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Full text of "Reform of the grand jury system : hearing before the Subcommittee on Constitutional Rights of the Committee on the Judiciary, United States Senate, Ninety-fourth Congress, second session ... September 28, 1976"

REFORM OF THE GRAND JURY SYSTEM 



RECEIVED 

HEARIN^NOx b/A 

BEFORE THa 

SUBCOMMITTEE ON CONSTITUTlMlL'^reHTS 



OF TSB 



COMMITTEE ON THE JUDICIARY 
UNITED STATES SENATE 

NINETY-FOURTH CONGRESS 



SEOO?^"D SESSION 
ON 



S. 3274, H,R. 1277, H.E. 6006, H.R. 6207, 

H.R. 10947, H.K. 11660, H.R. 11870, 

H-E. 14146, and H J. Res. 46 



SEPTEMBER i-3, liiiS 



Printed for the use of the Committee on the Judiciary 



y^.5HA;^^7/^ 




U.S. GOVERNMENT PRINTING OFFICE 
78-905 O WASHINGTON : 1976 



For sale by tlie Superintendent of Documents, U.S. Government Printing Office 
Washington, D.C. 2C042 — Price $2.75 



NORTHEASTERN UNIVERSITY SCHOOL of LAW LIBRARY 



COMMITTEE ON THE JUDICIARY 
JAMES O. EASTLAND, Mississippi, Chairman 



JOHN L. McCLELLAN, Arkansas 
PHILIP A. HART, Michigan 
EDWARD M. KENNEDY, Massachusetts 
BIRCH BAYH, Indiana 
QUENTIN N. BURDICK, North Dakota 
ROBERT C. BYRD, West Virginia 
JOHN V. TUNNEY, California 
JAMES ABOURBZK, South Dakota 



ROMAN L. HRUSKA Nebraska 
HIRAM L. PONG, Hawaii 
HUGH SCOTT, Pennsylvania 
STROM THURMOND, South Carolina 
CHARLES McC. MATHIAS, JR., Maryland 
WILLIAM L. SCOTT, Virginia 



Subcommittee on Constitutional Rights 
JOHN V. TUNNEY, California, Chairman 



HUGH SCOTT, Pennsylvania 
ROMAN L. HRUSKA Nebraska 
HIRAM L. PONG, Hawaii 
STROM THURMOND, South Carolina 



JOHN L. McCLELLAN, Arkansas 
EDWARD M. KENNEDY, Massachusetts 
BIRCH BAYH, Indiana 
PHILIP A. HART, Michigan 
JAMES ABOUREZK, South Dakota 

Jane L. Prank, Chief Counsel and Staff Director 

Martin Levine, General Counsel 

W. Dean Drake, Chief Cleric 

(D) 



H 

ri 

^ 





CONTENTS 



Hearing Day 

Page 

Tuesday, September 28, 1976 1 

Statements by Senators 

Abourezk, Hon. James, a U.S. Senator from the State of South Dakota- 4 
Mathias, Hon. Charles McC, Jr., a U.S. Senator from the State of Mary- 
land 1 

Stone, Hon. Richard, a U.S. Senator from the State of Florida 55 

Tunney, Hon. John V., a U.S. Senator from the State of California, chair- 
man, Subcommittee on Constitutional Rights 1 

Witnesses 

Gerstein, Hon. Richard E., chairman. Committee on the Grand Jury, 
Crim.inal Justice Section, American Bar Association, former president. 

National District Attorneys Association 56 

Prepared Statement 66 

Lewis, Prof. Melvin B., chairman. Legislative Committee, National 

Association of Criminal Defense Lawyers 69 

Prepared Statement 79 

Van de Kamp, Hon. John K., district attorney, Los Angeles County, 
Calif., former Director, Executive Office of U.S. Attorneys, Department 
of Justice; accompanied by Carol Welch, District Attorney's Office, 

Los Angeles County, Calif 29 

Prepared Statement 37 

Appendix A. — Federal Courts Committee, Los Angeles County 
Bar Association, Report and Recommendations: Recording 
and Disclosing Proceedings of Federal Grand Juries 51 

Additional Statement Submitted for the Record 

Mosk, Hon. Stanley, associate justice, California Supreme Court 89 

Additional Material Submitted for the Record 

Excerpts from the Federal Rules of Criminal Procedure 99 

Excerpts from title 18, U.S. Code 101 

Excerpt from title 28, U.S. Code 104 

Senate bill 3274, introduced by Mr. Abourezk, for himself, Mr. Gravel, 

and Mr. McGovern 6 

Summary of S. 3274 27 

APPENDIX 

"Abuse of Power," excerpt from a staff report of the Codes Committee of 
the New York State Assembly, May 1976 110 

Letters and Memorandum 

Avner, Judith, and Sam Pizzigati, codirectors, Coalition To End Grand 
Jury Abuse, to Hon. John V. Tunney, chairman, Subcommittee on 
Constitutional Rights 105 

Groover, Denmark, Jr., Esq., to Senator Sam Nunn, October 13, 1976 142 

Leventhal, Harold, U.S. circuit judge, U.S. Court of Appeals, District of 
Columbia, September 30, 1976, to Hon. John V. Tunney, chairman. 
Subcommittee on Constitutional Rights 114 

(III) 



IV 

O'Neill Brian J., December 9, 1976, letter to Hon. John V. Tunney, a U.S. Page 
Senator from the State of California, with attached memorandum to 
Hon. James Abourezk 115 

Ruff, Charles F. C, Special Prosecutor, Watergate Special Prosecution 
Force, September 30, 1976, with attached letter to Senator James 
Abourezk, August 23, 1976, to Hon. John V. Tunney, chairman, Sub- 
committee on Constitutional Rights 137 

Uhlmann, Michael M., Assistant Attorney General, Office of Legislative 
Affairs, Department of Justice, Washington, D.C., to Hon. James 
Eastland, chairman, Committee on the Judiciary 118 

Articles Submitted for the Record 

Dash, Samuel, from the American Criminal Law Review, Vol. 10, summer 
_ 1972, "The Indicting Grand Juiy: A Critical Stage?" 143 

Halperin, Morton, H., Jerry J. Berman, Robert L. Borosage, and Christine 
M. Marwick, "The Lawless State: The Crimes of the U.S. Intelligence 
Agencies" .. 212 

Hai-ris, Richard, from the Congressional Record, Tuesday, May 4, 1976, 
reprinted from the April 5, 12, and 19 issues of the New Yorker magazine, 
'Annals of Law: Taking the Fifth" 156 



" , 



Grand Jury Omnibus Reform Bills Introduced in the House 

OF Representatives 

H.R. 1277 219 

H.R. 6006 232 

H.R. 6207 251 

H.R. 11660 267 

Related Bills and Resolutions Introduced in the House of 

Representatives 

H.R. 10947 291 

H.R. 11870 293 

H.R. 14146 299 

H.J. Res. 46 304 



REFORM OF THE GRAND JURY SYSTEM 



TUESTIAY, SEPTEMBER ?.S, 1976 

U.S. Senate, 
Subcommittee on Constitutional Rights 

OF THE Committee on the Judiciary, 

Washington, B.C. 

The subcommittee met, pursuant to notice, at 10 :05 a.m., in room 
2228, Dirksen Senate Office Building, Hon. Charles McC. Mathias, 
Jr., presiding. 

Present : Senator Mathias. 

Staff present : Jane L. Frank, chief counsel and staff director, and 
Martin Levine, general counsel to the Subcommittee on Constitutional 
Rights; William Wilka, counsel to the Subcommittee on Separation 
of Powere, of the Committee on the Judiciary. 

Senator Mathias. The committee will com.e to order. 

OPENING- STATEMENT OP HON. CHARLES McC. MATHIAS, JR., 
A U.S. SENATOR FROM THE STATE OF MARYLAND 

I regret to report that our chairman. Senator Tunney of California, 
is necessarily absent. He has instructed me to preside in his absence. 

This morning, the subcommittee will open hearings on the opera- 
tion of the grand jury system in the Federal courts. These are the 
first hearings to be held by the Senate on this topic in the entire history 
of the grand jury. Therefore, these hearings will have a significant 
potential for the future of our court system. 

Before proceeding further, I would like to submit for the record a 
statement by Senator Tunney, chairman of the Subcommittee on Con- 
stitutional Rights. 

[The statem.ent referred to follows :] 



OPENING STATEMENT OF HON. JOHN V. TUNNEY, A U.S. SENATOR 
FROM THE STATE OF CALIFORNIA; CHAIRMAN, SUBCOMMITTEE 
ON CONSTITUTIONAL RIGHTS 

This morning's hearing marks the first time the TLS. Senate has 
examined the grand jury system since the crrnnd jurv's inclusion in the 
Bill of Rights some 185 years ago. This long-overdue examination is 
a logical extension of the hearings on "The Causes of Popular Dis- 
satisfaction with the Administration of Justice" that I conducted this 
summer. 

Continuing revelation of GoveiTiment laAvlessness has led to a 
breakdown in public trust in the integrity of our institutions. The Fed- 
eral grand jury has not escaped this skepticism. 

(1) 



The grand jury was included in the fifth amendment to serve as 
the citizen's shield against overzealous or politically motivated prose- 
cutions, and as the people's sword against corruption in high places. 
However, the grand jury has become a rubber stamp for prosecutors 
and all too often has infringed upon basic constitutional rights. The 
grand jury has harassed people for exercising their constitutional right 
to dissent, or for conscientiously performing their duties as profes- 
sional journalists or attorneys. 

Grand jurors themselves are often the "innocent bystanders" in this 
abusive process. Grand jurors are even frequently unaware that prose- 
cutors are their servants, not their masters. 

A further problem with the current grand jury system is its unac- 
countability. Confronted by instance after instance of grand jury 
abuse, the courts have repeatedly failed to exercise their supervisory 
responsibilities over the grand jury process. Because of this judicial 
neglect of grand jury abuse the responsibility for reform now rests 
squarely on the Congress. These hearings represent the beginning of 
the reform process in the Senate. This subcommittee will, in the course 
of its deliberations, receive the views of judges, prosecutors, defense 
attorneys, and ordinary citizens. 

We will continue our study into the next session to help us formu- 
late legislative remedies to restore the grand jury to the vital protec- 
tion of our rights our Founders meant it to be. 

Reforms have been suggested in four major areas : 

(1) To enhance due process for the accused, by requiring that per- 
cipient witnesses testify, and that hearsay and summary evidence be 
used only for good cause ; that illegal evidence not be relied on ; that 
evidence favorable to the accused be revealed by the prosecutor; and 
that a transcript of the grand jury proceedings be made and disclosed 
to the defendant; 

(2) To protect the rights of witnesses before grand juries, including 
allowing right to counsel in the hearing room, and appointing counsel 
for the indigent, giving witnesses notification of the scope of the in- 
quiry, limiting the penalties for recalcitrant witnesses, and reconsider- 
ing the "immunity" statutes used to coerce testimony ; 

(3) To strengthen the independence of the grand jury, such as by 
providing for special counsel when Government crimes are being in- 
vestigated ; 

(4) To guarantee the defendant at least one adversary pretrial re- 
view, either a postindictment preliminary hearing, or a judge's review 
of the grand jury transcript for legal sufficiency, or a new form of 
hearing before an "indicting grand jury" utilizing the procedures of a 
preliminary hearing, with magistrate presiding and defendant 
present in person and by counsel. 

I support reform in all four of these areas. 

The facts revealed by the subcommittee's preliminary studies paint 
a devastating critique of the grand jury system. First, the 
defendant is guaranteed by the Federal rules a right to a preliminary 
examination before an impartial magistrate, where he will be present 
with his lawyer, can confront and cross-examine witnesses against 
him and can present evidence in his own behalf. Yet, in the great 
majority of Federal cases, the defendant is denied that right by the 



prosecutor's "race to indict" him before the scheduled date of the 
preliminary examination. Once the grand jury has handed up the 
indictment, the preliminary examination is canceled. 

Second the grand jury gives the defendant none of those rights. 
There is no magistrate presiding, no defense lawyer is present, the 
defendant is not present to hear the witnesses against him. 

Third, in the great majority of cases, the grand jury does not even 
hear the live witnesses to the crime, but only hears a Federal agent 
summarize the interviews with those witnesses. 

I believe that our present grand jury system is constitutionally 
inadequate. If the accused is not given the rights of a preliminary hear- 
ing either in front of the grand jury, or in a postindictment hearing, 
I believe that he is being denied procedural due process at a critical 
stage of the proceedings. Moreover, I believe that there is a violation 
of the equal protection aspect of due process when the rights accorded 
an indicted defendant who has not had the opportunity for a 
preliminary examination are compared with those of an individual 
who has had one. 

We have several distinguished witnesses who will testify this morn- 
ing : The first is the Honorable John Van de Kamp, district attorney 
of Los Angeles County, whose 7 million people make it the largest 
county in the Nation. 

Mr. Van de Kamp has been chief of a Federal prosecutor's office, a 
local prosecutor's office, and a Federal defender's office. He has served 
as the U.S. attorney and the Federal Public Defender in the Central 
District of California, and is now district attorney of Los Angeles 
County, He has also been the Director of the Executive Office of U.S. 
Attorneys in the Justice Department. 

The second witness will be the Honorable Richard E. Gerstein, 
chairman of the grand jury committee of the criminal justice section 
of the American Bar Association, former president of the National 
District Attorneys Association, and representative of the NDAA on 
the ABA House of Delegates. Mr. Gerstein is State's attorney for the 
11th Judicial Circuit, Dade County, Fla. 

The final witness this morning will be Prof. Melvin B. Lewis, 
chairman of the legislative committee of the National Association of 
Criminal Defense Lawyers and a professor at John Marshall Law 
School in Chicasro, 111. 

The Honorable Stanley Mosk, Associate Justice of the Supreme 
Court of California, was to have testified at this hearing, but judicial 
business has made it impossible for him to be here. His very scholarly 
prepared statement will nevertheless be included in the record of the 
hearing. 

The subcommittee has also invited a number of persons to submit 
written statements on the need for reform of the grand jury system, 
and on S. 3274. The statements which will be included in the record 
of this hearing are those of the Honorable Harold Leventhal. Judge 
of the U.S. Court of Appeals, District of Columbia Circuit; Charles 
F. C. Ruff, Special Prosecutor, Watergate Special Prosecution Force, 
U.S. Department of Justice; and Brian J. O'Neill, Esq., formerly 
Chief of Special Prosecutions and assistant U.S. Attorney. Central 
District of California. 



The U.S. Department of Justice has offered a detailed commentary 
on S. 3274, by Michael M. Uhlmann, Assistant Attorney General, Office 
of Legislative Afff;irs. The Honorable Stfinley J. Eeiben, chief 
counsel of the Codes Committee of the Assembly of the State of 
J^OTAT York, has made available to the subcommittee a staff report 
entitled "Abuse of Power," dealing in part with grand jury abuses, and 
Prof. S?mnel Dash, of the Institute of Criminal Law and Procedure 
of Georgetown University Law Center, formerly Chief Counsel of the 
Senate Watergate investigation and former chairman of the ABA's 
criminal law section, wos good enough to call to the committee's atten- 
tion an article by him on "The Indicting Grand Jury." Excerpts from 
these materials will be included in the record. Also reprinted will be a 
series of articles by Richard Harris on the grand jury which appeared 
in "The New Yorker" which has attracted wide attention. 

This material will assist the subcommittee in fulfilling its respon- 
sibility to recomm.end appropriate legislation to the Congress, 

SeJiator Mathias. We will hear three distinguished witnesses this 
morning a nd we expect to hear additional witnesses in further hearings 
during the next session. 

"\Yliile the hearings this morning concern the whole range of prob- 
lems regarding the operation of the Federal grand jury, we expect that 
our witnesses will comment in particular on a bill which has been re- 
ferred to this subcommittee, S. 3274, the Grand Jury Eeform Act of 
1976, introduced by Senator Abourezk, for himself. Senator Gravel 
and Senator McGovern. 

Without objection, I would like at this time to insert Senator 
Abourezk's prepared statement along with S. 3274 into the hearing 
record. 

[The prepared statement of Senator James Abourezk and the bill 
S. 3274 follow :] 

Prepared Statement of Hon. James Abourezk, a U.S. Senator 

From South Dakota 

I am very pleased that the Subcommittee on Constitutional Rights is about to 
embark on a comprehensive study of the federal grand jury system. The grand 
jury has come under increasing criticism in recent years. Much of this criticism 
stems from the way in which the Nixon administration used the grand jury as a 
tool of political repression in its effort to silence the anti-war m^ovement. Those 
weaknesses in the grand jury system which permitted such abuses are still pres- 
ent today. In order to discuss openly the possible avenues of reform I introduced 
S. 3274, the first grand jury reform act ever introduced in the Senate. 

It is no secret that the grand jury is no longer the independent body originally 
intended by the Constitution. Statistics show that grand juries rarely refuse to 
return the indictments prosecutors want. Baltimore .Judge Charles Moylan, Jr. 
has described this situation by stating that : "The prosecutor can violate or burn 
the Bill of Bights seven days out of seven, and bring the fruits of unconstitutional 
activity to a grand jury." District Court Judge William Campbell has written 
that: "This great institution of the past has long ceased to be a guardian of the 
people. Today any experienced prosecutor will admit that he can indict anybody, 
at any time, for alm.ost anything before a grand jury." 

Grand juries have becom.e, in effect, little more than rubber stamps for prosecu- 
torial decisions. 

The implications of ignoring this grand jury abuse are profound. Besides deny- 
ing potential defendants the independent review of the government's case against 
them that the Constitution demands, the modern grand jury has become a fright- 
ening but "legal" means to chill the exercise of fundamental First Amendment 
freedoms. Prosecutors have used the grand jury's subpoena power to grill political 



activists about their politics in an effort to discredit tlieir causes. The many 
witnesses who have resisted these subpoena attacks, witnesses who have never 
been charged, tried or convicted of a crime, have found tliat, far from protecting 
them against prosecutorial harassment, the grand jury is little more than a trap- 
door to prison. 

We can, and we must, end these abuses by insuring grand juror independence. 
And by extending due process into the grand jury chamber. Congress can halt the 
continuing erosion of basic constitutional proceccions. 

As we begin the work of grand jury reform, iet us keep forernost in oar minds 
that it is constitutional guarantees such as impartial, independent-thinking grand 
juries which have set this nation apart and enabled lis to live 200 years in liberty. 



6 



OlTir CONGRESS 
2d Session 



S. 3274 



IN THE SENATE OF THE UNITED STATES 

Apkil 8, 1976 

jMr. Abourkzk (for himself, Mr. Gijavel, and Mr. McGovernt) introduced the 
following jjill; Avliicli was read twice and referred to the Coinmittee on 
tlie Judiciary 



To establish certain rules with respect to the appearance of wit- 
nesses 1;efore grand juries in order better to protect the con- 
stitutional rights and lil)erties of such witnesses under the 
fourth, fifth, and sixth amendments to the Constitution, to 
provide for independent inquiries by grand juries, and for 
other purposes. 

1 Be it enacted hy the Senate and House of Bepresenta- 

2 lives of the United States of America in Congress assembled, 

3 That this Act may l)e cited as the "Grand Jury Reform Act 

4 of 1976". 

5 Sec. 2. Section 182G of title 28, United States Code, is 
G amended to read as follows : 

7 "§ 1826. Recalcitrant witnesses 

8 " (a) (1) Whenever a witness in any proceeding before 
II 



2 

1 any grand jury of the United States refuses without jnst 

2 cause shown to comply with an order of the court of tlie 

3 United States to testify or provide other information, inchid- 

4 ing any book, paper, document, record, recording, or other 

5 material, the attorney for the Government may, only upon 

6 an affirmative vote of twelve or more memhci's of the grand 

7 juiy that such refusal was without just cause, sulmiit an 

8 application to the court for an order du'ecting the witness 

9 to show why the witness should not he held in contempt. 

10 After submission of such application and a hearing at whit h 

11 the witness ma}' be represented b}^ counsel, the court may, 

12 if the court finds that such refusal was without just cause, 

13 hold the witness in contempt and order the witness to l)c 

14 confined. Such confinement shall l)e at a suitable Federal 

15 correctional institution, if one is located within fifty miles 
IG of the court ordering confinement, unless the witness waives 

17 this right. Such confinement shall continue until such time 

18 as the witness is willing to give such testimony or provide 
J9 such information. Xo period of such confinement shall exceed 

20 the term of the grand jury, including extensions, licforc 

21 which such refusal to comply with the court order occurred, 

22 but in no event shall such confinement exceed six months. 

23 "(2) Whenever a witness in any proceeding before or 

24 ancillary to any district court of the United States refuses 

25 without just cause shown to comply with an order of the 



8 



3 

1 court to testify or provide otlier information, including any 

2 book, paper, document, record, recording or ociier material, 

3 tlio court, upon such refusal may sunnnarily order liis con- 

4 finement at a suitable Federal corrrectional institution, if one 

5 is located within fifty miles of the court ordering confinement, 

6 unless the witness waives this right. Such- confinement shall 

7 continue until such time as the witness is willing to give 

8 such testimony or provide such information. No period of 

9 such confinement shall exceed the life of the court proceed- 

10 ing before which such refusal to comply with the court order 

11 occurred, but in no event shall such confinement exceed six 

12 months, 

13 '' (3) No hearing shall be held under subsection (a) ( 1 ) 

14 unless five days' notice is given to the witness who has re- 

15 fused to comply with the court order under this subsection, 

16 except tliat a witness may l)c given a shorter notice of not 
1'^ less than fort3^-eight hours if the court, upon a showing of 

18 special need, so orders. 

19 " (b) No person who has been confined under this sec- 

20 tioii lor refusal to testify or provide other information con- 

21 cerning any transaction, set of transactions, event, or events 

22 inny be again confined under this section or under section 
2>^ 401 of title 18, United States Code, for a subsequent refusal 
21 to testify oi- provide other information concerning the same 
2'^ transaction, set of transactions, event, or events. 



9 



4 

1 ''(c) Any person confined, pursuant to subsection (a) 

2 of this section shall be admitted to bail or released in J?ccord- 

3 ance with the provisions of chapter 207 of title 18, United 

4 States Code, pending the detennination of an appeal taken 

5 by b-'^ f'-oir tb- rv.'dfti of hh confinement, unless the appeal 
C is frivolous or t^jken for purposes of delay. Any appeal from 

7 an order of coniinement under this section shall be disposed 

8 of as soon as practicable, pursuant to an expedited schedule 

9 ordered by the appellate court upon application by a party. 
30 "(d) Ii^ ally proceeding conducted under this section, 
n counsel may be appointed in the same manner as provided 

12 ill section 300(5 A of title 18, United States Code, for any 

13 person financially unable to obtain adequate assistance. 

14 " (e) A refusal to answer a question or provide other 

15 information before a grand juiy of the United States shall 
Ifi not be punishaljle under this section or under section 401 
1^7 of tide 18, United States Code, if the question asked or 

18 the request for other information is based in whole or in 

19 part up.on evidence ol^tained by an unlawful act or in viola- 

20 tion of the witness' constitutional rio-hts or of rio-hts estab- 

21 lished or protected by any statute of the United States.". 

22 Si-:c. ;]. (a) Chapter 21 of title J8, United States Code, 

23 is amended by adding at the end thereof the following now 

24 section : 



10 



5 

1 "§ 403. Refusal of a witness lo testify in a grand jury pro- 

2 ceeding 

3 "Xo person who lias been imprisoned or lined by a court 

4 of the United States under section 401 of this title for refusal 

5 to testify or provide other information concerning any trans- 
(j action, set of transactions, event, or events in a proceeding 

7 before a grand jury (including a special grand jury suni- 

8 nioned under section 3331 of this title) impaneled before 

9 any district court of the United States may again be im- 

10 prisoned or fined under section 401 of this title or under 

11 section 1826 of title 28, United States Code, for a subsequent 

12 refusal to testify or provide other information concerning the 

13 same transaction, set of transactions, event, or events.". 

14 (1)) The table of sections for chapter 21 of title 18, 

15 United States Code, is amended by adding at the end there- 

16 of the followhig new item : 

"403. Refusal of a witness to testify in a grand jury proceeding.". 

17 Sec. 4. (a) Chapter 215 of title 18, United States Code, 

18 is amended by adding at the end thereof the following new 

19 sections : 

20 "§ 3329. Notice to grand jury of its rights and duties 

21 "Upon imiianelment of each grand juiy before a district 

22 court of the United States, the court shall give adequate 

23 and reasonable written notice to the grand jury of, and shall 



11 



6 

1 assure that the grand jury reasonably understands (lie nature 

2 of— 

3 " ( 1 ) its duty to inquire into offenses against the 

4 criminal laws of the United States alleged to have been 

5 committed within that district ; 

Q "(2) its rights, authority, and powers with respect 

7 to an independent inquiry under section o3oO of this 

8 title; 

9 "(3) its right to call and interrogate witnesses; 

10 "(4) its right to request the production of docu- 

11 ments or other evidence ; 

12 "(5) (A) the subject matter of the investigation, 

13 and 

14 "(1^) the criminal statute or statutes involved, if 

15 these are known at the time the grand jury is im- 

16 paneled ; 

17 " (G) the requirement of the section 3330A of this 

18 title that a subpena summoning a witness to appear and 

19 testify before a grand jury or to produce books, papers, 

20 documents, or other objects before the grand jury may 

21 be issued only upon an affirmative vote of twelve or more 

22 members of the grand juiy to which the subpena is 

23 returnable ; 

24 "C^) the authority of the grand jury to determine 

25 by an affirmative vote of twelve or more of its nieml)ers 



12 



{ 

1 that the attoraev for the Government mav submit an 

2 application to the court for an order directing a witness 

3 to show cause why he should not he held in contempt 

4 mider section 1826 of title 28, United States Code; 

5 "(8) the necessity of legally sufficient evidence to 
G foiin the basis of any indictment as provided under sec- 

7 tiou3330A(l) of this title; 

8 "(9) the duty of the gTand juiy by an affirmative 

9 vote of twelve or more membei"s of the grand jury to 

10 determine, based on the evidence presented Ijefore it, 

11 whether or not thei'e arc sufficient grounds for issuing 

12 mdictments and to determine the violations to be in- 

13 eluded hi any such indictments; and 

11 '^(10) such other duties and rights as the court 

15 deem_s advisable. 

16 The court's failure to mstmct the grand jmy as directed in 

17 this section shall be just cause within the meanmg of section 

18 1826 of title 28, United States Code, for a witness' refustil to 

19 testify or provide other information before such grand juiy. 

20 "§33?0. Jndepemlent ffrand jury inquiry 

21 "(a) (1) Any grand juiy (including a special grand 

22 juiy summoned under section 3331 of this title) impaneled 

23 before any district court of tho United States may, upon its 
2-1 own initiative and after giving notice to the court, inquire 
25 win offenses against the criminal laws of the United States 



13 



8 

1 alleged to have been oomniittcd within that district by any 

2 officer or agent of the United States or of any State or mu- 

3 nicipai government >or by any person who, at the time i)l the 

4 alleged commission of the offense, was an ofhcer or agent of 

5 the United States or of «ny State or mirnicipal government. 

6 Sucl) grand jury may request the attorney for the Govern- 

7 nieiit to assist such grand jury in such inquiry. 

8 "(2) The grand jury shall serve for a term of twelve 

9 months after giving notice to the court under paragraph ( I ) 

10 unless an order for its discharge is entered earlier l)y the 

11 court upon a determination of the grand jurj^ by an afllirma- 

12 tive vote of twelve or more members that its business has 

13 been completed. If, at the end of such term or any extension 
]J: thereof, the district court determines the business of the 

15 grand jury has not been completed, the court may enter an 

16 order extending such term for an additional period of sl^^ 

17 months. No grand jury term so extended shall exceed 

18 twenty-four months from the date on which notice to the 

19 court was given under paragraph ( 1 ) . 

20 "(3) If a district court within any judicial circuit fails 

21 to extend the term of a grand jury engaged upon an inde- 

22 pendent inquiry under this section or enters an order for 

23 the discharge of such grand jury before such grand jury 

24 determines that it has completed its business, the grand jury 

25 by an affirmative vote of twelve or more members may ap- 



14 



9 

1 ply to tlie chief judge of the circuit for an order for the con- 

2 tinuance of the term of the grand jury. Upon the making 

3 of such an appUcation by the gTand jury, the term thereof 

4 shall continue until the «ntry by the chief judge of the circuit 

5 of an appropriate order upon such application. No grand 
Q jury term so extended shall exceed twenty-four montlis. 

7 "(b) (1) In the event that the attorney for the Gov- 

8 ernment refuses to assist or hinders or impedes fche grand 

9 jury in the conduct of any inquiry under subsection (a) , the 

10 grand jury may, upon the affirmative vote of twelve or more 

11 of its members, request at any point in such inquiry that 

12 the court appoint a special attorney to assist the grand 

13 jury in such inquiry. Such special attorney shall serve in 

14 lieu of any attorney for the Government and shall be paid 

15 at a reasonable rate to be determined by the court. Such 
15 special attorney, wdth the approval of the court, may appoint 

17 and fix the compensation of such assistants, mvestigatOii-s, 

18 and other personnel as he deems necessary. The specig^l 
-J 9 attorney and his appointees shall be appropriated without 

20 regard to the provisions of title 5 of the United States Code, 

21 governing appointments in the competitive service, and may 

22 be paid without regard to the provisions of chapter 51 and 

23 subchapter III of chapter 53 of such title relating to classi- 

24 fication and General Schedule pay rates. The special attorney 

25 shaU be reunbursed for actual expenses incurred by him and 

S. 3274— —2 " 



15 



10 

X his appointees in the performance of duties pursuant to this 

2 section. 

3 " (2) Notwithstanding sections 516 and 519 of title 28 

4 of the United States Code or any other provision of law, a 

5 special attorney appointed under this section shall have the 

6 exclusive authority to assist in the conduct of an independent 

7 grand jury investigation under this section, and any indict- 

8 ment returned by a grand jury pui*suant to such inquiry 

9 sihall be signed by the special attorney in lieu of any attorney 

10 for the Government. 

11 "§ 3330A. Certain rights of grand jury witnesses 

12 " (a) A subpena sunmioning a witness to appear and 

13 testify before a grand jury of the United States or to produce 
X^l books, papers, documents, or other objects before such grand 
15 Wy ®^^^ ^® issued only upon an affirmative vote of twelve 
15 or more membei*s of the grand juiy, and such subpena may 

17 not be returnable on less than seven days' notice, except 

18 with the consent of the witness or upon a showing to the 
29 court by the attorney for the Government that good cause 

20 exists why the subpena should be returned in less than seven 

21 days. 

