The Champion

January/February 1999 , Page 12 

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Time to Reform the Grand Jury

By Frederick P. Hafetz; John M. Pellettieri

Frederick P. Hafetz is a partner in the New York City firm of Goldman & Hafetz. A former chief of the Criminal Division of the U.S. Attorney's Office for the Southern District of New York and an Assistant District Attorney prior to that, he is a Past President of the New York Council of Defense Lawyers.

John M. Pellettieri worked as a special assistant at NACDL after graduating with honors from Dartmouth College in 1997. He now works for a San Francisco law firm and will attend law school in the fall of 1999.

By now, most of the American public is at least vaguely familiar with the institution of the grand jury. From Linda Tripp to Betty Currie, the parade of witnesses into and out of federal courthouses in Arkansas, Virginia, and the District of Columbia became regular fare on the nightly news, the covers of major weeklies, and newspaper front pages across the nation. At times it appeared to the casual observer as a legal theater of the absurd — almost surreal to the gaze of those who attempt to follow and understand the flow of events. Such reactions are understandable as the spotlight of pubic scrutiny came to shine upon some cobwebbed components of the American legal system, first and foremost among them the grand jury.

These recent events have made the public aware of the need for grand jury reform. Here, we will discuss the historical perception of the grand jury as both "sword" and "shield," the reality of the grand jury in practice today, specific reforms needed in grand jury procedure, criticism of the reforms, and a response to that criticism. Federal grand jury practice is the focus of the article.

History

The genesis of the grand jury is generally dated to 1166, when the King of England, Henry II, issued the Assize of Clarendon. The assize called for twelve "good and lawful" men from the community to come together under oath to act as an investigative agent of the monarchy. However, the group of jurors did not "investigate" in the contemporary sense of the word. Rather, most evidence originated from the jurors themselves in the form of hearsay, rumor, and personal knowledge. Indeed, there was extensive pressure, usually in the form of heavy fines imposed upon the grand jurors to provide information accusing citizens of crimes.1 Those who were eventually accused were tried by ordeal. This early form of the grand jury did not — nor was it meant to — protect citizens from false prosecution. Rather, Henry II intended to increase his control over the citizenry and grasp power for the monarchy that had previously rested with baronial and ecclesiastical authorities.

Thus, the grand jury at the time of its inception was subjected to intimidation and absolutism. Fear marked the general sentiment among the common people. It was not until the seventeenth century that the grand jury began to gain its widespread reputation as a shield and protector of citizens. Over the course of the ensuing several hundred years, the institution, as well as the context of English government within which it functioned, went through a series of fundamental changes. In 1215, trial by ordeal was abolished and replaced with trial by jury. At first, the defendant was tried by the same grand jury that accused him. But, over time, the petit jury came to be increasingly separate from the grand jury, until eventually the two were entirely distinguishable. During the fourteenth century, the grand jury began to hear testimony in private, a precursor to the more stringent secrecy that has come to characterize the institution.

These changes provided the necessary conditions for the prominent cases that occurred during the seventeenth century, which continue to provide the foundations for arguments that attempt to characterize the grand jury as a protective institution.

In 1681, for example, Charles II sought to indict for treason Anthony Ashley Cooper, the First Earl of Shaftesbury, and Stephen Colledge, one of his followers. At this point in English history, Charles II had the twin prime objectives of strengthening his absolute rule over England and bringing England back within the realm of the Catholic Church. Shaftesbury and Colledge were vehement opponents. As the strength of the opposition grew, Charles II attempted to quell it through the institution of grand jury proceedings. At his insistence, strong pressure was put on grand juries convened in London to indict the two for treason. When a grand jury refused to indict Colledge, the foreman was arrested and sent to the Tower of London. Prosecutors then reconvened a grand jury in Oxford. There, the populace was more amenable to the royalist cause. Jurors indicted Colledge, whereupon he was subjected to a trial, found guilty and later executed.

