The modern federal grand jury has been warped from its beginnings as a bulwark against prosecutorial misconduct into a tool for misconduct. That misconduct is not just accidental or innocuous misconduct, but legally sanctioned abuses in the grand jury that are overlooked — and thereby encouraged — as long as a defendant is convicted at the end of the day. The judiciary’s disavowal of almost all responsibility for what takes place in the grand jury room has left overzealous prosecutors free to obtain an indictment by any means necessary and to unjustly bolster their case at trial with false or distorted evidence obtained in the grand jury. NACDL has been calling for grand jury reform for over a decade and that call continues. In a criminal justice system in which the government has more power than ever, unexposed and unchecked grand jury abuses do not lead to greater justice. The grand jury gives the government the ability to intimidate and threaten witnesses long before defense counsel even knows who those witnesses are. Among the various needed reforms, and in light of the unquestionable importance of the right to counsel, the ability of a grand jury witness to have counsel present in the grand jury chamber is the low-hanging fruit of the needed reforms and would do the most to bring the functioning of the grand jury back in line with its intended and proper function as a true bulwark between the government and the accused.
One Part of the Problem: Bully Prosecutors
In Massachusetts, as is typical in jurisdictions around the country, a grand jury witness receives an ominous-looking subpoena from a federal court commanding her to present herself, perhaps along with documents, to be questioned by a grand jury investigating criminal activities. The letter accompanying the subpoena “requests” that the witness not tell anyone about the existence of the subpoena or the fact that the witness will be complying with it. The letter goes on to state that while the witness is not required to comply with the request to keep quiet, disclosure could impede the government’s investigation and thereby interfere with the enforcement of federal criminal law. The intended implication is clear: Do what we say or you could be in big trouble. At the very outset, and from the first contact, the government is intimidating the witness and making sure that there is no question as to who has the power over whom: You don’t have to keep quiet but if you don’t, we might decide that you are interfering with a federal criminal investigation. If you don’t do what we say, we might decide that you have committed a crime.
If the recipient has counsel already, that lawyer can prepare the witness for what she is going to face in the grand jury. However, many recipients, after receiving the subpoena and reading its warnings, may be confused about whether they are allowed to even tell a lawyer that they have been subpoenaed. They may not know if they have the right to retain counsel and, rather than risk going afoul of the government’s orders, may decide to go it alone. The government has set the stage for such witnesses to help its case tremendously.
The next step might be a meeting with the prosecutors, and usually a battalion of agents and investigators, to prepare for the witness’s likely testimony. Perhaps this is a proffer session to determine whether the witness has something helpful to say, or something that the prosecutor thinks might be valuable enough to justify giving the witness immunity from prosecution. This meeting — the memorialization of which most likely will not be disclosed until the eve of or at trial — can provide fodder later for cross-examination if the witness shades her testimony in order to curry favor with or immunity from the prosecutor. But perhaps a cunning prosecutor, who senses a malleable witness, might prefer to wait to ask certain questions and only make that record in the grand jury chamber. Or if information comes via an attorney proffer, the witness cannot be properly impeached with his attorney’s statement. Waiting until the witness is in front of the grand jury enables the prosecutor to make the record and lock in testimony outside the protective presence of the witness’s counsel and ensures that there is only one statement, under oath, that will not be compared to an interview memorandum, and which is therefore more insulated against impeachment.
Whether or not the witness has counsel or has been interviewed by the government prior to giving testimony to the grand jury, when she arrives at the federal courthouse and passes through security and into the secretive grand jury area, she becomes well aware of the gravity of the proceedings and that the prosecutor is in complete control of those proceedings. No judge is in sight. It is the prosecutor who brings the witness into the grand jury room. The prosecutor closes the door, leaves the witness’s counsel outside, and thus cuts the witness off from her lawyer.
