GRAND JURY PRACTICE
The United States Constitution provides that:
“No person shall be held to answer for a capitol or otherwise infamous crime, unless on a presentment or indictment of a grand jury”. U.S. Const. amend. V.
The purpose of the grand jury is to act as a bulwark to protect citizens from unwarranted prosecution. In Re Grand Jury 01-4042, 286 F.3d 153, 159 (3rd Cir. 2002). In reality, because the Supreme Court has held the grand jury’s function is not only to investigate whether crime has occurred, but also to assure itself that crime is not occurring, it has become a powerful investigative body which affords citizens little protection. The defendant has no right to appear before the grand jury and no right to counsel if he does appear. Conn. v. Gabbert, 526 U.S. 286 (1999). Its proceedings are kept in secret and are for the most part unreviewable. Thus the grand jury has become an often oppressive process open to abuse.
Under the rules of Federal Criminal Procedure the Grand jury is comprised of a group of 16-23 citizens before whom Federal prosecutors appear and present evidence. 18
U.S.C § 3321. This monograph addresses the limits and powers of the grand jury and the rights and obligations of those who appear before it.
To the prosecutor, the grand jury, with its broad reaching authority, subpoena power and cloak of secrecy is an invaluable investigative tool. Couple this with the executive’s power to compel production of records, documents and immunized testimony and it is no wonder that with increasing frequency federal prosecutors and investigators are utilizing the grand jury room for lengthy investigations of individuals and groups “targeted” for indictment.
Proponents of grand jury reform or abolition, who had complained that the grand jury served as a “rubber stamp” for the prosecutorial branch, now express the fear that this process provides an overbearing, one-sided discovery device which is fraught with potential for manipulation and abuse. In fact, the National Association of Criminal Defense Lawyers, in conjunction with the Commission to reform the Federal Grand Jury, proposes specific reforms discussed elsewhere in this paper.
To the defense lawyer, The Grand Jury, like its predecessor The Star Chamber, is totally devoid of those minimal protections thought to be required to insure fairness. Even
in procedures to terminate a welfare recipient’s benefits1, one has more rights that before the grand jury. And for the “target” or “putative defendant” called before this inquisitorial body there is no right to the presence of counsel, to cross-examine the witnesses, to present witnesses on their own behalf, or even to remain silent if granted immunity.
“No judge presides to monitor the grand jury’s proceedings. It deliberates in secret and may determine alone the course of its inquiry. The grand jury may compel the production of evidence or the testimony of witnesses as it considers appropriate, and its operation generally is unrestrained by the technical procedural and evidentiary rules governing the conduct of criminal trials. It is a grand inquest, a body with powers of investigation and inquisition, the scope of whose inquiries is not to be limited narrowly by questions of propriety or forecasts of the probable result of the investigation, or by doubts whether any particular individual will be found properly subject to an accusation of crime”.
United States v. Sells Engineering, 463 U.S. 418 (1983),
quoting United States v. Calandra, 414 U.S. 338 (1974).
Representation of witnesses called before such bodies presents the criminal practitioner with unique problems and few solutions. What follows are brief discussions of some of these problems and a few suggestions to help ease the pain.
