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Criminal Justice Magazine
Winter 2002
Volume 18 Issue 1

Grand Jury: Ripe for Reform

Council for Court Excellence study suggests changes

By Michael Waldman

Michael Waldman is a partner at the Washington, D.C., office of Fried, Frank, Harris, Shriver & Jacobson, specializing in defense of criminal and civil fraud cases. He served on the Grand Jury Study Committee of the Council for Court Excellence. The views expressed herein are those of the author and do not necessarily reflect the views of the council or any of its members.

T he Fifth Amendment to the U.S. Constitution guarantees that "[n]o person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury." In making the grand jury an essential element of the federal criminal justice system, the Founding Fathers incorporated an English institution that traces its origins to the twelfth century. As it has evolved in this country, the grand jury acts in secrecy, with any disclosure of its internal proceedings a violation of federal law. When the grand jury formally acts, however, it speaks publicly and with profound power—a criminal indictment.

Despite its hoary origins, questions have been raised in recent years about whether the federal grand jury system requires modification in order to ensure that it continues to fulfill its constitutional function in a fair and efficient manner. Over the years, the Supreme Court has often invoked the grand jury’s traditional role "as a protector of citizens against arbitrary and oppressive governmental action." ( United States v. Calandra, 414 U.S. 338, 343 (1974).) Yet, many complain that today’s grand juries have become the arm of the prosecutor, ready to indict the proverbial ham sandwich at the prosecutor’s request. Can some balance be restored to the grand jury’s function, without undermining its important investigative function? In addition, the federal grand jury typically involves 18 to 23 individuals undertaking an enormous time commitment over an 18-month term. Yet, petit juries literally decide matters of liberty, life, and death with only 12 jurors and sometimes considerably less. Can the grand jury be reconstituted to minimize the burden of grand jury service? A host of comparable issues raises serious concerns about how the federal grand jury works and fits in the modern criminal justice system.

Council for Court Excellence study

The result has been a number of proposals in recent years to modernize federal grand jury practice. A bill sponsored by Congressman William Delahunt of Massachusetts, a former prosecutor, is the latest of a number of congressional proposals to reform the grand jury. In 2000, the National Association of Criminal Defense Lawyers also announced a "Federal Grand Jury Bill of Rights" that it intends to advocate in Congress.

One of the most thorough and comprehensive calls for reforming the grand jury system was issued in July 2001 by the Council for Court Excellence, a nonpartisan civic organization dedicated to improving the court systems in Washington, D.C., and in the nation. A committee consisting of several federal and local judges, criminal defense lawyers, former prosecutors, former grand jurors, and academics engaged in a two-year study of the grand jury system. Their product was a lengthy report, The Grand Jury of Tomorrow, reflecting their findings. Although targeted at the grand jury system in the federal and local courts in Washington, D.C., their 23 recommendations clearly have national implications.

The council’s report proposed changes in four principal areas: improving the structure, organization, and selection of the grand jury; improving the effectiveness and independence of the grand jury; improving the safety, comfort, and convenience of grand jurors; and improving the protection of targets and witnesses.

Jurors’ safety and comfort

Some of the report’s suggestions were primarily practical and logistical improvements that possess widespread support. For example, there was little dispute about the proposals to improve grand jurors’ safety, comfort, and convenience. These suggestions involved such basic improvements as upgrading the facilities used by the grand jurors, including the food storage, telephones, and restrooms made available to them. The report also recommended steps to ensure that grand jurors were not exposed to community witnesses in serious criminal investigations, with former grand jurors in the study expressing grave concern about the security of the grand jurors who were recognized from their community. Even the U.S. Attorney’s Office for the District of Columbia, which declined to take part in the council’s study, has concurred in these suggestions.

Improving effectiveness and independence

Other practical suggestions were offered by the report in its discussion of improving the effectiveness and independence of the grand jury. A number of these suggestions focused on the instructions received by the grand jurors from the prosecutor’s office and the court. The report recommended that the instructions the grand jury receives from the presiding judge include notice of its right to seek advice on matters directly from the court when a question concerning a legal principle had not been satisfactorily answered by the representatives of the U.S. attorney’s office. Consistent with a bill introduced by Senator Dale Bumpers in the 105th Congress, the report also recommended that the grand jury be apprised of its right to direct that specific witnesses be called and interrogated and that papers, documents, and other tangible evidence be produced for the grand jury’s review. Those instructions would be made available in writing to the grand jury. It is believed by many that informing grand jurors of their right to gather testimony and evidence and to receive guidance directly from the court would empower the grand jury to be less the captive of the prosecutors.

