7/27/00 Testimony of James K. Robinson and Loretta E. Lynch before the House Judiciary Committee Concerning Federal Grand Jury Issues - with Critical Annotations

First Published 8/13/01 - Last Update: 8/13/01 13:15

Text of 7/27/00 Testimony of James K. Robinson (Assistant Attorney General, Criminal Division) and Loretta E. Lynch (United States Attorney, Eastern District of New York) before the House Judiciary Committee Concerning Federal Grand Jury Issues - With Critical Comments Added in Brackets by This Website's Editor:

Statement of James K. Robinson Assistant Attorney General, Criminal Division, and Loretta E. Lynch, United States Attorney, Eastern District of New York, July 27, 2000.

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.

I. Basic Elements and Goals of the Federal Grand Jury System.

The grand jury was brought to this country with the English common law. When our nation ratified the Bill of Rights, the grand jury was given a central position in the new government as the sole means by which the United States may initiate felony charges. The United States grand jury, like its English progenitor, is a body of ordinary citizens that serves to protect the innocent and indict those towards whom evidence leads. It has four defining characteristics.

[Today the grand jury is merely a rubber stamp for the federal prosecutor and conducts no investigation of its own; unless the grand jurors are permitted, encouraged and instructed to participate and reach decisions of their own, the grand jury system in its present form merely functions as a cover for another type of initiation of felony charges - one dominated by political considerations and unfettered prosecutorial discretion, without regard to any grand jury thoughts or insights into the matters.]

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).

[Federal prosecutors routinely violate the secrecy provision through issuance of press releases and other communications to the press and to witnesses, to taint and mislead them with misinformation. The secrecy provision therefore is a one-way street, to prohibit disclosure only when the prosecutor so desires. Elimination of the grand jury system would eliminate the alleged problems discussed in the preceding paragraph. The real problem is that secrecy has ensured that nobody find out why the prosecutors prosecute; it enables political deals to be made involving prosecutions of persons which the political rulers want to eliminate as threats to their political or economic power. Without such pre-indictment secrecy, there would be the possibility of uncovering and punishing prosecutorial wrongdoing.]

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).

[These broad powers are given to the prosecutors, not the grand jury members, who know little or nothing about what is happening, and merely sign the appropriate papers given to them for indictments, and leave as soon as they can to do something worthwhile. There is no need for a grand jury to preserve such broad powers. The broad powers would exist anyway with the prosecutors if the grand jury system were eliminated. The real problem with the broad powers (with or not a grand jury is involved) is that they are exercised abusively, such as through expenditures of millions of dollars in time and money which a defendant cannot afford to offset; through the deliberate avoidance of exculpatory evidence and through the unlawful failure to turn over exculpatory evidence to the defendant's attorney when the prosecutor inadvertently permits some exculpatory evidence to be uncovered.]

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).

[This independence has resulted in most of the prosecutorial abuses. All other parts of our government have checks and balances to try to prevent excesses and oppression. But the prosecutor has nobody looking over his or her shoulder because of an array of doctrines, such as independence, grand jury secrecy, prosecutorial discretion, and non-adversarial system (described below). It's time to have accountability brought to the office of the prosecutor.]

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.

[Because the grand jury process is without any adversaries (i.e., persons with any rights to ensure fairness and adherence to constitutional, statutory and other rules), the prosecutor is able to do anything he/she wants to do without fear of any objections. Witnesses and prospective defendants are not permitted to have their attorney represent them during the proceedings; only the prosecutor can ask questions, not the witness; and grand-jury members are not encouraged to participate for a variety of reasons. Because there is no adversary, there is no way to present problems of illegality and unfairness and overreaching to any judge when it would be most appropriate to do so.]

II. The Functioning of the Modern Day Federal Grand Jury. 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.

[A "thorough screening process" is claimed, but the prosecutors refuse to let anyone on the outside see how that screening process works as to any of the hundreds of thousands of cases which go through the prosecutors' offices. How much of that "screening" is really "screaming" by someone with a vested interest desiring to do away with a competitor in business or for office? To say, glibly, that screening is effective, how can there exist a single case with so many constitutional defects as are described in the related website Related Prosecutorial Website Based More Than 90% on One Federal Prosecution. The self-screening by prosecutors is no solution to wrongdoing, it is a main cause of prosecutorial misconduct and abuse, and should be changed to have outside agencies review the investigation and indictment process.]