22 "(b) Any subpena summoning a witness to appear 

23 before a gi^and jury shall advise the witness of ( 1 ) his right 

24 to counsel as provided in subsection (e) of this section; (2) 

25 his privilege against self-incrimination; (3) whether his 



16 



11 

1 o\\ai conduct is under investigation by the gi'and jury; (4) 

2 the subject matter of the grand jury investigation; (5) the 

3 substantive criminal statute or statutes, violation of which is 

4 mider consideration by the grand jury; and (6) any olher 

5 rights and privileges which the court deems neces'sary and 

6 appropiiate. 

7 ''(c) Any witness who is not advised of his rights pur- 

8 suant to subsection (b) shall not be prosecuted or subjected 

9 to any penalty or forfeiture for or on account of any trans- 

10 'action, matter, or thing concerning which he testifies or any 

11 evidence he produces, nor shall any such testimony or evi- 

12 dence be used as evidence in any criminal proceedmg against 

13 him in any court. 

14 "(d) In any proceeding before the grand juiy, if the 
1^ attorney for the Govenmient has written notice in advance 

16 of the appearance of a witness that such witness intends to 

17 exercise his privilege against self4ncrmiination, such witness 

18 shall not be compelled to appear before the grand jury unless 

19 a, grant of innnunity has been obtained. 

20 "(e) Any witness subpenaed to appear and testify be- 

21 fore a grand jur}^ or to produce books, papers, documents, or 

22 other objects before such grand jury shall be entitled to assist- 

23 ance of counsel during any time that such witness is being 

24 questioned in the presence of such grand juiy; such counsel 

25 may be retained by the witness or, may, for any person 



17 



12 

1 finaiiekilly lurable to obtain adequate assistance, be appointed 

2 in the same manner as if that person were eligible for ap- 

3 pointed counsel under section 3006A of this title. Notwitk- 

4 standing- any rule contained in the Federal Eules of Cnminal 

5 Procedure, such witness' counsel is authorized to disclose 

6 matters which occur before the grand jury while such coun- 

7 sel is in the grand jury room. 

8 " (f) A grand jury impaneled to conduct an inquiry into 

9 offenses against the criminal laws of the United States may 

10 be convened only in a district in which substantive crnninal 

11 conduct may have occurred as elements of such offenses; 

12 except that when a grand jury is to be convened to conduct 

13 an inquiry into both violations of substantive criminal 

14 statutes and violations of statutes forbidding conspiracy to 

15 violate substantive criminal statutes, the grand jury may not 

16 be convened before a district court in a district in which the 

17 onl}' criminal conduct alleged to have occurred is conspiracy 

18 to commit the sivbstantive criminal act. 

19 " (g) For the convenience of witnesses and where the 

20 interests of justice so require, a district court may, on motion 

21 of a witness, transfer any grand jury proceedings or in- 

22 vestigation into any other district where it might properly 

23 have been convened under subsection (f) . In considering 

24 an application for such transfer, the court shall take into 

25 consideration all the relevant circumstances, including the 



18 



13 

2 distance of the grand jury investigation from the places of 

2 residence of witnesses who have been subpenaed to testify 

3 before the grand jury, financial and other burdens placed 

4 upon the witnesses, and the existence and nature of related 

5 investigations and court proceedings, if any. 

Q " (h) Once a grand jury has failed to .retiuTi an indict- 

7 ment based on a transaction, set of transactions, event, or 

8 events, a grand jury inquiry into the same transactions or 

9 events shall not be initiated unless the court finds, upon 

10 a proper showing by the attorney for the Government, that 

11 the Government has discovered additional evidence relevant 

12 to such inquiry. 

13 "(i) (1) A complete and accurate stenographic record 

14 of all grand jury proceedings shall be kept, except that the 

15 grand jury's secret deliberations shall not be recorded. Such 

16 record shall include the court's notice to the grand jury of 

17 its rights and duties including but not limited to those set 

18 forth in section 3329 of this title; all introductory comments, 

19 directives, and other utterances made by attorneys for the 

20 Government to the grand jury, witnesses, and counsel for wit- 

21 nesses; all testimony; and all interchanges between the grand 

22 jury and attorneys and those between attorneys for the Gov- 

23 ernment and counsel for witnesses. Consultations between 

24 witnesses and their counsel shall not be recorded. 

25 "(2) Any witness who testifies before a grand jury. 



19 

14 

1 or his attorney with such witness' written approval, shall, 

2 upon request, be entitled to examine and copy a transcript 

3 of the record for the period of such witness' own appearance 

4 before the grand jury, and if a witness is proceeding in forma 

5 pauperis, he shall be furnished, upon request, a copy of such 

6 transcript. Such transcript shall be available for inspection 

7 and copying not later than forty-eight hours after the con- 

8 elusion of such witness' testimony, unless, for cause shown, 

9 more time is required to prepare such transcript. After exam- 

10 in'ati'on of such transcript, a witness may request permission 

11 to appear before the grand jury again to explain his testi- 

12 mony. Additional testimony given under this subsection shall 

13 become part of the official transcript and shall be shown to 

14 the members of the grand jury. 

15 "(j) Any witness summoned to testify before a grand 

16 jury or the attorney for such witness with the witness' writ- 

17 ten approval shall be entitled, prior to testifying, to exiamine 

18 and copy any statement in the possession of the United States 

19 which such witness has made and which relates to the subject 

20 matter under inquuy by the grand jury. The term 'statement* 

21 as used in this subsection shall be defined as m section 3500 

22 (e) of this title. 

23 " (k) No person subpenaed to testify or to produce books, 

24 papers, documents, or other objects in any proceeding before 

25 any grand jury of the United States shall be required to 



20 

15 

1 testify or w produce such objects, or be confined pursuant to 

2 section 1826 of title 28, United States Oode, for his failui^ 

3 to so testify or produce such objects, if, upon the evidentiaiy 

4 hearmg before the court which issued such subpena or a. court 

5 having jurisdiction under subseotion (1) of this section, the 

6 court finds that — 

7 *' ( 1 ) a primary purpose or effect of requiring such 

8 person lo so testify or to produce such objects to the 

9 grand jury is or will be to secure for trial testimony or 

10 to secure other information regarding the aciivities of 

11 any person who is already under indictment hy the 

12 United Slates, a State, or any subdivision thereof for 

13 such activities; or of any person who is under formal 

14 accusation for such activities by any State or any sub- 

15 division thereof, where the accusation is hy some form 

16 other than indictment ; unless, after a witness refuses to so 

17 testify or to produce such objects before the grand jury 

18 on the ground that the purpose or effect of requiring his 

19 testimony or the production of such objects is in viola- 

20 tion of this clause, the Government establishes by a 

21 preponderance of the evidence that its inquiry is inde- 

22 pendent of such preexisting indictment or accusation, 

23 "(2) compliance with the subpena would be un- 

24 reasonable or oppressive because (i) such compliance 

25 would involve unnecessary appearances by the witness; 



21 

IG 

1 (ii) the obIj testimony that can reasonably be expected 

2 from the witness is cumulative, uimecessary, or ])rivi- 

3 leged; or (iii) other like circumstances, 

4 '' (3) 8. primary purpose of the issuance of the sub- 

5 pena is to harass the witness, 

6 "(4) the witness has already been coniined, im- 

7 prisoned, or fined under section 1826 of title 28, United 

8 States Code, or section 401 of this title for his refusal to 

9 testify before any grand jury investigating the same 

10 transaction, set of transactions, event, or events, or 

11 " [5] the witness has not been advised of his rights 

12 as specified in subsection (b). 

13 " (1) The district court out of which a subpena to ap- 

14 pear before a grand jury has been issued, the court in which 

15 the subpena was served, and the district court in the district 

16 in which the witness who was served such subpena resides 

17 shall have concurrent jurisdiction over any motion made by 

18 such witness to quash the subpena or for other relief under 

19 this section. A motion under this section may be made at 

20 any time prior to, during, .or when appropriate, subsequent 

21 to the appearance of any witness before the grand jury. Any 

22 motion made during or subsequent to the appearance of the 

23 witness before the grand jury may be made only in the dis- 

24 trict court in which the grand jury is impaneled. If the mo- 

25 tion is made before .or during the appearance of the witness 



22 



17 

1 before the grand jury, the appearance before the grand jury 

2 shall be stayed by the making of the motion until the court 

3 before which the motion is pending rules on the motion. 

4 " {m) The attorney for the Government shall be limited 

5 to asking questions or requesting the production of books, 

6 papers, documents, or other objects relevant to the subject 

7 matter under investigation. 

8 " (n) The attorney for the Government shall not be 

9 permitted to submit before the grand jury any evidence 

10 seized or otherwise obtained by an unlawful act or in viola- 

11 tion of the witness' constitutional rights or of rights estab- 

12 lished or protected by any statute of the United States. 

13 "(o) A grand jury may indict a person for an offense 

14 when (1) the evidence before such grand jury is legally 

15 sufficient to estabUsh that such offense was committed, and 

16 (2) competent and admissible evidence before such grand 

17 jury provides reasonable cause to believe that such person 

18 committed such offense. An indictment may be based on 

19 summarized or hearsay evidence alone only upon a showing 

20 of good cause to the court. An attorney for the Government 

21 shall present to the grand jury all evidence in such at- 

22 torney's possession which he knows will tend to negate the 

23 guilt of the person or persons under investigation. 

24 "(p) The district court before which a grand jury is 



23 

18 

1 impaneled shall dismiss any indictment of the grand jury if 

2 such district finds that — 

3 " (1) the evidence before the grand jury was legally 

4 insufficient to establish that the offense for which the 

5 indictment was rendered was committed; 

Q "(2) there was not competent and admissible evi- 

7 dence, or summarized or hearsay allowed by the court 

8 upon a showing of good cause, before the grand jury to 
(J provide reasonable cause to believe that the person in- 

10 dieted committed such offense ; 

11 "(3) the attorney for the Government has not 

12 presented to the grand jury all evidence in his or her 

13 possession which the attorney knows will tend to negate 

14 the guilt of the person indicted ; or 

15 " (4) the attorney for the Government has submitted 

16 to the grand jury evidence seized or otherwise obtamed 

17 by an milawful act or in violation of the witness' con- 

18 stitutional rights or of rights established or protected by 

19 any statute of the United States. 

20 " (q) Any person may approach the attorney for the 

21 Government and request to testify in an mquiry before a 

22 grand jury or to appear before a grand jury and request 

23 that the grand jury proceed in accordance with its powers 

24 under section 3330 of this title. An attorney for the Govern- 

25 ment shall keep a pubUc record of all denials of such requests 



24 



19 

:l to that attorney for the Goveniinent, iiidudiiig tbe reasons for 

2 not allowing such person to testify or a])pear. If the person 

3 making such request is dissatisfied with the Government's 

4 decision, such person may petition the court for a hearing on 

5 the denial by the attorne}^ for the Government. If the court 

6 grants the hearing, then the court may permit the person to 

7 testify or appear before the grand jury, if the court finds that 

8 such testimony or appearance would serve the interests of 

9 justice.". 

10 (b) The table of sections for chapter 215 of title 18, 

11 United States Code, is amended by adding at the end thereof 

12 the following new items : 

"3329. Notice to jrrand jury of its lights and duties. 
"3330. Independent grand jury inquiry. 
"3330A. Certain rights of grand jury witnesses.". 



13 Sec. 5. (a) Part V of title 18, United States Code, is 

14 amended by adding at the end of such part the following new 

15 section : 

IG "§ 6006c Reports concerning grand jury investigations 

17 "In January of each year, the Attorney General or an 

18 Assistant Attorney General specially designated by the 

19 Attorney General shall report to the Congress and to the 

20 Administrative OfTice of the United States Courts — 

21 " ( 1 ) the number of investigations undertaken dur- 
23 iug the preceding year in which a grand jury or a special 



25 



20 

1 grand jury was utilized together with a description of the 

2 nature of each mvestigation undertaken; 

3 *'(2) the number of requests by United States 

4 grand jui-ies to the Attorney General for approval and 

5 to witnesses lor written consent to make application to 

6 the com-t for an order compelling testimony under sec- 

7 tion 2514 of this title, and the number of such requests 

8 approved by the Attorney Gener-J; 

9 " {^) the number of applications to district courts 

10 for orders granting inmiunity under this title; 

11 *' (4) the number of applications to district com'ts 

12 for orders granting innnunity under this title that were 

13 approved and the nature of the investigation for which 

14 the orders were sought; 

15 '' (5) the number of instances m which witnesses 

16 m such investigations were held in contempt and con- 

17 fined, and the dates and length of such confinement; 

18 "(6) the number of arrests, indictments, no-bills, 

19 trials, and convictions resulting from testimony obtained 

20 under orders granting immunity ; the offenses for which 

21 the convictions were obtained ; and a general assessment 

22 of the importance of the unmimity; 

23 ''(7) a description of data banks and other pro- 

24 cedures by which grand juiy information is processed, 

25 stored, and used by the Department of Justice; and 



26 



21 

1 '* (8) other appropriate indicia and information con- 

2 cerning grand juiy activity during such year. 

3 The matter contained in the report required to be made by 

4 this section shall be set forth according to judicial district.". 

5 (b) The table of sections for part V of title 18, 

6 United States Code, is amended by adding at the end thereof 

7 the following new item: 

"6006. Reports concerning grand jury investigations.". 



27 

SUMMABT OF S. 3274 
RECALCITRANT WITNESSES 

Twelve or more members of the grand jury must vote to make application to 
the court for an order directing a recalcitrant witness to show cause in a hearing 
why he/she should not be held in contempt. 

Gives the witness five days notice of a contempt hearing. Upon a showing of 
special need, shorter notice may be given. 

The witness has the right to appointed counsel in contempt proceedings, if the 
witness is unable to afford it. 

Imprisonment shall be in a Federal institution, if one located within 50 miles of 
court. 

Reduces the period of imprisonment from a maximum of 18 to 6 months for civil 
contempt, and prohibits reiterative contempt, by making the 6 months cumulative, 
applying it against any confinement resulting from prior, subsequent, or related 
grand jury investigations. 

Provides that the confined person shall be admitted to bail, pending appeal, un- 
less the appeal is patently frivolous and taken for delay. Appeals shall be disposed 
of pursuant to an expedited schedule, eliminating the unique '30-day rule', which 
requires that appeals be decided within 30 days. 

Provides that a refusal to answer questions or provide other information shall 
not be punished if the question or the request in based on any violation of the 
witness' constitutional or statutory rights. 

NOTICE TO THE GRAND JURY OF ITS RIGHTS AND DUTIES 

Requires that the district court judge who empanels the grand jury give in- 
structions in writing to the grand jurors at the beginning of their term and insure 
tJiat the g'rand jury reasonably understands them. These instructions shall in- 
clude : the grand jury's powers with respect to independent investigation, its right 
to call and interrogate witnesses, its right to request documents and evidence, 
the subiect matter of the investigation, the necessity of legally sufficient evidence 
to indict, and the power of the grand jury to vote before a witness may be sub- 
penaed, be given a contempt hearing or indicted. 

Prescribes that ffiilure to so instruct the grand jury is just cause for s. refusal to 
testify. 

TNnKPENDENT INQUIRY 

AUovTS the grand jury, upon notice to the court, to request the attorney for the 
government to assist it in an inquiry into offenses committed by government or 
former government officials. The grand jury shall serve for 12 months with no 
more than two extensions for a maximum of 24 months. 

Provides that the court, upon a vote of the grand jury, may appoint a special 
attorney to assist the grand jury in such an investigation, if the attorney for the 
government is found to have refused to assist in, or to have hindered or impeded 
the investigation. Such attorney will be paid a reasonable rate and may fix 
compensation for such assistants as is deemed necessary, with the approval of 
the court. Such attorney shall sign any indictment in lieu of a government 
attorney. 

RIGHT OF GRAND JURY WITNESSES 

Provides that subpenas be issued only on an aflBrmative vote of 12 or more 
members of the grand jury. Subpenas are not returnable on less than seven days 
notice, unless for good cause shown. The subpena must advise the witness of the 
right to counsel, whether his/her conduct is under inevstigation, the subject 
matter of the inquiry, and the substantive statutes involved. Any witness not ad- 
vised of these rights cannot be prosecuted, subjected to penalty, or have the evi- 
dence uesd against him/her in court. 

Gives witnesses the right to have counsel in the grand jury room, such counsel 
to be court appointed where appropriate. Counsel shall not be bound by secrecy. 

Prescribes that when an investigation includes violations of substantive crim- 
inal statutes as well as conspiracy, the grand jury may not be convened in the 
district where only the conspiracy is alleged. On the motion of the witness the 
court shall transfer the investigation to another district in which the proceed- 
ings may be properly convened. The court shall take into account the distance 



2S 

of the proceedings from the residence of the witness, other burdens on the wit- 
ness, and the existence and nature of any related proceedings. 

Once a grand jury has considered a matter, the government shall not bring the 
same matter to another grand jury unless the government shows and the court 
finds that the government has discovered additional relevant evidence. 

Provides that a transcript shall be made of the proceedings and be available to 
the witness and counsel within 43 hours or within a reasonable time if 43 hours 
is not possible. After examination of such transcript a witness may request per- 
mission to appear before the grand jury again to clarify his testimony which shall 
become part of the oflicial transcript and be circulated to the jury. 

Stipulates that if the attorney for the government is given written notice in 
advance tnat a person subpenaed intends to claim his Fifth Amendment priv- 
ilege against self-incrimination, the witness shall noc be compelled to appear 
before the grand jury unless a grant of immunity iias been obtained. 

Gives the vritness and his/lier counsel the right to examine and copy any 
statement of the witness in the possession of the United States which relates to 
the matter under investigation. 

Provides that no person shall be required to testify or be confined if, upon 
evidentiary hearing, the court finds: (a) a primary purpose or effect of the 
subpena is to secure for trial evidence against a person already under indictment, 
or formal accusation; (b) compliance with the subpena is unreasonable or 
oppressive and involves unnecessary appearances ; or the only testimony that can 
reasonably be expected is cumulative, unnecessary, or privileged; (c) the pri- 
mary purpose of the subpena is punitive. 

Gives the court in tne district out of which the subpena was issued, the oourt 
in the district in which the subpena was served, and the court in tne district in 
which a witness resides concurrent jurisdiction over motions to quash and other 
relief. It allows such motions at any time. If a motion is made prior to or during 
an appearance, the appearance is stayed, pending ruling. If the motion is made 
during or subsequent to the appearance, the motion must be made in the district 
of the empaneled grand jury. 

Any person may approach the attorney for the government to request permis- 
sion to testify on a matter before a grand jury or to request that an inquiry be 
initiated. The attorney for the government shall keep a public record of all 
denials of such requests. Any individual dissatisfied with the disposition of his 
request may appear before t)ie grand jury if the court finds that such appearance 
would serve a relevant purpose. 

BEPOxtliS CONCEBNING GBAND JUBf INVESTIGAITON 

Requires the Attorney General to file detailed annual grand jury reports, 
describing: (a) the number and nature of investigations in which grand juries 
were utilized ; (b) the number of reports for orders compelling testimony, and the 
number granteti; (c) the number of immunity grants requested, the number 
approved, and the nature of the investigations; (d) the number of witnesses 
imprisoned for contempt, and the dates of their confinement ; (e) an assessment 
of the effectiveness of immunity, including the number of arrests, indictments, 
no-bills, etc., resulting from compelled testimony; and (f) a description of the 
data banks, etc., by which grand jury data is processed and used by the Justice 
Department. 

EVIDENCE 

Requires the government to introduce all evidence in its possession which it 
knows will tend to negate the guilt of a potential defendant. 

Prohibits the grand jury from returning an indictment on the basis of sum- 
marized or hearsay evidence alone, except for good cause shown. 

Requires that questioning of witnesses and subpenas for documents be relevant 
to the subject matter under investigation. 

Requires tnat the only evidence that can be presented to a grand jury is evi- 
dence properly seized and legally obtained. 

Senator M athias. The witnesses this mornino; are John Yan de 
Kamp, the District Attorney for Los An^jeles County; Richard E. 
Gerstein, State Attorney of Dade County, Fla., representino; the 
American Bar Association: and Prof. Melvin B. Lewis, representing 
the National Association of Criminal Defense Lawyers. 



29 

It is sort of a paradox that when we are indulging in the custom 
of unlimited debate on the floor of the Senate that we ask witnesses 
to limit debate. Perhaps it is a necessary step because of the pressure 
ai'ising from the floor. 

So we are going to ask each witness to limit himself to a 10-minute 
opening statement. 

Senator Tunney is particularly sorry that he is not here to introduce 
Mr. Van de Kamp and he has asked me to say a few words on his 
behalf. 

Within the federal system in Los Angeles, the Central District of 
California, Mr. Van de Kamp has been both the chief prosecutor and 
the chief defender, the U.S. attorney and first Federal Public 
Defender. 

He has also served in the TT.S. Department of Justice in Washing- 
ton as the Director of the Executive Oflice of U.S. Attorneys, with 
nationwide responsibilities. 

In addition to IMr. Van de Kamp's experience as chief Federal pros- 
ecutor, he has been a chief local prosecutor. 

As the District Attorney for Los Angeles County, he serves Los 
Angeles County's T million people, and has the largest jurisdiction of 
any district attorney in the country. 

So on behalf of the committee, it is a privilege to introduce Mr. 
Van de Kamp. 

TESTIMONY OF HON. JOHN K. VAN de KAMP, DISTRICT ATTORNEY, 
LOS ANGELES COUNTY, CALIF. ; ACCOMPANIED BY CAROL WELCH, 
DISTRICT ATTORNEY'S OFFICE, LOS ANGELES COUNTY, CALIF. 

Mr. Van de Kainip. Thank you, Mr. Chairman. 

With me this morning is Carol Welch, from the District Attorney's 
Office in Los Angeles. 

Senator Mathias. We are glad to have her here today. 

Mr. Van de Kamp. You have already given me a very ample intro- 
duction. The question still remains as to why I am here. 

I am serving as the District Attorney of Los Angeles County : but 
up until last year most of my criminal justice experience comes from 
within the federal system where I served as Federal Public Defender 
from 1971 to 1975, and as an assistant U.S. attorney and U.S. attorney 
in Los Angeles from 1960 to 1976. 

During the time I was in the U.S. Attorney's Office, I took more 
than a thousand cases to Federal grand juries starting in the early 
sixties: as the Federal Public Defender I represented nearly 500 de- 
fendants, most of them charged by way of grand jury indictment. 

So I have seen the workings of the Federal grand jury system both 
as a prosecutor and as a defender. 

From that experience I have drawn several conclusions which I 
would like to summarize. 

First, in my view, the constitutional right to indictment by grand 
jury should be abolished. In lieu thereof, I believe that a defendant 
should have the right to a preliminary hearing. 

Second, short of constitutional amendment, which will be very dif- 
ficult, I believe that this committee can produce substantial reforms 

78-905—76 3 



30 

in the grand jury system to promote the integrity of the grand jury, 
to promote the rights of witnesses appearing pursuant to its process, 
and to protect the rights of defendants charged with violations of 
Federal law. 

To that end, the chief recommendations that I have made are as 
follows : 

First, that all grand jury proceedings should be recorded and, when 
necessary, transcribed. 

Second, that an indicted defendant should, as a general rule, ob- 
tain full disclosure of all testimony before the grand jury relating 
to the indictment. 

Third, a witness should be entitled to the presence of his counsel, 
either retained or appointed, when he testifies before the grand jury. 

Federal rule changes should also be sought which would give to a 
defendant the sole power to determine whether an indictment should 
be waived ; if waived he would be entitled to a preliminary hearing, 
followed by the filing of an information rather than an indictment. 

If the case were initiated by indictment, as is sometimes the case, 
the defendant would be unable to file such a waiver. When this occurs 
the Federal rules should provide for complete disclosure to the de- 
fendant of all evidence presented to the grand jury. 

These recommendations are based on several conclusions that I have 
drawn based on my own experience. 

First, the grand jury today is little more than a rubber stamp for 
assistant U.S. attorneys. 

I do not say that in derogation of assistant U.S. attorneys or to dis- 
parage them ; as a matter of fact, Federal cases are screened carefully 
at an early stage, I know. I ran the complaint unit in Los Angeles for 
over 2 years, where cases were thrown out if they did not pass eviden- 
tiary muster. The residt was that very few cases were lost either at 
trial or by way of dismissal. 

In the 7 years I sensed as an assistant U.S. attorney in Los Angeles, 
I can recall only one or two cases where the grand jury returned what 
is known as a "no bill.'' and a small handful of cases where the grand 
jury actiA^ely solicited the U.S. attorney's office to take another look at 
the case, to reinvestigate, or to call in additional witnesses. 

Second, the grand jury, which was introduced into our Constitu- 
tion to act as a charging body, that is as the sword, and to act as a 
shield, a shield for the accused against unjust prosecution, no longer 
performs that second function. 

I say that because it is commonplace for a case agent to go before a 
grand jury and, in the typical run-of-the-niill case, make a 5-minute 
summarv narrative presentation to tlie grand jury and then leave the 
room with the prosecutor, leaving the grand jury to deliberate for all 
of a minute before voting for an indictment. 

In Los Angeles, it is not unusual for a o-j-mid jury to indict some- 
where between 25 and "0 cases in a morning's sitting. 

Now, this kind of procedure is not apt to protect anybody. It is 
clear that the Federal grand jury system today does not act as the so- 
called shield that it was originally intended to provide. 

Third, since most grand jury hearings are unreported, there is no 
opportunity presented to the defense for discovery of the Govern- 
ment's case as presented there. As a result, the relationship between 



31 

prosecutor and grand jury is often free and easy; it is easy for the 
prosecutor to provide irrelevant prejudicial information about the ac- 
cused to the grand jury to sway their deliberations. Since there is no 
reporting, no one finds out about it. 

Fourth, use of the grand jury today, in fact, shields the prosecutor 
from defense discovery since there is no reporting. Ironically it also 
shields him from better discovery of his own case because of the com- 
mon practice of calling the case agent to present the case in summary 
form rather than percipient witnesses whose credibility he — and the 
grand jury — might do well to evaluate. 

So the conclusions which I have drawn today are relatively simple. 
They are presented more fully in the forai of a long written state- 
ment, which I understand will go into the record. 

There is real irony in the fact that this institution which had a real 
purpose years ago no longer serves that purix)se today ; that has gone 
relatively unnoticed. 

The public criticism of the grand jury as an institution in recent 
j'ears has been primarily aimed at its use to go after political dissi- 
dents in such a way as to chill and inhibit first amendment riglits. 

I suggest today that there may be a stronger and less controversial 
basis upon which to levy criticism; primarily that in its mundane day- 
to-day operations the grand juiy no longer serves the purpose for 
which it was established. 

So I support the thrust of this committee; but I would also respect- 
fully suggest tliat the Abourezk bill, one of the bills which brings us 
here today, should be broadened extensively to include the provisions 
I just mentioned. 

I would add this: Even tliough I support elimination of the grand 
jury indictment as a constitutional right, the grand jury should con- 
tinue to exist and serve to perform important functions. 

There are certain types of investigations which can be investigated 
thoroughly and properly through the grand jury mechanism — for 
example, organized crime investigations, govermnental misconduct 
investigations, and white-collar crime investigations of a complex 
nature. 

In my view, a prosecutor should liave the opportunity to take these 
cases to the grand jury. Overzealousness would be guarded against by 
requiring complete recordation and full disclosure to the defense. 

I base these recommendations not only on my own experience in the 
federal system, but on the California experience with grand juries. 

Our California constitutional sy^^tem does not require indictment 
by grand jury as a constitutional right. During this last year we had 
somewhere near 20,000 felony prosecutions initiated in JjOS Angeles 
CoujAty. All but 81 defendants had their cases initiated by complaint 
and Avent tlie preliminary hearing route. 'We indicted 81 defendants. 
So, by and large, we've done away with the grand jury as the principal 
charging bodv. We have a system which has worked well. 

Our experience indicates that we can make the kind of reforms I 
sugii-est without undulv interfering with the criminal justice process. 

Senator jMattiias. Thank you very much, Mr. Van de Kamp. 

I^t me direct that the full text of your prepared statement bo 
inHnded in the record after your oral testimony. 

]Mr. Van de Kaimp. Thank j^ou. 



32 

Senator Mathias. Implicit in the recommendations you have given 
the committee, it seems to me, is the recognition that what we might 
call run-of-the-mill cases get perfunctory treatment. You note that as 
many as 20 or 30 indictments are handed down in one morning in your 
jurisdiction. But we know that when there is a full-scale investigation 
the case is given a very different kind of treatment. The actual wit- 
nesses do come in. They are subpenaed, if necessary, and in some cases, 
their answers are recorded. 

So we have two standards of operation : one standard for the run- 
of-the-mill cases, one for the special, full-scale investigation. 
• The Supreme Court has upheld indictments on the basis of hearsay 
evidence. 

Do I understand you to say that looking statistically at all of the 
indictments it is a relatively rare occurrence for the grand jury to hear 
actual witnesses and would T be correct in assuming that you favor 
a rule requiring the grand jury to hear the witnesses unless there is 
some overwhelming reason why the hearsay evidence should suffice? 

Mr, Van de Kamp. Yes. That is right. 

As a ball park figure at least 90 to 95 percent of the Federal cases in 
Los Angeles are handled in the perfunctory way that you describe; 
and about 5 percent are handled tlirough more thorough and appro- 
priate procedures, where percipient witnesses are called and reportei-s 
record what is said. Percipient witnesses should be called. 

Of course, I much prefer the preliminary hearing route. That way, 
the defendant has a chance to see and hear the witnesses against him 
at a very early stage and to make a judgment very early as to whether 
or not the case will be contested. An early decision can be expected 
to speed up the system. 

Senator Mathias. As T recall your testimony, you said that a large 
percentage of the cases in your jurisdiction did go the preliminary 
hearing route. 

Mr. Van de Kamp. In California ? 

Senator IVIathias. Right. 

Mr. Van de Kamp. Yes ; in 99 percent of the cases. 

Senator Mathias. But vou are talking about State jurisdiction? 

Mr. Van de Kamp. That's right. 