An appraisal of the grand jury based on the history of Shaftesbury and Colledge is somewhat ambiguous. While grand juries within sympathetic jurisdictions stood as shields against the Crown, the protection they offered was ultimately ephemeral. In addition, it is not clear whether the two were legally guilty of the crimes of which they were accused, or at least whether there was probable cause to indict them. However, despite these ambiguities, the contemporaries of Shaftesbury and Colledge praised the grand jury for its role in protecting the two dissidents, thus marking the start of its perception as a potential shield.

The first grand jury in the American Colonies sat in 1635. As the institution's reputation developed in England during the latter part of the century it spread across the Atlantic.2 It is not clear to what extent the grand jury consistently worked in its dual capacity to both investigate and screen cases but, as in England, the general tone was set by a few prominent cases. Most notable was that of John Peter Zenger, a newspaper publisher who was critical of the colonial New York Governor. In 1734, a grand jury refused to indict him for libel despite the existence of adequate supporting evidence under the law.

As the colonists grew more at odds with the Crown throughout the eighteenth century, the grand jury increasingly became a means of political resistance. In Boston, for example, grand juries refused to indict those who led riots in protest against the Stamp Act, while indicting British soldiers for crimes against the colonists.3 Thus, the popular image of the grand jury that had developed in England was bolstered in America during the Revolutionary Period. As a result, there was very little resistance to its inclusion in the Bill of Rights.

Referring to this history of the grand jury, Justice Powell, writing for the Supreme Court majority in United States v. Calandra,4 noted:

The institution of the grand jury is deeply rooted in Anglo-American history. In England, the grand jury served for centuries both as a body of accusers sworn to discover and present for trial persons suspected of criminal wrongdoing and as a protector of citizens against arbitrary and oppressive governmental action. In this country the Founders thought the grand jury so essential to basic liberties that they provided in the Fifth Amendment that federal prosecution for serious crimes can only be instituted by "a presentment or indictment of a Grand Jury." The grand jury's historic functions survive to this day. Its responsibilities continue to include both the determination whether there is probable cause to believe a crime has been committed and the protection of citizens against unfounded criminal prosecutions.

 

Reality of the Grand Jury in Practice

Notwithstanding this historical perspective, many would agree with the observation of William J. Campbell, former federal district judge in Chicago: "[T]oday, the grand jury is the total captive of the prosecutor who, if he is candid, will concede that he can indict anybody, at any time, for almost anything, before any grand jury."5
 

What this means is that the grand jury is a secret ex parte proceeding where the evidence is presented by the prosecutor and the grand jury votes whether to indict without ever hearing from the court (other than a preliminary session welcoming the grand jurors and giving some general guidelines about their duties) or defense counsel. Unsurprisingly, under these circumstances the grand jurors tend to bond with the prosecutor and indict when the prosecutor indicates there should be an indictment.

Thus, the grand jury functions largely as an investigative tool of the prosecutor. Employing the power of compulsory process in a secret proceeding the prosecutor investigates and determines with virtually no check by the grand jury who gets indicted and for what.

In the last 25 years two significant Supreme Court decisions, United States v. Calandra6 (1974) and United States v. Williams7 (1992), broadened the prosecutor's already substantial control over the grand jury.

In Calandra, the Court upheld the use in grand jury proceedings of unconstitutionally obtained evidence, stating: "[W]e believe that allowing a grand jury witness to invoke the exclusionary rule would unduly interfere with the effective and expeditious discharge of the grand jury's duties."8 

In Williams, virtually abandoning traditional judicial supervision over prosecutorial conduct in the grand jury, the Court held (5-4) that it lacked the power to dismiss an indictment on grounds that the prosecutor had failed to disclose exculpatory evidence to the grand jury. Noting "the grand jury's operational separateness from its constituting court," the Supreme Court dubiously concluded: "[I]mposing upon the prosecutor a legal obligation to present exculpatory evidence in his possession would be incompatible with this system."9 

Without any meaningful judicial supervision of prosecutorial conduct in the grand jury, any check on misconduct is in reality left to the prosecutor's own sense of fairness and proper behavior in the grand jury. There are, of course, provisions in the United States Attorney's manual which prescribe appropriate conduct of grand jury proceedings, but these provisions are precatory and case law clearly holds that violation of them does not constitute basis for dismissal of the indictment. As former Reagan Adminis-tration Deputy Attorney General Arnold Burns has written:

[M]ost prosecutors . . . work long hours with little glory trying to bring about a just result. The problem is at the margins — but the margins are growing.