In addition, the report recommended that the grand jury be physically located in a court building rather than in the prosecutor’s offices. This is an issue not just in the District of Columbia, but in many jurisdictions where the grand jury meets in rooms located in U.S. attorney’s offices. Over the objection of some of its members, but with the strong support of the Public Defender Service for the District of Columbia, the council concluded that a change of location was appropriate to reflect and reinforce the grand jury’s status as an arm of the court, independent from the prosecutor.

Improving grand jury’s structure

By contrast, the council’s chief proposal for improving the structure of the grand jury—to decrease its size—was opposed by District of Columbia’s federal public defender. The report concluded that the additional burden imposed by the current system of requiring 16 to 23 grand jurors, with 12 individuals needed to issue an indictment, could not be justified. The large size of the grand jury imposed a substantial burden on the citizenry and the administrative personnel at the courts. This was particularly true in the District of Columbia where, like a number of jurisdictions, there are complaints about the frequency of jury service and often difficulties achieving a quorum.

Although the federal grand jury requires between 16 and 23 people, a majority of states have grand juries that were smaller than that in size. In addition, petit juries in both federal and state court operated with 12 or fewer persons, with some state criminal trials decided by as few as six persons. The Supreme Court has analyzed the impact of smaller size on the quality of the petit juror’s decision making in a number of cases and found "no discernable difference" between the results of smaller juries and their larger brethren. ( Colgrove v. Battin, 413 U.S. 149, 159 (1973).) The council also noted that grand jurors "may feel less need to attend or participate actively when they serve on a large grand jury. A smaller grand jury size, therefore, may lead to less absenteeism and more participation on the part of individual grand jurors." Consequently, the study recommended a grand jury size of between 11 and 15 individuals, with an indictment requiring the presence of 11 and the vote of eight persons.

Protecting targets and witnesses

By far, the most controversial proposals were those providing for greater protection of targets, subjects, and witnesses. Nowhere is the clash between prosecutors and the criminal defense bar over grand jury practice greater than the debate over whether witnesses should be allowed to have their attorneys present in the grand jury during their testimony. Federal Rule of Criminal Procedure 6(d) currently prohibits counsel for witnesses from being present in the grand jury room. If a witness desires to consult with an attorney, he or she must announce this fact before the grand jury and then leave the grand jury room for such consultation. Supporters of the current rule argue that presence of attorneys for witnesses will inevitably lead to unwarranted objections, dilatory tactics, and other disruption. They also maintain that the presence of attorneys will lead to coached testimony and jeopardize the secrecy of the grand jury proceedings.

The report of the council weighed each of the various arguments for and against the presence of witnesses’ attorneys in the grand jury. The report noted several significant problems with the current system of having counsel hover outside the room waiting for the witness to possibly come out with questions:

(1) Because witnesses will not ask to leave the grand jury for fear that the grand jury will believe they have something to hide, the witness will not be advised about privilege matters or other issues that may require the advice of counsel.

(2) The lawyer’s presence outside the grand jury room is unlikely to deter improper questioning and harassment of the witness by prosecutors.

(3) Since counsel does not hear the witness’s precise testimony, counsel cannot assist the witness in correcting unintentional factual errors and misleading statements.

(4) The delay and waste of time involved in requiring witnesses to leave the room each time they wish to consult with their attorney.