Senator Mathias. There is a similiar procedure authorized under 
Federal law, 

Mr, Van de Kamp, It is, but it is defeated by the so-called race to 
indict. It is typical for a U.S. attorney to schedule a grand jury the 
day before the preliminary hearing is to be heard. The grand jury 
returns the indictment; the preliminary hearing is tlien obviated. 

One of the main reasons they seek an early indictment is to elimi- 
nate the need for the preliminary hearing. 

Senator Mathias. So the race to indict in effect renders the prelimi- 
nary hearing a dead letter in Federal practice ? 

Mr. Van de Ka.mp. That's right. 

The only place in the country where the preliminary hearing pres- 
ently has value is in some of the outlying areas where grand juries 
meet very rarely. 

In the 16 or so years that I have practiced in and aroimd the Federal 
court system in Los Angeles. I can count no more than a handful of 



33 

actual preliminary hearings that I either prosecuted or defended 
against or witnessed or heard of. 

Senator IMathias. There would seem to be three possible means of 
insuring the defendant a right to a pretrial hearing. 

One would be to guarantee the defendant's right to a preliminary- 
hearing under any circumstances; secondly, to give the defendant an, 
option to obtain a preliminary hearing if he were to first v.-aive grand 
jury proceedings; third, to give the defendant the right to wliat would 
be a novel procedure, an indicting grand jury or a combination of 
grand jury and preliminary hearing in which he got his hearing in 
front of the grand jury, which ^^■ould, in effect, become the committing 
magistrate or the deciding tribunal. 

Now, do I take your recommendations to mean that there ought to 
be a preliminary hearing as a matter of right ? 

Mr. Van de Kamp. I do not quite come that far. I suggest that a 
defendant should have the power to waive indictment and obtain a 
preliminary hearing in lieu thereof; but if the Government decides to- 
initiate prosecution by way of indictment, we should at the very least 
require full recordation, full disclosure to the indicted defendant^ 
and provide the defendant with the right to attack those pi'oceedings 
for legal insufficiency in the district court. 

I do not support the concept that you combine the preliminary 
hearing with the indicting grand jury. It is time consuming; it is 
costly. If the grand jury is conducting an investigation of a wide- 
ranging nature, it is very difficult to confine that investigation and 
conduct an efficient preliminary hearing. 

Senator Mathias. It is very duplicative of the trial itself. 

Mr. Van de Kamp. Yes, a preliminary hearing is somewhat duplica-. 
tive, wlienever you conduct it. What I suggest is tl.at on occasion a 
grand jury does accept a routine presentation of evidence in what is 
similar to a probable cause hearing. However, when it assumes its 
investigative and indicting role, peripheial matters may be looked at 
which may be irrelevant to the target of the investigation and which 
may be none of the defendant's business. 

So all things considered, I believe that the most important thing we 
can do with respect to an indicting grand jury is to protect the accused 
through recordation and disclosure, and to permit his review of the 
basis of the grand jury indictment. That would include the opportu-. 
nity to attack the indictment on the basis that inadmissible evidence 
provided the basis for the indictment. It should be required that only 
admissible evidence be considered when evaluating probable cause. 
Inadmissible evidence should not be considered. 

Senator Mathias. What about a defendant's right to discovery of the 
evidence presented ? 

Mr. Van de Ivamp. To the grand jury ? 

Senator JNIathias. To the grand jury. 

Mr. Van de Kamp. I support complete disclosure of all relevant 
evidence that is prosented with respect to his case. 

_ I can see some broad investigations which get into tangents, in pe- 
ripheral areas, where rights to privacy of other persons might be jeop- 
ardized by complete disclosure. There, a balancing test should be 
employed. 



34 

To answer this problem I would establish a procedure where dis- 
closure would be i)resunied, but give to the Government the opportunity 
to go to the judge and obtain a protective order limiting disclosure in 
appropriate cases. 

Senator Matiiias. Implicit in that is the necessity for a record in 
the grand jury; and if we had that record, what sort of change would 
this make? 

Mv. Van de Kamp. It would be a rule change. There would also be 
cost factors involved. 

Senator Matiiias. A time factor Avoukl probably also l^e involved. 

]\lr. Van de Kamp. Time for transcription. That's right. However, in 
our State system, we make these transcripts available very promptly 
a.f tor indictment. 

The cost for recording and transcription would be new. I'm sure 
the Department of Justice could give you a decent estimate on that. 

Senator Matiiias. Would the defendant's riglit of discovery liave 
any impact on the theoretical secrecy of the grand jury proceedings, 
in your judgment ? 

Mr. Van de Kamp. It would, because the secrecy ultimately would be 
breached ; but only after the indictment is returned. 

Again, tlie California experience is helpful: on rare occasions dis- 
closure is limited by protective order Avhere the need for secrecy is 
real. Of course, the reporter is not present during deliberations; so 
there is no disclosure of deliberations. Secrecy to protect the inviola- 
bilitv of grand jury deliberations thus remains intact. 

If there is a need for secrecy relating to the testimony, the govern- 
ment should have the opportunity to seek an appropriate protective 
order. 

Senator Matiiias. V*^e are very conscious in Washington of leaks in 
the grand jury operation. 

Wliat impact would the defendant's right of discovery have on the 
relationship of the grand jury to the press, to the whole process, in your 
judgment? 

What is your experience in California ? 

Mr. Van de Kamp. M.y experience in California has been that there 
are very few leaks emanating from the grand jury. Leaks usually come 
from other places. Members of the grand jury itself have been fairly 
closemouthed about what goes on. 

One recommendation that I have made is the subject of some con- 
troversy ; that is, that you permit lawyers to appear with their witness- 
client in the grand jury room. Some will say that is an attack on the 
secrecy of the gi'and jury. But the fact of tlie matter is that today we 
let the witness run in and out of the grand jury room to consult with a 
lawyer between questions; there is nothing that prohibits the witness 
from disclosing to the lawyer or the public at large what went on in the 
grand jury i-oom. So to simply permit the lawyer to come in and advise 
his Avitness-client while testifying should have little impact on the 
present secrecy situation. 

Senator Matiiias. It would be consistent with the greater concern 
we have been showing for the right of representation in all kinds of 
proceedings before administrative agencies of the Government as 
well as in the classic criminal confrontation in criminal court. 

]Mr. Van de Kamp. Tliat's right. 



35 

I think the presence of tliat lawyer in tlie <^rand jury room would 
tend to inhibit the prosecution from out-of-iine tactics that it might 
otherAvise consider. Most prosecutors act quite properly, but the pres- 
ence of the witness' lawyer would not only inhibit dubious tactics, 
but reduce unfair speculation about the prosecutor's conduct. 

Senator Mathias. What about the dual role of the prosecutor as 
prosecutor and as the legal adviser for the grand jury? 

New York State, for example, has come up with a concept that 
there ought to be an office of grand jury counsel so that the grand 
jury can get objective legal advice. 

Mr. Van de Kamp. Well, that has been debated in California. My 
answer to that is that that office would have to be responsible to 
someone, that it would ha\e to be appointed by someone, that it could 
not be completely neutral. There is a simple way out of what appears 
to be a dilemma. A grand jury should be instructed that when it feels 
t lie prosecutor is not objective and/or is trying to unfairly prejudice 
it, it may go directly to the district court judge wlio empaneled it, 
and seek its advice and its help. 

In California, the grand jury may do that and seek the advice of 
other counsel, for example, the county counsel or the attorney gen- 
eral. 

I don't think that it makes much practical sense to set up a special 
office to handle matters before the grand jury. 

Indeed, I don't think there is a record of abuse which would justify 
it. 

Senator Mathias. Do you see any constitutional problems ? 

Mr. Van de Kamp. As far as going to special grand jury counsel? 

Senator Mathias. Yes. 

Mr. Van de Kamp. No. I do not tliink so. 

Senator Mathias. We labored with that question in this very room 
in coimection with the establishment of the Watergate prosecutor. It 
is not the easiest proposition. But as the record shows, we came to 
the conclusion it was not unconstitutional to create that kind of a 
separate legal function. 

Mr. Van de Kamp. Tlius far the courts have sustained you. 

Senator Mathias. We understand that in California the grand 
jury, in addition to finding indictments, has certain other roles, those 
of studying the activity of Government and recommending needed 
reforms. 

Do you think it would be constitutional or desirable to have Federal 
grand juries perform similar functions in reviewing the activities of 
the Federal agencies? 

Tliis is a practice in my own State of Maryland, for example, where 
the grand jury investigates conditions in a given county. 

How do you think that might apply? 

Mr. Van de Kamp. I think it would be impractical in the Federal 
system. I think that we should stick to the reform of the present 
system, with its existing functions. 

In our county the grand jury does perform watchdog functions. 
In fact, at least To percent of its time is devoted to its watchdog role. 
Every year it presents a report to our board of supervisors with recom- 
mendations for governmental reform. 



36 

Unfortunately, because of the short dui-ation of our grand juries — 
1 year — there is little opportunity for followup. As a result, we often 
have grand juries making the same findings made by their prede- 
cessors. It's as if they invent the wheel each year. Because of their 
short duration, they have an inadequate opportunity to mobilize 
public opinion effectively. 

I should observe, too, that in California we have a "blue ribbon" 
type of grand jury, where many of its members have been nominated 
by superior court judges based on their education and background, 
so that they'll be able to better fulfill tlieir watchdog function. 

On the Federal side, the Federal Jury Selection Act would bar that 
kind of selection process; yet if you are to have a grand jury to serve 
this watchdog function it appears necessary to have men and women 
serve who have a broad understanding of government and who will 
not be intimidated by it. As a result, if a watchdog function were to 
be considered, I'd suggest a selection process different from that re- 
quired in criminal cases. 

But more important, I don't thinlv Federal grand juries would be 
very effective. ^'\nT.o would they watchdog ? The Federal Government in 
their district, in all likelihood. That of course would be but a small 
piece of the national picture. 

Senator Mathias. In your system, is that oversight function limited 
to areas related to the administration of courts, jails, and similar in- 
stitutions, or is it widespread, throughout? 

Mr. Van de Kamp. It runs throughout the county. 

It deals with the criminal justice system, the health department, the 
welfare system, every aspect of county government and its administra- 
tion. 

Senator Mathias. One last question, Mr. Van de Kamp. 

Could you give the committee some examples of specific cases of the 
abuses of the grand jury system ? 

I am thinking specifically of cases of harassment or cases in which 
the citizens have been denied their rights by employing the grand jury 
as an instrument of abuse of authority. 

Mr. Van de Kamp. I can recall but a very small number of cases 
where there have been actual abuses in our Federal grand jury system. 

I can recall some cases in the sixties where witnesses were called in 
during investigations, and because their counsel were not present, the 
prosecutors run ni Tig the investigation were able to bully and harass in 
a way they would have avoided had their counsel been present. 

In one case, I remember finally persuading a witness to turn his tes- 
timony around. He finally said, "Do I have to tell the truth," after 
spending an hour imder hoavy grilling before the grand jury. It was 
one of those remarkable. Perry Mason-like moments. But I only got 
him to that point because I was forced to lean on him through heavy 
and repetitive cross-examination, because I was forced to appeal to 
his sense of honesty and integrity, and by noting to liim the applicabil- 
ity of the laws of perjury. Only after all of this did he come around 
and provide valuable evidence which broke the case. 

We had a case recently in our Los Angeles Federal court that was 
more in the political line. A young woman was called before the grand 
jury with respect to some college bombings. Apparently the Justice De- 
partment prosecutors considered her a target of the investigation or 



37 

as a possible fount of information. In any event, the grand jury took a 
liking to her and indicated they wanted to hear more evidence ; that 
they were averse to indictment. 

As a result, the prosecutor took the case away from that grand jury, 
presented it to another grand jury and then tried to hold her in con- 
tempt for failing to respond after immunity had been granted. 

The case ultimately fell out of the system — in re Baldinger. But 
some things become evident : One, the first grand jury was bypassed be- 
cause it appeared to side with the witness or, in any event, was not 
playing ball with the prosecutor. Second, the Government's lawyer had 
actually told the grand jury things about her political past in a way 
that could only be construed as intended to cause prejudice against her. 

But I must say, and I want to make this point clear, in the over- 
whelming majority of cases, the lawyers for the Government act quite 
properly. 

The thrust of my comments is not so much aimed at dramatic abuses, 
but at the fact that the grand jury — at least in its constitutional sense — 
is a useless appendage and does not fulfill its traditional function. 

Senator jSIathtas. Mr. Van de Kamp, we thank you very much for 
your testimonv this morning. The long journey you made in order to 
be here helped to highlight the importance of these hearings. 

Your prepared statement will be of great value to the committee as it 
studies this problem. 

Thank you very much. 

[The prepared statement of John K. Van de Kamp follows :] 

Prepared Statement of Hon. John K. Van de Kamp, District Attorney, 
County of Los Angeles, State of California 

I. the backdrop for reform 

A. Historical developments 

The Federal Grand Jury, in its present form, descends directly from early 
English history. While it has undergone some changes, its structure and essential 
attributes of plenary power to investigate and secrecy of deliberations have been 
preserved in our Constitution and characterize its function today. 

The history of the grand jury can be traced back to the Assize of Clarendon, 
issued by King Henry II of England in 1166. The "grand inquest" vras then 
essentially a device whereby the Norman kings of England were able to require 
answers to questions about royal property and franchises from representatives 
of local units of government, and to enforce communal responsibility for the acts 
of criminals. 

Although the grand jury was originally part of the petit jury system, by the 
middle of the 14th century, the two had evolved into the separate and distinct 
institutions which they are today. Then as now, the grand jury served as a 
charging body, designed to "give voice to common repute" and charge those 
whom the community believed to be responsible for wrong-doing, rather than 
to make a final determination of criminal responsibility.^ 

The principle of secrecy which characterizes the grand jury's operation is most 
commonly believed to have developed in this i>eriod to prevent offenders from 
learning of the proceedings against them and attempting to escape^ and to 
permit prosecutors to have influence with the grand jury.^ 

By the 17th century, the grand jury had evolved to such an extent that secrecy 
had become a right of the grand jurors themselves, enabling them to resist the 
tyranny of the Stuart kings and to protect citizens from prosecution based on 
their political beliefs. The grand jury's right of secrecy and their developing 



1 W. Holflsworth. "A History of Encllsh Law" (7th ed. 1956). 

2G. Edwards, The Grand Jury 27 (1906). 

3 United States v. Smrjth, 104 F. Supp. 283, 289 (N.D. Cal. 1952). 



38 

powers and independent investigation tlius served to protect tlie grand jurors- 
as well as their witnesses from intimidation by the state and thereby protected 
the accused from unjust prosecution.^ It was during this period of political tur- 
moil in England that the grand jury developed its historical reputation of being^ 
both "a sword and shield" in the administration of justice. 

B. The development of the grand jury in America 

When the English colonists came to America, they brought the institution of 
the grand jury with them, and the guaranty of indictment by grand jury was 
among the individual rights enumerated in the Constitution. By including this 
right within the Fifth Amendment, the framers intended that the grand jury 
would continue to fulfill its traditional role of protecting the individual from 
oppression by the state.'"' To that end, they endowed it with the same broad 
investigating abilities and privileges which characterized the English grand 
jury, including the right to secrecy in its proceedings and deliberations. 

At that time it was widely recognized that the primary goal of preserving the 
secrecy of the grand jury was to protect the rights of the accused : 

"In the secrecy of the investigations by grand juries, the weak and helpless — ■ 
proscribed, perhaps, because of their race, or pursued by an unreasoning public 
clamor — have found, and will continue to find, security against official oppression, 
the cruelty of mobs, the machinations of falsehood, and the malevolence of 
private persons who would use the machinery of the law to bring ruin upon their 
personal enemies." " 

Because the grand jury entered the American system as a method of protecting 
the rights of the individual, its transition in modern times to an arm of the state 
is all the more striking. 

Here, as in England, as fear of government coercion lessened, a prosecutor for 
the state (or the crown) was permitted to be present during the taking of testi- 
mony. By the late 19th and early 20th century, the prosecutor's involvement in 
the grand jury's proceedings had so greatly increosed that today it is accepted 
without question that it is proper for the United States Attorney's ofl3ce in each 
disrict to in-ganize, mannge, and direct the grand jury's investigations. The end 
result is that in large measure the secrecy which surrounds the work of the grand 
jui-y no longer operates to protect the rights of the accused but works to the ad- 
vantage of the prosecutor, because it shields him against pre-trial discovery by 
the accused of much of the evidence presented to the grand jury. 

G. Present Federal grand jury practice 

Technically, the grand jury is an agency of the court by which it is appointed. 
The grand jurors, generally selected at random from voter registration rolls, are 
sworn as officers of the court during their term. However, once impaneled, grand 
jurors are thereafter convened by the United States Attorney's office to hear 
cases selected and presented by the government's lawyers.' 

Historically, the grand jury has had the Tight to implement its investigations by 
issuing subpoenas in its name summoning witnesses to appear before it. But the 
practice is now different. Today in grand jury investigations, an Assistant U.S. 
Attorney will usually decide which witnesses to call, and will initiate the process 
of issuing and drafting subpoenas to compel the attendnnce of witnesses or the 
production of documents before the grand jury. It is rare for the grand jury itself 
to issue or request the service of subpoenas. Its powers have atrophied. 

Grand jury subpoenas (or those issued in its name) will be served by a federal 
law enforcement agent at the direction of the U.S. Attorney. It is not required 
that the grand jui'y be notified of the issuance of the subpoena, or even that it be 
sitting at the time the subpoena is issued.® 



*In 16S1 an attempt was made to Indict the Earl of Shaftesbury for hljrh treason. After 
heariner the witnesses, the grand .iiiry returned the bill "ignoramus." This ease (8 How, 
ST. TR. T.'^Q) is often cited as an instance of the independent action of the grand jury. 

5 Cf. J. Storey, III "Commentaries on the Constitution of the United States", section 
ITS."). 

•Mr. Justice Harlan, dissenting in Hurtado v. California, 110 U.S. 516. 554 n.SS4'). 

■^ Under the fedei-al constitution, a grand jury may either present or indict. The word 
"presentment" technically refers to an accusation brought forth by the grand jury acting 
as prosecutors initiating an independent investigation and asking that a charge be drawn 
to cover the facts, should they be found to constitute a crime. An "indictment' on the 
other liand, is a particular cliarge brought before the grand jury by the prosecutor and 
found by it to be true. While the presentment is no longer used in the federal courts, most 
grand juries continue to bring charges by way of an indictment presented to them by the 
government prosecutor. 

8 However, the subpoena must be returnable on a date that the grand jury is actually 
sitting. 



39 

There is so little connection, in fact, between the issuance of subpoenas and the 
grand jury, that eA'idence obtained pursuant to a grand jury subpoena may be 
turned over to federal agents, for their review and examination before they are 
shown to the grand jury." 

Becaiise the grand jury operates behind a cloak of secrecy intended to protect 
suspects from public condemnation, until it acts through indictment, the gradual 
usurpation of its atrophied powers by the prosecution has gone largely unnoticed. 

D. Arguments in favor of retaining the present grand jiirij practice 

Those commentators who favor retention of the grand jury point to the fact 
that the grand jury can serve as a check on the prosecution, particularly in those 
few cases where special factors such as bias and hostility on the part of the 
prosecution, are likely to result in unjust accusations. 

One of the strongest of the arguments for retention of the grand jury system is 
raised by federal prosecutors who claim they would be unable to enforce the laws 
against antitrust oifenses, major white collar dimes, police corruption, narcotics 
smuggling and organized crime if they could not subpoena books and records, and 
compel, in secret, the sworn testimony of witnesses. Federal prosecutors do not 
possess administrative-type subpoena power. 

It is also said that the preliminary hearing is a far less effective screening 
agency and lacks citizen participation, an aspect of the grand jury system which 
fosters a sense of confidence in the criminal justice system.^" 

Proponents of the grand jury system maintain further that delay caused by 
the grand jury system occurs only in rural areas where grand juries are con- 
vened less often, and argue that appropriate provisions for waiver would elimi- 
nate this difficulty while still affording grand jury consideration of the "excep- 
tional situation." 

Policy reasons aside, its retention is required until the Constitution is amended, 
for the Fifth Amendment to the U.S. Constitution provides that ". . . (N)o person 
shall be held to answer for a capital or otherwise infamous crime unless on a 
presentment or indictment of a grand jiiry , . ." " 

The primary purpose of incorporating that mandate into the Constitution was 
to shield the individual from the state : 

"(T)he most valuable function of the grand jury was not only to examine 
into the commission of crimes, dnt to stund hetirccn tlie prosecutor and the 
accused . . ." {Hale v. Henkel, 201 U.S. 43, 59 (1888). (Emphasis added.) 

E. Criticism of grand jury practice 

Those who criticize the grand jury olTer the following argument : 

The grand jury no longer stands between the prosecutor and the accused ; 
in the main, it serves as a rubber stamp for the prosecution. 

In a criminal system that relies on the courts and public scrutiny to safe- 
giiard the individual's rights and protect the integrity of the system, the grand 
jury has always been something anomalous, but justified as a check and balance. 
Today it is argued the earlier justifications do not exist, and that its real and 
potential abuses outweigh its value.^ 

Persons ordered to appear before the grand jury have no right to be told what 
crime, if any, is being investigated, or whether they are themselves potential 
defendants. 

There are no rules of evidence to restrict the scope of the prosecutor's 
questions. 

Unprotected by the presence of either court or counsel, it is said that witnesses 
may face intimidation, harassment, and interrogation into virtually any aspect 
of their lives. If the witness brings a lawyer to the grand jury session to advise 
him/her, that lawyer is required to remain outside of the hearing room while 
the witness is being questioned by the prosecutor. If the witness wishes to con- 
sult with counsel before answering a particular question, he must ask to he ex- 



8 "In re April 1956 Term of the Grand Jury". 239 F. 2f! 263 (7th Cir. 195fi) 
.l''^,*'/„„-^P*^'l- "The Modern Grand Jury: Benighted Supergovernment," 51 A.B.A.J. 



153 n9R5). 



11 The term "otherwise infamous crime" has been defined as includinsr anv offense punish- 
able by' imprisonment at hard labor in a state prison or penitentiary or other similar 
institution." Ea- Parte Wilson, 114 U.S. 417 (1885). Under federal law. imprisonment in 
a penitentiary is permitted for any offense carrying a term in excess of one year 
TTT^" V^^!':^ '1!?*' other arguments against retention of the grand jury are discussed in 
Tihyte. Is tlie Grand Jury Necessary?" 45 Va. L. Rev. 461 (J959) ; Antell, "The Modern 
Grand Jury : Benighted Supergorcrnment" 51 A.B.A.J. 153, (1965) 



40 

cused and then leave the room, walk out, relate what happened to his counsel as 
best as he is able, seek advice, and then return to the room to face the jury. 

Because there is no magistrate or judge presiding, and no lawyer present to 
represent either the putative defendant or the witness, critics argue that tliere 
is no one to object to or rule on the introduction of evidence that would ordinarily 
>*be inadmissible at a preliminary hearing. 

Under the present system, the federal agent assigned to the case (the "case 
agent") will typically present the evidence against the accused in a narrative 
and summary fashion thus eliminating the need for the government to bring 
any "live witnesses" before the grand jury. In this way, the grand jury is de- 
prived of an opportunity to see and hear percipient witnesses, or to evaluate 
their credibility and demeanor. Instead, the grand jury will vote to return an 
indictment based on the strength of the agent's summary presentation, an agent 
who usually has concluded that the accused is responsible and is quite naturally 
(and sometimes competitively) predisposed toward the obtaining of an 
indictment. 

Commentators have long cited the failure to record federal grand jury proceed- 
ings as one of the chief abuses of the present system, and have urged the adoption 
of a recording and disclosure requirement. The Supreme Court has long recog- 
nized that, "after the grand jury's functions are ended, disclosure is wholly 
proper where the ends of justice require it." United States v. Socony-Vacuum Oil 
Co., 310 U.S. 150, 234 (1940). 

The Ninth Circuit has ruled that a defendant's motion to compel recordation 
of grand jury proceedings against him, pursuant to Rule 6(d) of the Federal 
Rules of Criminal Procedure, ordinarily should be granted. United Statei^ v. 
Thoreson, 428 F. 2d 654 (9th Cir. 1970) . 

In U7vited States v. Price, 474 F. 2d 1223 (9th Cir. 1973) the Nintih Circuit 
further held that although Rule 6(d) is permissive, the denial of a motion to 
record, in the absence of a showing of legitimate governmental interest served 
by non-recoi*dation, is an abuse of discretion. 

In light of these rulings, the U.S. Attorney's Office in the Central District of 
California, which as a general rule does not record grand jury presentations, 
has adopted the practice of recording the testimony of grand jury witnesses 
when requested to do so by the counsel. It should be emphasized, however, that 
recording does not extend to any comments made by the government's attor- 
neys to the grand jurors during the course of the proceedings, or to any non- 
deliberative comments of the grand jurors themselves. Moreover, because there 
is really no notice given to a defendant who is the .subject of a grand jury in- 
vestigation, he has little opportunity to request recordation until after his indict- 
ment. Only where there is an arrest followed by the convening of the so-called 
"indictment" grand jury does defense counsel under the present system have an 
opportunity to request recordation, and then he must agree to pay the cost of 
the transcript. And even when recordation occurs, there is no automatic dis- 
closure of the grand jury's transcript to the defense. Indeed, it is rarely ordered. 

Rule 6(e) of the Federal Rules of Criminal Procedure provides that disclosure 
of grand jury proceedings may occur "only when so directed liy the court, pre- 
liminaryily to, or in connection with a judicial proceeding, or when permitted by 
the court at the request of the defendant, upon a showing that grounds exist for 
a motion to dismiss the indictment because of matters occurring before the grand 
jury." While at the time of its adoption in 1946 this rule was strongly believed 
to permit the exercise of broad discretion by the trial judge, the nbsenee of any 
standards for the exercise of that discretion and the generally restrictive view 
taken by most judges towards criminal discovery has placed a heavy burden 
upon the defendant. Specifically, the defendant has the burden of showing a 
"particularij'ed need" far outweighing the usual policy of secrecy in any case 
where he seeks to examine grand jury transcripts. Cf. Pitts'burgh Plate Glass 
Co. v. United States, 360 U.S. 395 (1950). 

F. Conclusion 

In light of the present practice I favor the abolition of the constitutional right 
to a grand jury indictment, and in its stead, support the discretionary u.se of 
the grand jury by the prosecution as an investigative and indicting instrument, 
subject to the stringent requirements of complete recordation and ultimately 
complete disclosure of that record to an indicted defendant. 

Repeal of a portion of the Bill of Rights, namely this portion of the Fifth 
Amendment, is a long and arduous task. 



41 

For this reason, I believe that iiliolishing the grand jury as a constitutional 
requirement will take years, if not decades. In the meantime, I suggest we direct 
our energies towards reforming the present practice through the legislative 
process and eliminating as many of the abuse.s as possible which characterize 
its present operation. 

II. REFORMING THE FEDERAL GRAND JURY — REPORT AND RECOMMENDATIONS OF THE 
LOS ANGELES COUNTY BAR ON RECORDING AND DISCLOSURE OF GRAND JURY PROCEEDINGS 

In light of the questions raised concerning giand jury practices, the Federal 
Courts and Practice Committee of the Los Angeles County Bar Association last 
year appointed a special committee to draft a report and recommendations on 
the recording and discovery procedures of Federal Grand Juries." 

The Committee's report whicli was completed in Fet»ruary 1975, was subse- 
quently adopted by the Trustees of the Bnr Association and presented to the U.S. 
District Court for the Central District of California. 

A. Recordation 

In its report, the Committee recommended that both the liOcal Rules of the Dis- 
trict Court and the Federal Rules of Criminal Procedure be amended to mandate 
recording of all proceedings before the grand jury as follows : 

"All proceedings before a federal grand jury except the deliberations of the 
grand jury shall be recorded by a court reporter, including but nor limied to all 
testimony of witnesses and all statements made by attorneys for the government 
in the presence of the grand jury. Such record shall be deposited under seal with 
the Clerk of the court. The record shall be transcribed and the transcription re- 
leased to the court upon order, or to the United States Attorney upon request. 
Upon authorization of the court, electronic recording devices may bv substituted 
for the court reporter."' 

Some federal district courts have already adopted rules re(iuiring the record- 
ing of all grand jury proceedings. The I^istrict of Rhode Island has a local rule 
requiring That all proceedings befoie a federal grand jury shall i»e leported, "'in 
the same fashirn as ti ial proceedings in open r-oui-t are reported." " Other districts 
such as the Eastern District of Washington follow the practice of recording all 
grand jury proceedings without benefit of a rule. 

An important aspect of the proposed rule is that it does not require recordation 
by an official reporter of the court, so that recordation could be done either by an 
independent court reporter paid through the U.S. Attorney's office (the current 
practice) or by an electronic recording device which would make implementation 
of this rule relatively inexpensive. 

It is important to note that like S. 3274. Senator Abonrezk's bill, this proposed 
rule explicitly requires all proceedings to be recorded including all comments made 
to the grand jury by the government's attorney. 

In its comment to the rule, the Committee discussed the rationale for this: 
"While this is not intended to discourage discourse between grand jurors and the 
attorneys for the government, the possible dangers of prejudice are believed to be 
too great to permit such discourse tu be unrecorded. While the Committee is con- 
fident that there are cui-rently no flagrant abuses by government attorneys, it is 
felt that the presence of a court reporter will be a wholesome prophylactic to 
insure that abuses do not occur in the future." ^^ 

Making a recordation requirement part of the Federal Rules (Rule 6), would 
be a meaningful reform if coupled with a liberalized disclosure rule. 

B. Disclosure of grand jitry proceedings 

Nonrecordation and nondisclosure of federal grand jury transcripts is probably 
the single most oppressive element of federal grand jury practice today. Although, 
the trend among the states has been towards a substantial liberalization of dis- 
covery for the defendant in criminal proceedings, there is a marked disparity be- 
tween the very liberal discovery procedures permitted in many states and the 
very limited discovery allowed under the Federal Rules of Criminal Procedure. 



" X popv of this report In Its entirety Is attached hereto as Appendix A. 

14 Rule 34, D.R.I. 

1= In order to preserve the secrecy of the grand jury proceedinjrs. an additional pro^- 
posf>d amendment to the local rules would proTide that any person involved in the record- 
insr or transcribing of grand Jury testimony would be forbidden to disclose any portioa 
of that testimony except upon court order. 