In a recent investigation in Massachusetts, over several months the government brought dozens of employees of a corporation before the grand jury to testify about possible fraud by the employer corporation. The government granted immunity to many of the employees so that they could testify about the company’s fraud without fear of being prosecuted for their own contributions to the crimes. Each witness entered the grand jury chamber and faced three prosecutors, who all asked questions. All witnesses knew that the government believed they had been a party to a crime and that their immunity was all that stood between them and a criminal charge. At the beginning of each witness’s testimony, one of the prosecutors led the witness through the familiar protocol: “You received a subpoena. You advised us that you would assert your Fifth Amendment privilege against self-incrimination and refuse to testify. You intend today to refuse to testify. Therefore, you have received immunity, and that immunity protects you from being prosecuted for any crimes that are the subject of your testimony.” The prosecutor then told each witness that the immunity order only protects a witness if the witness tells the truth. If the witness lies, there is no protection from criminal prosecution. If the witness is “evasive” or “equivocal,” or says “I don’t know” or “I don’t remember” when that is not true, the witness could be charged with obstruction of justice or perjury. The warning is then repeated: “If you obstruct this grand jury’s investigation or lie to this grand jury, you can be prosecuted for obstruction of justice or perjury, which carry penalties of five years in prison.”
At this point in the process, if it had not been very apparent before, it is certainly clear now that the prosecutor is running the show. It is also unmistakable that it is the prosecutor who will determine if the witness has obstructed justice or committed perjury. At this point, whether decided consciously or not, a witness’s desire for self-preservation may cause her to want to please the prosecutor rather than suffer the all too clear consequences of displeasing the prosecutor. With no evidentiary rules standing in the way, the prosecutor asks leading questions, to which a fearful witness might simply agree rather than be deemed obstructionist. If it is obvious that the prosecutor seems convinced that certain crimes have been committed, in order to stay on the good side of that prosecutor the witness might, wittingly or not, embellish certain bad facts or suppress others that are inconsistent with the prosecutor’s theory. The prosecutor has warned the witness not to lie, but it may be apparent that the prosecutor wants an indictment and the witness is either with the prosecutor or against him.
If the prosecutor is not getting the testimony that he feels the witness should be giving, the threats are sometimes ramped up to get the witness in line. A recent First Circuit case reported that during “approximately three hours of testimony … the government reminded the [witness] repeatedly that a failure to testify truthfully would be subject to possible perjury charges.”1 During examination the prosecutor repeatedly “verbally abused” the witness. Evidently displeased with certain testimony, the prosecutor warned the witness to “stop playing games with us” and to “answer the question truthfully.”2 Still unsatisfied, the prosecutor asked, “Please, again, do you have a hearing problem?”3
In the investigation of the corporate fraud referenced previously, the prosecutor in the grand jury proceedings who had given the stern warning at the beginning of testimony received an answer that he did not like, and so he repeated multiple times, “That is your testimony?” He then asked if the witness was sure about the testimony the witness had given. The prosecutor undoubtedly wanted to make sure that the witness knew at that point that the prosecutor did not believe or like the answer given. The implication was that the witness was now at risk. It would have been abundantly clear to the witness that the prosecutor believed the witness should give a different answer to the question.
Faced with threats of prosecution for perjury or obstruction of justice during testimony, a desire to please the prosecutor and to give the helpful testimony that the witness thinks the prosecutor wants to hear may push the witness to shade her testimony, even if only slightly. Any shading of testimony, however, whether intended by the prosecutor or not, is an alteration of evidence and an obstruction of justice. Once the witness testifies, the prosecutor has locked in the testimony. Changing testimony upon further reflection or after discussions with counsel could result in the threatened perjury charge, especially when faced with a zealous prosecutor steamrolling towards indictment.
In this type of grand jury scenario, justice has been done a serious disservice that could potentially have been avoided if an attorney for the witness had been permitted to be present during the witness’s testimony.
Why It Can Happen — Judicial Disavowal
Given the volume of Supreme Court jurisprudence devoted to analyzing and remedying prosecutorial misconduct, it is difficult to comprehend how the Court has almost thoroughly abdicated any responsibility for preventing prosecutorial misconduct in the grand jury. In its 1992 opinion in United States v. Williams, the Court made clear that the grand jury was an island unto itself, over which no court has real oversight.4 The implication must have been clear to prosecutors: almost anything goes behind the closed doors of the grand jury chamber.