[Note: there is no need to continue with this critical annotation for every statement needing criticism; the criticism remains pretty much the same throughout; the prosecutors claim they have a fine system (although not fine enough to require the FBI to deliver all of the exculpatory evidence to Timothy McVeigh, Oklahoma City bombing, before he decided to plead guilty). The lack of complaints by defense counsel as "proof" that there are not many problems results from the deficiencies of the system (such as making it profitable for defendants' lawyers to plead their clients guilty after obtaining as much money from them as possible - the pleas being based upon the inability to win in the existing system, even when the client is innocent; the lack of information about wrongdoing due to the secrecy of the process; the unwillingness of defense attorneys to vigorously defend by making appropriate motions directed against misconduct; and the recognition by defense counsel that if they make waves by fighting the prosecutors and their tactics the prosecutors may not allow the counsel leniency with all other criminal clients they have or will have with the same prosecutorial office; in other words, since the defense counsel generally plead all of their clients guilty, whether guilty or not, they do not want to antagonize the prosecutors who have to agree to certain terms of the guilty plea; if a defense lawyer is not able to make deals (i.e., guilty pleas) with the prosecutors, he/she will lose future Fee and Plea business.]

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.

[But how can you prove this to be true? You say it's so but offer no proof. This testimony is similar to the Warren Commission Report, asking the public to trust the persons making the statement even though the evidence upon which the statements is based is held in secret and not to be divulged to the public.]

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.

[An indictment rate of 99% is outrageous, and demonstrates that the grand jury is no more than a rubber stamp. A 2% acquittal rate of those cases going to trial is also outrageous, showing that the jury system does not work because of prosecutorial advantages built into the prosecution, such as the inability of the defendant to have discovery of the prosecution's expert witnesses, while as the same time the prosecution has obtained discovery of the defendant's experts, if any, and all others sought by the prosecution; and the seizing of the defendant's assets by excessive bail requirements; and the depriving of the defendant of the opportunity to obtain evidence by having excessive bail which the defendant cannot meet - just to name several of the shameful advantages of the prosecutors.]

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.

[Once again, there is no incentive for defense counsel to complain; there is no person in the Justice Department or U.S. Attorney's Office who deals with complaints other than to hide them and dismiss them; and there is no way for anyone to verify what matters are included within the 12 cases and what matters have not been included. In short, there are no records available to any outsider to prove the accuracy of such statistics. It seems clear, however, from my own experience, that nothing is done by the Justice Department or the United States Attorney's Office when a formal complaint against a prosecutor is made through the filing of a 2255 or 2254 action (motion) based upon prosecutorial misconduct or abuse. The same attorney who committed the abuse is the attorney who responds to the charge of abuse, always denying the charge. There are thousands of such 2255 petitions per year charging prosecutorial abuse, and I suppose that none of them wound up in the 12 admitted cases of "alleged prosecutorial abuse".]

Notwithstanding our good record, the Department of Justice takes very seriously any allegations of prosecutorial overreaching and does not tolerate such behavior.

[This is absolutely false. The Justice Department does not even obtain copies of 2255 petitions charging prosecutorial misconduct, or if it gets any copies at all, it does nothing with them except, apparently, promote the prosecutor involved.

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.

In short, our federal grand jury system is a sound institution, serving the multitude of interests that the public, individuals, the federal government, and our courts have in investigating serious violations of federal law and bringing offenders to justice.

III. Safeguards Built Into Federal Grand Jury System. The Department of Justice and the federal courts have taken steps to ensure that our policies and practices before federal grand juries appropriately balance the rights of the individual and fairness to the accused with the need to protect our citizens against grave dangers.

First, federal prosecutors generally undergo training on grand jury practice. In the last seven years, the Department has sponsored more than two programs each year for federal prosecutors that focus on practice before the grand jury. Additionally, there are numerous annual trainings for federal prosecutors that include instruction on grand jury policies and procedures. Also, since 1961, the Department has provided federal prosecutors with the Grand Jury Practice Manual, which provides detailed, additional guidance specific to federal grand jury practice. This practical handbook on grand jury practice has recently been revised and will be distributed to federal prosecutors nationwide.