42 

C. Disclosure of the defendant's testimony 

Disclosure must be mandated in two separate areas — first with regard to the 
defendant's own testimony before the grand jury, and secondly, with regard 
to disclosure of the testimony of all mtnesses before the grand .iury. 

At the present time, Rule 16(a) (3) provides that upon motion of the defend- 
ant, the court may order inspection of the defendant's testimony before the 
grand jury. Because this provision is included within the general discovery 
section, it has been interpreted as providing that if the defendant's motion is 
granted, he is entitled to pre-trial inspection of his statements. Unfortunately, 
this rule does not permit the defendant access to his own testimony as a matter 
of right. Because disclosure is subject to the discretion of the trial court, judicial 
interpretation has varied dramatically between districts and even among judges 
of the same district court. Although Wright and other commentators have con- 
cluded that Rule 16(a) (3) should be interpreted as giving the defendant an 
absolute right to his own testimony subject only to the government's seeking 
and receiving a protective order, the matter should be laid to rest. I urge the 
adoption of an amendment to Rule 6 of the Federal Rules which specifically 
gives the defendant the right to a transcript of his own grand jury testimony, 
well before the trial begins. 

D. DiHclosnre of witnesses' statements 

At the present time disclosui-e of transcripts of witnesses statements is gov- 
erned by the Jencks Act, 18 U.S.Cv § 3500. This permits disclosure only after a 
witness has testified at trial. The prejudice to the defendant and the delays at 
trial occasioned by suddenly dumping many pages or even volumes of testimony 
in front of the defense counsel as he/she stands up to cross-examine the, witness 
has caused many courts to ignore this prohibition and require the prosecutor to 
turn over the transcripts several days before the witness is called. 

The Jencks Act provisions limiting disclosure should be repealed ; the argu- 
ments in favor of disclosure are more persuasive. Any justifiable concerns about 
possible abuses can be alleviated by providing for protective orders upon ap- 
plication and suitable showing by the prosecutor. 

The preferred alternative to present law would be to make disclosure of 
defendant's and witnesses statements automatic, as it is in California practice, 
unless the prosecutor obtains a protective order. This could be accomplished 
by amending Rule 6 of the Federal Rules of Criminal Procedure as has been 
suggested by the Los Angeles Bar Federal Practice Committee. 

"At the time of the defendant's arraignment pursuant to Rule 10, or within 
10 days after indictment, whichever occurs first, the attorney for the government 
shall deliver to the defendant a copy of all recorded proceedings of a grand jury 
which i-elates to the offense charged. 

"Upon a sufficient showing the court may at any time order that the dis- 
f'losure of the recorded proceedings of a grand jury be denied, restricted or de- 
ferred, or make such other order as is appropriate. Upon motion by the govern- 
ment the court shall permit the government to make such showing, in whole or 
in part, in the form of a written statement to be inspected by the judge alone. 
If the court enters an order granting relief following such a showing, the entire 
text of the party's statement shall be sealed and preserved in the records of the 
court to be made available to the appellate court in the event of an appeal by 
the defendant." 

These simple reforms, requiring recordation and mandating disclosure to the 
accused of all grand jury testimony pertaining to the case at bar would do much 
to restore the integrity in the grand jury process and to notify the accused of 
the evidence against which (and with which in the case of exculpatory evi- 
dence) he may choose to defend. 

III. BEFOBM OF FEDERAL GRAND JURY SYSTEM IN LIGHT OF THE CALIFORNIA 

EXPERIENCE 

It may be useful to describe the California grand jury system so that com- 
parisons can be made with the federal system and the reforms proposed in 
S. 3274. 

A. Structure of the California grand jury system 

In California, a felony can be prosecuted either by indictment or. after exami- 
nation and commitment by a magistrate, by information. (Cal. Const., Art. I, 



43 

Sec. 14.) The overwhelming majority of felonies are prosecuted by information 
rather than by indictment.^" 

By statute, the grand jury in a county having a population exceeding four mil- 
lion must have 23 members ; in all other counties it must have 19 members. ( Cal. 
Pen. Code, Sec. 8SS.2.) An indictment cannot be found without the concurrence 
of at least 14 grand jurors in which the required number of members of the 
grand jury is 23, and at least 12 grand jurors in other counties. (Cal. Pen. Code, 
Sec. 940.) 

The district attorney of the county may appear before the grand jury for the 
purpose of giving information or advice relative to any matter cognizable by the 
^rand jury, and may interrogate witnesses before the grand jury whenever he 
thinks it is necessary. However, when the grand jury is investigating a charge 
-against the district attorney or against a person connected with his office, he 
or his assistants may be present only as witnesses. (Cal. Pen. Code, Sec. 935.) 

The Attorney General of the State of California may, with or vdthout the con- 
currence of the district attorney, direct tlie grand jury to convene for the in- 
vestigation and consideration of such matters of a criminal nature as he desires 
to submit to it. He may take full charge of the presentation of such matters to 
the grand jury, issue subpoenas, prepare indictments, and do all other things in- 
cident thereto to the same extent as the district attorney. (Cal. Pen. Code, 
Sec. 923.) 

It is worth noting however, that while the Attorney General has supervision 
over the district attorneys of the sevei-al counties of the state (Cal. Const., Art. V, 
Sec. 13; Cal. Govt. Code, Sec. 12.550), the offices of the Attorney General and a 
district attorney are otherwise independent and both are elected officials. 

Except for those public sessions of the grand jury which are requested by it 
and authorized by the court which has found that the subject matter of the in- 
vestigation affects the general public welfare or involves the alleged misconduct 
of public officials or employees or any person allegedly acting in conjunction or 
conspiracy with such officials or employees in such alleged acts, the examination 
of witnesses and the presentation of evidence is conducted in secrecy. ( Cal. Pen. 
•Code, Sees. 915, 939, 939.1.) 

Except for those private sessions during which grand jurors deliberate and 
vote, certain persons, such as the district attorney, the reporter and an interpreter 
(if needed) are permitted at those secret sessions during which evidence is pre- 
sented. (Cal. Pen. Code, Sees. 935-939.1.) 

A subpoena for a witness may be issued by the district attorney or his investi- 
gator or by a judge of the superior court upon the request of the grand jury. 
(Cal. Pen. Code, Sec. 939.2.) 

B. Recordation and disclosure of grand jury proceedings 

In all criminal cases being investigated by the grand jury, it is required that 
£L competent stenographic reporter report the testimony given in such cases and 
transcribe the same in all cases where an indictment is returned or an accusa- 
tion presented. (Cal. Pen. Code, Sec. 938.) If the indictment has been found 
or accusation presented against a defendant, a copy of the transcribed testimony 
relative to the case shall be given to the defendant or his counsel. (Cal. Pen. 
Code, Sec. 938.1.) If no indictment is returned, the court that impaneled the grand 
jury shall, upon application of either party, order disclosure of all or part of the 
testimony of a witness before the grand jury to a defendant and the prosecutor 
related to any pending or subsequent criminal procedure before any court if the 
•court finds, following an in camera hearing (wliich shall include the court's 
review of the grand jury's testimony) that the testimony is relevant and appears 
to be admissible. ( Cal. Pen. Code, Sec. 924.6. ) 

California appellate courts and the Legislature have for many years followed 
.a policy of liberal discovery for defendants. Even prosecutors who think that 
California appellate courts have gone too far in requiring discovery of evidence 
which may be of remote value to a defendant find it anomalous that in the federal 
system a defendant is not automatically entitled to the discovery of relevant 
testimony given before a grand jury. 

Of all the proposed reforms of the federal grand jury system, that which would 
provide for discovery of relevant evidence presented before the grand jury (sub- 
ject to protective orders designed to insure the personal safety of a witness) is 



"In 1975-76. over 20.000 felony prosecutions were initiated in Los Angeles County; 
-31 indictments \vei«e returned cliarging SG defendants. 



44 

the most desirable. And to that end, the stenographic or electronic recording of 
evidence presented to a grand jury is a necessity. OaUfornia law requires no 
less and indeed requires more. It has not proven an embarrassment to the efficient 
administration of criminal justice. 

C. Rights of witnesses — receipt of evidence 

A vpitness appearing before a secret session of the grand jury is not entitled 
to the presence of his counsel. (Cal. Pen. Code, Sec. 939.) While the putative 
defendant called as a witness before the grand jury cannot assert a constitutional 
right not to be called as a witness, he does have the privilege not to testify as to 
matters which might tend to incriminate him unless he is given immunity. (Cal. 
Pen. Ck)de, Sec. 939.3, 1324.) As a matter of practice, putative defendants are 
rarely called, and if called, the practice is to notify them of their status and to 
provide reasonable oppox'tunities to consult with retained counsel when they 
desire to be excused for that purpose. 

If a grand jury investigates a charge against a person, and cannot find an 
indictment against him, at his request and upon the approval of the court which 
impaneled the grand jury, it shall report or declare that a charge against such 
person was investigated and the grand jury could not as a result of the evidence 
presented find an indictment. A grand jury shall, at the request of the person 
called and upon the approval of the court which impaneled the grand jury, report 
or declare that any person called before the grand jury for a purpose other than 
to investigate a charge against such person was called only as a witness. 

In either case, the report or declaration shall be issued upon completion of the 
investigation of the suspected criminal conduct or series of related suspected 
criminal conduct, and in no event beyond the end of the grand jury's term. (Cal. 
Pen. Code, Sec. 939.91. ) 

There are other safeguards provided by California law. While a grand jury 
shall not receive any evidence but that which would be admissible over objection 
at the trial of a criminal action, the fact that evidenc-e which would have been 
excluded at trial was received by the grand jury does not render the indictment 
void provided that sufficient competent evidence to support the indictment was 
received by the grand jury. ( Cal. Pen. Code, Sec. 939.6. ) 

By contrast, under federal law, an indictment by a federal grand jury valid 
on its face is not subject to challenge on the ground that the grand jury acted 
on the basis of inadequate or incompetent evidence, or even on the basis of evi- 
dence illegally obtained. (See, Costello v. United States, 350 U.S. 359 (1956) ; 
Lawn v. United States, 355 U.S. 339 (1958) ; United States v. Calandra, 414 U.S. 
338 (1974).) 

California law is quite different. A defendant prosecuted by indictment has 
the right to move to set aside the indictment if he has been indicted without 
reasonable or probable cause. (Cal. Pen. Code, Sec. 995.) He has the same right 
with respect to prosecution by information. The only difference is that in a prose- 
cution by information, otherwise admissible evidence presented at a preliminary 
hearing can be considered in support of the information, e^en if it has been 
illegally obtained, in the absence of an appropriate objection by the defendant. 
It is noteworthy that under Rule 5.1(a), Federal Rules of Criminal Procedure. 
"(o)bjections to evidence on the ground that it was acquired by unlawful means 
are not properly made at the preliminary examination. Motions to suppress must 
be made to the trial court as provided in Rule 12." 

In the event that a California trial court erroneously denies a motion to set 
aside an indictment or information, the defendant has the right to seek an ex- 
traordinary writ in the appellate courts. (Cal. Pen. Code, Sec. 999a.) The erro- 
neous denial of such a motion can be set forth as a ground for appeal from a 
judgment of conviction. {People v. Trigg s, 8 Cal. 3d 884, 888, 506 P. 2d 232 
(1973).) 

Therefore, a defendant prosecuted by indictment in a California state case 
has the right to set aside the indictment if it is not based upon evidence which 
would be admissible over objection at trial. Even a defendant who is prosecuted 
by information can move to set aside tlie information if it was based upon evi- 
dence which was admitted over objection at the preliminary hearing and there 
w.TS no other evidence to support a finding of probable cause. (Compare Rule 
5.1(a), Federal Rules of Criminal Procedure, whereby a defendant in a federal 
prosecution can be held to answer at a preliminary hearing based upon evidence 
which would be inadmissible over obiection at a trial.) 

There is anotlier safeguard worth mentioning. Under California law. while 
the grand jury is not required to hear evidence for the defendant, it is required 



45 

to weigh all the evidence submitted to it and, when it has reason to believe 
that other evidence within its reach will explain away the charge, it must order 
the evidence to be produced and, for that purpose, may require the district 
attorney to issue process for the witness. (Cal. Pen. Code, Sec. 939.7.) The Cal- 
ifornia Supreme Court has held that "when a district attorney seeking an indict- 
ment is aware of evidence reasonably tending to negate guilt, he is obligated 
under Section 939.7 to inform the grand jury of its nature and existence, so 
that the grand jury may exercise its power under the statute to order the evidence 
produced." (Johnson v. Superior Court, 15 Cal, 3d 248, 255, 539 P. 2d 792 (1975).) 
Finally, while not judicially reviewable, except as to the question of whether 
the indictment is supported by sufficient admissible evidence to sustain a finding 
of probable cause, the California grand jury has the statutory obligation to 
find an indictment only when all the evidence before it, taken together, if un- 
explained or uncontradicted, would in its judgment, warrant a conviction by a 
trial jury. (Cal. Pen. Code, Sec. 939.9.) This standard is higher than that of 
the judicially reviewable determination by the grand jury that there is probable 
cause to indict. 

D. General evaluation of the California system 

The California grand jury system differs substantially from that of the federal 
system. First, it is little used. Second, while there are some who urge that even 
in cases of prosecution by indictment that a defendant should have the right 
to a preliminary hearing, the Likelihood of abuse of the system by California 
prosecutors is small when compared to that of the federal system. 

Generally speaking, the grand jury provision of the California Constitution 
has more advantages for prosecutors than for defendants, for prosecution by 
indictment or information is ordinarily at the prosecutor's option. 

The prosecutor is likely to exercise that option in cases involving: (1) oflBcial 
misconduct by important government ofiicials ; (2) investigations of widespread 
conspiracies or narcotic undercover buy programs, to insure secrecy when it is 
desirable that many arrests be contemporaneously made; (3) alleged police 
misconduct; (4) children who are the alleged victims of sexual abuse, where 
it is desirable to limit their subjection to cross-examination to trial; (5) major 
fraud cases where documentary evidence can be obtained through grand jury 
powers; (6) exceedingly complicated cases which would require an extremely 
time-consuming preliminary hearing, but which can he disposed of by the grand 
jury in much less time; (7) extraordinary situations requiring delicate handling, 
such as cases involving well-known personalities where grand jury secrecy is 
useful to shield against widespread publicity until such time as the grand jury 
decides to charge: and (S) to forestall a repetitive preliminary hearing where 
one of several defendants would be unavailable for the preliminary hearing. 

While the California grand jury system serves the interest of the prosecutor, 
adequate safeguards have been created by statutory or decisional law to insure 
against unwarranted indictments, and that the indicted defendant obtains com- 
plete disclosure of the proceedings in order to prepare for and defend at trial. 

E. Proposals hased upon the California experience 

Based upon experience with both the federal and California grand jury sys- 
tems, it is submitted that the conclusions reached in the first part of this report 
are appropriate: 

(1) The proceedings of the grand jury, except its secret deliberations, should be 
recorded, electronically or stenographically ; " 

(2) An indicted defendant should have the right to obtain a transcript of rele- 
vant proceedings before the grand jury which indicted ; " 

(3) A defendant in any criminal case should have the right to discover relevant 
evidence presented to a grand jury, subject to protective orders in extraordinary 
situations ; " 

(4) (a) An indictment should not be conclusively presumed to have been based 
upon probable cause. The government should be required to present evidence 
to the grand jury which would be admissible over objection at a trial in support 



i"This rpform is essentially embodied In proposed subsec. 3.S30A(i) of S. 3274 
MTijjg reform is not contained in S. 3274 except to the extent that subsec. 3330A(i) 
(2) permits a witness to examine or obtain a transcript of his testimony before a crand 
jury. _ . _ . b 

^.S30A{i) 
a grand 



1" This reform is not contained in S. 3274 except to the extent that sr.bspc ?,' 
(L) permits a witness to examine or obtain a transcript of his testimony before £ 



jury 

78-905— 7& 



46 

of a finding of probable cause. However, the exception recognized in S. 3274 whicli 
provides tliat summarized or hearsay evidence may alone be sufScieut upon a 
showing of good cause, is appropriate with respect to matters of fact not likely to 
be disputed.* 

(b) The grand jury, on the other hand, should not be forbidden to receive or 
consider evidence which would be inadmissible, provided it has sufficient com- 
petent and independent evidence to indict. The strictures provided in Section 
3330A(p) requiring dismissal of indictment when the grand jury has received 
evidence obtained by an unlawful act are excessive in that it would tend to im- 
pede major and complex investigations as a result of what could be minor tech- 
nical irregularities having little or no effect on much of the evidence developed. 
It would be more fair to use the pre-trial suppression sanction following indict- 
ment than to jeopardize the prosecution's entire case through a minor irregu- 
larity. 

(5) Provision should be made that at some time a witness appearing before a 
grand jury can secure at his request a declaration that he was not the subject of 
the investigation, or that, if he was the putative defendant, that there was in- 
sufficient evidence presented to indict ; 

((3) The prosecutor should be required to present to the grand jury evidence 
which tends to negate guilt or to inform the grand jury of tlie nature and 
existence of such evidence so that it may order the evidence produced ; ^ 

(7) Provision should be expressly made that, in determining whether there is 
probable cause to indict, no reliance can be made upon evidence which was il- 
legally obtained or which was derived from such evidence. This should provide 
an adequate sanction.^* 

IV. CRITIQUE OF PROVISIONS OF S. 3274 

A. Summoning grand jury witnesses 

Subsection 3330A(a) pi'ovides that a subpoena summoning a witness to ap- 
pear and testify or to produce papers or objects before a grand jury can be issued 
only upon an affirmative vote of twelve or more members of the grand jury. 

This provision is undesirable, as a practical matter, because it will tend to 
undermine the objectivity of the grand jury. If this section becomes the rule, all 
evidence will have to be submitted to the grand jury so that its members would 
determine whether or not to issue process. This would tend to expose the jurors 
to evidence, both admissible and inadmissible, and to create partisanship prior 
to the hearing of the evidence. It would be far better to permit the prosecutor 
to issue subpoenas subject to the grand jury's internal constraints than to give 
the grand jury, itself, sole power to issue process. 

Of course, the grand jury should retain its independent authority to sub- 
poena witnesses. 

The seven-day limitation on the returnability of a subpoena is too long a 
period, especially with respect to witnesses served within the district of the 
court that impaneled the grand jury and before which they have been ordered 
to appear. A three-day limitation reasonably accommodates the needs of wit- 
nesses who reside or are present in the district at the time of service. 

B. Advising loitnesses of rights 

Subsection 3330A(b) provides that a subpoena advise a witness of certain 
rights. Such advice specified in items 1, 2, 3 and G should be given. However, 
provision for advising a witness of the subject matter of the investigation and 
the criminal statute or statutes, violation of which is under consideration by 
the grand jury, is unnecessary. It is not the concern of the witness, provided 
the witness is not a putative defendant. This requirement is also objectionable 
since the subject matter and legal theory of a grand jury investigation often 
broadens and/or is changed. 

C. Sanctions for failure to advise of rights 

Subsection 3330A(c) provides that a witness not advised of his rights pursu- 
ant to subsection 3330A(b) shall not be prosecuted or subjected to penalty, on 

=oTlie reforms urged in this paragraph are essentially embodied in subsecs. 3330A(o) 
and (p) of S. 3274. 

■^ See S. 3274. S. 3330p(3). 

22 See S. 3274 (Sec. 4, Sees. 3330a (p) (4) ) , whieh would require dismissal of an indict- 
ment if the court finds that the attorney for the government has submitted to the grand 
jury evidence seized or otherwise obtained by an unlawful act or in violation of the wit- 
nesses constitutional rights. 



47 

account of anything concerning whicli he testifies or any evidence he produces, nor 
shall such evidence be used as evidence in any criminal proceeding against him 
in any court. 

Tlie proposed sanction for non-compliance is excessive. It provides transac- 
tional as well as use immunity for the witness merely because the subpoena did 
not contain a required statement of a right although the witness was aware of 
it. That is an unnecessarily harsh sanction. 

An adequate sanction would be to provide that evidence involuntarily obtained 
in violation of a specific right or because of a failure to advise the witness of 
the specific right in the subpoena is inadmissible against the witness over objec- 
tion in another proceeding. Thus, failure to advise a witness in the subpoena of 
the right to counsel, retained or appointed, should not result in the inadmissibil- 
ity of evidence if, as a matter of fact, the witness had obtained the assistance of 
counsel or had been fully advised or aware of the right before testimony was 
elicited and the witness had a reasonable opportunity to obtain the assistance 
of counsel. In short, before the sanction should be available there should be a 
claim and showing of prejudice. 

D. Written notice of claim of privilege against self-incrimination 
Subsection 3330A(d) provides that if the attorney for the government has 

written notice that a witness intends to exercise his privilege against self- 
incrimination, such witness shall not be compelled to appear before the grand 
jury unless a grant of immunity has been obtaiued. This provision is objection- 
able upon several grounds. 

First, it is ovei'ly broad. It assumes that all claims of privilege will be well 
taken and offers no recourse to the prosecution when claims of privilege are 
without foundation. The provision, if adopted, will tend to encourage witnesses 
who wish to avoid testifying on other than fifth amendment grounds to make 
unjustified claims of the privilege against self-incrimination. 

►Second, it fails to provide in what form and by whom the written notice is 
to be given. Preferably, the provision should require that the written notice be 
made in the form of a verified afiidavit executed by the witness. 

Third, the provision fails to provide a mechanism by which the prosecution can 
litigate whether and when the witness is justified in claiming the privilege 
against self-incrimination. For example, there are situations when a v.'itness 
would be justified in taking the privilege as to some matters under inquiry but 
could provide relevant and neede<l testimony as to other matters which could not 
properly be withheld under the claim of privilege. To determine that, the defend- 
ant should exercise his privilege under recorded interrogation and place the 
matter under judicial scrutiny. 

E. Right to assistance of counsel 

Subsection S330A(e) provides a witness before a grand jury with the right to 
assistance of counsel, retained or appointed. A statutory provision for the right 
of an indigent witness to have appointed counsel upon request constitutes recog- 
nition of a practice which is already widespread. 

This is the most valuable right of a grand jury witness provided by S. 3274. 

The presence of counsel for a witness in the grand jury room would impose 
de facto limitations on the potential for badgering, harassment and other abuse 
by the prosecution. 

The ettieient functioning of the grand jury would not be impaired by the appear- 
ance of counsel in the grand jury room provided that the counsel's role in the 
grand jury room would l>e limited to advising his client whether or not to claim 
a privilege. Counsel should not be permitted to object to questions or argue the 
client's case to the grand jury unless invited. To that end, subsection 3330A(e) 
should be amended to define the role of a counsel for a witness so that there will 
be no misunderstanding as to his rights or duties in a grand jury room. 

'Some will express concern that the provision authorizes counsel to disclose 
matters which occur before the grand jury, and that iby so doing the secrecy of 
the proceetling will be breached. This should not cause great concern since' the 
witness presently may publicly disclose Avhat transpired before the grand jury, 
and if represented, will in all likelihood disclose it to his attorney who is free 
to make whatever disclosure is found to be warranted. 

F. Resuhmission of case to the grand jury 

Subsection 3330A(h) pi-ovides that once a grand jury has failed to return an 
indictment based on a transaction or set of transactions, event or events, a 



48 

grand jury inquiry into tlie same transactions or events sliall not be initiated 
unless the court tiuds, upon a proper showing by the attorney for the goveru- 
meiit, that the government lias discovered additional evidence relevant to such 
inquiry. 

The chief purpose of the fifth amendment grand jury provision is to protect 
a person against unfounded accusations. That purpose is subverted by the prac- 
tice of re-submitting a case, at the sole discretion of tlie government, to a grand 
jury after a failure to indict. 

However, the proposed provision is too restrictive. It fails to take into account 
that a grand jury may fail to indict hecause its term, including any extension, 
has ended. (Cf. S. 3274, SEC. 4, Sees. 3330A(a) (2) and (3). If there has been 
a failure to indict for that reason, then the successor grand jury should be per- 
mitted to investigate the same matter investigated by its predecessor. Evidence 
presented to the prior grand jury should be made available to the succeeding 
grand jury upon its request and upon the court's approval. (See Cal. Pen. Code 
Sec. 924.4.') 

Additionally, upon motion of the attorney of the government or a special prose- 
cutor, a court should have the discretion to authorize a grand jury to investigate 
a matter previously investigated by another grand jury when the court is satis- 
fied that there has been an unwarranted failure on the part of the government 
to present available evidence to the grand jury which has failed to indict and the 
public interest necessitates re-submission of the case. It is important to include 
such a provision because an attorney for the government may improperly or negli- 
gently fail to pi-esent to a grand jury available evidence which would support an 
indictment in a serious case. A requirement that any re-submission be authorized 
by the court would constitute an adequate safeguard against the abuses contem- 
plated by subsection 3330A(h). 

O. Recordation of proceedings 

Subsection 3330A(i)(l) provides that a complete and accurate stenographic 
record of all grand jury proceedings (except the grand jury's secret deliber- 
ations) shall be kept. As stated previously, this is an imi>ortant reform, 
compliance with which will tend to diminish abuses relating to the grand 
jury. 

H. Right of a witness to a transcript of his testimony 

Subsection 3330A(i) (2) provides that a witness before a grand jury shall be 
entitled upon request to examine and to copy, or, if indigent, to obtain a copy 
of the transcript of his testimony before a grand jury. After an examination of 
such transcript, he may request permission to appear before the grand jury 
again to explain his testimony. Subsection (j) provides that a witness summoned 
to testify before a grand jury or his attorney shall be entitled, prior to testifying, 
to examine and to copy any statement in the possession of the United States 
which such witness has made and which relates to the subject matter under 
Inquiry by the grand jury. 

The provisions relate not to a defendant's rights of discovery, but to the 
interests of witnesses in obtaining copies of their statements. 

The provisions in question are objectionable because they are likely to jeopar- 
dize the discovery of the truth. If a witness who has testified before a grand 
jury has as a matter of right the opportunity to examine a transcript of his 
testimony before a grand jury, then he has an opportunit.v to tailor his testimony 
at any subsequent trial to fit his testimony before a grand jury. The "tailoring" 
of testimony can. of course, be an unconscious process. It is generally agreed by 
most trial counsel that a witness who has examined prior statements before testi- 
fying is subject to impeachment on the basis that he is not testifying from actual 
memory but from his review of his prior statement. 

/. Disclosure of grand jury material to an indicted defendant 

Section 3330A(i) (1) provides for a complete and accurate record of all grand 
jury proceedings. Yet at no point does S. 3274 indicate what is to be done with 
this record. 

Provisions should be prepare<l which give the indicted defendant a transcript 
of all relevant proceedings. 

Additionally, pi'ovision should be made that any defendant may obtain a 
transcript of relevant evidence presented to a grand jury if a prosecution is 
based upon a transaction or event which was a subject matter of investigation 
by that grand jury, even though the particular grand jury before whom the 



49 

testimony was taken did not indict. Tlaese provisions could be modeled on rele- 
vant provisions in tlie California Penal Code. 

J. Procedures respecting recalcitrant witnesses 

Subsection 3330A(k)(l) provides that a witness should not be required to 
testify or to produce papers or objects if a primary purpose or effect of the 
subpoena is to secure for trial evidence against a person already under indictment 
or formal accusation. The practice which it would forbid is generally thought 
to be inconsistent with the adversary nature of a criminal prosecution. Yet the 
provision does not run to the real party in interest, the defendant, but to the 
witness, a marked departure from existing practice. Since it is the defendant 
who has the real objection to the use of the procedure sanctioned, the defendant, 
rather than the witness, should have the standing to object to and seek sup- 
pression of the evidence obtained in such proceedings. The section should be 
redrafted to so provide. 

Rul? 17(c) of the Fedoril RuIps of Criminal Pro?cdure, already provides that 
••(t)lie court on motion made promptly may quash or modify the subpoena if 
compliance would be unreasonable or oppressive." The incorporation of this rule 
into S. 3274 may therefore be redundant. Nevertheless, the addition in subsec- 
tion 3380A(k) (2) of a "laundry list" of what is deemed to be unreasonable or op- 
pressive is subject to objections of overbreadth. Thus, for example, compliance 
with a subpoena is deemed to be unreasonable or oppressive because the only 
testimony that reasonably can be expected from a witness is "cumulative" or 
"unnecessary." Those are extremely difficult standards to apply to a grand jury 
investigation with a broad and sometimes hazy focus. Neither the judge nor the 
complaining witness or his attorney will have heard the testimony which pre- 
ceded it. as is normally the case when objection is made in the course of a trial. 
Such a ruling is normally one resting in a trial judge's discretion. Here, there 
is little upon which that discretion can be exercised. The conclusions that the 
testimony of a witness is not "necessary" can seldom be made without a con- 
sideration of what other evidence has been presented to a grand jury. It is the 
grand jury who can best determine what it views as "necessary" for its delibera- 
tions. It should not be unduly restricted in this area ; to do so could result in 
incomplete investigations into serious matters. 

In sum, the words "cumulative" and "unnecessary" should be dropped from 
3330A(k) (2) (ii). To retain them would result in needless consumption of judi- 
cial time with little payoff. 

Omission from the provision of a list of items each of vvhich is deemed to be 
unreasonable or oppressive avoids the problem of including an overinclusive or 
redundant item without impairing the supervisory authority of the courts with 
respect to subpoenas summoning i)ersons to appear before a grand jury. (See 
Vnited States v. Calandra, 414 U.S. 338, 346 n. 4). 

K. J v>-is diction as to motions to quash 

Subsection 3330A(1) provides which courts will have jurisdiction over a mo- 
tion made by a witness to quash a subpoena or for other relief, i.e., the districts 
of issuance, place of service, and residence of the witness. 

Preferably, the primary jurisdiction over such a motion should be in the dis- 
trict in which the grand jury is impaneled, provided that such court has the 
discretion to transfer the matter to another court. The court that supervises 
the grand jury before which the witness is required to appear shoiild have the 
first opportunity to expeditiously rule upon svich motions based upon its own 
knowledge and available grand jury records which are immediately available. 
The proposal as written encourages forum shopping by the witness. 

L. Requests to present evidence 

Subsection 3330A(q) provides that any person may approach the attorney for 
the government to request permission to testify on a matter before a grand 
jury or to request that an inquiry be initiated. The attorney for the government 
Is required to make a public record of all denials of such requests, including the 
reasons for not allowing such person to testify or to appear. The court is author- 
ized to grant the person a hearing and to authorize him to testify or to appear 
before the grand jury. 