The protection afforded by the Fifth Amendment, that no person may be charged with a serious crime without the presentment of an indictment to a grand jury, was contemplated by the drafters of the Bill of Rights as a protection for a would-be defendant. As Justice Scalia said in Williams, the grand jury “serv[es] as a kind of buffer or referee between the government and the people.”5 But “[i]n fact the whole theory of [the grand jury’s] function is that it belongs to no branch of the institutional government.” In Justice Scalia’s textualist interpretation, it is the mention of the grand jury right in the Bill of Rights but not in the “body of the Constitution” that determines what controls can be placed on the grand jury process by any branch of government. “It has not been textually assigned … to any of the branches [of government] described in the first three Articles. It is a constitutional fixture in its own right.”6 Therefore, according to the Supreme Court, while no defendant can be prosecuted without an indictment being presented to a grand jury for its review, there is no branch of government that can oversee the grand jury process in order to ensure that it is fair. Seemingly ignored by the Court, however, is the fact that one branch of government — the Executive Branch, the prosecutors — does in fact control the grand jury process with minimal outside interference.
The issue in Williams was whether a prosecutor had an obligation to present “substantial exculpatory evidence” to a grand jury deciding whether or not to return an indictment. The Court held that there was no such obligation and that federal courts had no power to order certain actions in the grand jury. The Supreme Court acknowledged that courts had limited supervisory power to prescribe procedural rules but that beyond such procedural rules, courts cannot interfere with the independence of the grand jury process. “Because the grand jury is an institution separate from the courts, over whose functioning the courts do not preside, we think it clear that, as a general matter at least, no such ‘supervisory’ judicial authority [to prescribe standards of prosecutorial conduct] exists.”7 By its holding, the Court washed its hands of almost any responsibility for the fairness of the grand jury process. In typical fashion, Justice Scalia essentially said that if Congress wants to prescribe standards for this criminal justice function, it can do so, but the Court is not going to interfere. While ABA Standards of Conduct and the U.S. Attorneys’ Manual may provide some persuasive guidance to prosecutors about grand jury fairness, the implication from the Supreme Court’s holding in Williams is that grand juries — but in reality, prosecutors leading the grand jury presentation — can do whatever they want.
In Williams, the Court refused to prescribe a code of conduct for prosecutors and in United States v. Mechanik and Bank of Nova Scotia v. United States, it confirmed the lack of any real oversight of the grand jury process. In Mechanik, the Court held that a violation of Federal Rule of Criminal Procedure 6(d) — one of those permissible procedural rules that Justice Scalia spoke about, which prohibits unauthorized people from being in the grand jury chamber — did not result in dismissal of an indictment because the defendant was ultimately convicted at trial.8 The Court employed a harmless error standard and held that virtually any error — or any misconduct — in the grand jury is excused by the eventual conviction of the defendant.
In Bank of Nova Scotia, the Court had to decide what standard to apply to determine whether blatant grand jury misconduct could result in dismissal of an indictment prior to the conclusion of trial. In the opinion from Justice Kennedy, the Court adopted the standard articulated by Justice O’Connor in her concurring opinion in Mechanik. The Court held that “dismissal of an indictment is appropriate only if it is established that the violation substantially influenced the grand jury’s decision to indict or if there is grave doubt that the decision to indict was free from the substantial influence of such violations.”9
In Bank of Nova Scotia, the prosecutor had, among other violations, knowingly presented misinformation to the grand jury and had verbally abused a witness in front of grand jurors. The Court briefly addressed these and other violations and determined that even cumulatively the misconduct did not “raise a substantial question, much less a grave doubt, as to whether they had a substantial effect on the grand jury’s decision to charge.”10
Regarding, in particular, its belief that the witness abuse had no effect, the Court reasoned that despite its finding that the prosecutor was “abusive” to an expert witness during a recess in testimony and the government conceding that the conduct was improper, the witness had testified later that his testimony was unaffected by the misconduct.11 This testimony from the witness and an instruction to the grand jury to disregard any of the inappropriate comments allowed the Court to conclude that “there is nothing to indicate that the prosecutor’s conduct toward this witness substantially affected the grand jury’s evaluation of the testimony or its decision to indict.”12
The opinion does not specify what the abusive conduct consisted of and relies for its finding of nonprejudice on the fact that the abused witness testified that his testimony was unaffected by the misconduct. However, in the same case, the Court also did not find that any prejudice resulted from the government having threatened to withdraw immunity from a particular witness if that witness testified for the defendant. The Court stated that the district court had not made a definitive finding that the government had improperly threatened the witness. The Court reasoned that “[t]he witness may have felt threatened by the prosecutor’s statement, but his subjective fear cannot be ascribed to governmental misconduct and was, at most, a consideration bearing on the reliability of his testimony.”13
In essentially sanctioning the misconduct of the government in Bank of Nova Scotia, the Court also missed the need to adopt a standard of greater scrutiny when there are clear instances of witness abuse. Although the Supreme Court relied on the particular witness testifying that his testimony had not been affected by the prosecutor’s abusive treatment, for the witness to admit that he had changed his testimony, he would have had to admit that he had perjured himself when he testified. The district court — the court closest to the facts — thought that the misconduct warranted dismissal of the indictment. Furthermore, there is the evidence that the government threatened other witnesses with withdrawal of immunity and prosecution if they did not cooperate. How can it be reasonably or reliably determined what the witness did as a result of the prosecutor’s abuse? It is entirely possible that he changed his testimony as a result of the prosecutor’s abuse and was thereafter unwilling to admit that he had done so, in order to avoid a possible future perjury charge or simply to preserve his livelihood as an expert witness. An expert who admits to having his testimony modified by a prosecutor would not likely have much future business as an expert witness as opposed to one who claims that he stood up and did not alter his testimony in the face of government threats.
