The Grand Jury Problems & Prescriptions
NAFTALIS, GARY P. & FRANKEL, MARVIN E.
PROBLEMS & PRESCRIPTIONS Nobody is perfectly pleased today with the grand jury. The displeasure varies with the interests and outlook of the critic—from prosecutors impatient over inefficiency and...
...The whole extravaganza is a threat to fair trials...
...It might place an unmanageable burden on the prosecutor at this stage to require him to discern and disclose possible matters of exculpation...
...Radical and nonconformist groups have depended throughout our history on the right to band together to speak and to use the printed word for dissemination of their ideas, often anonymously when disclosure of their identity could in itself chill or stifle their expressions...
...At a minimum, there seems no good reason why a prospective defendant should be called and forced to claim the privilege before the grand jury...
...for the grand jury is thought to be an organ of the court (Article III), not the Executive...
...His responses, as a matter of strict constitutional law, have no meaning...
...At the same time, such use will protect the citizenry from the tyranny of improper accusation...
...Among the costs and difficulties generated by a free press is the recurrent problem of the publicity attending some indictments...
...In May of the same year, Jacobsen told Watergate prosecutors in Washington he had made bribe payments to Connally, agreed to plead guilty to a bribery charge, and agreed to give testimony for the prosecution...
...The defendant, after indictment, gets a full opportunity to test the evidence before the trial jury...
...In return, the prosecutors agreed to "dispose of" the Texas action...
...For that purpose, the secrecy ends after the indictment has been voted...
...They are the breeding place for arbitrary misuse of official power...
...Another rule requires the signature of the grand jury foreman as well...
...Few, for example, have been heard to quarrel with the report of the Watergate grand jury...
...Yet, in the eyes of most newspaper readers, an indictment is a long step toward condemnation...
...Coming to modern times, some reports have been instruments of healthful exposure and reform...
...As the quoted opinions suggest, the courts have some power to protect against a panel's abuse or disregard of basic rights...
...I want you to describe for the grand jury every occasion during the year 1970 when you have been in contact with, attended meetings which were conducted by, or attended by, or been any place when any individual spoke whom you knew to be associated with or affiliated with Students for a Democratic Society, the Weathermen, the Communist party, or any other organization advocating revolutionary overthrow of the United States, describing for the grand jury when these incidents occurred, where they occurred, who was present and what was said by all persons there and what you did at the time that you were in these meetings, groups, associations or conversations...
...There does not appear to be much concrete evidence of prosecutorial abuse or harassment in the form of successive presentations to different grand juries...
...The thrust of the questioning may be designed more to secure a perjury indictment than information useful to the inquiry...
...ALLEGED BIAS The days of blatant discrimination in grand jury selection on grounds of race, class or religion seem now fairly well ended...
...If counsel were present, he would be able to advise the witness to give more detailed responses or explanations, lessening the possibility of inadvertent perjury, and he would be in a position to advise the witness when a claim of privilege is appropriate...
...Unless a judge interferes, the prosecutor's decision to dismiss or file a nolle prosequi will end the case.** Yet there are still the occasional cases that test our principles...
...There has also been discussion of late over whether immunity should be a two-way street, open to the defendant as well as the prosecution...
...Admittedly, there are difficulties...
...It is like the 'hit and run' motorist...
...Bills better conceived, including several now pending in Congress, may augur a brighter future for the idea of counsel in the grand jury room...
...Grand jury "leaks" are a recurrent and steadily nagging concern...
...Those opposed have included Federal District Judge Edward Weinfeld, and spokesmen for the American Civil Liberties Union and the American Bar Association...
...the privilege must therefore be that of the witness, and rests upon his consent...
...So, too, special prosecutors have been appointed where the regularly elected or appointed officials have failed to act...
...Jacobsen later did testify against Connally, who was acquitted...
...This is the type of case that comes up, in one way or another, whenever the customs, beliefs, or interests of a region collide with national policy as fixed by the Constitution or by Congress...
...For about as long as this privilege has been recognized—including its English precursors antedating our Constitution—there have been occasions when government authorities have wanted the evidence badly enough to compel it by paying the witness with "immunity" from prosecution...
...The right not to answer, the argument runs, is given to protect the dignity and privacy of the individual...
...At the same time certain items, such as confession by another to the crime the target is being charged with, are so obviously exculpatory that they cannot escape notice...
...Transcending this threshold discomfort, the grand jury, with its broad powers to investigate, may become in the wrong hands an instrument of oppression...
...The grand jury's question is whether or not to accuse...
...This is not the hard case that makes bad law...
...Granting all that, the insistence upon sealing grand jury minutes seems excessive, for they may serve legitimate needs of the defendant...
...This has even been recognized by the Department of Justice...
...Questions like these generate some fascinating and still remarkably unsettled problems of law and government...
...While the prosecution, if it later proceeded against the witness, would have to show that it had relied on independent sources for its evidence, that is no worse than the burden shouldered by the government when the immunity is requested for its own benefit...
...37 All that could mean—and has sometimes been said to mean—the Attorney General, or, usually, the United States attorneys, have unreviewable, final and exclusive power to decide who will and who will not be prosecuted...
...and that private parties, unfettered by the prosecutor's overall concerns, could use the power of immunization casually and irresponsibly to shield guilty witnesses from the law...
...Judges regularly instruct trial juries that indictments have no evidentiary weight and that no inference of guilt may be drawn from them...
...4. PRIVILEGE AND IMMUNITY The Fifth Amendment protects the individual against being "compelled to be a witness against himself...
...The risks for the individual vary...
...It may seek to pry into beliefs and associations of dissident and unpopular groups where the legitimacy of its questions is unclear but the risks of resistance considerable...
...In a final salvo, Texas prosecutors have recently secured Jacob-sen's indictment for the same matters covered in the Federal action...
...If there has been an indictment and the prosecutor decides to drop it, the grand jury has no effective voice in the matter...
...If limited to acts of government as opposed to crime generally, this proposal merits serious consideration...
...Many of the cases ending with a "no true bill" are actually instances where a prosecutor feels the need for such backing to support his own view that further proceedings should not be held...
...T]he Supreme Court has shown itself extremely sensitive to the opportunities for oppression that such examination offers...
...Given immunity of sufficient scope, the witness cannot rely upon the privilege to legitimate his refusal to testify...
...It considers whether or not to indict...
...An indictment may be challenged—even defeated...
...17 Beyond the awesome weapon of secret interrogation, the ability to summon people on short notice to far places is open to abuse...