This provision ignores the grand jury itself. 

The subsection should be re-drafted so that the prosecutor will be required to 
transmit to the grand jury the request to present evidence following his denial of 
the request so that its members can independently determine whether to honor the 



50 

request. Such a provision would strengthen the independence of the grand jury 
and would obviate the need for the court to hold a hearing. The grand jury, not 
the court, should be the arbiter as to what evidence it decides to hear. To give 
the court the power to order that the grand jury hear certain witnesses under- 
mines the independence of the grand jury and would place the court in the role 
of an adversary. 

v. OTHER SUGGESTED REFORMS OF THE GRAND JURY SYSTEM 

A. The prohlem of the race to indict 

Much concern exists about current rules which, in effect, allow a race to indict. 
In my experience a prosecutor will invariably try to beat the preliminary hearing 
by indicting first. The upshot is that the defendant's discovery of the government 
case is limited to that provided by the federal rules : he has no chance to see for 
himself what kind of a "live" case the government can present through a pre- 
liminary adversary hearing, or through a review of a grand jury transcript. 

Most critics agree that the present practice has serious shortcomings. A number 
of suggestions, both long-term and short-term have been suggested. 

B. Using the grand jury proceeding as a forum for a preliminary hearing 
One proposed reform would provide for holding the functional equivalent of 

a preliminary hearing in the presence of the so-called indicting jury. To make 
a grand jury proceeding equivalent to a preliminary hearing and to afford the 
putative defendant the same rights as a formally accused person who is entitled 
to a preliminary hearing would require that the putative defendant have the 
right to a public hearing before a grand jury. This would eliminate much of the 
secrecy which the framers of the Constitution saw as one of the hallmarks of the 
grand jury system. 

The advantage of the proposal, assuming its constitutionality, is that it would 
accomplish two purposes: (1) fulfill constitutional requirements; and (2) give 
the defendant a preliminary hearing with better notice of the evidence against 
him than he now has. 

"Weaknesses are foimd in the cost of the proceedings, i.e.. 23 grand jurors versus 
one magistrate ; in the elimination of the secrecy rules ; and in the necessity for 
bifurcation of the grand jury's charging and investigative roles. That bifurca- 
tion could have some undesirable consequences. An "indicting grand jury" may 
desire to enlarge the scope of its investigation as to potential defendants and 
charges because of evidence presented to it. Yet, the exploration of the new 
matter by the indicting grand jury might be precluded because of its irrelevancy 
to the issue whether the putative defendant should be indicted. As a result it 
might be necessary to take an inquiry to both an "investigating jury" and an 
"indicting grand jury." 

Another hallmark of grand jury practice is apt to be lost in the process. Partici- 
pation of grand juroi-s in the examination of witnesses is apt to become inhibited 
by the transformation of the "indicting grand jury" process into a preliminary 
hearing, as a result of the more formal procedures necessitated by the change- 
which would require that a magistrate preside, with counsel for the prosecution 
and the putative defendant playing their typical adversarial roles. 

C. Granting a right to a preliminary hearing whether or not a grand jury indict- 

ment is first secured 

Another proposed reform would grant a right to a preliminary hearing whether 
or not an indictment is first secured. This "reform" would entail repetition of 
the same evidence to the magistrate or to the grand jury and prove to be costly 
and time consuming. 

One method of eliminating some of this repetition could come through amend- 
naents to Rule 7(a) of the Federal Rules of Criminal Procedure which would 
give the defendant the sole power to waive indictment and take away the prose- 
cutor's power to override the defendant's waiver.'^ The defendant who so waived 
would be entitled to the preliminary hearing afforded by Rule 5 of the Federal 
Rules of Criminal Procedure. The effectiveness of this reform would be somewhat 
limited, since it would not apply to defendants who were first charged by indict- 
ments. This would be consistent with the theory underlying the Fifth Amend- 

2f The Siipi-pme Court has stated that the right to he prosecuted bv IncHctment mav he 
waiverl. (Smith v. Vriited States, 360 U.S. 1, 9 (1959).) However, under exlstins rules, 
the waiver of the right to prosecution by indictment Is not binding upon the government. 



51 

ment requirement for a grand jury indictment which was aimed at protecting 
the accused rather than accommodating the interests of the government. 

The race to indict would be discouraged if prosecution by indictment could 
be waived in cases initiated by means other than indictment and such waiver 
were made binding upon the government. Tlie constitutional right to prosecution 
by indictment would not be violated ; nor would the waiver be invalid since the 
defendant would not be placed in the position of giving up one constitutional 
right to gain a right since there is no constitutional right to a preliminary 
hearing. 

Where an indicted person has not had the opportunity to waive indictment, 
the federal rules changes should at a minimum provide the defendant with a 
right to disclosure of all evidence presented to the grand jury, and at a maxi- 
mum, the right to a preliminary hearing. 

VI. CONCLUSION 

A. The constitutional right to indictment by grand jury should be abolished. 
In lieu thereof, a defendant should have the right to a preliminary hearing. 

B. Short of constitutional amendment, substantial reforms should be worked 
into the federal grand jury to promote its integrity, the rights of witnesses 
apix>aring pursuant to its process, and the rights of defendants charged with vio- 
lation of federal laws. 

Among the chief recommendations : 

(1) AH grand jury proceedings should be recorded and, when necessary, 
transcribed. 

(2) An indicted defendant should as a general rule obtain full disclosure of all 
testimony before the grand jury relating to the indictment. 

(3) A witness should be entitled to the presence of his counsel, retained or 
appointed, before the grand jury. 

Federal rule changes should also be sought which will give to a defendant the 
sole power to determine whether indictment should be waived and to proceed by 
way of preliminary hearing and information. When the case is initiated by in- 
dictment and the defendant has been unable to file such a waiver, the federal 
rules should provide for complete disclosure of all evidence presented to the 
grand jury. 

Appendix A. — Federal Courts Committee, Los Angeles County Bar Association 

Beport and Recommendations: Recording and Disclosing Proceedings of Federal 

Grand Juries 

recommendations 

It is recommended that the Los Angeles County Bar Association take the 
following action : 

1. Urge the Judges of the United States District Court for the Central District 
of California to immediately adopt the following addition to the Rules of the 
United States District Court for the Central District of California : 

"All proceedings before a federal grand jury except the deliberations of the 
grand jury shall be recorded by a court reporter, including but not limited to 
all testimony of witnesses and all statements made by attorneys for the govern- 
ment in the presence of the grand jury. Such record shall be deposited under seal 
with the Clerk of the Court. The record shall be transcribed and the transcription 
released to the Court upon order or to the United States Attorney upon request. 
Upon authorization of the Court, electronic recording devices may be substi- 
tuted for the court reporter." 

2. Urge the Advisory Committee on Criminal Rules of the Committee on Rules 
of Practice and Procedure of the .ludicial Conference of the United States to 
recommend the following amendments to the Federal Rules of Criminal 
Procedure : 

A. Amend Rule 6 of the Federal Rules of Criminal Procedure as follows: 

(1) Add the bracketed language to Section 6(e") : 

(e) Secrecy of Proceedings and Disclosure. Disclosiire of matters occurring 
before the grand jury other than its deliberations and the vote of any juror 
may be made to the attorneys for the government for use in the performance 
of their duties. Otherwise a juror, attorney, interpreter, stenographer, operator 
of a recording device, or any typist who transcribes recorded testimony may 



53 

disclose matters occurring before the grand jury only when so directed by the 
court preliminarily to or in connection with a judicial proceeding or when per- 
mitted by the court at the request of the defendant upon a shov.iug that grounds 
may exist for a motion to dismiss the indictment because of matters occurring 
before the grand jury [or when delivered in compliance with subdivision (h) 
of this rule]. No obligation of secrecy may be imposed upon any person except in 
accordance with this rule. The court may direct that an indictment shall be 
kept secret until the defendant is in custody or has given bail, and in that 
event the clerk shall seal the indictment and no person shall disclose the finding 
of the indictment except when necessary for the issuance and execution of a 
warrant or summons. 

(2) Add a new section (h) , as follows : 

"(h) At the time of the defendant's arraignment pursuant to Rule 10, or 
within 10 days after indictment, whichever occurs first, the attorney for the 
government shall deliver to the defendant a copy of all recorded proceedings 
of a grand jury which relate to the offense charged. 

Upon a sufiicient showing the court may at any time order that the disclosure 
of the recorded proceedings of a grand jury be denied, restricted or deferred, 
or make such other order as is appropriate. Upon motion by the government 
the court shall permit the government to make such showing, in whole or in part, 
in the form of a written statement to be inspected by the judge alone. If the 
court enters an order granting relief following such a showing, the entire text 
of the party's statement shall be sealed and preserved in the records of the court 
to be made available to the appellate court in the event of an appeal by the 
defendant." 

(3) Add a new section (i), as follows : 

"(i) All proceedings before a federal grand jury except the deliberations of 
the grand jury shall be recorded by a court reporter, including but not limited 
to all testimony of witnesses and all statements made by attorneys for the 
government in the presence of the grand jury. Such record shall be deposited 
under seal with the Clerk of the Court. The record shall be transcribed and 
the transcription released to the Court upon order or to the United States Attor- 
ney upon request. Upon authorization of the Court, electronic recording devices 
may be substituted for the court reportei-." 

3. Urge the Congress of the United States to repeal IS U.S.C. § 3500(e) (3), 
which now provides : 

"(e) The term 'statement' as used in subsections (b), (c) and (d) of this 
section in relation to any witness called by the United States means 

(1) A written statement made by said witness and signed or otherwise 
adopted or approved by him ; or 

(2) A stenographic, mechanical, electrical, or other recording, or a tran- 
scription thereof, which is a substantially verbatim recital of an oral state- 
ment made by said witness and recorded contemporaneously with the making 
of such oral argument. 

(ii) A statement, however taken or recorded, or a transcription thereof, 
if any, made by said witness to a grand jury." 

ALTERNATtVE RECOMMENDATIONS 

4. As an alternative, in the event i-ecommendations 2A (1) and (2) are not 
adopted by the Advisory Committee, it is recommended we urge the Advisory 
Committee to recommend the following amendments to Rule 16 of the Federal 
Rules of Criminal Procedure : 

(1) Add a new section (a) (1) (F), as follows : 

"(F) Grant Jury Transcripts. — Upon request of the defendant the government 
shall furnish to the defendant the recorded testimony before a grand jury which 
relates to the offense charged of all witnesses which the attorney for the govern- 
ment intends to call in the presentation of the case in chief." 

(2) Delete section (a) (3), and renumber section (a) (4) as (a) (3). 

5. As a further alternative, in the event the Advisory Committee does not adopt 
either the proposed amendments to Rule 6 or the proposed amendments to Rule 
16. it is recommended we urge the Congress of the United States to amend 18 
U.S.C. § 3500 as follows : 

(1) Section (a), which now provides : 

"(a) In any criminal prosecution brought by the United States, no statement 
or report in the possession of the United States which was made by a Govern- 



53 

ment witness or prospective Government witness (other than the defendant) 
shall be the subject of subpoena, or inspection until said witness has testified on 
direct examination in the trial of the case.'' 

Shall be amended to provide : 

"(a) In any criminal prosecution brought by the United States, no statement 
or report in the possession of the United States which was made by a Government 
vritness or prospective Government witness (other than the defendant) shall be 
the subject of subpoena, discovery or inspection until three entire business days 
before the commencement of the trial." 

(2) Section (b), which now provides : 

"(b) After a witness called by the United States has testified on direct ex- 
amination, the court shall, on motion of the defendant, order the United States 
to produce any statement (as hereinafter defined) of the witness in the posses- 
sion of the United States which relates to the subject matter as to which the 
witness has testified. If the entire contents of any such statement relate to the 
subject matter of the testimony of the witness, the court shall order it to be de- 
livered to the defendant for his examination and use." 

Shall be amended vo provide : 

"(b) At least three entire business days before the commencement of the trial, 
the court shall, on motion of the defendant, order the United States to produce 
any statement (as hereinafter defined) of any Government witness or prospec- 
tive Government witness in the possession, . . ." 

(3) Section (d), which now provides : 

'•(d) If the United States elects not to comply with an order of the court under 
Paragraph (b) or (c) hereof to deliver to the defendant any such statement, 
or such portion thereof as the court may direct, the court shall strike from the 
record the testimony of the witness, and the trial shall proceed unless the court 
in its discretion shall determine that the interests of justice require that a 
mistrial be declared." 

Shall be amended to provide : 

"(d) If the United States elects not to comply with an order of the court under 
paragraph (b) or (c) hereof to deliver to the defendant any such statement, 
or such portion thei'eof as the court may direct, the court shall not permit the 
witness to be called to testify." 

DISCUSSION 

1. Introduction 

Upon publication of an article in the Los Angeles Bar Bulletin of March, 1974, 
entitled "Pre-Trial Discovery of Federal Grand Jury Minutes," a subcommittee of 
the Federal Courts Committee was formed to investigate current practices regard- 
ing the recordation and disclosure of proceedings before federal grand juries, 
and to make recommendations to the Committee. The subcommittee included 
Joel Bennet, B. Boyd Hight, Anthony Murray (who co-authored the Bar Bulletin 
article), Assistant U.S. Attorney Eric A. Nobles, Federal Public Defender John 
K. Van de Kamp, and Robert Wyshak. Professor Gerald F. Uelmen of Loyola 
University School of Law served as chairman of the subcommittee. At its meet- 
ing of February 6, 1975, the Federal Courts Committee approved the recom- 
mendations of this subcommittee for submission to the Board of Trustees. 

2. Recording of Grand Jury Proceedings 

The Committee recommends that both the local Rules of the United States 
District Court for the Central District of California, and the Federal Rules 
of Criminal Procedure, be amended to mandate the recording of all grand jury 
proceedings. 

The current practice in the Central District of California leaves the record- 
ing of grand jury proceedings to the discretion of the United States Attorney. 
It is the policy of that office to record only the testimony of percipient witnesses. 
No record is kept of routine testimony by government agents who are describing, 
in hearsay fashion, the results of their investigation. Nor is any record kept 
of comments made to the grand jurors by attorneys for the government before 
or after the testimony of witnesses. 

In United States v. Thoreson, 42S F. 2d 654 (9th Cir. 1970) and United States 
V. Price, 474 F. 2d 1223 (9th Cir. 1973), the Ninth Circuit Court of Appeals ruled 
that a prospective defendant who makes a timely request may compel the recorda- 
tion of grand jury proceedings. In conformity with these opinions, the U.S. 
Attorney for the Central District of California honors all such requests where 



54 

the prospective defendant agrees to pay the cost of the transcript. This practice, 
of course, is of no advantage to those who are unaware they are prospective 
defendants, or who lack the funds to pay for a transcript. 

Some federal district courts have already adopted rules requiring the record- 
ing of all grand jury proceedings. The District of Rhode Island has local rules re- 
quiring that all proceedings before a federal grand jury shall be reported "in 
the same fashion as trial proceedings in open court are reported." (Rule Si, 
D.R.I.) . Other districts, such as the Eastern District of Washington, follow a 
policy of recording all grand jury proceedings without benefit of a rule. Rule 
1.04(c) of the U.S. District Court for the Noi-thern District of Illinois provides : 

"An Official Reporter of this Court shall attend and record all testimony of 
witnesses appearing before every Grand Jury. Such record shall be filed with the 
Clerk of the Court and transcribed and released to the Court upon order or to 
the United States Attorney upon request and payment of the appropriate fees 
to the Official Reporter." 

While the Committee adopted some features of the Illinois rule, it will be 
noticed that our recommendation differs in three important respects. (1) It is not 
required that the proceedings be recorded by an Oflicial Reporter of the Court. 
The current practice in the Central District of California is to contract for inde- 
pendent court reporters to record these proceedings. The reporters are evidently 
l)aid through the auspices of the U.S. Attorney's Office, rather than the U.S. 
District Court. It is not the intention of the Committee to disturb this arrange- 
ment. (2) Authorization is included in the Committee's recommendation for 
use of electronic recording devices. Such devices are currently being used in 
the Magistrate's Courts in this District. Their use in grand jury rooms would be 
even easier, since identification of the party speaking would be a simple matter. 
This method could make tlie implementation of the proposed rule relatively in- 
expensive. (3) The Committee's recommendation requires all proceedings be 
recorded, not just the testimony of witnesses. The recommended rule is quite 
explicit in including all comments made by attorneys for the government to the 
grand jury. While this is not intended to discourage discourse between grand 
jurors and the attorneys for the government, the possible dangers of prejudice are 
believed to be too great to permit such discourse to be unrecorded. While the 
committee is confident that there are currently no flagrant abuses by govern- 
ment attorneys, it is felt that the presence of a court reporter will be a whole- 
some prophylactic to insure that abuses do not occur in the future. 

The question of recording grand jury proceedings was presented to the Ninth 
Circuit Judicial Conference in 1972. In a Report to the Committee on Federal 
Rules of Criminal Procedure of the Conference, Professor William J. Knudsen, 
Jr. recommended an amendment to Rule 6 to require that all testimony presented 
before the grand jury in the investigation of criminal causes shall be recorded. 
A similar recommendation, that a reporter transcribe the minutes of all pro- 
ceedings of a grand jury which are accusatorial in nature, was proposed in 1965 
by the Committee on the Federal rules of Criminal Procedure of the American 
Bar Association's Section of Criminal Law. (38 F.R.D. 106). The sentiment ex- 
pressed at both the 1971 and 1972 Ninth Circuit Judicial Conferences was over- 
vrhelminitly in favor of compelling the recordation of all grand jury proceedings. 
At the 1971 conference, those in attendance were asked, "Should all grand jury 
proceedings be reported?" The results were as follows : 

Yes No 

Judges _.. 

U.S. attorneys 

Delegates 

taw schools 

Guests.- 

Others 

Total 158 38 



41 


18 


4 


2 


74 


11 


8 





30 


6 


1 


1 



27 


7 


2 


2 


26 


3 


1 





3 





4 


1 



56 

Again, at the 1972 Conference, the question was posed. "Should all testimony 
Ijefore a Federal Grand Jury be recorded V" The results were as follows: 

Yes No 

Judges 

U.S. attorneys 

Delegates -- 

Law schools 

Guests 

Others 

Total - 63 13 

3. Disclosure of Grand Jury Transcripts 

The merits and demerits of disclosure of transcripts of federal grand jui-y pro- 
•ceedings has been fully debated elsewhere, and it is not the purpose of this 
report to rehash these arguments. An excellent discussion is contained in Mr. 
Murray's article in the March, 1974 Los Angeles Bar Bulletin, as well as in 
the comprehensive report to the Committee on Federal Rules of Criminal Pro- 
cedure of the Ninth Circuit Judicial Conference by Professor William .J. Knud- 
;sen. Jr., which has been published at 60 F.R.D. 237. The Committee concluded 
that the arguments in favor of disclosure are most persuasive, and any justifiable 
concerns about possible abuses can be alleviated by providing for protective 
■orders upon application and suitable showing by the prosecutor. 

Presently, disclosure of grand jury transcripts is governed by the Jencks Act. 
IS U.S.C. §3500, which permits disclosure only after a witness has testified at 
trial. Present practice in many courts is to ignore this prohibition, and ask the 
prosecutor to turn over the transcripts several days before the witness is called, 
to avoid the delays in the trial which full compliance with the Jencks Act 
Tequires. 

The Committee recommends repeal of these Jencks Act provisions, and their 
replacement with three different alternatives, stated in order of preference. 

The first alternative, and most preferable, would be to make disclosure auto- 
-uiatic, just as it is in California practice, unless the prosecutor obtains a pro- 
tective order. This would be accomplished by the Amendments to Rule 6 of the 
Federal Rules of Criminal Procedure contained in Recommendation No. 2A. 
Tlie procedure for protective orders is couched in language borrowed from Rule 
16(d)(1). 

The second alternative would place disclosure of grand jury transcripts in 
the context of Rule 16 of the Federal Rules of Criminal Procedure, which gov- 
■^rns discovery in criminal cases. Disclosure would not be automatic, but would 
require a request of the defendant. Upon such request, however, disclosure 
would be required unless the government obtained a protective order pursuant to 
the present provisions of Rule 16(d) (1). The amendments to Rule 16 necessary 
to achieve this alternative are contained in Recommendation No. 4. 

The final alternative would be to simply amend the Jencks Act to conform 
to tlie present practice of many courts, by requiring delivery of Jencks state- 
ments three days in advance of trial. The three day limit is in conformity with 
the three day disclosure of witnesses rule for capital cases established in 18 
U.S.C. § 3432. These amendments are contained in Recommendation No. 5. 

Senator ]SL\thias. The committee will call on the distinguished Sen- 
titor from Florida, Senator Stone, who has very kindfy agreed to 
introduce the next witness. 

STATEMENT OF HON. EICHARD STONE, A U.S. SENATOR FEOM THE 

STATE OF FLORIDA 

Senator Stone. Thank you, Mr. Chairman. 

I would like to present to this committee the longtime and well- 



56 

respected State attorney of Dade County, State of Floiida, who among 
all of our State attorneys has the most experience and the niost skill- 
ful knowledge of the grand jury system and all of its ramifications. 

Dade Comity is a cosmopolitan, urban county. It also has rural 
elements. It has tremendous pressures from transients, not only from 
our own country, but from the Western Hemisphere and really all 
over the world. 

The grand jury has played a very major central role in our criminal 
prosecution and criminal justice system. T think that this committee 
is fortunate to have the expert advice and testimony of Richard 
Gerstein, State attorney from Dade County, State of Florida. 

I would like to present him to you. 

Senator ISIatiiias. Thank you very much, Senator Stone. 

Mr. Gerstein. we appreciate very mucli your being here and giving 
the committee the benefit of your experience and your great knowledge. 
Do you have a prepared statement ? 

TESTIMONY OF HON. EICHARD E. GERSTEIN, CHAIRMAN. COM- 
MITTEE ON THE GRAND JURY, CRIMINAL JUSTICE SECTION, 
AMERICAN BAR ASSOCIATION 

Mr. Gersteix. I have a prepared statement, Senator. 

First I would like to express my appreciation to Senator Stone for 
his kind introduction. 

I am here, I think, in a twofold capacity. I am here representing 
the American Bar Association as cliairman of the Grand Jur}- Com- 
mittee of the Criminal Justice Section of the American Bar, and also 
in my individual capacity as State attorney in the 11th judicial circuit 
of Florida, which is the Greater Miami area. 

I have a prepared statement which I believe has been made a part 
of the record. 

Senator Mathias. We will make your prepared statement a part 
of the record after your oral testimony. 

The clock behind you indicates tliat Senator Stone and I are due 
on the floor for a rollcall vote. 

If you have no objection, ]Mr. Gerstein, it would be an economy of 
your time if you Avould proceed — I will ask counsel to conduct the 
hearing until I can get back — in the delivery of your summary and in 
answering some of the questions that I Avill proj^ound to you. I will 
be back as quickly as possible. 

Mr. Gerstein. That will be fine. 

Senator Mathias. It would not delay you in the meantime then. 

Mr. Gerstein. The American Bar Association has gone on record 
advocating certain grand jury reforms. 

I would like to stress at the outset that the American Bar Associa- 
tion and the committee of wliich I am chairman strongly favors the 
retention of the grand jury system, but we see the need for reform. 

Among other things, tlie American Ear Association has enlorsed 
certain amendments to titles 18 and 28 of the United States Code, and 
opposes in principle, certain other amendments. 

The ABA supports in principle, section 2(a) of H.R. 1277. which 
would amend the recalcitrant witness statute to prohibit multiple con- 



57 

-fiLnements of a witness upon subsequent refusals of the witness to testify 
about the same transaction. 

The association also supports in principle the provnsion which would 
permit a witness before a Federal grand jury who is being interro- 
gated in connection with wiretapping, to raise as a defense that there 
were violations of the wiretapping statute in obtaining the informa- 
tion u}X)n which he is being interrogated. 

The association further supports in principle an amendment to the 
Federal Rules of Criminal Procedure which would entitle every wit- 
ness called to testify before a grand jury to have counsel present in the 
grand jury room in order to advise the witness of his or her rights 
in connection with that appearance. 

Finally, the American Bar Association supports the amendment 
which would permit the granting of "transactional" immunity from 
prosecution to a witness, rather than "use" immunity, as presently 
provided for in Federal law. 

There are several other matters which my Committee of the Crim- 
inal Justice Section of the American Bar Association has addressed 
itself to, but I want to stress the caveat that the recommendations of 
the committee have not yet been approved by the ABA and thus are 
mere recommendations until such approval is forthcoming. 

The Committee on the Grand Jury of the Criminal Justice Section 
of the American Bar has considered tlie Abourezk bill and again — 
with the caveat that the action of the conunittee has not been approved 
"by the full ABA or by the Criminal Justice Section — the committee 
has made a number of recommendations. 

We would amend section (c), page 11, by inserting the words 
"except perjury" following the phrase "in any criminal proceeding," 
on line 12. 

The committee specifically approved the provision which would pre- 
vent calling a witness before the grand jury if the attorney for the 
Government has been notified in writing that the witness will invoke 
the fifth amendment. 

Turning to other provisions in Senator Abourezk's bill, some of 
whicli mirror sections of Congressman Eilberg's proposal, we support 
provisions which would prohibit multiple confinements of a witness 
ui^on a subsequent refusal of the witness to testify about the same 
transaction. 

AVhile the American Bar Association has adopted a policy opposing 
the reduction from a maximum of 18 months to 6 months for civil 
•contempt, I would like to point out that my committee has recom- 
mended a maximum of 12 months and will be asking the ABA to re- 
consider its curi-ent position on that matter. 

]\Iy committee also has a number of other recommendations, includ- 
ing, of course, a pro^'ision which would require advising a witness of 
his right to counsel before his appearance and iinmunizing a witness 
from prosecution who may be indicted and has not lieen so advised. 

We also would recommend a complete stenographic record of all 
grand jury proceedings and require that a transcript of such recoixl be 
})rom'-)tly furnished to a witness after his or her appearance; and we 
would provide that any witness, before testifying, may examine and 
•copy any statements which the witness has made and which relate to 
the subject matter under inquiry. 



58 

The coininittee strongly recommends a prohibition against the at- 
torney for the Government, if he or she has received written notice in 
advance of the witness' appearance, that the witness intends to exercise 
the privilege against self-incrimination, from compelling the appear- 
ance of that witness before the grand jury unless a grant of immunity 
has been obtained. 

Our committee's standards also provide that the grand jury sub- 
pena should indicate generally the statutory and subject areas of the 
grand jury's inquiry, which is consistent Avith Senator Abourezk's bill. 

Those are some of the highlights of the recommendations of my 
committee on the grand jury and I have also attempted to recite for 
you matters which the American Bar Association, through its House 
of Delegates, has previously gone on record approving. 

There are several reforms of the grand jury operation that I have 
instituted voluntarily in my jurisdiction. 

I cannot permit counsel in the grand juiy room, since there is a 
statutory prohibition in Florida against that. 

But in the 20 years that I have been State's Attorney I have per- 
mitted prospective defendants, and offered all prospective defendants 
the right, to appear and testify before the grand jury, provided they 
sign a Avaiver of innnunity and also provided prospective defendants 
with the opportunity to present witnesses to the grand jury in their 
behalf, provided the witnesses sign a waiver of immunity. 

T have always advised the jurors of any exculpatory evidence which 
pertains to the matter under investigation. 

We have limited and attempted to prohibit the use of any illegally 
obtained evidence or, in fact, any evidence which would not be ad- 
missible at trial. The only hearsay evidence which we permit before 
the grand jury would be what you might term "reliable hearsay," such 
as medical evidence or medical examiners' reports, an autopsy report, 
that kind of hearsay, rather than requiring the Avitness himself to 
appear. 

We have always insisted upon the production of witnesses before 
the grand jury so that the jurors could oliserve them and interrogate 
them — rather than presenting a summary of what a Avitness will testify 
to, as is done in many, if not most, jurisdictions. 

In short, we have attempted to do voluntarily many things which 
the legislation proposed by Senator Abourezk and 1)}^ several Congress- 
men Avould require tlie Government to do under the law. 

All this is in an effort to prevent some of tlie abuses that tend to- 
undermine and render ineffectual the grand jury system. 

Mr. Levtne. Thank you very much, ]\Ir. Gerstein. 

Senator Tunney, who is necessarily absent today, has left a number 
of questions on Avhich he would appreciate your answer. 

You haA^e a vast experience in these matters through your 20 years- 
as a prosecutor. In addition you have had extensive opportunity to 
learn of the practice of other prosecutors through your serAdce as 
president of the National District Attorneys Association, and as chair- 
man of the grand jury committee of the American Bar Association. As 
to some of our questions, if the American Bar Association has not taken 
a position itself, perhaps you could give us the benefit of 3'our own 

A'icAVS. 



59 

The Cong-ress is now considering provisions for appointment of fu- 
ture Watergate-style Special Prosecutors, either by establishing a per- 
manent Special Prosecutor or by setting up a mechanism to appoint 
temporary Special Prosecutors when needed. 

This problem, of course, concerns the grand jury, because the grand 
jui-y may sometimes wish independent counsel — for example, if it 
were investigating a U.S. attorney or his assistants, or law enforcement 
agencies witli whom he works closely, or high officials in the Justice 
Department. 

Could you please tell this committee your views on whether or not 
the grand jury should have the right to request the appointment of an 
independent prosecutor ? 

Mr. Gerstein. Yes. 

The American Bar Association is on record at present opposing 
this right. I personally strongly favor it. 

The grand jury iii my jurisdiction has always had the right to 
independent counsel. There are three vehicles through which the grand 
jury in my jurisdiction can obtain independent counsel. 

One is a statutory right which allows them to hire counsel of their 
own choosing. 

The second is by a petition to the court which has impaneled them 
asking the court to appoint counsel. 

The third provision is by a request to the Governor of the State for 
the assignment of a Statue attorney from another jurisdiction. All 
three methods have at times been used. 

I think that it is imperative that grand jurors retain the right to 
independent counsel for the very purposes outlined in your question. 
However, I feel there should be a strong caveat. There should be a 
conunitment tliat goes with that right — requiring the independent 
counsel to prosecute all cases in which he or she obtains an indictment. 
Otherwise, the right is meaningless. I have seen repeated instances in 
which special counsel obtain indictments from grand juries and then 
walk away from prosecution; and I think there is a great tempta- 
tion on the part of special counsel, particularly if that counsel is not 
experienced in the criminal law, to obtain indictments Avhere the evi- 
dence is insufficient, and then to leave those indictments to be prose- 
cuted by the regular prosecutor. 