Increasingly, the high public profile of a target or the attention-grabbing nature of the alleged wrongdoing may have more to do with a matter's "prosecutorial merit" than the strength of the evidence or the seriousness of the crime. . . .

The problem has become endemic, and the solution will need to go beyond ad hoc displays of judicial exasperation and oversight. . . .

What has been lost is a sense of proportionality and identification of priorities.10 

Thus, whatever its historic antecedents, the grand jury has long ceased to function as an independent entity acting both as shield for the citizenry as well as sword for the prosecutor. Before discussing reform proposals, it would do well to consider briefly the enormous consequence of an indictment returned, as it is, by a body under the control of the prosecutor and largely without court supervision.

An indictment in itself, regardless of outcome, is devastating. As Justice Kennedy noted in his plurality opinion for the Supreme Court in Gentile v. Nevada,11 in the time period between indictment and trial, the accused may suffer ruinous consequences to his reputation and employment from which he may never recover even if acquitted. The serious consequences make imperative efforts to restore a shield function to the grand jury.

Proposals for Reform

The following grand jury reforms are mainly drawn from those proposed by the American Bar Association (ABA) more than 20 years ago by its Criminal Justice Section Committee on the Grand Jury ("ABA Report"). Congress held hearings on these proposals but did not pass them. However, recent developments have created a new urgency for reform.

One key development is that recognized by Seventh Circuit Court of Appeals Judge Richard Posner in a recent opinion castigating an act of prosecutorial misconduct: "The increase in the number of federal prosecutors in recent years has brought with it problems of quality control."12 

Additionally, the Supreme Court's 1992 decision in Williams, that the federal courts lack supervisory power over the grand jury, has now given us several years of experience with a criminal justice system in which prosecutors are free to conduct grand jury proceedings however they wish, no matter how abusive.

Indeed, criminal justice reform measures enacted by Congress in 1997 and 1998 suggest that grand jury reform is the next logical step in establishing some balance to the enormous prosecutorial investigative power. By large majorities, Congress enacted measures championed by House Judiciary Committee Chairman Henry Hyde (R-IL), permitting recoupment of attorney fees by prevailing defendants under certain circumstances, and requiring federal prosecutors to comply with state supreme court and local federal court ethical rules.13 

Reforms 

1. A witness before the grand jury shall have the right to be accompanied by counsel in his or her appearance before the grand jury. Such counsel shall be allowed to be present in the grand jury room only during the questioning of the witness and shall be allowed to advise the witness. Such counsel shall not be permitted to address the grand jurors or otherwise take part in proceedings before the grand jury. The court shall have the power to remove such counsel from the grand jury room for conduct inconsistent with this principle.

Presently, a witness — including a subject of investigation — who appears before a federal grand jury is not entitled to counsel inside the grand jury room. The witness may request permission from the grand jury to consult outside the grand jury room with counsel. Almost nowhere else in the criminal justice process is a person who desires counsel denied the right to have counsel at his side as he is questioned.

Exclusion of counsel is unfair to the witness. A key aspect of our criminal justice system is the ability to consult with counsel. Significant legal risk confronts the witness such as the danger of self-incrimination, contempt or perjury. Also, privileges such as attorney-client privilege may inadvertently not be claimed. Often, the witness appears for hours. In the intimidating atmosphere of the grand jury, the witness may have difficulty remembering his attorney's instructions and may be too frightened to request a halt in the proceedings so he can consult with counsel outside the grand jury room.