...New York State, for example, provides that any witness called before the grand jury automatically receives immunity from prosecution unless he has waived that protection before testifying...
...It appeared to at least some observers that if not for the unusual circumstance of the Judge himself insisting upon more intensive inquiries, profound misdeeds might never have come to be prosecuted...
...Such unusual cases characteristically involve matters of bitter conflict in the community...
...Tell the grand jury every place you went after you returned to your apartment from Cuba, every city you visited, with whom and by what means of transportation you traveled and who you visited at all of the places you went during the times of your travels after you left your apartment in Ann Arbor, Michigan, in May of 1970...
...It may support defense positions in ways neither the prosecution nor the judge can know, even if they intend in good faith to deliver exculpatory materials...
...In a letter last December to Chairman Peter Rodino of the House Judiciary Committee, then Assistant Attorney General W. Vincent Rakestraw observed: "Possibly the most cherished rationale for the grand jury system is that it protects the individual against the prosecutor's 'partisan passion or private enmity.' Whatever may have been true many years ago when the nation was less populous, it is highly questionable today whether any such protection for the individual is realized by having grand juries...
...6. LEAKING INFORMATION While there is on one side a problem of too much secrecy, there is on the other a problem of too little...
...Judge Hill fired back with an order appointing two "special prosecutors" to go ahead with the case...
...Those favoring reports have included Thomas E. Dewey, Richard H. Kuh and former Chief Justice Arthur Van-derbilt of the New Jersey Supreme Court...
...It is at least highly doubtful that this should be preceded by a trial of the grand jury's decision to indict...
...Today the Federal prosecutor relies generally upon the investigative agencies to develop cases, and he will never previously have heard of the defendants in most of the matters presented to him...
...Judge Learned Hand, never soft in matters of law enforcement, wrote eloquently of this when he dissented from a decision affirming the perjury conviction of William Remington, a government official, in a case that seems to have taken place both a long and short generation ago...
...He may be careless and do himself injury that the lawyer would have prevented...
...In an opinion drawing some lines to protect free speech and association, a distinguished Federal appellate judge, Shirley M. Hufstedler, recalled that the grand jury was provided for in the Bill of Rights because the founders wrote with fresh memories of repressive prosecutions launched by Executive officials...
...leads and clues may not be fully explored...
...As the Supreme Court recently explained: "The existence of these [immunity] statutes reflects the importance of testimony, and the fact that many offenses are of such a character that the only persons capable of giving useful testimony are those implicated in the crime...
...The flaw in this argument is plain: There is no restriction on a witness giving his lawyer a full and detailed report of his testimony and attempting to reconstruct a verbatim transcript...
...After giving the U.S...
...Since under the existing law the inquest need not define its purposes for the witness, limits on the areas of inquiry are difficult to determine...
...The arguments pro and con parallel those on the target's right to testify, except the concern about making the grand jury proceedings adversarial in nature has greater force here...
...Thereupon, the government brought to the Fifth Circuit its still undecided complaints against the Judge, the appeal being styled "United States v. Honorable Robert M. Hill...
...Or he may err, as he possibly should, on the side of paranoia, making the trips into and out of the grand jury room a maddening experience for nearly everyone...
...It should be clear on principle that these violations of the rules are evil...
...33 11...
...The grand jury as a roving ombudsman has a fairly long and frequently honorable history...
...As Hand observed and all lawyers would agree, she was clearly privileged not to tell and a court would never have allowed the testimony to be used against her ex-husband...
...It would circumvent the adversary process which is at the heart of our criminal justice system and of the relation between the government and citizen under our constitutional system...
...And as the Supreme Court has said: "The Attorney General is the hand of the President in taking care that the laws of the United States in protection of the interests of the United States in legal proceedings and in the prosecution of offenses, be faithfully executed...
...The Court handled this by holding that in any later case the burden would be upon the prosecution to prove the absence of such "taint" in the additional material it proposed to introduce as evidence...
...At the outset of a broad investigation in a complicated area (securities fraud or other kinds of pos: sibly complex wrongdoing), the prosecutors are likely to be unaware of some or all who may come to be accused...
...As the Supreme Court has said: "Anonymous pamphlets, leaflets, brochures and even books have played an important role in the progress of mankind...
...36 Another corollary follows quickly: To find something in Article II (the Executive power) and not in Article I (Legislative) or III (Judiciary), is a matter of prima facie significance under our constitutional scheme, specifically in terms of the sometimes nebulous doctrine of the separation of powers...
...At the outset, remember, the prosecutor cannot prosecute without the grand jury...
...Leaking of grand jury minutes, whether by prosecutors, stenographers or jurors themselves, is punishable as contempt of court...
...On the other hand, there is active dissatisfaction that the grand jury seldom does more than the prosecutor asks...
...Why does the prosecutor hold a press conference at all to announce an indictment...
...No one knows upon what evidence the findings are based...
...If the device is used too often, the forces opposing reports altogether are likely to have their way...
...Judge Hand refused to assent because the trial in which the perjury occurred resulted from an indictment he found to have been tainted by intolerable behavior of a grand jury foreman and prosecutor...
...The activities of the Internal Security Division of the Department of Justice during the Nixon Administration were particularly troublesome in this respect...
...Consequently, cases replete with probable cause may fail initially to win the grand jury's favor...
...Some 50 years later, Thomas E. Dewey was appointed special prober in New York City because of the seeming nonfeasance of the regularly elected district attorney...
...Along these same lines is the question of whether the prosecutor should be obliged to present evidence to the grand jury that is favorable to the prospective defendant...
...A related problem is the witness' (as opposed to the defendant's) right to a copy of his own testimony...
...The prestigious American Law Institute's Model Code of Prearraignment Procedure provides for counsel in the grand jury...
...The opportunity to bully, to harass, to intimidate is surely present in the grand jury room, and it has surely been exploited on too many occasions...
...Specifically, it is argued that minorities, the young and the poor are not proportionately represented on voter registration lists and, consequently, the same is true on jury panels...
...Although the assertion seems to be correct, it has not stimulated a mass movement for change...
...No matter how sophisticated, the witness is at a disadvantage in the grand jury room...
...The presentment is immune...
...it only prevents the subsequent use of the compelled testimony, or leads from it, against him...
...The Chief Executive is to see that the laws are "faithfully executed...
...31 Leaving aside the occasional hyperbole of advocates, it is clear that a grand jury's blast is a fierce weapon—judicial in its appearance, wholly nonjudicial in its creation, potentially as hurtful as a judgment...
...The Federal system and most of the states do not have such a rule...