Certainly, if you are going to give grand juries the ritrht to have 
independent counsel — and I personally believe they should have that 
right — then there must be with that right the requirement that the 
independent counsel prosecute the case. 

That is why I strongly oppose the establishment of an Office of 
Grand Jury Counsel, which, as the Senator pointed out, has been rec- 
ommended in New York State. To me, that would be counterproductive 
and meaningless unless the Office of Grand Jury Counsel was required 
to prosecrite all indictments which they obtain. 

One of the great protections in our system is that the prosecutor 
prosecutes grand jury indictments. That in itself is a bar to a reckless 
prosecutor or to one who would obtain indictments for political advan- 
tage with insufficient evidence. 

]\rr. Levtxe. Thank you. 

The second question on which Senator Tunney wished your views 
concerns the topic of multiple representation, where one defense 



60 

lawyer represents a number of witnesses appearing before the same 

grand jury. 

The Justice Department is concerned with this problem, and I 
l)elieve the Judicial Conference of the United States is also. 

Apparently there is a fear that a lawyer who is paid by a third 
party, or who represents more than one witness before a grand jury, 
might insist that all the witnesses take the fifth amendment, or that 
otherwise the lawyer might interfere with what some consider proper 
representation. 

I believe that one of the proposed standards studied by your com- 
mittee deals with this problem of multiple representation. 

Mr. Gers-fetn. Tliat is correct, sir. 

We have adopted a proposed standard — and I stress that it is only a 
proposed standard — which is not yet the position of the American 
bar unless approved by it. 

I will read this into the record. 

This is the proposed Standard for Representation of Multiple Wit- 
nesses Before a Grand Juiy. 

(1) In cases of multiple representations, as hereinafter defined, the 
following factors should be considered by counsel in determining 
whether multiple representation is appropriate : 

(a) whether the multiple representation will work to the disadvan- 
tage of one of the clients ; 

(h) whether full disclosure has been made to all clients of any 
potential conflict of interest and all clients have consented to multiple 
representation; 

(c) whether the multiple representation would diminish the quality 
of legal representation received bv any of the clients; and 

(d) whether multi]ile representation would inhibit witnesses from 
testifying truthfully because of the lawyer's relationship to the other 
clients or any other person affiliated with the other client. 

(2) The lawyer should fully ndvise his clients of the possible effects 
of the multiple representation. If each consents to the representation, 
after full disclosure of the possible effects of such representation, the 
lawyer may continue with the multiple representation, provided that 
this representation is consistent with the other standards set forth 
herein and consistent with the code of professional responsibility. 

(3) A lawyer should not continue multiple representation of clients 
in a grand jury proceeding if the exercise of his independent profes- 
sional judgment on behalf of one of the clients will be or is likely to be 
adverselv affected bv his representation of anotlier client. 

(4) If a lawyer is requested to undertake or to continue the rep- 
resentation of multiple clients having potentially different interests 
lie should weigh carefully the possibility that his judgment may be 
impaired or his loyalty divided if he accepts or continues the employ- 
ment. He should resolve all doubts against the propriety of the 
representation. 

(.5) Multiple representation is defined as : 

(a) two or more witnesses in a strand jury proceeding ; 

(h) a witness and a potential defendant in a grand jury proceeding ; 
and 

(r) where the fee for the representation of a witness is paid by a 
third party who is a witness or potential defendant in a grand jury 
proceeding. 



61 

Mr. Levine. Mr. Gerstein, am I correct that under this j^roposecl 
standard, the decision is up to the defense lawyer himself, and is not 
made by the prosecutor or by the court ? 

jMr. Gerstein. Yes. 

We think that to do anything less than that would inhibit a basic 
right to be represented by counsel. 

Mr. Levixe. Mr. Gerstein, Senator jVlathias' last question to Mr. 
Van de Kamp asked for examples of specific instances of abuse or 
specific instances of harassment of witnesses on the part of the grand 

Could you tell the committee of any such examples that you know of ? 

Mr. Gersteix. The examples of abuse that I have seen, have in the 
overwhelming majoritj^ of instances, been abuses by Federal grand 
juries. I think there is far less abuse in the State system. 

One reason for that may be that most prosecutors in the State 
system are elected officials, rather than appointed officials; perhaps 
they are far more sensitive to public opinion and to news media re- 
action in the handling of grand juries in sensitive matters. 

But the examples I have seen of unfairness, of abuse of witnesses, 
of improper ^^rand jury activity, of leaks from grand juries, and of 
leaks concerning investigations, have occurred far more frequently 
in the federal sj^stem than in the State system. 

Mr. Levine. Are there any specific examples that you might 
mention ? 

Mr. Gerstein. At the moment, ISIr. Levine, I cannot think of any 
examples. 

Mr. Levine. Mr. Gerstein, the bill introduced by Senator Abourezk, 
togeclier with Senators Gravel and McGovern, differs in certain re- 
spects from those introduced in the other body. 

I wonder if I could raise some of the specific points where these 
bills differ to see if you have an opinion as to these it<^ms. 

For example, several of the proposed bills require that a person 
subpenaed to appear before a grand jury be warned whether or not 
he is a target of the investigation, a potential defendant. Other bills 
do not. 

Do you think this requirement is desirable ? 

Mr. Gerstein. Yes, I personally think it is desirable. It should be 
a requisite of any legislation considered by the Congress. 

Mr. LE\r[NE. Could vou give us vour reason for this ? 

Mr. Gerstein. It is a matter of basic fairness, I personally believe, 
to advise a witness and the witness' counsel that he or she is a potential 
target, so that the witness can avail himself of any constitutional pro- 
tections to which he may be entitled and which lie may otherwise be 
willing to waive, so that he can make a complete, independent judg- 
ment concerning his own willingness to waive immunity and any other 
constitutional protections that he may desire to waive or not to waive ; 
so he can make an independent judgment based upon knowledge of all 
the circumstances. 

If he is a target, the decision on that waiver may be completely dif- 
ferent from the decision if he is merely a witness. 

Mr. Levine. Several of the bills also differ as to the role of the mem- 
bers of the grand jury themselves. In certain of the bills, the provision 
is made that the grand juiy members must vote on the issuance of a 
subpena. Others leave that up to the prosecutor. 

78-905 — 76 5 



62 

Some of the bills require also that the grand juries vote on a grant 
of immunity. Others leave that decision up to the prosecutor. 

Mr. Gerstein. I am a prosecutor in the jurisdiction where the grand 
jury has a tradition of independence that is perhaps unrivalled in the 
United States; and yet I recognize, as does my committee on the grand 
jury, that there are certain practicalities involved. 

I do not personally deem it practical to have juries vote upon sub- 
penas. They do not have the necessary background nor the day-to-day 
contact with the investigation which would enable them to make a 
meaningful judgment. 

My committee considered that proposal and rejected it. 

I think it worthwhile to have jurors vote on immunity and. as a mat- 
ter of fact, the jurors in my jurisdiction do vote on the question of 
immunit}^ 

Here again, I think you will find as a matter of practicality that in 
most jurisdictions the juries are going to vote on that question in 
whichever direction the prosecutor recommends, and that is just the 
practical basis of the votes. 

Mr. Levine. Mr. Gerstein, in your testimony, if I understood it 
properly, you told us that in your jurisdiction hearsay is not presented 
to the grand jury except under special circumstances, such as medical 
records. 

Mr. Gersteix. Something that you might call reliable heai-say. 

Mr. Levixe. And that mattei's which would be inadmissible at trial, 
for example, evidence which has been seized in violation of the fourth 
amendment, arc not presented to the grand jury. 

On the other hand, material favorable to the target which is known 
to the prosecutor would be exposed to the grand jury. 

Mr. Gerstein. That is right. 

We do all these things that you outlined on a vohmtary basis in my 
jurisdiction, and have done them during the entire time that I have 
been the prosecutor. 

Mr, Levine. Do you believe these should be made a requirement of 
law for the Federal grand jury ? 

Mr. Gerstein. Yes ; I do. 

I think all of those things— and my committee believes that all of 
those things — ^are inherent in the fair and effective administration of 
justice and are matters which every prospective defendant or defend- 
ants are entitled to. 

Mr. Levine. You have had practical experience rmming gi\and juries 
under the system. 

Do these rules raise any practical problems ? 

Mr. Gerstein. No. They do not. 

What they do is not only insure the constitutional and statutory 
rights of persons who are under investigation, but it seems to mo that 
they produce better cases, cases which are more likely to be successful 
and which are less likely to receive attacks in the trial courts. 

Mr. LE^^NE. Mr. Geretein, I have one last question on Senator Tun- 
ney's behalf, and then perhaps other counsel may have questions. 

This concerns a matter which you raised in your testimony about 
the witness who refuses to answer grand juiy questions, even if granted 
iimnunity. 



63 

Some of those who refuse to answer are seriously motivated by first 
amendment principles. The committee has been told of examples of the 
use of this coercion of testimony as a means of harassing such persons 
who, based on sincere beliefs, choose not to give information. But we 
have also been told that persons connected with organized crime, or 
criminal elements, may also refuse to give testimony, even if given 
immunity. 

You mention a suggested change in current law. As I understand it, 
under current law, such a person may be imprisoned sometimes up to 
18 months. You said that your committee favored a 12-month limi- 
tation. Senator Abourezk's bill suggests 6 months limitation. 

Now, as I understand it, in other situations, a person is not impris- 
oned for more than 6 months unless he had had a right to a jury trial. 

Why do you believe there is opposition to a similar rule that a recal- 
citrant witness not be incarcerated for more than 6 months? 

Mr. Gerstein. I personally have some substantial problems with 
this whole issue; and I think the memberehip of my committee had 
many of the same problems. 

Almost any length of time that you seize upon here can be criticized 
as being arbitrary and too punitive, or can be criticized as too lenient. 

Probably the point you make is a valid one ; if tliere is going to be 
any punishment for longer than 6 months, there ought to be a jury 
l^roceeding. 

On the other question — which is the area with wliich I have diffi- 
culty — I know of manj^ persons who may refuse to testify, but do so 
on the basis of legitimate considerations of conscience. 

Insofar as the first amendment right of newspersons is concerned, 
I have some strong pereonal positions. I have an office policy which 
prohibits the subpenaing of any newsperson by any of my assistants. 

I have the right of subpena without the use of a gi-and jury; we 
have office subpena poAver under the law in Florida. My policy pro- 
hibits an assistant subpenaing a newsperson to obtain a source, to 
obtain information as to a source. That is just an absolute prohibition 
I have instituted because I feel this is so strongly violative of the 
first amendment rights of newspersons. 

You can get into a more difficult area when other witnesses who 
may be involved in organized crime activity or other criminal activi- 
ties are refusing to testify after having been granted immunity, alleg- 
edly as a matter of conscience but actually in order to protect their 
coconspirators. 

This is an area that has given us a lot of difficulty, but we have 
resolved it as far as newspei-sons are concerned. 

Mr. AViLKA. Senator Abourezk has requested met to ask several 
questions, particularly with reference to S. 3274. 

I note that the ABA favors permitting counsel inside the grand 
jury room. What role should counsel play during the grand jury pro- 
ceedings ; and can you recommend any statutory language to the Con- 
gress which would help define the limits of counsel's participation in 
the grand jury room ? 

Mr. Gersteix. My committee addressed itself to tliese questions in 
drafting our proposed standards; what we suggest is this: That the 
role of counsel will be much the same as the role of counsel to a witness 



64 

before congressional committees that he or she would be in the grand 
jury room in an advisory capacity to the witness. He or she would not 
haA'e a speaking role in the grand jury; would be permitted to be 
])resent with the witness in the grand jury room, but should be allowed 
to be there to advise the witness ; should not be permitted to address 
the grand jurors; and should not be allowed to be present at any time 
other than when his or her client is present or otherwise be allowed 
to take part in the proceedings. 

The counsel's capacity there would thus be very similar to counsel's 
capacity before congressional and senatorial committees. 

But it would make it an impossible situation to give counsel a 
speaking role. 

The present situation, in which witnesses are permitted to leave the 
grand jury room and consult with counsel, is not only cumbersome, 
but — in my opinion — it is highly damaging to the cause of the person 
who is before the grand jury, in the eyes of the grand jurors. Witnesses 
are undeniably severely damaged when jurors see the witness con- 
tinually getting up to leave and counsel with his or her lawyer ; there 
is an assumption, I think, on the part of the jurors that the answers 
tliat then are forthcomhig are less than totally truthful. 

ISlr. Wii.KA. Even within the guidelines that you have recommended, 
the criticism has still been made that permitting counsel within tlie 
grand jury room would eventually make the process too adversarial. 

Do you see any problems along those lines ? 

Mr. Gerstein. I can certainly see that that criticism could be legiti- 
mately raised. What would be needed, I think, would be a strong 
position taken by tlie court to limit any counsel who attempted to in- 
ject himself into the proceeding. If the courts are willing to take such 
a strong position and to punish any counsel who violates his status in 
the grand jury room, then that kind of violation would end in short 
ordei*. 

One of the things that impressed me when I first sat down to chair 
the Grand Jury Committee of the ABxl Criminal Justice Section was 
that the committee was composed almost entirely of people with ex- 
tensive prosecutorial experience. While there were only two active 
prosecutors on the committee, every member had extensive prosecu- 
tion experience. Every committee member was in accord that they 
had seen substantial abuse of the grand jury process and everyone 
of the committee members was in accord that there was a need for 
substantial reform. 

Everyone there had a prosecution background, 

Mr. WiLKA. You referred before to the fact that you personally 
favor the right of the grand jury to have a special prosecutor or spe- 
cial attorney assist in its deliberations. 

Do you believe that the grand jury should be permitted to request 
the appointment of a special prosecutor whenever it cliooses, or do 
you think a showing of some prosecutorial bias or foot dragging 
should first be required, or is there some other standard you Avould 
suggest ? 

Mr. Gerstein. I personally think the grand jury should be per- 
mitted to request a special prosecutor only upon a vote of a minimum 
of 12 of the jurors. This is the same vote that would be required for 
indictment in my jurisdiction. Tliat is a majority of the grand jury. 



65 

If you are going to talk about things like foot dragging, you are 
going to allow a lot of room for difference of opinion and for sub- 
jective judgment. 

But I think that on a showing of good cause to the court and a vote 
of a majority of the jury, that special counsel should be permitted. 

I think that tliere would be few situations in which a majority of 
the jury would become so disillusioned that they would request special 
counsel, unless they were receiving some sort of outside pressure, I do 
want to say that jurors and juries are not immune from those kinds 
of pressures. There have been instances in the historv of the, United 
States and the. history of all the States where grand juries have been 
used for political purposes. I have witnessed that firsthand. I think 
any prosecutor has. 

Mr. WiLKA. Do you think tliiit the jurisdiction of such a s])ecial 
prosecutor should be limited to investigating cases of oiScial miscon- 
duct, or should the grand jury have the po'wer to investigate any 
crime ? 

Mr. Gersitjx. I would not limit it. I would give special counsel an 
unlimited right to invesigate anything that is Avithin the purview of 
the grand jury to investigate. In my State that means almost anything. 

]Mr. WiLKA. I note that the Department of Justice opposes the ]3ro- 
vision of our bill which woidd give the witness a right to obtain n 
copy of the transcript of his or her grand jury testimony. 

In the testimony before the House, the Department explained that 
they felt that in an organized-crime situation the witness could be 
coerced by fellow criminals to reveal to tliem otherwise secret testi- 
mony. 

Would you comment on this provision of the bill and the Depart- 
ment's criticism of it ? 

Mr. Gersteix. I think that is a legitimate concern, 

I would recommend that upon a proper showing by the Government 
that such a danger exists to the witness, or upon the AAdtness' represen- 
tation that such a dano-er exists, that in those situations the court could 
nej.rate that requii'ement. 

In other situations, I would favor giving the witness a copy of his 
testimony only if lie is being recalled by the gi-and juiy on the same 
subject matter. 

]\rr.WTLKA. During tliose same hearings on. the House side, ]Mr. 
David Austern of the American Bar Association, who accompanietl 
you at that time, suggested that Congress could statutorily define 
"infamous crime" in such a way as to s])eed up grand jury proceedings 
and free the grand jury to pursue other investigations. 

Could you comment on that suggestion and, if you support such a 
procedure, could you recommend to the subcommittee what statutory 
change would be required to produce that result ? 

Mv. Gersteix. I personally favor that suggestion. I think it can be 
done. T believe the American Bar Association is on record opposing 
thnt. But T as an individual favor it. 

In my State, a Tirosecutor can prosecute by information all crimes 
except those punishable by death. These must be presented to the 
graiid jury. 

As a matter of practice, virtually all prosecutors in my State pre- 
sent matters involving allegations of official corruption to a grand 
jury as a safeguard both to the State and to the accused. 



66 

I believe that — M'itlioiit endangering the rights of any person — one 
conkl trust to responsible U.S. attorneys the right to file a direct 
information m a great class of felonies. This would make it mineces- 
sary to take up the time of grand jurors with the presentation of 
routine felonies such as interstate theft of automobiles and routine 
narcotics cases, which are presently presented to Federal jurors and 
are extremely time consuming and expensive. There would be no 
deprivation of any substantial right enjoyed by a witness or by any 
other citizen, since they are not enjoying any substantial rights today 
in the 2:)resentation of those cases. 

]Mr. WiLKA. Can you recommend any statutory guidelines which 
the Congress might keep in mind in trying to determine which felonies 
would be "infamous crimes" and whicli w^ould not in such a statutory 
change ? 

Air. Gerstein. One could draw the line in almost any fashion. You 
might exclude felonies involving the deatli penalty. You might ex- 
clude cases involving treason against the United States. You might 
exclude, if you desire, situations involving official corruption. 

It could be drawn in any fashion, arbitrary or otherwise; and I d(> 
not see that it would minimize an individual's rights because, as I said 
earlier, I cannot see where those rights are being protected under 
present Federal grand jury procedures. 

]Mr. WiLKA. I only have one further question. 

This relates to that section of the bill intending to increase the 
independence of the grand jury. 

Senator Abourezk's bill would require that the grand jury be given 
instructions explaining its rights and duties, including the right to 
call witnesses and to initiate an independent investigation. 

Do you think that giving these instructions will really increase 
grand jury independence in a meaningful fashion and, if not, would 
you recommend another approach to the committee ? 

Mr. Gerstein. I think such instructions are necessary. 

In my jurisdiction, the grand jury is charged by the couit at the 
time of its empaneling and each juror is given a copy of that charge. 
They are fully advised as to their rights. 

I do not, however, think that in itself is sufficient — you have lay- 
persons who are not well vei-sed in the law and not totally cognizant 
of the rie:hts they have as jurors. I believe many of these rights must 
be enacted into legislation for them to be meaningfiil. 

I do not think the mere charge of the court is sufficient, even if 
the charge were to be repeated several times during the tenn, I do 
not feel that would be as effective or could be as effective as the en- 
actment of these rights into legislation. 

IVIr. WiLKA. Thank you. 

lN[r. Levtne. Thank you, Mr. Gerstein. 

[The prepared statement of Richard E. Gerstein follows :] 

Prepared Statement of Richard E. Gerstein. Chairman, Committee on the 
Grand Jurt, Criminal Justice Section, American Ear Association 

Mr. Chairman and members of the Subcommittee: My name is Richard E. 
Gerstein and I am State Attorney of the 11th Judicial CircTiit of Florida, which 
is the greater INIiami area. I have held this office for 20 years, and have just been 
elected without opp'^>;ition to a sixth term. I have served as the President of the 
National District Attorneys Association and I am also serving my second year as 



67 

Chairman of the Grand Jury Committee of the Cviminal Justice Section of the 
American Bar Association. 

I appear before you today to present the views of the American Bar Association 
with respect to proposed changes in grand jury procedures. 

The Committee on the Grand Jury was created by the Criminal Justice Section 
in September, 1974. Our mandate is to examine proposed legislation to revise grand 
jury procedure, and to offer proposed changes for American Bar Association 
approval. 

It is significant to note that the membership of the Criminal Justice Section 
of the American Bar Association represents every segment of the criminal justice 
system: prosecutors, trial and appellate judges, public and private defense 
attorneys, corrections officials, persons engaged in investigation and enforcement, 
law school professors and students, and others. We number over 12,000 attorney 
and law student members. 

The Committee on the Grand Jury is equally representative of the profession, 
and consists of federal and state prosecutoi-s, practicing defense attorneys, public 
defenders, judges, law professors, and law students. During the past two years 
the Committee has met on some nine occasions to consider and study grand jury 
procedures and practices. 

From September, 1974 to June, 1975 the Section Committee on the Grand Jury 
studied legislation pending in the Congress with respect to the grand jury. The 
Committee issued a report, parts of which were subsequently approved by both 
the Council of the Criminal Justice Section and the House of Delegates of the 
American Bar Association. Since September 1975, the Committee has pursued 
a different tack. Rather than studying and issuing a report with respect to 
pending legislation, the Committee through the work of six subcommittees has 
proposed changes of its own in grand jury procedure. These Committee grand 
jury proposals were presented to the governing Council of the Criminal Justice 
Section in May. These proposals have not 1 een approved by either the Section 
Council or the House of Delegates of the American Bar Association, and conse- 
quently are not the approved policy of the American Bar Association or the 
Section. 

The ABA has taken several positions in connection with proposed Congressional 
legislation which may be of interest to your committee. They are as follows : 

I. II. J. RESOLUTION 46 

The American Bar Association opposes. In principle. House Joint Resolution 46, 
which would amend the 5th Amendment to the United States Constitution, to 
eliminate the requirement that a defendant to be charged for any "capital or 
otherwise infamous crime" against the United States be proceeded against by 
way of indictment. Although we are mindful of the expense and time consumed in 
presenting many federal offenses to a grand jury which might more efficiently be 
prosecuted by way of information (forgery and uttering, interstate transporta- 
tion of a stolen motor vehicle, etc.), we are unable to propose a satisfactory 
resolution to this problem which would be short of Constitutional amendment. 

We note that the difficulty of presenting every felony case to a federal 
grand jury may take on added importance in the future in light of the 
recently enacted Speedy Trial Act, which will place a substantially increased 
burden on both the prosecutor and the grand jury process itself. 

II. H.R. 127 7 

The American Bar Association endorses in principle certain amendments to 
Titles 18 and 28 of the United States Code as proposed by H.R. 1277, and 
opposes in principle certain other amendments. 

We support in principle Section 2(a) of H.R. 1277, to the extent that it would 
amend the extant recalcitrant witness statute (28 U.S.C. 1826(a)) to prohibit 
multiple confinements of a witness upon subsequent refusals of the witness to 
testify about the same transaction. 

The Association also supports in principle Section 2(c) of H.R. 1277. This 
would permit a witness before a federal grand jury to allege a violation of 
Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (18 U.S.C. 
251. commonly ^referred to as the "Federal Wiretapping Act") as a defense to an 
action brought against him or her under the recalcitrant witness statute of which 
I just spoke, 18 U.S.C. 1826 (a) . 



68 

In addition, the Association supports in principle Section 4(a) of H.R. 1277, 
which, by the addition of 18 U.S.C. 3330A(c) and by an amendment to Rule 6(d) 
of the Federal Rules of Criminal Procedure, would entitle every witness called 
to testify before a grand jury to have counsel present in the grand jury room in 
order to advise the witness of his or her rights in connection with that appearance. 

Finally, with respect to Section 5 of H.R. 1277. the American Bar Association 
supports in principle the amendment to 18 U.S.C. 6002. which would permit the 
granting of "transactional" immunity from prosecution to a witness, rather 
than "use" immunity as presently provided for in federal law, and in Section 
3111 of the proposed i-evi.sion of the Federal Criminal Code (S. 1, 94th Congi-e.ss). 

Two subsections of H.R. 1277 are supported in principle by the American Bar 
Association, subject to suggested revisions. 

Section 2(c) of H.R. 1277 would proscribe the unauthorized disclosure of 
grand jury information, and the solicitation or attempt to obtain unauthorized 
disclosure. The Association would support this section if it were amended to 
provide an increase in the penalties for such disclosure. Section 4(a) of H.R. 
1277 would add 18 U.S.C. 3330A(c) with respect to delaying the appearance 
of an immunized witness upon service of a subpoena.- The bill would provide a 
one-week period between service of subpoena and the v.itne.ss' schedule<l appear- 
ance unless the government shows special need for a shorter period. The Associa- 
tion would support this provision in principle if it were amended to provide a 
72-hour period — instead of one week — unless special need is shown by counsel 
for the government. The ABA's rationale in urging the 72-hour period is that 
the longer period would unduly prolong grand jury proceedings and would reduce 
the effectiveness of grand jury investigations. 

The American Bar Association opposes in principle Section 2(a) of H.R. 1277, 
which would amend the recalcitrant witness statute (28 U.S.C. 1826(a)) to 
reduce the maximum period of confinement for refusal to testify before a grand 
jury from 18 months to 6 months. The Association also opposes in principle 
Section 2(b) of H.R. 1277, which would amend 28 U.S.C. 1826 (b) to place the 
burden of opposing bail pending appeal upon the government, following confine- 
ment of a Vvitness for a refusal to testify before a grand jury. The ^Association 
opposes in principle Section 4(a), which would add a new section (18 U.S.C. 
3380) to permit a grand jury to require the Court to appoint a special prosecutor 
to assist the gi-and jury in the conduct of an independent inquiry. 

III. OTHER GRAND JURY LEGISLATION 

As T hf>ve previously noted, additional legislation affecting the grand jury was 
introduced in the 94th Congress — specifically, H.R. 29S6 and H.R. 4004. intro- 
duced by Congi-essman John Conyers ; and H.R. 6006, introduced by Congressman 
Robert Kastenmeier. The official ABA policy is confined to H.R. 1277 and H..J. 
Res. 46, since the Section's 1975 review of pending legislation focused on those 
bills. 

This Subcommittee should note that the ABA-approved recommendations are 
confined to these two measures. 

The Committee on the Grand Jury of the Section has since considered the 
Aliourezk bill, S. 3274, and again with the caveat that the action of our Com- 
mittee has not been approved by either the Criminal Justice Section Council or the 
ABA House of Delegates, and represents only the views of our Committee mem- 
bers, mode the following recommendations : 

The Committee approved the provisions of the Abourezk bill except that 
it would amend ^ (c), page 11, by inserting the words "except perjury," following 
the phrase "in any criminal proceeding" on line 12. The Committee specifically 
approved the provision which would prevent calling a witness before the grand 
jury if the attorney for the government has been notified in writing that the 
witness v/ill invoke the Fifth Amendment. 

Turning to other provisions in Sen. Abourezk's bill, some of which mirror 
sections of Congressman Eilberg's H.R. 1277, the ABA supports provisions of 
See. 3(a) of S. 3274 which would prohibit multiple confinements of a witness 
upon subsequent refusal of the v.-itness to testify about the same transaction. 
With re.spect to Sec. 2(a)(1) of S. 3274, the Association has adopted policy 
opposing the reduction from a maximum of 18 months to 6 month.s for civil 
contempt : I should point out, hov\-ever. that my Committee has urged a maximum 
of 12 months — and will ii-^ asking the ABA to reconsider its current position 
on this. As in the Eilberg bill, the ABA opposes the portion of Sec. 4(a) in S. 3274 



69 

which authorizes a special independent inquiry and appointment of a special 
prosecutor. 

The Association strongly favors allowing counsel for a witness to be present 
in the grand jury room during his/her appearance; this is included in Sec. 4(a) 
of the Abourezk legislation. 

Going beyond the currently-approved ABA policy and its applicability to 
S. 3274, our Committee's proposed standards address a number of additional 
provisions in the Abourezk bill. I will enumerate several of these. I nuist reiterate 
that these do not at present represent ABA-approved policies; our Committee 
will be seeking Criminal Justice Section and Association clearance of these 
positions, however, in the near future. 

Our Committee's standards comport in numerous respects with portions of 
Sec. 4(a) of S. 3274 — those provisions advising witnesses of their right to 
counsel before their appearance (proposed § 3330A(b) (1) ) ; immunizing from 
prosecution any witness not so advised (proposed § 3330A(c) ) ; requiring a com- 
plete stenographic record of all grand jury proceedings (proposed § 3330A(i) (1) ; 
re<iuiring that such transcript be promptly furnished to the witnes-s after bis/lier 
appearance (proposed § 3330A(i) (2) ) ; providing that any witness — before testi- 
fying — may examine and copy any statements which the witness has made, and 
which relate to the subject matter under inquiry (proposed §3330A(j)) ; and 
forbiddijig the attorney for the Government, if he/she has received written 
notice in advance of the witness' appearance that the witness intends to exercise 
the privilege against self-incrimination, from compelling the appearance of that 
witness before the grand jury unless a grant of immunit.v has been obtained. 
Our Committee's standards further provide that the grand jury subpoena should 
indicate generally the statutory and subject areas of the grand jury's inquiry ; 
this is consistent with the Abourezk bill (Sec. 4(a), proposed §3330A(b)(4) 
and (5)). 

Our Committee further applauds Sen. Abourezk for including in his legislation 
the provision which would require the attorney for the Government to present 
any exculpatory evidence in his/her possession to the grand jury (Sec. 4(a), 
proposed §3330A(o)). 

The Section's Committee on the Grand Jury is continuing its work and will be 
making further recommendations this fall to the governing Council of the Crimi- 
nal Justice Section. I am pleased to rei>ort that Section Chairman Alan Y. Cole 
has decided to continue our Committee on the Grand Jury for another year. The 
Section is committed to a continuing study of grand jury reform. We believe this 
is important w^ork and a task which deseinres our continuing attention. 

We are mindful of the dut.v of the members of this Subcommittee to report to 
the full Congress as to these hearings and grand jury reform generally. I would, 
nonetheless, respectfully ask you to permit us to return in the next Congress if 
further hearings are scheduled, when additional positions concerning the grand 
jury have been formally approved by the ABA House of Delegates. 

I would be happy to answer any questions you may have with respect to our 
position on the grand jury. 

]Mr. Le\t:ne. Our last witness for this morning's hearing is Prof. 
iMelvin B. Lewis. 

Professor Lewis is a professor of law at tlie John Marshall Law 
School, Chicago, 111. He is an official of the National Association of 
Criminal Defense Lawyers, serving that association as chairman of 
its Legislative Committee. 