In almost every case in which a witness is abused by a prosecutor and alters or shades his testimony, there is no reliable way to detect it. And in any case in which a witness does alter testimony, it goes right to the heart of the Bank of Nova Scotia prejudice standard if it related to some matter of evidence that was material to the grand jury’s decision to return an indictment.
Justice Marshall hit the problem right on the head in his dissent in Bank of Nova Scotia. He noted the fact that grand jury secrecy rules most often prevent instances of grand jury misconduct coming to light. When they do come to light, it is often not until trial is under way when Jencks Act materials are finally disclosed. Justice Marshall said, “The fact that a prosecutor knows that a … violation is unlikely to be discovered gives the [Bank of Nova Scotia] Rule little enough bite.”14 Moreover … any case-by-case analysis to determine whether the defendant was actually prejudiced is simply too speculative to afford defendants meaningful protection, and imposes a difficult burden on the courts that outweighs the benefits to be derived.15
Federal courts’ grand jury jurisprudence has rendered the “right” to a grand jury a hollow shell in some cases, and one which can do more harm than good for a defendant. The courts have refused to prescribe any substantive rules of conduct for prosecutors in the grand jury and employ a harmless error standard to review misconduct that encourages prosecutors to make certain they get a conviction at trial in order to absolve themselves of any sins in the grand jury.
Grand Jury Reform and The Due Process Clause
Justice Scalia based his holding in Williams, that the Court could not prescribe enforceable standards of conduct for prosecutors in the grand jury, on the fact that neither the Bill of Rights nor the body of the Constitution assigns the grand jury to the courts or to either of the other branches of government. Under his originalist interpretation, defendants are to take comfort in the required assumption that the Framers knew exactly what they were doing and defendants should just trust that they were correct and that the lack of any oversight was intentional, unless and until Congress decides otherwise. In theory the grand jury itself is supposed to act independently with the prosecutors as marshals of the grand jury’s evidence and the courts as enforcers of the grand jury’s commands to intransigent witnesses. But in actuality, prosecutors control what evidence is to be considered and how it is presented to the grand jury. The grand jury system does not work independently and free from the control of the Executive Branch, and no real check exists on the government’s influence in the grand jury.
The Due Process Clause, along with the grand jury right, is part of the Fifth Amendment and must also be given some consideration in the grand jury process. Broad Due Process protections are afforded defendants and provide for myriad substantive rights not specifically enumerated in the Constitution. Application of Due Process jurisprudence must allow for additional protections for defendants and witnesses in the grand jury.