...Nor is it entirely the state's, for the state's interest is merely the motive for constituting the privilege...
...As we now know, the grand jury has an absolute veto over whether to indict...
...The tide flows in favor of disclosure...
...In fuller shorthand, the latter is better denominated as "use and derivative use" immunity...
...The rationale for this is again related to preventing adversary proceedings in the grand jury room...
...This Court, along with everyone else, knows that Goff and Kendrick, if prosecuted, run the risk of being tried in a climate of community hostility...
...Can the prosecutor drop a case the grand jury has seen fit to initiate...
...There is, we are told, a public "right to know...
...A legal scholar, Peter Westen of the Michigan Law School, has mounted substantial arguments for the view that defendants ought to have the right to require immunization of witnesses who could help their defense but who take the Fifth Amendment...
...Still, a reasonably clear principle obtains here: The casual assassination of character or impairment of status through the illicit breach of grand jury secrecy ought to be seen always as a wrong, to be prevented when possible and punished when appropriate...
...Suffice to say that too many of them have bases in fact...
...Although the general rule still prevails, there has been noticeable sentiment for change...
...Samuel Dash, who showed himself no enemy of effective investigation either as a Philadelphia prosecutor or as chief counsel of the Senate Watergate Committee, has been an articulate spokesman for the view that the witness has a right to this protection.22 Just recently the New York State Legislature passed a bill that would have afforded a partial and oddly limited species of this right...
...Indeed, few reformers urge the serious pursuit of this theoretical function...
...People may be called as witnesses who only later are perceived as active participants in the alleged crimes...
...28 The argument has force, and its ultimate effects remain to be seen...
...This means one may not be required to give testimony that could be self-incriminating—even "a link in a chain" of evidence that might pose a danger of criminal conviction...
...We may expect to see increasing movement in that direction, assuming, of course, that minutes exist to be examined...
...If convicting the guilty justifies immunity for government witnesses, exonerating the innocent should justify immunity for defense witnesses...
...At any rate, the attack on voter registration lists seems weak both on its intrinsic merits and in the absence of preferable substitutes...
...7. ADVERSE PUBLICITY We live in an age when the media have a profound impact on our perceptions of people and issues...
...This raises the question of the prosecutor's responsibility when he is forewarned that the prospective defendant will rely on his constitutional privilege if called to testify...
...Given the ever-increasing number of prejudicial leaks emanating from grand juries throughout the land, it is clear that the sanction has been without effect...
...18 In a slightly earlier opinion, Mr...
...In 1952, a New York grand jury investigated possible violations of the perjury and conspiracy laws by union officials who had filed affidavits with the National Labor Relations Board affirming that they were not members of the Communist party...
...Past evidence is too mixed to direct a confident opinion...
...It is possible that Watergate, at least temporarily, has added impetus to this sentiment...
...The grand jury should not compete in this work with other agencies of government unless they are quite plainly delinquent or corrupt...
...Before recalling a couple, we should note a few of the principles that do not solve, but help to formulate, the hard questions...
...Items of evidence that do not appear to be terribly meaningful to a prosecutor preparing to present a case to the grand jury may take on altogether different significance when viewed from the standpoint of the defense counsel at trial...
...In the handful of states where a defendant is permitted pretrial discovery of the entire grand jury transcript—California, Iowa, Kentucky, Minnesota, and Montana—there is no evidence so far of any higher incidence of obstruction of justice or subornation of perjury than in the rest of the states...
...This is a relatively rare procedure, reflecting the common privilege to forego a constitutional right...
...Three dissenters thought this erroneously overlooked the historic range of the grand jury's powers, and that the prosecutor's signature, a mere "authentication,' is (1) not vital and (2) compellable anyhow by the judge because it is a "ministerial" (not discretionary) act...
...If he has received only use immunity, he may be prosecuted later for the bank robbery, but the immunity prevents use of his grand jury testimony or of leads that are derived from the testimony in the prosecution...
...It is not handled in an adversary fashion...
...Being called by a grand jury, before anything else has happened, is unnerving...
...The Registrar, who provoked the original litigation, runs no risk, notwithstanding the fact that the district court, in effect, found that [the Registrar] did not tell the truth on the witness stand...
...The injury ought to be inflicted only after due deliberation upon a record responsibly judged to be adequate...
...While the price is sometimes high, most of us favor freedom of expression...
...Of course, nothing in the law Cor, for that matter, in life) is utterly clear and simple...
...The citizen's reaction to leaks from the Watergate grand jury, or involving Congressman Mario Biaggi or Spiro Agnew will depend upon his view of the particular victim at the particular moment...
...There have been claims that the fright and personal dislocations caused by these exertions of the subpoena power have been employed as weapons against the unpopular...
...One reason is the difficulty of proposing a better selection method...
...Assuming the interrogator is not aiming to confuse or mislead or trap the witness, his questions may nevertheless be vague or unintelligible, leading to answers of equal quality...
...In that light it is certainly doubtful whether the grand jury system provides the individual any surer protection than that afforded him by the prosecutor's own sense of civic and professional responsibility and his certain desire to perform fairly and competently in the sight of the bench, the bar and the public...
...It is only lately in the Federal courts that a defendant has become entitled to a copy of his own grand jury testimony...
...The public interest in each case is to determine the truth, and the standard for granting use immunity in each case should be the same, namely, whether it is 'necessary to the public interest.' Once the state makes immunity available to the prosecution it should not be permitted arbitrarily to withhold it from the defense...
...The displeasure varies with the interests and outlook of the critic—from prosecutors impatient over inefficiency and unnecessary expense to critics of the Left, Old and New, who see the grand jury as a weapon for prosecutorial oppression...
...Where an indictment is to be dismissed only with a view to bringing another one at some other time or place, the result may involve harassment...
...Bar associations can play a role in preventing leaks, too, by taking disciplinary action against offending attorneys...
...And that is only a trivial beginning of the possible complexities...
...So-called 'runaway' grand juries in state courts have succeeded from time to time in bringing prosecutions without the aid, or even over the opposition, of the regularly designated prosecutor...
...only 12 members need agree that probable cause exists to indict while as many as 11 members may disagree...
...Reformist voices have also called for strengthening the grand jury's ability to initiate inquiries into criminal offenses on its own...
...Fortunately, Judge Edward Weinfeld ordered the report expunged, a decision not less notable for the fact that one Senator Joseph McCarthy was riding high at the time.32 Our tentative conclusion, though not very heroic, is that reports should be returned only in the rarest of cases, involving public officials, for compelling reasons, where the grand jury has worked thoroughly to substantially unanimous and significant conclusions...
