting his right to counsel."3
This proposed reform would level the balance of grand jury power in the direction of greater fairness to the witness. It would also add efficiency to the process by abolishing the time-consuming drill of the witness leaving the room each time she needs to consult with counsel.
All subpoenas for witnesses called before a grand jury shall be issued at least 72 hours before the date of appearance, not to include weekends and holidays, unless good cause is shown for an exception. This would prohibit the all-too-frequent ambushing of witnesses by prosecutors, who serve "forthwith" subpoenas at the 11th hour. They often do so simply to gain an undue "advantage" over an unprepared (and most likely uncounseled) witness.
Witnesses should have the right to receive a transcript (at their own expense) of their grand jury testimony. Federal Rule of Criminal Procedure 6 does not apply an obligation of secrecy to witnesses who appear before the grand jury. Thus, there is no reason they should not be allowed access to their own statements before the grand jury, as transcribed. Since the government may well seek to use these statements against the witness, this is only fair.
The grand jury shall be given meaningful jury instructions, on the record, regarding their duties and powers as grand jurors and the charges they are to consider. Grand jurors cannot exercise their historic powers of independence without meaningful jury instructions regarding their duties and powers as grand jurors, including the power to reject, as well as accept, the prosecutor's request for charges. Grand jurors, additionally, are entitled to receive instructions regarding the elements of the charges they are to consider. All instructions, as well as any statements made to grand jurors by prosecutors regarding the charges or the persons who are being investigated, must be on the record so that courts, upon a proper showing by the parties, are able to properly supervise the fairness and integrity of the grand jury process.4
Some States Show the Way
Many of these proposals are law in some states, such as New York which has dutifully considered the matter. There, an indictment can't be based on inadmissible or incompetent testimony such as hearsay evidence or on illegally obtained evidence. Evidence in the prosecutor's possession which substantially indicates a suspect may be innocent must be presented to the grand jury. A defendant on notice of the grand jury investigation has an absolute right to testify before the panel if he or she chooses. Most important, the court has the power to inspect minutes from the grand jury, and to dismiss any charges against a citizen if the grand jury evidence is actually insufficient.5 The judge can even reduce the charges to a lesser offense.
These are essential checks and balances for the grand jury process. In the aggregate, they can prevent prosecutorial abuse of American citizens whether they are targets or witnesses. And they can help to secure institutional credibility and citizen confidence in the grand jury, and indeed, the criminal justice process itself. These rights and safeguards, which have enabled the grand jury system to work effectively and fairly in New York, enjoy the broad support of prosecutors and defense attorneys alike.
Two decades after Congress weighed grand jury reform and did nothing about it, it takes the high-profile misconduct of the office of Independent Counsel Kenneth Starr to create the impetus for reforms that should have been implemented long ago. Over the past several months, the American people have been exposed to the innards of the grand jury process and it's clear that they don't like what they see. It smacks of abuse. In its present form it is a veritable Star Chamber.
Only when reforms such as these are in place will grand juries be liberated from their "captivity" by prosecutors. When that happens, grand juries can resume serving their important historic role as a neutral, apolitical buffer between the power of the government and the rights of the citizenry. When that happens, and only then, Americans will have protection against the runaway train we have today.
1. See generally, Richard E. Gerstein and Laurie O. Robinson, Remedy for the Grand Jury: Retain But Reform, 64 ABA Journal 337 (Mar. 1978).
2. See generally, id. at 338.
3. Id. at 339.
4. ABA Standards for Criminal Justice, Prosecution Function, Standard 3-3.5(c) (3d edition).
5. The judge has the option to dismiss either with or without prejudice. Dismissals that occur are usually without prejudice. If the problem is prosecutorial misconduct, rather than insufficient evidence, the judge will normally allow a re-presentment.
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