TESTIMONY OF MELVIN B. LEWIS, PROCESSOR OF LAW, JOHN 
MARSHALL LAW SCHOOL, CHICAGO, ILL. ; AND CHAIRMAN, I'TA- 
TIONAL LEGISLATIVE COMMITTEE, NATIONAL ASSOCIATION OF 
CRIMINAL DEFENSE LAWYERS 

Mv. Levine. Professor Lewis, the committee is grateful that you 
have come all this way to join us this morning. We thank you. 

INTr. Lewis. "Well, for my part, sir, I am very grateful for the oppor- 
tunity to be here and very deeply encouraged, sir. as is my association. 



70 

by the apparent willingness of the Congress to consider the various 
serious problems that have been generated by the grand jury proce- 
dures as presently practiced. 

I have prepared, as you are aware, sir, a written statement on behalf 
of the association and would ask, if I may, that that be made part of 
the record here. 

Mr. Levine. Your written statement will be made a part of the 
record and inserted at the end of your testimony. Could you give the 
committee, perhaps, a summary of its contents ? 

Mr. Lewis. Well, sir, as you are aware, I represent the National 
Association of Criminal Defense Lawyers. It is customary to com- 
mence any apologia for present grand jury practices, with a recitation 
of the historical significance of the grand jury as a meaningful pro- 
tection to persons who might be accused of crime. And in fact, it is 
an expressly articulated constitutional safeguard. Given that repeated 
acclaim of the grand jur}^ system as a protection for the innocent, it 
might be assumed, at least by a visitor from Mars, that as a repre- 
sentative of the criminal defense bar I would be here to utter praise 
for that system. 

In fact, nothing could be a greater shock to any knowledgeable per- 
son than to hear praise of grand jury procedures emanating from a 
lawyer engaged in the defense of citizens accused by their govern- 
ment. That is a shock, sir, which will not be felt here this morning. 

A special poignancy, I think, attaches when any criminal defense 
lawyer discusses the subject of grand jury problems. My claim to your 
attention today derives less from my professional state, which is a rela- 
tively recent one, than from a period of better than 23 years as a 
practicing lawyer. 

I can recall, in fact, a happier day when the term "jailhouse lawyer" 
referred to a jail inmate who, by force of his occupation, had become 
engrossed in the law. This meaning today, alas, is vastly different 
indeed — almost the converse of that. We as lawyers have in recent 
times become quite literally a principal target of grand jury proce- 
dures, not in consequence of our personal activity, but rather in con- 
sequence of the knowledge which we vicariously derive from our 
clients. 

I might commence by expressing an area of very substantial agree- 
ment with the witness who just testified — Mr. Gerstein. As a ncAvly 
appointed member of his committee, I suppose it devolves upon me 
to express some agreement with him as chairman, and I will there- 
fore agree with him wholeheartedly in his comment that the problem 
is Federal rather than State. 

I would add this caveat — it is a Federal problem for the present. 
We can feel all across this country an impatience among the less 
thoughtful segments of the press and public based on the proposition 
that State prosecutors do not seem to be handling the grand jury 
weapon with the same effectiveness as do Federal prosecutors. 

The Federal judicial system is, in this context, the teacher, the ex- 
ample for its State counterparts and it will not be long before this 
problem can no longer be isolated as a Federal phenomenon. 

It is easy to become strident, I think, in one's discussion of grand 
jury pi-oblems. It may, however, be that restraint would necessarily 
reflect an absence of candor. 



71 

This committee has expressed this morning an interest in specific 
instances of abuse of grand jury procedure. This is an area in which 
I believe that my association is almost uniquely equipped to comment. 

There are only two meaningful sources of information as to what 
really goes on. A grand juror is not one of those two sources, for 
the grand juror knows only what takes place in the grand jury room. 
A sophisticated view of the impact of the grand jury system can be 
derived only from a prosecutor or from a grand jury witness. The 
latter group is not only inarticulate and presumptively discredited 
by reason of this status, but quite beyond that, predicated upon their 
earlier experiences as witnesses, the members of that group really are 
very unlikely to volunteer to resume that role for any cause whatever. 

That second view, therefore, I suggest, must be presented by the de- 
fense bar, and this is the only such opportunity- which we have had to 
this time. We very much welcome it. 

Our only reserA^ition is that the problem is of such scope, such di- 
mensions, that within the period of 10 minutes it really is not possible, 
meaningfully, to scratch the surface. 

Grand jury subpoenas can and frequently do become a very expedi- 
ent police substitute for an arrest warrant. The forthwith grand jury 
subpena in Federal practice can literally be used in tlie absence of 
probable cause as a basis upon which to barge in on a citizen, quite 
literally, sir, take him into custody for all meaningful purposes, bring 
him before a grand jury, and there, in the absence of any warning as 
to his rights, in the absence of any advice as to his status, in the ab- 
sence of counsel, biing him into a chamber where he is interrogated in 
an atmosphere of consummate hostility, and exploit him in a manner 
which we would regard as completely intolerable if done in a police 
station. Yet, this is accepted as a feature of the grand jury process 
because of the fact that the grand jury historically was once some- 
thing other than what it is now. It is tolerated because of the fact that 
the very words "grand jury" brings to our minds a nebulous notion 
of an institution worthy of real veneration. Historical it may be, but 
historically, sir, it is very much in the position of a proverbial ax 
that Ijelonged to George Wasliington which had four new heads and 
seven new handles, but is still claimed to be the same ax. 

Fundamentally, it has changed beyond recognition and the situation 
may well be irretrievable. 

in that latter context, let me mention one very specific illustration 
of an all-night grand jury wliich sent agents roaming througli the 
Chicago area with John Doe subpenas. 

They were used to pull in for coercive and unantici]5ated question- 
ing, to be polite, people found on the streets who were thought to be 
participating in gambling, in prostitution, what have you. Those per- 
sons were served forthwith subpenas, taken b}^ armed and badged 
agents into a car, and hustled to the grand jury chamber. Such 
arrestee- witnesses are released only when the grand jury is done with 
them. 

In almost any setting, however, it is quite routine to see a policeman 
of any type assigned, to any agency place in a position to say to a 
citizen gifted with the theoretical right to tell a policeman that he 
would rather not be bothered in such terms as may fit within his lexi- 
con — the policeman can saj^ to that citizen, "If you will not talk to me 



72 

you will talk to a grand jury," He is not bluffing. He may very avcII 
Jiave a grand jury subpena in his pocket. 

That grand jury subpena rnay or may not have the name of the per- 
son thus addressed inscribed tliereon, but this is a defect that can be 
remedied very quickly. 

When responding to a grand jury subpena it is quite common for tJie 
witness to be directed to the prosecutor's office as the vestibule to the 
grand jury before which he is required to appear. 

He will then almost uniformly be subjected to importuning by agents 
or by prosecutors on the premise, ""Would you not rather talk to us 
than to the grand jury, your supposed protector ?'' 

This, likewise, sir. has happened and has happened very vividly in 
one case with which I am familiar and which involved a welfare mother 
wlio vras suspected of liaving received unauthorized welfare checks. 

The implications of that offense in terms of the survival of tlie 
Republic was really quite patent to those persons charged with collec- 
tion of whatever overpayments may have beeen made. I believe, how- 
ever, to be fair, there was also some suggestion that some checks had 
been taken which had been intended for other people. 

In any event, a postal inspector visited her, served her with the grand 
jury subpena and said, "You have your choice. You can go to the grand 
jury or you can come to my office where your rights will be Ijetter 
protected." 

She came to his office. She was then locked into a room N-irtuallj'' for 
the entiret}^ of the day, interrogated repeatedly, a-nd told that it had 
not yet been decided when or whether she might go home. Ultimately 
she confessed, resulting in her indictment. When the method of inter- 
rogation was brought to the attention of the judge, the prosecutor de- 
fended this practice on the ground that the postal inspector had really 
done nothing more than that which could have been done anyway be- 
fore a grand jury, and that grand jury subpenas are thus employed as 
a matter of routine and of right. 

My point ultimately is this — it is all well and good to say that the 
grand jury is no longer a meaningful force for the protection of in- 
dividual citizens, but that does not begin to approach the problem. 

The fact is that a grand jury is really nothing more than a police in- 
strumenality and cannot be judged by any standards different from 
those which we would employ in the case of any other police agency. 
There are many more dimensions to the problem, I will try to limit 
myself to the most significant of these. 

The grand jury problem, of course, cannot be divorced from the 
problem generated by the concept of "use" immunity, 18 U.S.C, 6002, 
and the KasfJgar decision. The upshot of all of this is that any citizen 
can be brought before a grand jury, given "use" immunit3% which 
means nothing more than the prosecutor promises that his testimony 
and the fruits derived therefrom will not be used in the event the wit- 
ness is prosecuted for any purpose other than impeaching the witness 
if he later says something different ; and given that rather meager con- 
solation he is then faced with what has been very aptly described as the 
cruel trilennna of contempt, perjury, or self -accusation. 

Xow, sevei-al members of the Supreuie Court as presently con- 
stituted — and I emphasize as presently constituted — have recently 



73 

recoii'iiized the proposition that the problem with fifth amendment 
viohitions is tliat the information thus derived becojiies unreliable. But 
what do we say then of the information derived from a grand jury wit- 
ness who is told fundamentally, "Either you are going to go to jail or 
if you testify in a manner at variance w^ith the prosecutor's theory 
of the case, as to which he already has some evidence, you will be 
charged with perjury." The perjury charge presents no special chal- 
lenge to the prosecutor because of the fact that the Kastlgar statute 
was enacted as part of a very broad legislative package wdiich also re- 
pealed the "two-witness" rule in Federal perjury prosecutions. Alter- 
natively, if the witness indulges in self -accusation, he has advised the 
prosecution that he wall have no defense if he is indicted. 

A witness placed in that position has abolutely ever}' incentive in 
the world to ask himself, in response to any given question, whether his 
primary consideration ought to be not what is tiue, but what is in his 
self-interest. This is a problem which is exacerbated if he is told also 
that if he tells "the truth", that is, that which corresponds with the 
prosecutor's view of the facts of this case, then he will not be charged 
with anything. Under those circumstances, the obvious way out is to 
say what the prosecutor wants to hear, and almost inevitably he will 
say that. 

Of the many other serious problems, I would give special emphasis 
to the impact of the Calandra line of cases, Gdlandra facially says 
nothing more than that a fourth amendment violation does not preclude 
the questioning of witnesses before the grand jury with regard to 
matters derived from that fourth amendment violation. 

Implicitly, Calandra means that a policeman has every incentive 
to violate the fourth amendment because, even though he may not be 
able to use the matter which he thus seizes in direct prosecution of 
the person from Avhom it is seized, he can nonetheless use it before a 
grand jury as a means of coercing the person from whom it is seized 
into telling everything he knows about it. 

But veiy much more sinister than that, I think, are the implications 
of United States v. Weir, which is cited in my written presentation. 

In Weir, a suspect vras taken into custody by jNIexican authorities 
and, according to the uncontradicted evidence, he was interrogated 
by the following methods: his head was held under water until he 
passed into unconsciousness; he was hanged from a tree until he 
passed into unconsciousness; knives were stuck into his buttocks and 
legs; he was pummeled physically, and this went on for a protracted 
period of time, following which he confessed even, sir, as would you 
or I, given that type of stimulus. 

The Mexican authorities then deported him. He was met at the 
border by a Federal agent who handed him a grand jury subpena 
and took him before a grand jury where he was interrogated concern- 
ing the matters which he had disclosed to the ^Mexican police in con- 
sequence of torture; and I use the word "torture" advisedly. 

He objected on the premise that the grand jury inquines could not 
be predicated upon outright torture. The court majority responded 
that Calandra compels the opposite view, and that torture is indeed 
an acceptable basis for gi-and jury inquiries to a witness, and if the 
victimized witness refused to answer the question, having been 



74 

granted "use" immunity, lie may then be sent to jail — under the 
present state of law, for quite literally as long as they choose to hold 
him. 

I cannot see how, other than as a matter of basic repugnance — if 
we as a people are still capable of that — I cannot see how but for that if 
it exists, the iiile would be different if it had been an American police- 
man who had committed those barbarities upon that same witness. 

I say to you, sir, that if the time comes when our form of govern- 
ment, as we now know it, is rendered totally unrecognizable ; if the 
time com.es when the relationship between citizens and sovereign will 
have become so totally realined that our Constitution itself becomes 
ephemeral ; that time will come largely in consequence of the venera- 
tion that we display toward the institution known as the grand jury, 
whose very^ name, sir, I suggest is no longer to be justified. 

Thank you. 

Mr. Levine. Thank you, Mr. Lewis. 

In the few minutes we have remaining this morning, Chairman 
Tunney has asked me to ask you some questions. 

j\Ir, Lewis. Yes, sir. 

Mr. Levine. There was one topic covered in your prepared state- 
ment which you did not touch on this morning — grand jury sub- 
penas issued against attorneys 

jNIr. Lewis Yes, sir. 

^Ir. Levine [continuing.] To discuss aspects of their relationships 
with their clients. 

In your prepared statement, you suggest that the bounds of nor- 
mal attorney-client privilege 

Mr. Lewis. I suggested what ? 

Mr. Levine. That the bounds of normal attorney-client privilege 
are not sufficient to deal with this problem. 

Do you have any examples of this problem? What legislative 
remedy do you suggest ? 

IVIr. Lewis. Well, yes, sir. 

I have numerous examples. This is a phenomenon which has be- 
come really quite common over the course of the past couple of years; 
and again, sir, the recorded cases represent only the tip of the iceberg 
because of the fact that the availability of this remedy will very fre- 
quently cause a concession dispensing with the necessity for litiga- 
tion ; but examples — well, for the recorded cases, I might ask you to 
consider the Stollar case out of New York. 

In that case, which was characteristically and aptly, I think, char- 
acterized by the court as a knee-jerk reaction; the prosecutor, lack- 
ing knowledge of the whereabouts of the defendant, simply sub- 
penaed the defense lawyer before the grand jury and attempted to 
compel him to disclose it. This same thing is going on right now in the 
Coppleman case, an outgrowth of the Wounded Knee prosecution 
in South Dakota. 

The Micha^lson case, out of the ninth circuit^and I am sure you 
are familiar with that. I am also sure the Fisher and the Kasmir cases, 
decided by our Supreme Court only late last June, must likewise have 
come to your attention. Those latter cases go to the proposition that 
where a person under investigation turns over documents to lus at- 
torney to prepare his defense — those cases involved income tax viola- 



75 

tion charges, but the principle extends to any charge and to almost any 
preexisting documents, especially in the light of Couch and Andresen^ 
the attorney can be forced by grand jury subpenas to divulge or to 
turn over those records to the prosecutor. 

There are many other illustrations available, and I do not say this 
lightly, I suggest to you that this constitutes a meaningful wedge be- 
tween attorney and client. 

Any client must be concerned at the possibility that what he discloses 
to his lawyer may ultimately wind up being exposed before a grand 
jury if in fact it can be contended that it is not protected by the priv- 
ilege. And the bounds of that privilege as normally perceived have 
been contracted quite drastically over the past few years. 

In the light of the Supreme Court's proposed rule, which was abro- 
gated by Congress, concerning the attorney-client privilege as a part 
of the Federal Rules of Evidence, and in consequence of recent court 
decisions, although the layman is under the impression that whatever 
he tells his lawyer is sacred, in point of fact that is less and less the 
case with every passing day. Even beyond that, are the implications of 
the Crockett case out of the fifth circuit, which says when a defense 
lawyer finds that he is desired as a prosecution witness he should then 
cease all defense activity. This literally enables the prosecutor to in- 
trude himself into the selection of counsel. 

INIr. Levine. Mr. Lewis, just a very few minutes remain; I have one 
last question. 

On the subject of forms of hearing prior to trial. Senator Mathias 
asked Mr. Van de Kamp about three suggested methods. 

One suggested reform would guarantee to the Federal defendant 
the absolute right to a preliminary hearing, whether or not he has 
been indicted. 

The second reform proposal would give the defendant the option 
to obtain a preliminary hearing by waiving the grand jury indictment. 

The third would give the defendant the right to a new form of proce- 
dure, a so-called indicting grand jury or combined grand jury-pre- 
liminary hearing where the grand juiy would be presided over by a 
magistrate ; when it sat for the purpose of indictment rather than in- 
vestigation, it would run as a preliminary hearing is now run. 

Do you have any comments on any of these three suggested reforms ? 

]Mr. Lewis. Yes, sir. 

I would think that the right to a preliminary hearing, while not 
necessarily rectification of any of the more serious grand jury abuses, 
is a very meaningful safeguard in itself. 

There is a case which elegantly discusses this proposition — Wash- 
ington, versus Clemmer^ back some 15 years ago. 

Fundamentally, it would extend to a prospective defendant the 
right, at least, an attempt to demonstrate the unreliability, if he can, 
unreliability of the witnesses upon whom the Government plans to 
rely in subsequently indicting him. 

I strongly favor these proposals. The notion of a presiding magis- 
trate in the grand jury proceedings, well, this would necessarily 
depend upon what his function might be and what his authority might 
be. 

I have read only this morning a presentation which suggests to this 
committee, for example, that counsel have no place in the grand jury 



76 

room because there really are no rights of which they can advise their 
clients. I suggest that a comfortable performance in the thaumaturgi- 
cal realm would be called levitation. Having denied the rights, we 
now say there is no need for him to have counsel, because he has no 
rights of which counsel might advise him, it has quite literally come 
to that. The idea itself is eloquent. 

As to the proposal giving a defendant the right to waive grand 
juiy indictment in favor of a preliminary hearing, I suggest almost 
all of them would elect the preliminary hearing ; however, that would 
2iot solve any of the serious abuse problems presently associated with 
grand jury proceedings. 

Mt. Levine. Thank you. 

You mentioned the case of Washington v. Cle7nmer, with whicli 
the committee is quite familiar. In that case the distinguished jurist 
J. Skelly Wright of the U.S. Court of Appeals,' District of Columbia, 
rendered a highly significant opinion on the rights of defendanLs prior 
to trial. 

Does counsel have any further questions ? 

Mr. WiLKA. I have a couple of questions. 

Mr. Lewis, there has been legislation introduced I)y Senator 
Abourezk which would allow a witness to have counsel inside the grand 
jury chamber. I know that you agree with this. 

Mr. Lewis. Strongly. 

Mr. WiLKA. What role do you think counsel should play, and wliat 
limits, if any, should be placed upon counsel's participation before the 
grand jury? 

Mr. Lewis. Well, minimally — minimally, the lawyer should be al- 
lowed to sit and consult with his client as Mr. Gersitein I think very 
eloquently analogized in the same manner as would be permitted of a 
witness at a legislative hearing. 

One such piece of advice that such a lawyer might give is that the 
atmosphere has become so hostile and coercive that this mio-ht be an 
apj)ropriate time for the wimess to simply announce that he desires 
to excuse himself and to appl^y to the judge for a protective order. 

The very availability of that kind of remedy would, I suggest, 
strongly tend to diminish the likelihood of many of the types of abu- 
sive practices of which we hear now within the grand jury chambers. 
There is only so far, I M'ould suggest, that a ])rosecutor or a grand 
jurnr might go in an attempt to intimidate or hai-ass or insult a witness 
in the presence of that witness' attorney. 

As to whether counsel should be permitted to go beyond that func- 
tion and articulate anything directly to the o-rnnd jury or to the prose- 
cutor, I should like to see it, but I Avould advise against attempting it 
because I M'ould suggest that such a reform might much more readily 
become palatable to those who have a blind veneration for the grand 
jury system, if in fact there were a prohibition against tlie lawyer 
transcending those boundaries. Accordingly, although I would like 
to see it, I would think from a practical standpoint, such legislation 
ought not to extend any rights beyond those which I have just 
expressed. 

Mr. WiLKA. Do you. think that there is any merit i]i the assei'tion 
by the Department of Justice that multiple representation represents 
a conflict of interest for the attorney before the grand jury? 



77 

Mr. Lewis. Well, sir, it represents the potential, of course, just as a 
single representation presents the potential. 

I am delighted, of course, to see that the Department of Justice 
adopted this posture of recognition of the relationsliip between tlie po- 
tential for abuse and the likelihood of abuse. I think that within the 
context of discussion of grand jury problems such a recognition is 
I'eally quite heart vrarming and very healthy, I suppose that really, anj^ 
witness appearing before a grand jury might consult and retain a 
lawyer whose primary allegiance conceivably could be to higher ups 
in some chain of criminality. 

The multiple representation problem considered in In re Grand Jury 
versus Pinllo case in Pennsylvania, generally reflects that approach : 
that the problem with multiple representation is that the witness' 
lawyer is unlikely to initiate a discussion with the prosecutor on the 
subject of amnesty for the less involved because of his duty to the more 
heavily involved, whom he also represents. The Department urges the 
adoption of a presumption of chicanery against the defense bar. 

I suggest to you that this puts the cart quite far in front of the 
hoi-se^ — so far, in fact, that I believe the horse has a little bit of dif- 
ficulty exerting any meaningful pressure on the wheels. I can't imagine 
tliat we are prepared to say that it has somehow become the clut}^ of 
the defense lawyer to advocate to an implicated grand jury witness 
the desirability of cooperation where the prosecutor has not himself 
raised that point. The prosecutor is not injured when he does not get 
that which he has not requested. 

Now. at the postui'e at which a prosecutoi; might announce that ho 
is prepared to give innnunity to those who would testify, that they 
themselves were lightly involved, and that others were heavily in- 
volved, at the point at which he made that announcement, thereby 
articulating a policy which many people believe to exist in almost all 
situations, and at the point at which he demonstrates an uncritical 
prospective w^illingness to accept the reliability of any testimony tlius 
niduced, then I suggest that the problem of conflicting representation 
might well arise ; but I do not believe that it is there in advance of that. 
And at that point, we would have a frank acknowledgement that the 
purpose of the multiple- witness grand jury investigating is to precipi- 
tate a race to the prosecutor's office, with the prize going to the most 
opportunistic of the suspects thus subpenaed. 

Mr. WiLKA. You have raised the problem of the use of the graiid 
jury subpena as a coercive device to require a witness to appear in the 
prosecutor's office. 

Mr. Lewis. Yes, sir. 

Mr. WiLKA. You told us that the threat of formal grand jury pro- 
ceedings may be held over the witness to induce him to or to induce 
her to cooperate informally in questioning. 

What specific legislation could you suggest to the Congress to deal 
with that problem ? 

jNIr. Lewis. First of all, sir, I suggest that there should be a flat pro- 
hibition against any person representing himself as the agent of the 
grand jury. He may be authorized to serve a subpena, but beyond 
that he should have no authority whatsoever, should not represent 
himself as having any authority whatsoever, and should not repi-esent 
himself as an agent acting on behalf of the grand jury, particularly 

78-905—76 (> 



78 

given the virtual certainty the grand jury never heard of him. He 
ought to be required simply to serve the subpena and depart without 
offering comment or advice. 

In terms of coercive questioning on the part of a prosecutor, I be- 
lieve, sir, that a grand jury subpena should not be used to get people 
to talk to prosecutors. That is simply not its purpose. The purpose, 
if we can see any validity to this grand jury procedure, is to get people 
to talk to grand jurors. The prosecutor as such has no power to issue 
a subpena or to compel disclosures. I believe, therefore, that it should 
be likewise a codified impropriety for a person responding to a grand 
jury subpena to be told that he might have a conversation with some- 
one else as an alternative to that. 

Mr. WiLKA. I just have a few further questions, Mr. Lewis, and that 
relates to the legislative effort to increase the independence of grand 
jurors. 

I assume that you would favor moving in that direction; am I 
correct ? 

Mr. Lewis. Strongly, sir. 

I question the practicability, but I would strongly favor it. 

Mr. WiLKA. That is the point to which I am directing my question. 

Senator Abourezk's bill sets forth various instructions that tlie 
court must give to the grand jury to insure that the grand jury under- 
stands their rights and their responsibilities. 

"WHiat specific, additional steps, beyond those instructions, would 
you recommend to increase the grand jury's independence ? 

Mr. Lewis. Yes, sir. 

The instructions, of course, are indispensable to the achievement of 
that objective, but I think the grand jury can also become substan- 
tially more independent in a meaningful way if among those instruc- 
tions are included certain caveats relative to immunity grants and 
contempt citations. If the grand jury is furnished a clearly defined 
standard by which they must judge a prosecutor's requests for such 
actions, and if the votes on such actions are taken outside the prosecu- 
tor's presence, just like votes on indictments, it might help. 

I would also think that it might add to the independence of the 
grand jury if the grand jury composition were perhaps to include one 
or more lawyers from private practice. I don't know how well, in 
practicality, that would work. I do not really know how realistic it is 
to conceive of an independent Federal grand jury in the Federal 
system today. 

]Mr. WiLKA. So there is nothing which you can recommend legisla- 
tively beyond the instructions can see the Congress do ? 

Mr. Lewis. No ; I really do not think that the idea of an indepondont 
grand jury is feasible. 

I ask you to consider, sir, you have got a group of laymen drawn 
pretty much at random, thrown into an extremely complex environ- 
ment, and they are told to be independent. It is an impossibilit}'. They 
do not know what a subpena is, let alone how to issue one. 

They do not know what their rights are and how to go about imple- 
menting those rights. They do not know how to prepare an indict- 
ment, and they are totally dependent upon the prosecution legal stafT 
which appears before them. I cannot see how, conceivably, meaningful 
independence for such a group is a reasonable anticipation. 



79 

]\Ir. WiLKA. Thank 3011, Mr. Lewis. 

I have no further questions. 

]\[r, Le\tne. Thank you, Mr. Lewis. 

[The prepared statement of Melvin B. Lewis follows :] 

Pkepared Statement of Melvin B. Lewis, Legislative Chairman, National 
Association of Criminal Defense Lawyers 

summary of the position of the national association of criminal 
defense lawyers with respect to s. 3274 

The Association strongly approves the captioned bill. Like all citizens, we are 
indebted to the authors and sponsors of this legislation for pointing up with dra- 
matic emphasis an area of serious concern in the administration of criminal 
.iustice. 

We would respectfully suggest, however, that the following closely-related 
problems should be taken into consideration : 

1. The use of the grand jury subpoena as a coercive device to compel dis- 
closures to investigators, and as a subterfuge to obtain office interviews of 
prospective witnesses by government officials. 

2. The use of the grand jury to subvert relationships of confidentiality, 
including the attorney-client relationship. 

3. The implications of routine resort to "use" immunity procedure in the 
absence of genuine need for such drastic remedy. 

4. The problems which derive from directing grand jury process to pros- 
pective criminal defendants. 

5. The need for safeguards against serious inconvenience to grand jury 
witnesses deriving from the setting of the time and place of their appearances. 

Suggested additional provisions 

The Association would respectfully suggest that con,sideration be given to 
modification of S. 3274 in the following particulars : 

A. prohibiting all persons from representing themselves as agents of the 
grand jury for any purpose other than the ministerial .service of process ; 
from interrogating any witness in the course of service of a grand jury sub- 
poena ; and from suggesting or offering to any person named in a grand jury 
subpoena an interrogation or conference as an alternative to or limitation 
of the scope of the questioning of that witness before the grand jury. 

B. Adding, after the word "privileged" on line 3 of page 16: "(iii) The 
impairment or disparagement of the right of any person to counsel of his 
choice or of other lawful confidential relationship which would result from 
compelling the witness' testimony, would outweigh the value of that testi- 
mony, even though no privilege exists ; or (iv) ..." 

C. Limiting immunity proceedings for grand jury witnesses in accordance 
with the concepts expressed within United States v. Mandujano, May 19, 
1976, 44 L.W. 4629, 4633 and 19 Cr. L. 3087, 3091— i.e., to matters "of such 
overriding importance as to justify a grant of immunity to the witness". To 
implement that concept, we suggest that the phrase "and that the testimony 
or information thus sought is of such overriding importance as to justify 
a grant of immunity to the witness" be inserted following the word "cause" 
at lines 7 and 12 of page 2. We further suggest that at page 7, line 5, the 
paragraph presently numbered (8) be renumbered (9) ; that each sub- 
sequent subparagraph be renumbered by one higher digit; and that a new 
paragraph (8) be inserted as follows: "The fact that a grant of immunity 
to a witness is the exception and not the rule; that if the desired testi- 
mony is of marginal value, the grand jury should normally pursue other 
avenues of inquiry ; and that immunity should be sought only where the in- 
formation is of such overriding importance as to justify that procedure." 

D. Providing that the indictment of any grand jury witness by the grand 
jury before which he appeared, or in relation to any matter concerning 
which he was questioned before any grand jury, shall operate to purge any 
contempt predicated upon his refusal to testify or produce evidence before 
a grand jury. 

E. Adding a clause which would entitle any defendant charged with 
perjury before a grand jury to : 

(1) Severance of the trial of the perjury charge from the trial of the 
substantive offense ; and 



80 

(2) Dismissal of the perjury charge if it can be shown that a primary 

purpose of calling him before the grand jury was to charge him witli 

perjury incident to his testimony before that grand jury. 

F. Prohibiting the service of any grand jury subpoena returnable outside 

the district in which it is served unless, on motion of the grand jury, a court 

shall have found that the information desired from tlie witness cannot be 

obtained in substance from any reasonably available source within or closer 

to the district in which the subpoena is returnable. Further, provision should 

be made for simplified procedure and relief within the district of service 

where a witness desires postponement of his extra-district appearance. 

Hufjgcstcd stylistic modifications 

1. We suggest that the phrase "or any related"' be inserted following the 
word "same" at page 3, line 24 : page 5, line 13 : and page 16, line 9. We further 
suggest adding the phrase "or any matter concerning which the prosecutor might 
with reasonable diligence have known at the time of the first contempt adjudica- 
tion that the testimony of that witness might be material". We further suggest 
that at p. 16, line 9, the words "before any grand jury investigating" be deleted 
and replaced by the word "concerning". 

2. We suggest that line 19, page 4, be changed to accord with line 10, page 17. 
so that within line 19 of page 4 the phrase "seized or otherwise" will be inserted 
following the word "evidence". 

3. We suggest that that portion of Section 3330(b) (1) preceding the words 
"the grand jury" be deleted (p. 9, lines 7-9). 

4. We suggest that at line 7 of page 20 the numbers "2514" be changed to 
"6003". 

5. We suggest that provision be made for production and disclosure of the 
stenographic record required by §3330A(i) (1) (lines 13-24, page 13) whenever 
relevant to a contempt proceeding, a motion to dismiss an indictment, or a trial. 