...3. INADEQUATE SAFEGUARDS Among the other procedural safeguards reformers seek is one that would give a prospective defendant an unqualified right to testify before the grand jury...
...Relatively recently the Supreme Court stated: "Historically [the grand jury] has been regarded as a primary security to the innocent against hasty, mali-oious and oppressive persecution...
...The Federal subpoena power extends throughout the nation, and witnesses have been brought across the country to strange surroundings in situations where this has not been unquestionably justified...
...Justice George Sutherland, were perhaps more certain than they have become), the "general rule" is tidy and uncomplicated: "It may be stated then, as a general rule inherent in the American constitutional system, that, unless otherwise expressly provided or incidental to the powers conferred, the legislature cannot exercise either executive or judicial power...
...Can the grand jury indict on its own...
...Proponents of imposing this requirement point out that the prosecutor's job is not simply to indict and convict but to obtain a just result...
...A different majority also agreed that Judge Cox had rightly ordered the United States attorney to help the grand jury draft the indictment, despite his being free not to sign it...
...District Judge Harold Cox sided with the grand jury...
...Unfortunately, this power is too seldom employed: In New York State there is no record of the contempt sanction having been applied in a case of improper disclosure of grand jury minutes...
...It ought to be forbidden...
...How do such conflicts arise...
...The prospective defendant may have information that would help in making that decision...
...23 That is the traditional view, yet it may not be decisive against change...
...21 The grand jury is theoretically an adjunct of the court...
...If the defendant is famous or notorious, or the alleged criminal conduct brutal or extensive, public interest (meaning, in the first instance, media interest) is high...
...The United States attorney, under instructions from then Acting Attorney General Nicholas DeB...
...And where there is an actual risk of harm to witnesses, the court can issue a protective order limiting disclosure...
...Neatly put again in the prepotent words of the Supreme Court (from a day when our certainties, as voiced by Mr...
...It may even be healthful for the law to stay a little loose and incomplete in this area, rather than try to freeze an unknown future too hard too far in advance...
...The critics also point out that one of the purposes of grand jury secrecy is to protect the reputation of the individuals under investigation whose conduct does not justify a criminal charge...
...That basic worry remains substantial...
...But even these three took the position that the United States attorney, having signed, could refuse to go forward in the prosecution of the indictment, and that the court would lack the power to alter that stance or impose punishment for it...
...This stirs some basic notions about fairness—or unfairness...
...Such an approach would provide the necessary warning and certainty which should characterize the criminal law...
...The contemporary grand jury investigates only those whom the prosecutor asks to be investigated and by and large indicts those whom the prosecutor wants to be indicted...
...On the contrary, some cases in which a "crime" has literally been committed—the youthful seducer of a female legally too young to consent...
...No judge or magistrate is there to rule on the propriety of the prosecutor's approach...
...He may be briefed in advance but he is unlikely to function as competently as his lawyer would...
...A majority of four of the seven judges went narrowly on the ground that the prosecutor's decision not to sign an indictment cannot be countermanded by a district judge—more precisely, that the judge lacks power to order the United States attorney to sign...
...Privileges, the right not to answer, other legal rights known to sophisticated witnesses are not necessarily known to everyone...
...Immediately, the neatly compartment-ed, "separated" powers are blurred by the Constitution itself...
...there appears to be no good reason why it should not be universally mandated...
...and the present time is hardly a propitious season to abate that vigilance...
...There are arguments the other way...
...Admittedly, the target's testimony may seldom be sufficiently persuasive to prevent indictment...
...The only reason for the charade when it is known the privilege will be asserted seems to be the planting of an adverse interest, contrary to law...
...Use of the grand jury for political purposes has evoked responses from the courts...
...The defendant may be thinking of calling at trial a witness who has testified before the grand jury, and he would obviously benefit from having the record in trying to make an informed judgment...
...The government responded by filing a "Notice of Intention Not to Prosecute...
...Contrasting with any asserted right of a prospective defendant to appear before the grand jury is the right, more commonly asserted, not to appear...
...Opponents mount the familiar argument about adversary elements...
...Neither the grand jury nor the public at large has an interest in the return of indictments that prove—and might have been proved in advance—to be unwarranted...
...This is the practice in New York State, and it appears to have worked satisfactorily there...
...197, 400 (1904) (dissenting)—meaning somewhat peculiar law, tortured to achieve an immediate objective, not safe or sound or good for application in the general run of "normal" cases...
...the executive cannot exercise either legislative or judicial power...
...The testimony of other witnesses is generally not available to a defendant unless they are called to testify at his trial...
...Visiting opprobrium on persons by officially charging them with crimes while denying them a forum to vindicate their names, undertaken as extra-judicial punishment or to chill their expressions and associations, is not a governmental interest that we can accept or consider...
...Great store will probably still be placed in the proposition that immunity favors the witness who gets it...
...Since the testimony is not meant to be secret from the witness' attorney, his hearing it first-hand is evil only if we intend him to be ineffective?a position not expressly defended by anyone...
...It would be a cruel twist of history to allow the institution of the grand jury that was designed at least partially to protect political dissent to become an instrument of political suppression...
...But the grand jury filed a report opining that a number of union officials had in fact been Communists and had invoked the Fifth Amendment when questioned about their affidavits...
...34 Yet apt as that description may have seemed for the people's panel in the 18th century, it certainly is not much realized in practice in the 20th century...
...It has been said that the immunity is not a fitting exchange for the privilege...
...9. HARASSING SUSPECTS If a defendant is found not guilty at trial, he may not be tried again for the same offense...
...Use" immunity forbids only later use against the compelled witness of either the evidence he has been forced to give or evidence derived from his testimony...
...that the resulting "sacrifice" of potential prosecutorial power requires a balancing of governmental interests...
...That court reversed the ruling, but it was a near and not quite resounding reversal...
...Our view is that the prospective defendant should be entitled to suggest that other witnesses be called, and that the panel should have the discretion to determine what to do...
...The government appealed Judge Cox's order to the Fifth Circuit Court of Appeals...
...In these circumstances, the very least demands of justice require that the discretion to prosecute be lodged with a person or agency insulated from local prejudices and parochial pressures...
...First, it is pertinent to have in mind that the prosecution of crimes is normally deemed an Executive function, specifically the prosecutor's, and in the Federal sphere this normally means the United States attorneys, subject to the overall supervision of the Attorney General...
...To carry out the deal, government attorneys sought to dismiss the Texas indictment...
...The sufficiency of the evidence is not contested...