Second, the USAM directs prosecutors to protect the rights of subjects and targets during grand jury proceedings. The USAM sets forth the policies and procedures relevant to the work of federal prosecutors. It requires prosecutors to accord to all grand jury witnesses certain warnings and procedural benefits that surpass in significant respects those mandated by law. Moreover, the USAM regulates the behavior of prosecutors by enumerating over two hundred actions - including the charging of certain offenses - that cannot be undertaken without prior permission from the Department of Justice.

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.

IV. Assessing the Need for Reforms to Our Federal Grand Jury System.

Our grand jury system has changed very little over the last two hundred years because it works: it protects our citizens from crime and it protects the rights of the accused. There have, nonetheless, been intermittent calls for reform of the grand jury system. Most recently, the NACDL has announced its support for legislation to dramatically overhaul the operations of our federal grand jury system. The NACDL proposal is broken down into ten individual recommendations. We would like to address individually the proposals that have been made to alter the grand jury system and the specific problems with each proposal.

Proposal 1: Allow counsel to accompany and advise his or her client inside the grand jury room. It has long been the prevailing practice that counsel may not accompany the witness inside the grand jury room. The proposal to allow defense counsel to be permitted inside the grand jury room has been considered - and rejected -- by previous Congresses. Proponents of this change argue that counsel is necessary to protect the witness's rights and to deter prosecutorial abuse. As we stated earlier, the grand jury is not a part of the adversarial criminal justice process. It is solely a screening tool to determine whether there is an adequate basis for bringing a criminal charge. We believe that allowing witness counsel to accompany a witness to a grand jury proceeding, would, as a practical matter, destroy the effectiveness of our federal grand jury system.

First, the presence of an attorney in the grand jury room would interfere with the basic function of the grand jury - to thoroughly investigate allegations of violations of federal criminal law. The entire purpose of calling witnesses before the grand jury is to elicit whatever pertinent facts the witness knows. It is essential that witnesses provide truthful, full, unfettered and unsuggested testimony. If counsel were present, the witness might simply look to him or her for guidance on how to respond. A witness may be more likely to repeat the words his attorney whispered to him or her, rather than provide truthful and exhaustive testimony in his or her own words.

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."

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.

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. 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. 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. 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. 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. 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.

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. 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.

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. 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. Overall, we have serious concerns about each of these ten proposals, notwithstanding the fact that some of them are substantively similar to current Department of Justice policy. The USAM effectively guides the work of prosecutors and federal grand jury practice. It fosters the flexibility that is so vital in a fluid system, and can be changed to reflect new court decisions. Its provisions reflect the delicate balance that our criminal justice system represents and circumscribes the conduct of prosecutors while enabling them to effectively fight crime. The USAM also provides a framework for addressing prosecutorial error short of the costly and time-consuming litigation that legal codifications of these provisions is likely to create. Federal prosecutors comply with these provisions and understand that there are ramifications for failing to do so.

V. Summary.

Our federal criminal justice system is a model for criminal justice systems around the world. Today's grand jury is the effective sword and shield that it has been for hundreds of years. It is not a court of law. It is, and should remain, an investigative body of ordinary citizens tasked with the critical job of investigating complex and sensitive matters and deciding who should be prosecuted. It would be wrong today to try to turn this important investigative body into an adversarial tribunal and dangerous to leave our communities unprotected by unduly hindering federal law enforcement. The Department of Justice is not alone in its concern about these proposals. The Judicial Conference of the United States, which speaks on behalf of the federal judges who are responsible for administering the grand jury system, has repeatedly rejected attempts to substantially depart from those practices which make our grand jury such an effective tool. In a report issued in 1975, and in another report issued in 1999, the Judicial Conference voiced its belief that the claimed misconduct of government attorneys is not so prevalent as to justify changes in practice. It also stated that current law, coupled with Department practice, contains more than adequate safeguards. We join the Judicial Conference in opposing reforms that would impair our ability to protect our communities. 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.

[Isn't it wonderful that the grand jury system is the only aspect of the criminal justice system which doesn't need legislative or other reform? How convenient!]

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.

[end of House testimony by Robinson/Lynch]

Carl E. Person, Director, LawMall, carlpers@ix.netcom.com
For the c.v. (resume) of Carl E. Person, click on Carl E. Person C.V.

Criminal Prosecution Reform Website Copyright 2001 by Carl E. Person - not including text of testimony above