Prior to the Williams decision, several cases highlighted the dangers of unchecked prosecutorial misconduct. As quoted by Justice Stevens in his dissent in Williams, Justice Sutherland in Berger v. United States “identif[ied] … the basic reason why that sort of misconduct is intolerable”:
The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the two-fold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor — indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.16
Justice Stevens continued his urging for greater judicial oversight of prosecutorial misconduct in the grand jury, citing an opinion from the Third Circuit:
[T]he costs of continued unchecked prosecutorial misconduct before the grand jury are particularly substantial because there the prosecutor operates without the check of a judge or a trained legal adversary, and virtually immune from public scrutiny. The prosecutor’s abuse of his special relationship to the grand jury poses an enormous risk to defendants as well. For while in theory a trial provides a defendant with a full opportunity to contest and disprove the charges against him, in practice, the handling up of an indictment will often have a devastating personal and professional impact that a later dismissal or acquittal can never undo. Where the potential for abuse is so great and the consequences of a mistaken indictment so serious, the ethical responsibilities of the prosecutor, and the obligations of the judiciary to protect against even the appearance of unfairness, are correspondingly heightened.17
A reading of the Fifth Amendment’s right to a grand jury that is consistent with the Supreme Court’s broad Fifth Amendment Due Process jurisprudence requires the court to ensure that the grand jury process includes fundamental fairness protections. The grand jury process is fraught with peril for witnesses and defendants, which can carry over to trial and affect the eventual outcome.
Witness Counsel in The Grand Jury Room
It is a glaring violation of Due Process for a prosecutor to be allowed to intimidate, threaten, and abuse a witness and then for the justice system to consider the witness’s testimony to be reliable. As long as a defendant is convicted, such prosecutorial abuse is deemed “harmless.” But it is certainly not harmless. A witness, without counsel, who shades testimony in favor of the prosecution’s case has harmed the defendant and has harmed herself. The witness is thereafter locked in to that inculpatory testimony or faces possible perjury and obstruction charges. Cross-examination by defense counsel at trial is overseen by a judge and any intimidation, threats, or abuse will be immediately stopped lest defense counsel be held in criminal contempt, as would a prosecutor who threatened at witness at trial. Faced with trial questioning from defense counsel overseen by a judge, a witness might easily stick to her altered inculpatory testimony and avoid the danger of a perjury charge. The evidence at trial has thus been infected by the wrongdoing wrought behind closed doors in the grand jury by the prosecutor.
The right to counsel in the U.S. criminal justice system is sacrosanct in almost every instance except in the federal grand jury. At almost no other time is a person denied the right to counsel while being questioned by a government prosecutor. The fundamental right to consult with counsel outweighs any danger of interference by defense counsel or secrecy violations, which could be acceptably addressed via procedural rules. The current process of requiring a witness to interrupt testimony and leave the grand jury chamber to consult with counsel wastes time and does not afford the same ability for counsel to be able to advise the witness after having observed the actual question and testimony. The presence of counsel alone would likely guard against the abuses seen in Bank of Nova Scotia and in Massachusetts.
Many badly needed grand jury reforms have been proposed and discussed, but the extension of the right to counsel beyond the closed door of the grand jury chamber is the single reform that would do the most good to protect the due process rights of witnesses and defendants and to curb unchecked prosecutorial misconduct. A growing number of state statutes permit a witness to have counsel in state grand juries. Different states have employed different levels of restriction on the presence of counsel for the witness, but in none of those jurisdictions has the criminal justice system suffered. NACDL’s 2011 survey and report18 of the impressions of prosecutors and defense counsel in two such states, New York and Colorado, is illuminating. Almost all surveyed, from both the defense and prosecution, indicated that the presence of defense counsel in the grand jury led to fairer questioning and to a greater sense of an equitable administration of justice as well as brought a previously missing air of legitimacy to the grand jury process. The same is needed in the federal grand jury system. If the courts cannot do it, it is time for Congress to make clear that due process does not stop at the door to the grand jury room.
- In re Grand Jury, 566 F.3d 12, 14 (1st Cir. 2009).
- Id. at 22 n.9.
- 504 U.S. 36 (1992).
- Id. at 46.
- Id. at 47.
- 475 U.S. 66 (1986).
- 487 U.S. 250, 256 (1988).
- Id. at 262.
- Id. at 261.
- Id. at 262.
- Id. at 265-66.
- Id. at 266.
- 295 U.S. 78, 88 (1935) as quoted in Williams, 504 U.S. at 62 (Stevens, J., dissenting).
- United States v. Serubo, 604 F.2d 807, 817 (3d Cir. 1979) as quoted in Williams, 504 U.S. at 62-63.
- Go to NACDL’s website (http://www.nacdl.org/News.aspx?id=22961&terms=reform) for more information about the survey and report.