The council’s report recommended the presence of counsel in the grand jury, but with the caveat that counsel would be authorized "only to advise the witness and not to participate in the proceedings in any other manner (e.g., counsel should not speak to the grand jurors or to the prosecutor)." The report noted that, if disruptive, counsel should be excluded from the grand jury proceedings by the court. The study concluded that the possibilities for coaching were limited if objections were prohibited and counsel could not consult with his client while questions were pending. It also expressed skepticism at the theory that the presence of lawyers threatened grand jury secrecy since witnesses (and their attorneys) already were allowed to freely discuss their testimony and since the lawyers were subject to significant ethical constraints. Most tellingly, the report pointed out that 21 states currently permit some witnesses to have counsel during their grand jury testimony. During its study, the council contacted prosecutors and criminal defense attorneys in some of these states and found no major concerns with witnesses having counsel in the grand jury room. To ensure fairness, the council also recommended that indigent grand jury witnesses who request counsel should have counsel appointed for them.

In another important recommendation, the report supported giving the target or subject of a grand jury the right to testify before the grand jury. This recommendation followed a similar proposal made by the American Bar Association in 1977. A few states have codified the right of a target or subject to testify before a grand jury, and there are no indications of any problems with this practice. In addition, even the United States Attorneys’ Manual allows for a qualified opportunity for such testimony in certain circumstances. (U.S.A.M. 9–11.152.) No good policy reasons have been advanced for refusing to accommodate a target or subject who requests an opportunity to testify before indictment. The prosecutorial concern that an indictment would be unobtainable in the face of the accused’s testimony is surely not a legitimate basis for refusing the witness an opportunity to testify. For these reasons, the report proposed implementation of a right of a target or subject to testify before the grand jury upon request.

In a similar vein, the council’s report also recommended that Congress adopt as law the provision of the United States Attorneys’ Manual regarding the presentation of exculpatory evidence. The manual specifically provides 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 prosecution must present or otherwise disclose such evidence to the grand jury before seeking an indictment against such person." (U.S.A.M. 9–11.233.) The report proposed that a failure to abide by this provision requiring the presentation of exculpatory evidence result in dismissal of the indictment without prejudice.

Supporters of this proposal believe that it will help reduce the number of indictments that cannot be supported at trial and protect the reputation of potential defendants. As Senator Bumpers argued in support of his federal grand jury legislation in July 1998:

It is no answer to say the evidence can be considered at trial, and the jury will correct the mistakes of the grand jury. If the Government has evidence that—if it were shown to the grand jury—would lead the grand jury not to indict, the government must share the evidence with those who have the power to
indict.

(Grand Jury Due Process Act, S. 2889, 105th Cong. (1998).)

Most states have recognized the prosecutor’s duty to disclose exculpatory evidence to the grand jury. There can be no real justification for a failure to provide such information to the grand jury. Given that even the United States Attorneys’ Manual supports disclosure of exculpatory evidence, it is hard to fathom any resistance to the study’s recommendation for codification of this rule.

Finally, the study recommended several other measures to shield witnesses and others from being unfairly harassed, burdened, and defamed. The report’s suggestions included:

  • Targets or witnesses who have formally indicated an intent to assert the Fifth Amendment privilege against self-incrimination should not be subpoenaed before the grand jury to assert that right.
  • All witnesses should be given Miranda-type warnings to correct the appearance "that the poor and the unsophisticated are particularly vulnerable to government exploitation" and to help "dispel the sense of total isolation and powerlessness that otherwise pervades much grand jury interrogation."
  • The practice of naming unindicted coconspirators in indictments should be ended because it "tarnishes the reputation of the person without providing any means for the person to prove his innocence."

The council believed that these steps were common sense proposals to prevent the abuse of the system, while not appreciably interfering with the legitimate investigative purposes of the grand jury.

Conclusion

In her comments upon receiving the council’s grand jury report, former Chief Judge of the U.S. District Court for the District of Columbia Norma Holloway Johnson wrote that the recommendations "would destroy the function of the grand jury system as we know it in the federal courts." It is doubtful that her colleagues from the federal and local bench, as well as the practitioners, grand jurors, and academics, all of whom participated in the study and helped draft the report, share that view. In fact, most members of the study committee believed that the proposed changes did nothing to impinge on the core function of the grand jury, and many of the dissents to the report complained about the unwillingness to go farther in advocating even more drastic reforms. Nevertheless, even if Judge Johnson were correct, one would have to wonder, in the wake of the Monica Lewinsky investigation and given the inherent waste and potential for abuse of the grand jury, if a fundamental change would be such a bad thing.


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