As the 1977 ABA Report on grand jury reform stated:

Requiring a witness who needs advice of counsel to consult his attorney outside the grand jury room door is awkward and prejudicial. It unnecessarily prolongs the grand jury proceeding and places the witness in an unfavorable light before the grand jurors.

And, as former Watergate Special Prosecutor (now White House Counsel) Charles Ruff testified before Congress in the 1970s: "Most prosecutors would admit that they count on the burden of leaving the room to dissuade the witness from asserting his right to counsel."14 

This proposal will actually be less disruptive of grand jury proceedings than the current practice of stopping the proceedings so that the witness can leave the grand jury room. The proposal precludes counsel from addressing the grand jurors or participating in the proceedings. Yet it is eminently fair and can help prevent injustice to the witness.

2. No prosecutor shall knowingly fail to disclose to the grand jury evidence which will tend substantially to negate guilt.

As noted, in United States v. Williams,15 the Supreme Court virtually abdicated any federal court supervisory role over the grand jury. Thus, since 1992, there has been no effective judicial remedy for prosecutorial excesses in the grand jury process.

Prosecutors can — and sometimes do — manipulate the grand jury which operates virtually under total prosecutorial control. Fairness to the grand jury target of investigation requires that the prosecution be required to present to the grand jury evidence negating guilt.

To effectuate this proposal, Congress must also enact legislation permitting the court's dismissal, with or without prejudice, of an indictment based upon the prosecutor's violation of this principle.

3. The prosecutor shall not present to the grand jury evidence which he or she knows to be constitutionally inadmissible at trial.

In United States v. Calandra, as noted, the Supreme Court ruled that the exclusionary rule did not apply in grand jury proceedings.

Although evidence illegally obtained by electronic surveillance is specifically excluded by statute from use in the grand jury,16 under Calandra virtually all other illegally seized evidence is admissible in the federal grand jury. Calandra observed that "for the most part, a prosecutor would be unlikely to request an indictment where a conviction would not be obtained."17 While this proposition is debatable, there should be no basis even for a prosecutor to consider utilizing in the grand jury evidence he or she believes to be unlawfully obtained, ill-gotten gains.

If the grand jury is to serve its historical function of being shield as well as sword, the integrity of the process must be maintained. Since the Supreme Court has largely abdicated any role in supervising the grand jury, legislation excluding unconstitutionally obtained evidence from the process is necessary. And, again, to effectuate this principle, the courts must be empowered to dismiss, with or without prejudice, an indictment obtained through the grand jury by vice of a violation of this basic rule.

4. A target of a grand jury investigation shall be given the right to testify before the grand jury. Prosecutors shall notify such targets of their opportunity to testify unless notification may result in flight, endanger other persons or obstruct justice, or unless the prosecutor is unable to notify said persons with reasonable diligence. A target of the grand jury may also contact the foreperson in writing to offer information or evidence to the grand jury.

In its 1977 Report recommending this proposal, the ABA stated:

This principle is intended to insure that individuals are given the opportunity to testify on their own behalf prior to being indicted. This is an essential ingredient in a fairly functioning grand jury — and criminal justice — system. Without it, the grand jury's essential function of arriving at an accurate indictment is undermined because the jurors may be denied certain evidence.

In fact, it is already the rule in New York that a defendant on notice of a grand jury investigation has an absolute right to testify before the panel if he chooses and may also recommend specific witnesses to the grand jury.18 

Drawing upon this New York model, reform number 4 proposes that a prosecutor take all reasonable steps to notify a prospective defendant of his right to testify. The reform recognizes that, in some instances, (1) the prosecutor will truly be unable to locate such persons, or (2) notification may result in the person's fleeing, endangering witnesses or other persons or obstructing justice. In these instances, notification of the right to testify would not be required. This reform should also have a concomitant provision permitting dismissal of indictment for failure to comply which does not fall within the recognized exceptions of reform number four.