...Before the 1970 law, Congress had repeatedly provided for "transactional" immunity, and proposals now before the House that we will soon take up would revive this policy...
...Still, the cure of testing the grand jury's evidence is likely to be worse than the disease, slowing still further, and for reasons less than compelling, a criminal process that already aggravates the community by its pattern of tortuous and leisurely complexities...
...The grand jury is scarcely independent of the prosecutor as it is...
...No indictments were returned...
...A second case of interest that found its way to the Fifth Circuit came in the legal torrent after Watergate...
...But, like all broad sweeps in the law, this one is too broad...
...The American Bar Association, in its "Standards Relating to the Prosecution Function," therefore urges that "the prosecutor should disclose to the grand jury any evidence which he knows will tend to negate guilt...
...A related issue is whether the prospective defendant should be able to compel the panel to hear others favorable to him...
...Before application can be made to suppress it, it is the subject of public gossip...
...He had in a sense initiated the prosecution when, during the voting rights trial, he stated that "these Negroes" should be "bound over to await the action of the grand jury for perjury...
...The rules governing those situations —perhaps too strictly on occasion —have been adequate to keeping them from becoming lawsuits...
...A qualification here, though not momentous, is that a Federal defendant (as, again, in many states) may "waive" indictment—i.e., agree that a felony prosecution may go forward against him merely on a written accusation by the United States attorney...
...A subpoenaed witness is not excused from appearing in front of the grand jury even if he indicates that he will rely on his right of silence...
...The instruction is deeply meaningful, underlining as it does the presumption of innocence and the prosecution's burden of proof beyond a reasonable doubt...
...Some defendants may tamper with witnesses or with their own stories if they are given access to the full grand jury record...
...The grand jury is not preordained to indict...
...Defenders of the status quo, reasoning somewhat abstractly, note correctly that the grand jury's proceedings are not adversary...
...In sum, there appears to be no genuine public benefit in barring counsel from the grand jury room...
...The issue is interesting, albeit not one that arises too frequently...
...In any case, better sanctions are needed to restore secrecy to the grand jury...
...In any event, counsel for a witness, particularly a prospective defendant, would be ill-advised to engage in obstructionist tactics that might prejudice the jury against his client...
...On the other hand, many reports have been ill-conceived, unfair and simply destructive...
...the impulsive, seemingly one-time shoplifter—are for one reason or another difficult for the law-trained official to overlook...
...Described briefly, "transactional" immunity protects against prosecution for any of the transactions or occurences that are subjects of the compelled testimony...
...Once a person has been identified as a potential defendant, though, there is much to be said for informing him of this when (or before) he is summoned as a grand jury witness...
...The publication of the draft indictment as a report opened the dispute to probably desirable public scrutiny...
...27 In opposition to this view it was argued that "use" immunity leaves the witness exposed to the danger of new evidence being found and used against him as a result of leads, new witnesses and new information that would not have been obtainable without his compelled testimony...
...For, though they seldom occur, perplexing and dramatic cases sometimes arise when the several main participants ?prosecutor, grand jury and judge—disagree about whether a prosecution should properly be instituted or dropped...
...In current times, the focus has been on the differential between "transactional" and "use" immunity...
...But this should not be a general or decisive presumption...
...These have been historic grand jury functions, somewhat neglected in the misinterpretation of that body's history and in the grand jury's preoccupation with the quasi-mechanical operations of handling routine indictments...
...They consider this vital for mobilizing public opinion behind necessary reforms and holding public officials accountable...
...29 Since the witness is probably the best judge of whether he requires the protection of grand jury secrecy, it can be persuasively argued that the choice should be his...
...Any witness, target or no, in any state or Federal court, may exercise his Fifth Amendment privilege against self-incrimination if called to testify before the grand jury...
...It accuses, but furnishes no forum for a denial...
...Double jeopardy has no applicability, however, to the grand jury...
...If it is used with wisdom, the case for total proscription is not overpowering...
...35 In the same way, those the grand jury "refuses" to indict are likely to be people the prosecution does not want indicted...
...But for the time being immunity is an essentially exclusive prosecution weapon and it is likely to be a good while, if ever, before the courts or the legislature gives defendants any appreciable hold on that weapon...
...Should he be summoned before another grand jury or regulatory body inquiring into the same matter, or be asked to testify for the defendant at trial, the witness would desire sensibly to review his prior testimony...
...Another qualification: A defendant may object, and may succeed in his objections...
...That standard, focused on what the prosecutor "knows" (and perhaps extending to what he should know) makes sense...
...The grand jury testimony, gathered through the powerful resources of the government, may contain leads to other helpful witnesses or documentary evidence...
...There are situations where the witness requires the benefit of access to his prior testimony...
...The process cannot be transformed utterly while we preserve a free press, but it could be modulated and controlled far better than it is...
...30 Opponents of grand jury reports answer that they are tools for official character assassination by a body of essentially irresponsible amateurs without recourse for the victims...
...19 Granted, the overwhelming majority of state and Federal prosecutors appear to be responsible public officials obeying and enforcing the law...
...In a bank robbery case, say, he may have alibi witnesses who would place him away from the scene of the crime...
...Whether we do or not, the First Amendment has survived and, with some vicissitudes, grown over the years...
...nobody is supposed to draw an adverse inference from the claiming of the privilege...
...Rightly or wrongly, it was thought that the Washington grand jury was not being led to sweep broadly or dig deeply in the months before the first trial at which Judge Sirica presided...
...2. ABSENCE OF COUNSEL The prohibition against allowing a lawyer to accompany a witness inside the grand jury room has led to the awkward and time-consuming practice of having the lawyer sit in an anteroom where the witness may consult with him...
...For that among a host of reasons, the precise lines of grand jury and prosecutor authority may never get drawn with finality...
...20 This year another appellate court, in a case charging members of the Vietnam Veterans Against the War with conspiring to disrupt the 1972 Republican national convention, had harsh words for the government's attempts to harass political nonconformists...
...It also might be appropriate to provide that any one convicted of this crime could be removed or suspended from public office...
...Among the interests grand juries have threatened or invaded are rights to free speech, free press and free association, all protected by the First Amendment...
...To be sure, the notion of the institution as a shield for the innocent—presumably at the heart of the reasons for its inclusion in the Bill of Rights—is continually echoed in judicial opinions...
...Yet there are valid arguments in favor of the practice...
...As a result, the grand jury concluded, the affidavits were worthless and a "subterfuge," and it was recommended that the NLRB revoke the certification of the unions named...
...Prosecutors, like many other civil servants, are often overworked...
