Grand Jury 'Bill of Rights'
Washington, DC (April 2, 1998) -- In the wake of widespread and intense scrutiny by the media and American public of the Whitewater grand jury proceedings, major reforms are in order to avert future abuses and restore the institution of the grand jury to its original role as a protector of fundamental citizen rights, the President of the National Association of Criminal Defense Lawyers says in a lead article published today.
"Over the past several months, the American people have been exposed daily to the innards of the grand jury process, and it's clear that they don't like what they see. It smacks of abuse and intimidation. And what's happening in the nation's capital is being repeated a thousandfold, out of public view, in secret grand jury proceedings in every city and hamlet across the nation. In its present form, the grand jury is a veritable Star Chamber," NACDL President Gerald Lefcourt explains in the featured article in the April 1998 issue of The Champion, the association's monthly legal journal.
In the memorable words of one noted former judge, "A good prosecutor could get a grand jury to indict a ham sandwich!" Lefcourt concurs, noting that "The grand jury no longer performs its function, as originally conceived, of protecting citizens. It has become a powerful tool used by some prosecutors to trample upon the rights of ordinary Americans."
Lefcourt recently wrote key Judiciary Committee leaders in both the House and Senate urging a "Grand Jury Bill of Rights" consisting of the following proposals:
- No federal prosecutor shall intentionally withhold clearly exculpatory information from the grand jury.
- No federal prosecutor shall intentionally use illegally seized information in the grand jury to secure an indictment.
- A target of a grand jury proceeding may be permitted to approach the grand jury foreperson in writing to offer relevant information to the panel.
- All witnesses called before a grand jury shall be given a Miranda-type warning by the prosecutor before being questioned.
- All subpoenas for grand jury witnesses shall be issued at least 72 hours before the scheduled time of appearance, not to include weekends and holidays, unless good cause is shown for an exception.
- The grand jury shall be given, on the record, meaningful jury instructions regarding their duties and powers as grand jurors and the charges they are to consider.
- Witnesses called before a grand jury shall be allowed to have counsel present.
- Grand jury witnesses shall have the right to receive a transcript (at their own expense) of their testimony.
"These are essential checks and balances that enjoy the broad support of prosecutors and defense attorneys alike," says Lefcourt. "They will prevent prosecutorial abuse of Americans as grand jury targets or witnesses, and restore citizen confidence in the criminal justice process."
Presently, witnesses are denied the right to counsel when appearing before a grand jury. "Subject to pressures that even a seasoned attorney would find difficult, witnesses are at a definite disadvantage without counsel's presence, " says Lefcourt. "For example, witnesses must ask permission to physically leave the courtroom to consult with their lawyer a situation which is likely to cause grand jurors to infer dissembling or falsehood. This is inefficient and unjust. The routine embarrasses witnesses and, worse, can hurt them by annoying grand jurors and inevitably raising needless questions about the purpose of their consultation."
Twenty years ago, apart from conducting hearings, Congress did nothing after being urged by the American Bar Association to consider grand jury reform. "It takes the hubris of Independent Counsel Kenneth Starr and the tactics of his prosecutors often impervious even to internal DOJ guidelines to create the current impetus for reforms that should have been implemented long ago," notes Lefcourt.
Already, within Congress, bipartisan voices are beginning to speak out: "The grand jury is the total captive of the prosecutor," observes House Judiciary Committee Chairman Henry Hyde (R-IL), "who can indict anybody, at any time, for almost anything."
Representatives John Murtha (D-PA) and Joseph McDade (R-PA) have proposed legislation, entitled "The Citizens Protection Act of 1998," which would hold employees of the Department of Justice accountable for wrongful conduct, including abuse of the grand jury. "There are far too many documented cases of DOJ employees who engage in questionable conduct. That is why we must enact this legislation to punish those who misuse prosecutorial powers and ruin innocent citizens," McDade and Murtha note.
"Congress must pass this bill and then turn to reforming the grand jury system," concludes Lefcourt. "Then, and only then, will Americans be safe from brash prosecutors who work within the current bounds of the law to deprive citizens of their fundamental rights and liberties in the name of law and order. As a freedom-loving people, we need more respect for the law, and for the constitutional principles of justice and fairness that make our nation great."
[Click Here] to read "High Time for a Bill of Rights for the Grand Jury," Gerald Lefcourt's President's Column in the April 1998 The Champion at page 5.
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The National Association of Criminal Defense Lawyers is the preeminent organization advancing the mission of the criminal defense bar to ensure justice and due process for persons accused of crime or wrongdoing. A professional bar association founded in 1958, NACDL's many thousands of direct members in 28 countries – and 90 state, provincial and local affiliate organizations totaling up to 40,000 attorneys – include private criminal defense lawyers, public defenders, military defense counsel, law professors and judges committed to preserving fairness and promoting a rational and humane criminal legal system.