The second part of the proposal — that a target may contact the foreperson in writing to offer information to the grand jury — is also to insure that the grand jury receives all the relevant information it needs to make an informed decision on an indictment. There is no requirement that the foreperson accept the proffered information. Rather, the foreperson is simply made aware of its existence and afforded the choice as to whether it is relevant and helpful to the work of the grand jurors.

5. Witnesses should have the right to receive a transcript (at their own expense) of their grand jury testimony.

A number of well-reasoned opinions have held that a witness has a presumptive right to obtain a transcript of his own grand jury testimony.19 Notwithstanding this, federal courts still routinely deny motions by witness to obtain transcripts of their own grand jury testimony.

The reasons favoring such disclosure are strong. Although prosecutors argue that secrecy prohibits disclosure, concerns for grand jury secrecy militate against disclosure. Rule 6(e)(2) dealing with secrecy, of course, does not preclude such disclosure. Indeed, a witness is free to tell the world what he has testified in the grand jury. Upon analysis, as observed by one federal district court, prosecutorial arguments against a witness's right of access to his grand jury testimony are no more than "a paranoid secrecy for the sake of secrecy itself."20 

At present, a grand jury witness must rely upon his memory or upon the lawyer's debriefing notes of his earlier grand jury testimony if called again to the grand jury. Witnesses are often called for multiple grand jury appearances. To clarify ambiguity, avoid inadvertent inconsistencies and to protect against a perjury indictment, a witness should be entitled to his own grand jury testimony.

Prosecutors recognize the value of providing to their trial witnesses a transcript of their grand jury testimony to review before trial. This long-standing practice serves the prosecutorial purpose of minimizing impeachment of the witness at trial and providing the opportunity to clarify ambiguity during trial preparations. If the prosecution's witnesses enjoy such opportunity, how can it be argued that any witness should be denied a transcript of his grand jury testimony? Allowing witnesses called by the prosecutor at trial to review their own transcripts, while denying this right to any other witnesses recalled to the grand jury or called as a defense witness at trial, fosters a system of mere gamesmanship that denigrates the integrity of grand jury proceedings.21 

6. The grand jury shall not name a person in an indictment as an unindicted co-conspirator to a criminal conspiracy. Nothing herein shall prevent the prosecutor from supplying such names in a bill of particulars.

In Briggs v. United States,22 the Fifth Circuit powerfully stated the case for prohibiting the naming of persons in an indictment as unindicted co-conspirators. Noting that a "grand jury indictment is a specific accusation of crime, having a threefold purpose: notice to the defendant, pleading in litigation, and the basis for the determination of acquittal or conviction," the court stated that "none of those functions encompasses public accusations directed at persons not named as defendants."23 

As the ABA report stated in recommending this proposal, naming persons in an indictment as unindicted conspirators "stains the reputation of the person without providing any means for the person to show his innocence." This damage is often incalculable. It is not only a public embarrassment and lasting private humiliation, but it frequently causes loss of employment and jeopardizes opportunity for election to public office. Explained the Briggs court:

[T]he grand jury that returns an indictment naming a person as an unindicted conspirator does not perform its shielding function but does exactly the reverse. If the charges are baseless, the named person should not be subjected to public branding, and if supported by probable cause, he should not be denied a forum. 24 

Addressing opponents of this reform, the second part of the proposal permits the prosecutor to disclose the names of unindicted co-conspirators in response to an appropriate request by defense counsel. This will afford prosecutors the opportunity, assuming evidentiary requirements are met, of introducing co-conspirator statements at trial. At the same time, it prevents the unfair branding of a citizen unindicted as well as the undue ambushing at trial of a citizen defendant.

Criticism of Grand Jury Reform

The critique of grand jury reform is largely encapsulated in opposition to the right to counsel in the grand jury room. Opponents argue that such reform will have a negative effect. First, opponents claim that the presence of counsel will transform the grand jury proceeding into an adversarial situation. This runs counter to the historic function of the grand jury and turns it, in effect, into another trial. Second, opponents argue that such reform will make the system of justice less efficient by encumbering the process with additional procedures and thereby putting a further burden on the justice system.