...attorney an hour to relent, Judge Cox held him in contempt and ordered him into custody...
...If defendants are treated as having any right to be heard, the whole affair is likely to cease to be an ex parte proceeding resulting in a charge which can be fully met at the trial, but to become a litigation in which each side has the right to offer evidence, and an indictment can only be found if the evidence on the whole case preponderates against the defendants...
...In some states a defendant is permitted to inspect the grand jury minutes as a means of raising the point that the evidence the grand jury heard did not warrant an indictment...
...But there remains the charge that grand juries are unfairly constituted because identifiable groups, particularly those most often affected by the criminal process, are underrepresented...
...While the labels applied to this practice have frequently changed, the central idea remains unchanging—extraction of 'statements' by one means or another from an individual by officers of the state while he is held incommunicado...
...It is the rare grand jury that thinks itself of indicting, or is led by someone other than the prosecutor to indict...
...The grant of immunity, always provided it is of requisite breadth, is enough to force testimony...
...Like most "hard" or "great" cases, they tend to make somewhat special, unique or possibly "bad" law.* In any event, state courts remain unclear, and perhaps are shifting even now, on whether judges have the power to appoint special prosecutors to pursue cases the grand jury, but not the regular prosecutor, deems appropriate...
...Governor Carey vetoed the legislation after it was publicly denounced by the State Attorney Genera], but the veto message was not an inspiring document...
...The witness has no lawyer with him...
...The damage is done...
...Modern as well as ancient history bears witness that both innocent and guilty have been seized by officers of the state and whisked away for secret interrogation or worse until the groundwork has been securely laid for their inevitable conviction...
...In recent times, a Federal rule of criminal procedure—not constitutional law, of course, but still binding generally until it is changed—requires that an indictment "be signed by the attorney for the government...
...The State Attorney General opposed, declaring he had given evidence to the Federal people with the understanding that his "relinquishment of such investigatory data would not have taken place had the State of Texas not believed that the ends of justice would be fully pursued" in the Federal prosecution...
...Way back in 1964, when the civil rights movement was rumbling through the South and all of the nation, a Federal grand jury sitting in Mississippi thought it should indict for perjury two black witnesses for the government in a voting rights case against a Mississippi registrar...
...Meeting in secret, confronting the solitary witness en masse, enveloped in an aura of mystery and threat, it is likely to frighten all but the hardiest summoned to its room...
...But that is not an objective to be served in the public interest...
...It should not be impossible to enforce similar limitations as conditions for letting counsel into the grand jury room...
...The grand jury's dispensing power, kin to the power of a trial jury to acquit the technically "guilty," supplies some needed play in the joints of a system not always supple...
...26 The privilege, the majority of the Court declared (Justices Douglas and Marshall dissenting, and Justices Brennan and Rehnquist not participating, producing a 5-2 vote), "has never been construed to mean that one who invokes it cannot subsequently be prosecuted...
...He directed further that the Acting Attorney General should hie himself to Mississippi and show why he shouldn't be done likewise...
...It was in this setting that the great judge was moved to comment: . . Save for torture, it would be hard to find a more effective tool of tyranny than the power of unlimited and unchecked ex parte examination...
...In addition, determining what is or is not or may be exculpatory is often difficult...
...They arise infrequently, which accounts in part for the continued absence of definite answers...
...25 Controversy has raged, however, over the dimensions of the immunity that must be granted...
...38 Those expressions suggest why four opinions in that troubled situation may not represent the last words on grand jury versus prosecution powers...
...The theory of the privilege is that the witness is guaranteed against compulsory disclosure...
...The wall has been coming down in recent years, but very slowly...
...It was supported this way some 50 years ago by Judge Augustus Hand: "It must be remembered that a proceeding before a grand jury is an inquest and not a trial...
...Moved by this, among other things, District Judge Robert M. Hill denied the government's application for dismissal...
...Holmes, all lawyers recall, said "[g]reat cases like hard cases make bad law"—Northern Securities Co...
...and the return of a no bill does not preclude further efforts by the prosecutor to establish basis for indictment...
...The subject is handled well in a provision of the American Bar Association's "Standards Relating to the Prosecution Function": "The prosecutor should not compel the appearance of a witness whose activities are the subject of the inquiry if the witness states in advance that if called he will exercise his constitutional privilege not to testify...
...But people learned in the law have seen means of escaping and possibly overriding barriers that look insurmountable at first...
...As the two Federal cases described indicate, this tends to occur in situations of uncommonly deep and bitter conflict?where alignments are not predictable, and it is not possible to know in advance whose will be the voices of the good or bad guys...
...he must answer or he may be imprisoned, or otherwise punished, for contempt...
...As noted earlier, the corrupt political machine of Boss Tweed in New York City was successfully pursued by a grand jury that acted independently of, and in spite of, the district attorney...
...Interestingly, this was the policy followed by the Watergate special prosecutor's office...
...Where people are free to register (if they are not, that is an independent basis for legal relief), it does not appear unreasonable to ask that much interest in public affairs as a condition for grand jury service...
...At least, it may be argued, not when the blunder occurs before the suspect has been exposed to public accusation and trial...
...It wins the importance of a judicial document...
...Katzenbach, respectfully said otherwise, and refused either to prepare or to sign any such indictment...
...The indictment in such a case is likely to be the occasion for detailed press releases and the holding of press and TV conferences by the prosecutor...
...Despite his absent lawyer's advice, the unsophisticated witness may unwittingly delay invoking his privilege or forget to invoke it altogether, thus prejudicing his position before he is aware of the significance of his testimony...
...In the Federal picture, the court-appointed special prosecutor has been substantially unknown...
...There is nothing necessarily sinister in this...
...Remington's browbeaten ex-wife, held for long hours despite her pleas for a respite, had been sternly and falsely assured that no marital privilege entitled her to withhold secrets Remington had told her during their marriage...
...Article II proclaims and assigns the Executive power...
...And should a witness or attorney prove disruptive, the grand jury sitting in the courthouse has the means of coping near at hand...
...Justice Benjamin Cardozo, the prosecutor has blundered...
...it serves the invaluable function in our society of standing between the accuser and the accused to determine whether a charge is founded upon reason or was dictated by an intimidating power or by malice and personal ill will...
...Perhaps it is not realistic to hope for anything sharply different...
...The minority practice is clearly preferable...
...Much can be said for this stance, whatever its flaws as a matter of strict logic...
...True, there are times when the claims of principle dim in the light of immediately attractive objectives...
...If a citizen is the target of the investigation, should he not be told this so that he can make an informed judgment as to whether he should testify or rely instead on his right to silence...
