The Grand Jury Congress & Revision
FRANKEL, MARVIN E. & NAFTALIS, GARY P.
CONGRESS & REVISION There is considerable desire within Congress to revise the laws on grand juries and even the Constitution where it applies. At least some of the major bills now pending in the...
...Of some interest is the proposal in a number of bills to grant a right to appointed counsel in the grand jury room at government expense if a person cannot afford to retain an attorney...
...and co-sponsored by 20 other representatives, would empower a grand jury to "inquire upon its own initiative into offenses against the criminal laws of the United States alleged to have been committed within [its] district by any officer or agent of the United States or any state or municipal government...
...Among its less heady changes, the Conyers bill would require a judge to offer more specific court instructions when a grand jury is impaneled...
...This last seems unnecessarily severe...
...would make it necessary to inform him of the subject under investigation...
...In fact, the provision seems to lead to the same problems—including further delay in the adjudication of disputes—as reforms urging that a defendant be entitled to challenge the sufficiency of the evidence before the grand jury...
...and would assure his receiving a copy of his testimony...
...Indeed, the reporting idea arguably should be extended...
...and some colleagues propose to make it a misdemeanor, punishable by a fine of up to $500 and six months in prison, to reveal grand jury activities except when disclosure is specifically allowed...
...39 A grand jury embarked upon such a self-starting investigation, according to the Conyers proposal, could have a life of a year or more, and could work with a special attorney independent of the United States attorney for the district...
...That idea is fraught with possibilities, and in all candor we have not studied it long or hard enough to have definite thoughts about it...
...Must he review the prior record to determine that "additional evidence relevant to such inquiry" is genuinely new...
...The aim of this requirement is to promote grand jury independence, and it carries with it powerful sanctions...
...Several are duplicates or revisions of measures from previous years...
...or by any person who, at the time of the alleged commission of the offense, was an officer or agent of the United States or of any state or municipal government...
...Given our finding that the danger of successive indictments is slim, we doubt the gains achieved on this score by the Conyers bill are worth the price...
...In addition, their provisions would require reasonable notice to the witness (a week or so) before scheduling his grand jury appearance...
...40 This stipulation raises numerous questions...
...The Conyers bill goes on to state that after a grand jury "has failed to return an indictment based on a transaction, set of transactions, event or events, a grand jury inquiry into the same transactions or events shall not be initiated unless the court finds, upon a proper showing by the attorneys for the Government, that the Government has discovered additional evidence relevant to such inquiry...
...Not only could a witness refuse to testify if proper instructions were not given, but a defendant would "be entitled to a dismissal of any indictment by such grand jury and of any indictment issued by any other grand jury, if such other indictment is based on the same transaction, set of transactions, event, or events...
...Presumably these data would be available for future grand jury reform...
...would give him the right to counsel, to be warned if he is a target of the investigation, and to protection against self-incrimination...
...The jurors would be given detailed information on their powers over witnesses, documents and other evidence, on the matters to be investigated, and on the nature of immunity and other authorities the panel would be entitled to exercise...
...We would simply note our skepticism: So large an innovation should have much sturdier justification...
...Much of the proposed legislation seeks to assist witnesses who, for whatever reason, choose not to cooperate with the grand jury...
...Will a defense attorney later be able to quash an indictment because the judge who deemed the critical material truly "additional" or "relevant" was wrong...
...How far must or should the judge go in checking upon a grand jury's activities...
...At least some of the major bills now pending in the House of Representatives, where the main work is being done, would seem to merit attention...
...In an effort to halt the torrent of prejudicial grand jury leaks, meanwhile, Congressman Joshua Eilberg (D.-Pa...
...Keeping Tabs Another proposal worthy of serious consideration would require the Attorney General to report annually to Congress and the Administrative Office of the United States Courts on the work of Federal grand juries...
...The interest of society in enforcing the criminal law would be frustrated if an accused could completely avoid prosecution simply because the judge neglected to inform the grand jury of the full scope of its powers...
...A bill introduced last February by Congressman John Conyers (D.Mich...
...Such a decentralized approach might produce effective guidance and supervision, and might allow judges to make the grand jury a more meaningful agency of the court concerned with interest beyond prosecution...
...The statements would contain statistical information on investigations, requests for immunity, contempt citations, arrests, indictments, no-true bills, etc...
...and allowing bail pending a contempt appeal...
...Several bills would return to the rule of "transactional" rather than "use" immunity...
...The grand jury is officially an arm of the court, but judicial supervision has been minimal...
...Suggestions include shortening maximum terms of imprisonment for contempt...
...The law could use the muscle...
...Perhaps local United States attorneys and district attorneys should be required to inform the court regularly about the grand jury's work...
...preventing successive punishments (that is, jailing a witness who declines to answer, recalling him when his confinement ends, then jailing him again for the renewed refusal...
Vol. 58 • November 1975 • No. 22