These concerns mirror the critiques of reform proposals other than allowing defense counsel inside the grand jury room. For example, the Supreme Court in Calandra ruled:

Permitting witnesses to invoke the exclusionary rule before a grand jury would precipitate adjudication of issues hitherto reserved for the trial on the merits and would delay and disrupt grand jury proceedings. Suppression hearings would halt the orderly progress of an investigation and might necessitate extended litigation of issues only tangentially related to the grand jury's primary objective. The probable result would be "protracted interruption of grand jury proceedings," effectively transforming them into preliminary trials on the merits. In some cases the delay might be fatal to the enforcement of criminal law.25  

The risks of delay and of turning grand jury proceedings into a preliminary trial are both cited as reasons for not extending the exclusionary rule to grand jury proceedings. Other opponents of this reform echo the argument.26 

A third objection raised against counsel in the grand jury room is that it allows control of witnesses in organized crime cases and high-level drug cases. The argument is that the subject of the investigation would control the selection of counsel for the witnesses and that the witnesses' testimony would be less forthcoming with such counsel in the grand jury room.

Response to Criticism

These criticisms, however, ignore the practical experiences of states which have implemented a number of these same reforms. Particularly notable in this respect are Colorado and New York. In Colorado, if a Miranda-like warning is not given to a witness before testimony, then the witness cannot be prosecuted as a result of any information presented to the grand jury. The warning includes advice about their right to counsel. Defense counsel are allowed in the grand jury, but can only act as advisors. According to H. Jeffrey Bayles, a former Denver chief deputy district attorney, the presence of counsel has not disrupted or impeded the functions of the grand jury. In fact, the opposite has been true. As he explains:

The presence of counsel has a definitely positive effect. Prosecutors who have worked under both the new and old laws strongly prefer the new. Not only does the new law speed the process by eliminating the walk outside the room on every question, but it also reduces the number of questions requiring conferences. The educational process, which of necessity accompanies having counsel in the grand jury room, promotes a better understanding of the grand jury within the bar. The more the processes are known, the less is the aura of mystery surrounding the grand jury. When the mystery leaves, so does much of the fear and distrust of the institution. The demand for abolition of the grand jury will decrease in direct proportion to the number of counsel who attend grand jury sessions with their clients.27 

Experiences in other states where counsel is permitted in the grand jury room appear to have been similarly successful.28 

The grand jury in New York is also similar in many respects to the model suggested by most reform advocates. There, the rules of evidence for grand jury proceedings are virtually identical to those which govern trials. Targets have the right to testify on their own behalf and can recommend specific witnesses to the grand jury.29 These differences from the federal grand jury have not led to the kind of inefficient mini-trials which so trouble opponents of reform.

While the claim that the proposal will allow control of witnesses in organized crime and drug cases does have some appeal, experience has not demonstrated that in these type cases lawyers for the witnesses have suborned perjury by them. In fact, the contention is demeaning to lawyers. On balance, the critical reform proposal of permitting counsel for witnesses in the grand jury room should not be rejected on the basis of this speculative claim.

Compelling Need for Reform

The purpose of grand jury reform is to bring about changes in the institution such that it functions in fact as most feel it should — as an investigative arm of the government capable of combating crime while simultaneously acting as a needed protector of citizens' rights. Some, following court precedent, may object in the belief that the grand jury has never ceased to act as both a sword and shield. Prosecutors may perceive reform as a threat to their ability to administer justice. But maintaining the status quo ignores the fundamental principles that are at the heart of our justice system in America.