...They may not prepare for a grand jury presentation with the intensity of preparation for a trial on the merits...
...The prosecutor, like other public officials, should not be inaccessible to the press, quite apart from the personal urges that have tended to make such inaccessibility a small problem...
...Having failed once, prosecutors do not generally try again without good cause...
...The injury it may unjustly inflict may never be healed...
...But in some cases it may make a difference...
...The opponents' position has been stated in a frequently quoted New York case: "A presentment is a foul blow...
...There are not many occasions when grand juries have found themselves aligned, directly or as surrogates for judges, against prosecuting attorneys...
...In that case the grand jury had voted to indict, but the Department of Justice refused to sign the indictment, preventing prosecution...
...v. United States, 193 U.S...
...Turning the picture around, on the Federal level the Supreme Court has found it wise to enforce secrecy as a means of blocking inquiries into the adequacy of grand jury evidence...
...Whatever may emerge as the exact truth about the Watergate proceedings, there is considerable sentiment for stressing to grand jurors when they are impaneled that they possess powers for investigative efforts independent of the prosecution—that they may require witnesses to be called and documents to be produced, may refuse to hear witnesses introduced by the prosecution, and may ask questions as extensively as they wish...
...The uncertainty has to date been reasonably tolerable...
...This sounds like an inescapable and unambiguous barrier to the grand jury's proceeding without that attorney...
...In this vein former New York County District Attorney Kuh, author of a leading article on the issue, has argued: "Proper use of the grand jury's inquiring and reporting functions may mark the resurgence of that body as an important factor in effective government...
...Whatever its merits, and it obviously has some, the argument has not prevailed...
...This Court has recognized the vital relationship between freedom to associate and privacy in one's associations...
...Granting the target of an inquiry the right to present his side of the story, subject to the prosecutor's cross-examination, hardly transforms the proceeding into a trial...
...Our tentative view is that the case for change here remains to be made...
...In an opinion holding that it was improper for the government to name people as un-indicted coconspirators and thereby stigmatize them as criminals without providing them a forum to rebut the charges, Judge John C. God-bold, speaking for the Fifth Circuit Court of Appeals, said: "There is at least a strong suspicion that the stigmatization of appellants was part of an overall governmental tactic directed against disfavored persons and groups...
...It avoids an unrealistic duty to try the whole case before the grand jury, yet it demands fairly that the grand jury, as well as prospective defendants, have the benefit of a decent concern for balance and accuracy...
...After all, the immunity is not now against prosecution of the witness...
...the proceedings are ex parte...
...His role could be limited to advising the witness, and he could be prohibited from objecting to questions and arguing to the grand jury...
...At trial, the prosecutor must disclose such exculpatory evidence to the defense.24 But in most states he is not bound to make such disclosures to the grand jury...
...16 A similar warning was sounded by Mr...
...This arrangement saddles the lay witness with the burden of knowing when legal pitfalls appear...
...Does the same apply to the prosecutor...
...We turn now to the major criticisms of the institution, and to some of the solutions that have been offered for answering them...
...Less clearly correct is their consequent contention that a witness' lawyer would inject incongruous adversarial aspects, delaying and obstructing the work of investigation...
...Judge Hufstedler went on to say: "Today, courts across the country are faced with an increasing flow of cases arising out of grand jury proceedings concerned with the possible punishment of political dissidents...
...1. OPPRESSING CITIZENS_ Notwithstanding its enshrine-ment in the Fifth Amendment, for most of us the grand jury is not an inviting place to sojourn...
...Employed sparingly, as a kind of residual power of the people, this device to bring evils to public attention may produce benefits worth the effort and some risk...
...8. TRIAL BY REPORT A grand jury "report," as we explained earlier, is an account of an investigation and findings, usually accusing people of misbehavior, but not indicting anyone...
...WEAPON OF THE PROSECUTION A small cluster of disparate critiques centers around the evident fact that the grand jury is controlled by the prosecutor...
...witnesses may not be completely debriefed as to their knowledge of the transactions under investigation...
...The main concern, again seemingly reflective of Watergate, is providing it with the authority and personnel for investigating possible wrongdoing by the Executive branch...
...At most, the exclusion of the lawyer preserves the atmosphere of isolation and immediate friendless-ness in which the witness is questioned...
...On February 6, 1974, Jake Jacobsen, onetime friend of Nixon Administration Treasury Secretary John B. Connally, was indicted by a Federal grand jury in Texas on seven counts of fraudulent dealings with a savings and loan association...
...Justice Black some 18 years ago: "Secret inquisitions are dangerous things justly feared by free men everywhere...
...Of course, any qualified juror, even if not registered to vote, may volunteer for jury service...
...The second reason commonly advanced by defenders of the exclusion rule is that the presence of counsel would violate the grand jury's secrecy...
...The indictment may need to be explained a little—though many of those most publicized are not complex...
...But, except for such a voluntary relinquishment, presumably for some good reason, the right stands...
...Doesn't that institutionalize rubber-stamping...
...Were some thing other than voter registration lists to be employed, truly random selection would become complex and old practices of bias might reappear in new forms...
...By and large—certainly in the Federal courts and probably in just about all the states—the names for grand jury service are chosen in random fashion from voter registration lists...
...The pain and ugliness of confessing to a crime are not erased by the assurance of non-prosecution...
...As Westen puts it: "[T]he inconvenience is no greater than when the prosecution grants immunity to its own witnesses...
...In short, we favor changing the usual practice that denies a grand jury witness a transcript of his testimony...
...The lawyer's presence could also help to avoid confusion, ambiguities and derailment of the investigation...
...It is not necessary here to recount the claims...
...But in recent years a few have undertaken to use or abuse the grand jury's powers to search out group relationships, authors and participants in unorthodox political movements when legitimate law enforcement purposes have not warranted the intrusions...
...Justice John Marshall Harlan wrote for the Court: "It is hardly a novel perception that compelled disclosure of affiliation with groups engaged in advocacy may constitute [an] effective restraint on freedom of association...
...If hard cases fail sometimes to make "good" law, they almost always make interesting reading...
...Westen starts from the right of a defendant under the Sixth Amendment "to have compulsory process for obtaining witnesses in his favor...
...In addition, the foreman of the grand jury and an assistant United States attorney leaked the names of the union officials to the press...
...Judge John Minor Wisdom, voting against Judge Cox across the board, said: "Against the backdrop of Mississippi versus the Nation in the field of civil rights, we have a heated but bona fide difference of opinion between Judge Cox and the Attorney General as to whether two Negroes, Goff and Kendrick, should be prosecuted for perjury...
...The existence in the various constitutions of occasional provisions expressly giving to one of the departments powers which by their nature otherwise would fall within the general scope of the authority of another department emphasizes, rather than casts doubt upon, the generally inviolate character of this basic rule...
...RUNAWAY' GRAND JURIES In the Federal courts (and in the many states with similar laws, constitutional or statutory), there can be no prosecution for a felony except under a grand jury's indictment...
...Most courts do not require stenographic recording of grand jury proceedings...
...They run the risk of a punishment that may not fit the crime...
...The prosecutor is free to examine him in any manner he chooses...
...Should the accused ultimately be acquitted, the publicity is generally a good deal less voluminous, and may never quite remove the stigma of the earlier treatment...
...Counsel for witnesses are familiar participants in Congressional hearings and in investigations by other government agencies, such as the Securities and Exchange Commission...
...But there is no compelling societal interest in freeing someone who has committed a crime simply because, to paraphrase Mr...
...They further argue that it is impossible for the grand jury to exercise its independent judgment as to whether criminal charges should be brought if it does not know all the facts...
...Often quoted by people concerned with grand jury abuses are these questions, propounded to a witness by a lawyer from the Internal Security Division before a grand jury in Tucson, Arizona, in 1970: "Tell the grand jury, please where you were employed during the year 1970, by whom you were employed during the year 1970, how long you have been so employed and what the amount of remuneration for your employment has been during the year 1970...
...Second, as a corollary, we start with the generally enforced premise in our law that there is a very broad range of prosecutorial discretion—of final authority in the prosecuting establishment to decide, without interference or supervision by any other organ of government, whether to prosecute or not...
...Such principles have their roots in the Constitution...
...But saving graces of this sort do not alter the fact that the grand jury rarely stands in the path of a prosecutor determined to indict...
...They are often the beginning of tyranny as well as indispensable instruments for its survival...
...Usually, the familiar fact of the prosecutor's control covers the subject...
...Too many times the show for the media includes well publicized arrests of the defendants where law enforcement personnel (supposedly operating under tight "security") are accompanied by a battery of newspaper and television photographers...
...To be sure, being indicted is a grave blow in itself...
...Supporters say reports perform the necessary task of alerting the community to neglect, inefficiency and misconduct in government that is in need of exposure even if it does not rise to the level of a crime...
...But there is a growing consensus that additional protections are needed: rules limiting grand jury powers, codifying rights of witnesses, and adding express requirements of accountability...
...If a judge is persuaded of this, the dismissal will be denied...
...The secrecy is probably still overdone, but there are genuine problems in trying to modify it...
...Investigative reporters have repeatedly sensitized public opinion to the existence of abuses in the body politic and the need for reform...
...In the light of that, he writes, there are arguments at least as powerful for immunizing defense witnesses as for giving immunity at the behest of the prosecution...
...The lame character of the position is reflected by the self-contradictions of one otherwise thoughtful writer, who says on this subject: " A broader base than voter registration lists is obviously necessary...
...In May 1972, the Supreme Court held, that "use and derivative use" immunity is an adequate constitutional exchange for compelled testimony because it is "coextensive with the scope of the privilege...
...When the Supreme Court in 1956 said pure hearsay or otherwise incompetent evidence—that is, evidence that would not be received over objection at a trial—would be enough to sustain an indictment, one underlying concern was avoiding the prospect of having "trials" over the "sufficiency" of the evidence before a grand jury...
...But is it not—or could it not be—served by a routine filing of indictments in the courthouse press room, leaving it for the journalists to decide what is hot, cool, or tepid...
...the judiciary cannot exercise either executive or legislative power...
...Then, too, the grand jury performs a purely preliminary function...
...The concept is enforced as part of the constitutional protection (also in the Fifth Amendment) against "double jeopardy...
...Counsel for the witness, though his concerns are partisan, could expedite the inquiry by raising points about the questions and offering proposals to improve them...
...Having failed to obtain a true bill from one grand jury, the prosecutor is free to re-present the case to a different panel with the hope of success...
...He must show up and plead the Fifth Amendment in response to a series of questions by the prosecutor...
...To illustrate: If a grand jury witness testifies under compulsion about a particular bank robbery, having been granted transactional immunity, he cannot later be prosecuted for that bank robbery...
...Perhaps an increased awareness that government is choosing to use the courtroom as an arena of confrontation with political dissidents will give rise to a new understanding of the importance of jury service and will spur juror registration drives among the disaffected and disenfranchised, similar to the voter registration drives of the '60s...
...All the available evidence may not be produced...
...This protection, they argue, is undermined when reports are issued naming individuals against whom there was insufficient evidence to warrant indictment...
...Such it is believed was never the function of the Grand Inquest...
...Why, then, should it be possible for a panel's infrequent dissent to be nullified by a more friendly grand jury...
...It would perhaps be more effective if Congress enacted a specific statute making it a crime to leak grand jury materials...
...5. SECRET PROCEEDINGS Government lawyers have fought with religious ferocity to maintain the secrecy surrounding grand jury proceedings...
...As we have seen, grand jury secrecy arose initially for the protection of witnesses, not for the benefit of the state...
...Nonetheless, the debate goes on...
...Take, first, the matter of beginning a case...
...Who resolves them...
...The Association of the Bar of the City of New York, in its report on "Strengthening the Role of the Federal Grand Jury," has called for adoption of the practice...
...yet it lacks its principal attributes—the right to answer and to appeal...
...While the barriers here still stand, the debate may not be over...
...Whether these reports should be permitted has been a subject of perennial debate, and knowledgeable champions are found on both sides...
...Of a piece is the 1970 report of a Maryland grand jury that exposed possible corruption relating to Federal construction projects and involved high public officials...
...As Federal Judge William J. Campbell points out: "Any experienced prosecutor will admit that he can indict anybody at any time for almost anything before any grand jury...
...That much is clear and simple enough.* Consider, though, the opposite situation—where a grand jury wants to pursue alleged wrongdoers and the prosecutor does not share the desire...
...It would be intolerable to our society...
...Professor John H. Wigmore, the leading expert on evidence, has concluded that the right to have the grand jury testimony disclosed or not belongs to the witness: "The privilege, therefore, is not the grand juror's, for he is merely an indifferent mouthpiece of the disclosure...
...an indictment serves no valid purpose...
...On balance, though responses to media inquiries are certainly legitimate, the prosecutor's press conference to announce (celebrate...
Vol. 58 • November 1975 • No. 22