As one observer has noted, by the time in 1791 of its incorporation into our constitutional structure, "the grand jury had achieved renown as a bulwark against despotism, a protector of the common man against oppressive prosecution. The institution's investigatory role was secondary." But in the subsequent 200 years, "the protective function has been trivialized and the investigatory function expanded to the point where the institution is almost precisely the opposite of what the Founding Fathers intended."30 

Despite the compelling need for reform, the grand jury remains largely unchanged. Two decades ago, at the strong urging of the American Bar Association and many others, Congress actively considered reform efforts. Numerous bills were introduced, detailed studies performed, and a multitude of testimony presented. Yet few changes resulted. What did result — the recording of grand jury proceedings and issuance of prosecutorial guidelines — had little impact on the core concerns that fueled those earlier efforts.

In the intervening years, the number of federal prosecutors has exploded, while effective controls against grand jury abuses have dwindled. The result has been an increase in prosecutorial excesses that has resulted in witness abuse and indictments that should never have been brought — destroying the lives, careers and businesses of innocent Americans. The need for federal grand jury reform, to safeguard the citizenry against such excess, has only gotten greater.

Now the grand jury is back in the spotlight. One can hardly open a newspaper or turn on the radio or television without hearing criticism or concerns about unfairness to citizens exposed to the grand jury process.31 Americans are troubled as their fellow citizens increasingly relate grueling and costly experiences as they emerge from testifying before a grand jury.

Rather than repeat the mistakes of the past, we need to learn from them and consider how best to return the institution of the grand jury to its rightful place within our justice system — as a viable means for helping to ferret out criminal activity while at the same time ensuring fairness to all who come within its focus.

Notes

  1. Helene E. Schwartz, Demythologizing the Historic Role of the Grand Jury, 10 Am. Crim. L. Rev. 701,709 (1972).
  2. Ovio C. Lewis, The Grand Jury: A Critical Evaluation, 13 Akron L. Rev. 33, 38 (Summer 1979). The colonial grand jury took on responsibilities that exceeded those of its English counterpart. Through presentment "reports," the grand jury was used to voice the citizenry's concern about inadequacies and problems with the government that did not fall into the category of criminal action. This might have included calling for the proper maintenance of roads or criticizing government corruption.
  3. Marvin E. Frankel and Gary Naftalis, The Grand Jury: An Institution On Trial, 111 (1977).
  4. United States v. Calandra, 414 U.S. 338, 343 (1974).
  5. William J. Campbell, Eliminate the Grand Jury, 64 J. Crim. L. & Criminology, 174, 180 (1973). (Our proposals are obviously more modest than the Judge's.)
  6. Calandra, 414 U.S. 338 (1974).
  7. United States v. Williams, 504 U.S. 36 (1992).
  8. Calandra, 414 U.S. at 350.
  9. Williams, 504 U.S. at 54.
  10. Arnold I. Burns, Warren L. Dennis and Amybeth Garcia-Bokor, Curbing Prosecutorial Excess: A Job for the Courts and Congress, The Champion, July 1988, at 12-13.
  11. Gentile v. Nevada, 501 U.S. 1030 (1991).
  12. See e.g., United States v. Van Engel, 15 F. 3d 623, 626 (7th Cir. 1993). See also United States v. Kojayan, 8 F.3d 1315, 1320 (9th Cir. 1993) (Kozinski, J.) ("Troubled as we are by the prosecutor's conduct, we're more troubled still by the lack of supervision and control exercised by those above him. . . . How can it be that a serious claim of prosecutorial misconduct remains unresolved — even unaddressed [by the prosecutor's superiors] — until oral argument in the Court of Appeals?"). Compare Paul Craig Roberts, Ambition Above Justice, Wash. Times, Mar. 26, 1998, at A18 ("A former assistant U.S. attorney described to me the extraordinary decline in prosecutorial ethics he has witnessed during his career. He laid blame on . . . the overnight expansion of the number of assistant U.S. attorneys from 1200 to more than 7000. There were not enough seasoned people to fill the posts, and the influx overwhelmed the ability of the Justice Department to inculcate a respect for justice and the majesty of law as opposed to a win-at-all-costs attitude favored by the younger law school graduates.").
  13. Pub. L. No. 105-119 (Nov. 26, 1997) (now at 18 U.S.C. 3006A note) ("Hyde Amendment" statute for recoupment of fees and costs associated with being victim of wrongful prosecution); Pub. L. No. 105-277, Sec. 801 (Ethical Standards for Prosecutors statute supported by Chairman Hyde). See also Government Ordered to Pay Attorneys' Fees to Criminal Defendant for Bad Faith Conduct, BNA Criminal Law Reporter, Vol. 64, No. 2, Oct. 14, 1998, at 29 (reporting on successful fee motion under "Hyde Amendment" in United States v. Ranger Electronic Communications Inc., No. 1:96- CR-211 (W.D. Mich. Aug. 24, 1998)); Terry Carter, The Zealots and the Senator, A.B.A.J. , Oct. 1998, at 60, 67 (reporting on first successful "Hyde Amendment" motion, in United States v. Holland, E.D. VA) ("the judge accused the prosecution of picking and choosing only what it wanted from grand jury testimony and ignoring conflicting testimony and evidence."). Compare Henry J. Hyde, "Trust a 340-84 Vote and 17 Years of Success," Oct. 27, 1997 (Dear Colleague letter regarding his amendment for fee and cost recoupment for the wrongfully prosecuted) ("The Department of Justice . . . tries to assure us that abusive prosecutions will be reined in because prosecutors must already go to a grand jury before they can indict a defendant." Compare also House Rep. No. 105-405, Cong. Rec. H10862-3 (Nov. 13, 1997) (Conference Report for "Hyde Amendment") ("a grand jury finding of probable cause to support an indictment does not preclude a judge from finding that the government's position was vexatious, frivolous, or in bad faith.").
  14. "Reform of the Grand Jury System," hearing before the Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary, 94th Cong., 2d sess. (Sept. 18, 1976)(emphasis added).
  15. 504 U.S. 36 (1992).
  16. 18 U.S.C. § 2515.
  17. Calandra, 414 U.S. at 351.
  18. N.Y. Crim. Pro. L. § 190.50 (5)(a): "When a criminal charge against a person is being or is about to be or has been submitted to a grand jury, such person has a right to appear before such grand jury as a witness in his own behalf if, prior to the filing of any indictment or any direction to file a prosecutor's information in the matter, he serves upon the district attorney of the county a written notice making such request stating an address to which communications may be sent. . . .".
  19. See e.g., In re Sealed Motion, 880 F.2nd 1367 (D.C. Cir. 1989); In re Subpoena of Heimerle, 788 F. Supp. 700 (E.D.N.Y. 1992).
  20. In re Minkoff, 349 F. Supp. 154, 158 (D.R.I. 1972).
  21. John R. Wing and Eli Gottresdiene, Grand Jury Investigations, Business Crimes Journal, May 1988.
  22. 514 F.2d 794 (5th Cir. 1975).
  23. Id. at 800.
  24. Id. at 803.
  25. Calandra, 414 U.S. at 343.
  26. See e.g., Thomas P. Sullivan and Robert D. Nachman, If It Ain't Broke, Don't Fix It: Why the Grand Jury's Accusatory Function Should Not Be Changed, 75 Crim. L & Criminology 1047, 1062-1063 (1984).
  27. See e.g., Jeffrey Bayles, Grand Jury Reform: The Colorado Experience, A.B.A.J., May 1981, at 571.
  28. See e.g., Sullivan & Nachman, supra note 27, at 1067.
  29. See e.g., Fenster, supra note 25, at 1141.
  30. David L. Fine, Comment, Federal Grand Jury Investigation of Political Dissidents, 7 Harv. C.R.-C.L. L. Rev. 432, 498 (1972).
  31. See e.g., Bill Moushey, Win at All Costs: Government Misconduct in the Name of Expedient Justice, Pittsburgh Post-Gazette, Nov.-Dec. 1998 (10-part series from several years' comprehensive investigation, by award-winning investigative reporter, into prosecutorial misconduct including abuses of the grand jury).

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