6. We suggest that the following sentence be added immediately after the 
word "investigation" at line 7 of page 17 : "He shall not in any way express to 
any witness a coercive statement or threat, or an opinion that the witness' 
testimony is untrue." 

7. Revising Section 3330A (o) and (p) (3) to make it explicit that those 
provisions do not require the production of testimony or evidence from the 
prospective defendant under investigation. 

8. Clarifying whether the illegality contemplated by Section 3330A (n) and (p) 
(4) must be one as to which standing to object is possessed by the witness under 
interrogation or the person indicted or both. 

COilMENTS OF PROFESSOR MELVIN B. LEWIS ON BEHALF OF THE NATIONAL ASSOCIATION 

OF CRIMINAL DEFENSE LAWYERS 

The concern reflected by the introduction of S. 3274 is amply warranted. The 
problems, both theoretical and practical, are very real. They reach to the heart 
of the structure of our society and the fundamentals of the relationship between 
citizen and sovereign. The fate of this Bill and its counterpart measures in the 
House seems to me a matter of transcendent importance. 

A review of the current state of grand jury law is liadly neetled. Unfortunately, 
the same artificial inscrutability which has insulated the institution from mean- 
ingful regulation, also tends to frustrate any attempt to analyze the impact of its 
operation. Consideration of statutes and case law will serve almost as effectively 
to deflect as to guide the inquiry. Grand jury statutes tend more to nurture tlian 
to regulate. Judicial decisions also possess a "tip of the iceberg" quality, because 
grand jury proceedings are in many respects effectively exempt from judicial 
scrutiny. The analysis presents a unique challenge. 

We are confronted at the outset with a substantial anomaly. The grand jury 
is theoretically and practically the most significant force in our criminal justice 
system. Intrinsically, however, it is almost completely impotent. It cannot even 
return an indictment without the acquiescence of the prosecutor. U.S. v. Cox (5 
Cir. 1965) 342 F. 2d 167; Peek v. Mitchell (6 Cir. 1970) 419 F. 2d 575. 577. The 
tenure of each group of grand jurors is sharply limited, and they are disbanded 
at tlie prosecutor's will. It hears those witnesses whom the prosecutor produces, 
entrusts its process to him, and meets and adjourns at his discretion. It relies on 
him for its raw material and for its finished product. It does not know what he 
does in its name outside the courthouse. It is essentially a validating agency, 



81 

posset^sed of little more than a ministerial function. Conceive of any group of 
laymen, selected at random and thrown into the midst of a complex judicial sys- 
tem, with no idea of what to look for or even how to issue a subpoena. The shortest 
of reflections on that picture will generate a realistic view of the grand jury as a 
rubber stamp. 

The judicial role is minimal. The influence of the press and other agencies of 
scrutiny is almost non-existent. Even the grand jurors themselves see only that 
portion of the process which takes place in their presence. Accordingly, any 
legislative officer who would seek reliable information concerning the function 
of the grand jury, can turn only to two sources : The prosecutor and the target 
witness. The latter group is both presvunptively discreditable and essentially 
inarticulate. Its members possess no institutional voice; and in view of their 
prior experiences as witnesses, they are unlikely to volunteer to resume the 
role for any purpose. It is not surprising that present legislation reflects an 
uncritical acceptance of the prosecutor's notion of the public interest. 

I am here to present the group experience of those who have represented the 
citizens victimized in the name of grand jury investigation. We have been 
excludtd from the grand jury chamber. With that one limitation, we have ob- 
ser\ed at first hand the functioning of tlie system. We have done so repeatedly, 
in every part of this nation, and have thereby achieved a breadth of view whicii 
enables us to offer a composite group experience. We pray your consideration 
of that experience in your formulation of this vital area of national policy. 

Coercive interrogation: Street, homes and offices 

Every interrogating policeman — whether he seeks information or demands 
confirmation of preconception — can give authoritative voice to a very mean- 
ingful threat: "If you won't talk to me, you will talk to a grand jury". This is 
big brother with a vengeance. If the recipient of the threat is knowledgeable, he 
must concede what his less sophisticated counterpart merely suspects : The 
policeman is not bluffing. He may even have a grand jury subpoena in his 
pocket. The citizen will be told that the subpoena will be withheld if the iwlice- 
nian is .satisfied with the interrogation ; otherwise it will be enforced. 

This procedure is exemplified in a prosecution presently pending in the United 
States District Court for the Northern District of Illinois, captioned United 
States V. Rollins, Docket Xo. 75 CR 717. From the admitted facts, an indigent 
mother of several children was suspected of forging government cliecks. A postal 
inspector came to her home and .served a grand jury subpoena, but told her that 
she could elect to come to his office instead, where her rights would be better pro- 
tected. When she reported to his office, she was restrained in a locked room for the 
grenter portion of the day. She was fingerprinted, directed to give numerous 
hiindwriting exemplars, and interrogated extensively. Ultimately, she gave a con- 
fession. 

The subpoena was furnished to the inspector by the prosecutor. While the 
source of the inspector's authority to offer an interview in his office as an alter- 
native to the grand jury appearance has not been disclosed, the government in 
Rollins has vigorously defended the inspector's exercise of that authority. 

On the hearing of the motion to suppress the confession, the prosecutor stated 
that nothing had l)een clone in the policeman's office which could not have 
been done before the grand jury; that he was sure that members of his office 
had succeeded in extracting confessions from grand jury witnesses ; and that 
invalidation of the inspector's procedure would draw into question the validity 
of confessions taken in a hundred similar cases. 

The pandemic employment of this procedure by federal investigators points up 
the proposition that the grand jury is no longer even arguably a citizen's in- 
vestigation. Instead, it is merely a tool of the police agencies. Federal police 
characteristically represent themselves as agents of the grand jury, using the 
grand jury subpoena as a liludgeon. The notion that a grand jury witness should 
have fewer rights than an arrestee ( United States v. Mandujano, 5/19/76, 10 
Cr. L. 3087. 3093) is not only unrealistic, but has effectively led to the use of 
the grand jury subpoena as a substitute for a warrant. 

Coercive interrogation: The prosecutor's office 

When the witness appears in response to a grand jury subpoena, he generally 
reports to the prosecutor's reception area. There he awaits the pleasure of his 
political superiors. The wait can be a protracted one indeed. The witness who 
responds to a 9:00 a.m. subpoena has no forum for redress of grievaiioe if he has 
not Item called by 3 :00 p.m. that afternoon — or even if he is directed to return 



82 

the following day. A court would be unlikely to intercede unless the harassment 
became truly obvious and oppressive — and even then, access to judicial machinery 
would require the services of counsel. In the case of an indigent grand jury 
witness, such services are available only at the contempt stage. 

Meanwhile, in many cases, the witness is directed to a prosecutor's office where 
he is requested to give information privately. In short : The grand jury subpoena 
is used as a means of compelling a witness to appear in a lawyer's office and dis- 
gorge such information as he may have. In many applications, if the witness is 
not an ultimate target — if his contemplated role is unindicted co-conspirator or 
minor defendant — such an interview is more desirable to a prosecutor than a 
formal interrogation before the grand jury. No transcript will survive the 
interrogation as a source of potential defense impeachment of the witness. Ex- 
pressed threats and offers can be voiced more freely. Even if the witness is 
represented by a lawyer, that lawyer is likely to agree to interrogation by the 
prosecutor rather than waste an unpredictably long portion of a day awaiting 
the performance of his sterile role outside the grand jury chamber, where he 
can only respond to the periodic visits of his client with the advice that few if 
any rights exist. 

If a civil lawyer were to behave in a comparable manner — if he were to servei 
deposition subpoenas upon uncommunicative citizens as a means of compelling 
office conferences as an alternative to greater inconvenience — he would be dis- 
barred and perhaps prosecuted criminally for abuse of process. The prosecutor 
who does the same thing merely makes imaginative use of the tools which you 
have furnished him. 

Coercive questioning : The grand jury chamber 

Most of the witnesses who actually enter the grand jury chamber will fit 
within one of the following categories : 

1. The willing witness. — This is relatively seldom the victim seeking redress. 
His story, by and large, is given to a policeman and related to the grand jury 
through hearsay, economically and with a diminished potential for subsequent 
impeachment. (The Bill would correct this impropriety. §3330 A (o), page 17, 
lines 18-20.) Instead, this is likely to be the formalistic witness, such as the 
banker delivering records, who is perfectly willing to cooperate but who requests 
the protection of compulsory process as matter of policy. AVe need not be disturbed 
by the likelihood of abuse of such a person. 

2. The uncooperative icitness who docs not occupy full target status. — Typically, 
this is a minor participant in criminal activity whose potential worth as a witness 
is deemed by the prosecutor to transcend the importance of full prosecution of 
his misdeeds. Another and more disturbing example is the convicted defendant 
whose puni.shment is extended at the sacrifice of all rehabilitative effort by being 
brought back before the grand jury and held until he has answered all the 
prosecutor's questions. His contempt sentence suspends the sentence imposed for 
his earlier offense. 

Witnesses in this category are not simply faced with the option of talking or 
going to jail. The choice, for all practical purposes, is to say what the prosecutor 
wants to hear, or to go to jail. The witness is told, in effect, that unless his 
testimony accords with the prosecution theory, he will be charged with perjury. 
Faced with that choice, it is not surprising that the testimony elicited is fun- 
damentally unreliable. The witness knows that he will be penalized if his testi- 
mony does not fit the theory embraced by his inquisitors. There is no more effi- 
cient method than this for the manufacture of perjury. 

A typical vignette is related by a Chicago lawyer who represented a policeman 
accused of extortion. One grand jury witness in the case was a tavern owner who 
was believed to be a victim. (The police were later prosecutetl suh nomine Vvifed 
States V. Thanasovras, et al. docket No. 73 CR 633, N.D. 111., E.D.) The witness 
denied that he had been shaken down. He was then warned that the prosecutor 
was aware that the witness was operating an unlicensed "jitney" taxicab and 
that his income tax returns were questionable. By such pressures, the prosecutor 
attempted to force the witness to incriminate the target policemen. 

The ultimate importance of the availability of these bludgeoning tactics derives 
from the provisions of Federal Rule of Evidence 801 (d) (1) (A). That rule 
provides that if a witness makes a statement before a grand jury, that statement 
becomes primary evidence against subsequent criminal defendants even if the 
witness disavows the story at trial. Thus, a prosecutor has every incentive to use 
every pressure tactic available to him in order to achieve a grand jury transcript 
which bears out his theory of guilt. Once he obtains that result — by whatever 



83 

method — he has effectively proved his case against the defendant, no matter 
what may happen later. California v. Green (1970) 399 U.S. 149. 

3. The target ivitness. — This is the person at whom the grand jury's investiga- 
tion is aimed. In this application, the procedure will often represent the ultimate 
in opportunistic exploitation of loopholes in constitutional guarantees. 

United States v. Dionisio (1973) 410 U.S. 1 held that there is no constitutional 
prohibition against the use of a grand jury subpoena to compel the appearance 
of a person "who may himself be the subject of the grand jury inquiry". 410 U.S. 
at 10. Tills license was very recently broadened and reinforced by the decision 
in United States v. Mandujano, 5/19/76, 19 Cr. L. 3087. Any limitation on the 
practice can come only through legislative action. 

There are five discrete aspects to the use of the grand jury subpoena as 
directed to the prosecutive target. In their applications, they range from un- 
fortunate to grotesque. 

A. The confinement objective 

The greatest surprise to the prosecution within the capability of some grand 
jury witness would be to testify at all. The primary purpose of calling such wit- 
nesses before the grand jury is to confine them for contempt, and not to obtain 
information. 

I do not suggest that such witnesses lack information of value to law enforce- 
ment. The status of such a witness may range from reputed crime overlord to 
mere confidante of the person under investigation. The subpoena, however, is 
issued less in the hope that the witness will provide information, than as a means 
of removing him from society. 

It is probably true that many of the persons subjected to such handling are 
not themselves appropriate objects of pulilic solicitude, but this procedure crosses 
the line which separates the accusatorial and the inquisitorial systems of criminal 
justice. 

B. Induced perjury 

In June of 1972, a month after the Supreme Court's Kastigar decision, Mr. 
Michael Marrs, a prosecutor with the Drug Abuse Ofiice of the Department of 
Justice, addressed the Illinois State Bar Association convention. He stated that 
law enforcement was about to achieve new heights of efiiciency. In the past, he 
stated, his agency had frequently been stymied by inability to prove that a suspect 
was engaged in narcotics trafiic. Thenceforth, however, things would be different : 
"If we can't make a buy from him, we will bring him before the grand jury, and 
maybe we can get him to commit perjury or something like that". 

The "use" immimity order makes of the grand jury an ideal environment for 
the manufacture of perjury. The prior "transactional"' immunity sometimes served 
very legitimate purposes : The formalizing of a bargain with the witness, and the 
freeing of the witness from all constraints against truthful testimony. 

Given use immunity, however, the witness has every incentive to be less than 
candid concerning his activities. He knows that he may yet be prosecuted ; that 
the government is in effect receiving an ex parte discovery deposition ; and that 
any admission could arise to haunt him later as a criminal defendant. 

The perjury defendant who attempts to prove that he was called before the 
grand jury for the purpose of enticing him into the commission of perjury, is 
flatlv rebuffed by the courts on the rationale that he had no constitutional privi- 
lege "to lie. United States v. Nickels (7 Cir. 1974) 502 F. 2d 1173 ; United States v. 
Devitt (7 Cir. 1974) 499 F. 2d 135; United States v. Lazaros (6 Cir. 1973) 480 
F. 2d 174. These cases effectively reverse prior contrary doctrine expressed in 
Broicn v. U.S. (8 Cir. 1957) 245 F. 2d 549, and U.S. v. Cross (D.D.C. 1959) 170 F. 
Supp. 303. 

C. The secondary perjury dimension— The discrediting of the defense 

The fact-finding process in a criminal case very often consists in a decision by 
the trial jury whether it will accept the prosecution version of the facts, or that 
of the defense. Grand jury process against a prospective defendant, frequently 
coupled with use immunity, renders available to the prosecution a dramatic ploy 
which sometimes represents an opportunistic abuse of power. 

If the prosecution believes that a defendant will claim innocence or exonerating 
circumstances, it can always force upon that defendant the choice between pro- 
viding a preview of his defense in the form of grand jury testimony, or going to 
jail. That is what use immunity is all about. 



84 

If the prospective defendant maintains his innocence before the grand jury, 
the prosecutor can have a perjury indictment for the asking. It is no accident that 
the same statute v^-hich created use immunity, also clianged the law of perjury 
to abolish the two-witness requirement. 18 U.S.C. Sec. 162X. If the prosecutor has a 
prima facie case of criminiility, he must necessarily also have a prima facie case 
of perjury as to any denial of that criminality. Accordingly, having compelled 
tlie exonerative testimony, the prosecutor retiirns an indictment which charges 
both sulistantive guilt and perjury in the denial of guilt. The defendant faces his 
trial jury v^^ith his defense testimony prebranded as perjury in the opinion of 
tlie grand jury. This tactic has received judicial sanction on the customai-y ra- 
tionales : The* trial jury believed that the defendant was guilty, and that his 
denials of guilt were false. Since he had no right to commit perjury, the convic- 
tion does not violate his rights. See United Statc.'< v. Puccntc (7 Cir. 1974) 503 
F. lid O-JS. The tactic (minus imiiunity) was employed with deadly effect in the 
prosecution of Judge Otto Kerner of the Seventh Circuit Court of Appeals. He 
denied guilt before the grand jury, and stood trial for bribery and for perjury 
in denving his guilt of briberv. The resulting conviction was affirmed. U.S. v. 
I.-^aacin Cir. 1974) 493 F. 2d 1124, 1159. 

A comparable performance in the thaumaturgical realm would be called levita- 
tion. The prosecutor calls the defendant before the grand jury, brands his denials 
as perjury, and then uses the i>erjury charge to obtain a finding of guilt on the 
original accusation. It is impossible to discount the probability that the trial 
jury's verdict was influenced by the grand jury's view of the defense testimony 
as perjurious. If the perjury charge were tried at a later time, it would be the 
gravest and most obvious of improprieties to advise the jury hearing the substan- 
tive charge that the grand jury believed the defense evidence would be perjury. 
Yet, that precise tactic is rendered possible through resort to the grand jury 
weapon ; and its effectiveness assures its increasing popularity. 

D. The discovery deposition 

Once he has obtained evidence of criminality, even the most sincere of prosecu- 
tors may feel himself not only privileged, but duty-bound to call the intended 
defendant before the grand jury. His right to do this has recently been confirmed. 
United States v. Mandujano, 5/19/76, 19 Cr. L. 3087. If the witness declines to 
testify, the formalistic use immunity grant is routine and automatic. The prose- 
cutor receives a preview of the defendant's story. If it consists in a denial of 
guilt, he may oppor'tunistically add a Paceitic-type perjury count to his indict- 
ment. But even if gifted with commendable self-restraint, he has learned the 
details of the defense and may properly commence the prepai-ation of his rebuttal 
to that defense, using grand jury process to preview the testimony of defense wit- 
nesses. Although in other contexts the Supreme Court has held that prosecution 
discovery without reciprocity is a denial of due process {Wardius v. Oregon 
(1973) 412 U.S. 470), use of the grand jury appears inexplicably exempt from 
that rule. 

If the prospective defendant admits criminality under an immunity grant, the 
prosecutor can proceed with assurance that his case, however weak, cannot be 
contradicted. {Harris v. I^'ew York (1971) 401 U.S. 222) 

E. Counsel and confidant 

When a prosecutor learns the identity of a possible defense witness, he has 
nothing to lose and everything to gain by calling that ^^itness before the grand 
jury. The defense witness may well provide the prosecutor with the requested 
information at the lesser level of the agent interview by procedures short of the 
grand jury appearance; but his willingness to do so cannot be divorced from Ids 
ultimate vulnerability to the grand jury subpoena. The course of such interroga- 
tions is dictated much too frequently by the prosecutor's unwillingness to ease 
his pressures on the witness at any stage short of total neutralization. The tech- 
nique was discussed earlier. 

Perhaps the most ominous variant of this practice is the exploitation of the de- 
fense lawyer as a grand jury witness. This is a practice which has gained in 
currency over the past two years, burgeoning in evei-y part of the country in such 
manner that it is impossible to discount the possibility that it reflects federal 
policy. 

In case after case, defense lawyers have been subjected to federal process, 
whose effect has been to constitute the defense lawyer as a witness for the prose- 
cution ; to drive a wedge between attorney and client ; to deprive criminal de- 



85 

fendants of all confideuce In the eflScacy of their right to counsel ; and even to 
deprive the accused of counsel of his choice, through recoustitution of that 
counsel as a witness for the prosecution. 

In the past, most such incursions have taken the form of IRS subpoenas de- 
signed to determine the amount of attorney's fees paid by a client as an indica- 
tion of that client's tax liability. An example of that practice is reflected by the 
decision in United States v. Haddad (6 Cir. 1975) 527 F. 2d 537. On two prior 
(X'casious, the government had undertaken proceedings against Haddad's client. 
With those proceedings completed, the IRS demanded information concerning the 
fees which the client had paid to Haddad in resisting the government. The pur- 
pose was to show that the client's persistent use of counsel to defend against the 
govenmient's claims, indicated an income greater tlian he had reported. It was 
held that Haddad could be compelled to provide tlie information. 

On April 21, 1976, the Supreme Court held in Fisher v. U.S., 19 Cr. L. 3018, 
that lawyers could be compelled to hand over documents which their clients had 
entrusted to them to assist in the rendition of legal services incident to an IRS 
investigation. The Supreme Court had previously reached the same conclusion 
with respect to accountants. Couch v. United States (1973) 409 U.S. 322. The 
Fisher opinion substantially narrows the scope of the attorney-client privilege, 
holding that it is unavailable as to matters which the client himself could be 
forced to disclose (and thus, potentially, unavailable in any use immunity situa- 
tion) and that it is available only with respect to any disclosures "v\'hich might 
not have been made absent the privilege". The latter is at best a nebulous guide 
in determining what disclosures are in fact pi-ivilegod. 

The fear that grand jury process might be used ftn- the purpose of in.'iuii-ing 
into the attorney-client relationship, was realized through In re AlichaelMon (9 
Cir. 1975) 511 F. 2d 8S2. Tluit opinion approves the use of grand jury process to 
compel a lawyer's disclosure of tlie identity of any person who pcid him any part 
of his fees for the representation of his client. 

One articulated purpose of the disclosure was to tie the payor to the defend- 
ant in a conspiratorial relationship. The other was to test, and possibly prosecute 
as perjurious, the grand jury testimony of the client which had been coerced under 
a grant of use immunity. 

In re Jones (5 Cir. 1975) 517 F. 2d 668 reversed a contempt citation against law- 
yers who had declined to provide the type of information whose production was 
compelled in Miehaclson. The lawyers were required to spend several days in jail 
imtil the court of appeals acted. They were acclaimed as heroes by the criminal 
defense bar of Texas, where the case arose. However, the language of the Supreme 
Court's decision in Fisher tends strongly to weaken the force of the holcli-i;- in 
Jones. 

Recent developments include the calling of the defense trial lawyer as a prose- 
cution v>'itness to testify to matters which he had learned in his private capacity. 
The reviewing court found a substantial impropriety here : The defense lavryer's 
"failure to withdraw from the case when he realized that he was to be a prosecu- 
tion witness". United States v. Vrocl:ett (5 Cir. 1975) 506 F. 2d 759, 761. Thus, it 
is clear that the prosecution may terminate the attorney-client re-ationsliip on 
any occasion on v.hich it may tenably claim that the defense lawyer is need^ d a^ a 
prosecution witness. 

The grand jury siilipoena directed against the defense lawyer is a relatively 
new vreapon. Yet, its very effectiveness tends to diminish the likelihood that it 
will be used v/ith restraint. The number of such cases at the trial level has reached 
such alarming proportions that in 1975 the National Association of Criminal De- 
fense Lawyers formed a special committee to provide representation to lawyers 
subjected to subi)oena. contempt and comparable processes deriving from their 
representation of their clients. That committee is now in active operation, and tlie 
demand for its services extends its resources to their very limits. 

Tlie grand jury's potential as a means by wliich the prosecutor mav intrude 
himself on the defense selection of counsel, is at least adumbrated liy a District of 
Columbia case. In re April J975 Grand Jury. The appelate decision (2/11/76, 1^ 
Cr. L. 2401) reversed the trial court's determination that the economies effected 
through the retention by several grand jury witnesses of a sins^le lawyer, juust 
give way to the prosecution's interest in discouraging vritnesses from "invok(iiig) 
the privilege against self-incrimination". The prol>Iem was that the government 
was unable to "determine which witnesses would be granted immunity from prose- 
cution (because) all witnesses refuse (d) to gi'-e any indication of the extent of 
their participation . . ." 18 Cr. L. 2183. As noted, tlie district court determina- 



86 

tion was reversed ; l)ut only because the district court had not conducted a suflS- 
ciently searching inquiry to determine such issues as whether the witnesses could 
really l.'C incriminated by their testimony and whether some of them might be 
persuaded to disclaim the group representation (18 Cr. L. 2402). The contrary 
view — that trial court may forbid joint representation of grand jury witnesses 
whenever the defense lawyer fails "to raise the subject of cooperation" with the 
prosecutor rather than waiting for his clients to suggest it — was adopted in Pirillo 
V. Takiff (Pa. 1975) 341 A. 2d 806, 17 Cr. L. 2381. 

Proceedings such as these clearly portend an increasing role of the grand jury 
in the disqualification— and thus, selection — of counsel for the witnesses before it. 
The notion, as expressed in Pirillo and the district court decision cited above, that 
the lawyer for a grand jury witness has a duty to suggest "cooperation" leading 
to an immunity grant — and that if he fails in that duty he can be replaced, re- 
gardless of the wishes of the witness, by a lawyer who can be counted on to give 
such advice — shows how many fundamental values we are prepared to sacrifice 
in the interest of grand jury proceedings. This would be bad enough in the case of 
an independent agency. It Itecomes completely intolerable when it is remembered 
that the grand jury is only an instrumentality manipulated by the witness' 
adversary. 

Exploitation of iUcgality 

It is trite to observe that the normal riiles of evidence do not apply In grand 
jury proceedings. Federal Rule of Evidence 1101 (d) (2). Constitutional con- 
straints are also lacking : The grand jury, which is viewed for many purposes as 
an arm of the court, is free to exploit any governmental violation of the constitu- 
tion in its .search for information as surrogate for the government. United States 
v. CaUmdra (1973) 414 U.S. 337. 

One result of that unfortunate doctrine is that a policeman is given a signifi- 
cant incentive to vi(^late the law : Even though his product may not be useful in 
direct support of the prosecution of the victim of his illegality, it can be used under 
Cakindra as the basis for the interrogation of the victim before a grand jury. The 
inevirable result will be either that the victim will be jailed for contempt or for 
perjury, or that the victim will make disclosures which will render other people 
vulnerable to prosecution. Accordingly, the policeman is rewarded directly for 
breaking the law. 

Another, and potentially even more damaging implication is that the grand jui-y 
may exploit the illegality of others. United States v. Weir (9 Cir. 1974) 495 F. 2d 
879 is instructive here. In that case, an American citizen was arrested by Mexi- 
can police, who obtained incriminating statements through outright torture. It 
Avas uncontested that Weir's head was held under water repeatedly until he was 
rendered unconscious ; that knives were stuck into his legs, buttocks and neck ; 
and that he was hanged by the neck from a tree until he passed out. Inevitably, 
he confessed to certain crimes. Thereupon, he was deported to the United States 
where he was met by a federal agent who brandished a copy of his recent Mex- 
ican confession and a grand jury subpoena. He refused to answer the grand jury 
questions, contended that the.v were predicated upon and exploitive of the torture 
which he had received from the Mexican authorities. A court majority held that 
Calandra authorizes such exploitation of coerced confessions in grand jury 
Interrogation. 

No activity, no matter how inhumane or indecent, is deemed unworthy of 
acceptance as grist for the grand jury's mill. The ultimate policy decision with 
which this body is faced is whether an instrumentality which thus feeds, is to 
be accorded a position of special veneration by the American legal system. 

The imrnimity proceeding 

If a witness claims his Fifth Amendment privilege against self-incrimination, 
his ordeal is extended by approximately fifteen minutes. "Within that time, the 
prosecutor files a formalistic petition which asserts nothing more than that the 
witness' testimony "is necessary to the public interest" and that a designated 
representative of the Attorney General has approved the immunity grant. 18 
use § 6003. The witness must then testify on pain of indefinite imprisonment. 
He is assured that his testimony will not be used to convict him, except for 
purposes of impeachment at his subsequent prosecution or as a predicate for the 
joinder of a perjury count, as previously discussed. 

The statutory scheme is generally considered to have removed such proceedings 
from judicial control. If the petition is in proper form, the court can do nothing 



87 

l)Ut ^rant it. The role of the judge is "ministerial". In re Kilgo (4 Cir. 1973) 
484 F. 2d 1215, 1221 ; United States v. Levya (5 Cir. 1975) 513 F. 2d 774, 776. 

In many cases, the "immunity" is totally ephemeral. An immunized mtness 
whose truthful testimony would admit an earlier olfense, has as his only- 
choices perjury, self-accusation, or contempt. Cf. U.S. v. Chcvoor (1 Cir. 1975) 
526 F. 2d 178, 182. Until 1954, immunity proceedings were not authorized in any 
felony case. Since that time, we have moved, step by step, to the present plan, 
which grants a shadowy and hypertechnical immunity whenever the prosecu- 
tion thinks it useful. The ultimate step was taken almost without discussion 
(1970 U.S. Code Cong. & Admin. News 4008, 4017) as part of the consideration 
of an immensly complex and diverse legislative package. Reconsideration is 
long overdue. At the very least, such constitutional incursions should not be 
tolerated on a routine and wholesale basis. 

It is very much to be doubted that this body ever intended the kind of mindless, 
automatic, and uncontrolled procedure which characterizes present-day immu- 
nity practices. Immunity procedures require no justification and impose almost 
no "burden on the prosecutor. It is hardly surprising that they are employed 
Avherever convenient, with almost total lack of discrimination. 

The statutory safeguards are almost totally ephemeral. 18 USC § 6003 requires 
only that a designated official must believe that the testimony may be necessary 
to the public interest. Given no guidance as to what constitutes "public interest", 
it is hardly surprising that prosecutors should come to equate the term "public 
interest" with '•personal convenience". 

The opinion in United States v. Alandujano (5/19/76, 19 Cr. L. 3087) presents 
an idealized picture of American immunity proceedings. As pictured in Mandu- 
jano, if a witness claims his self-incrimination privilege : 

The grand jury has two choices. If the desired testimony is of marginal 
value, the gi-and jury can pursue other advantages of inquiry ; if the testi- 
mony is thought sufficiently important, the grand jury can seek a judicial 
determination as to the bonafides of the witness' Fifth Amendment claim . . . 
If in fact there is rea.'^onable ground (for the self-incrimination claim), the 
prosecutor must then determine whether the answer is of such overriding 
importance as to justify a grant of immunity to the witness. 19 Cr. L. at 
3091. 

That description bears no resemblance to the manner in which such things 
happen in real life. If a man becomes thirsty, he does not pause to inquire 
whether his thirst "is of such overriding importance as to justify" drawing a 
cup of water from the office fountain. Instead, he simply takes a drink and goes 
on with his work. 

Similarly, if a witness refuses to testify — "or is likely to refuse to testify", 
18 USC §6003 (b)(2) — the prosecutor routinely seeks a use immunity grant 
which the court has no right to withhold. Effectively, the prosecutor awards him- 
self the immunity grant. 

In the thought that it may be useful to this body, we append a request from a 
local prosecutor to the Attorney General, requesting authority for such a grant. 
The Committee will note that the form does not lend itself to thoughtful evalua- 
tion of consideration of public interest. The available space for disclosure of 
the reasons why the testimony is of "such overriding importance as to justify 
a grant of immunity" is large enough to accommodate only two terse sentences. 

The appendetl sample form is, we believe, fairly representative. The form dis- 
closes that the government proposes to prosecute one Challe Oda for a violation 
of 18 USC § 1955 (gambling). The "overriding importance" of the target witness, 
one Ureal Black. .Tr.. is presumably disclosed by his name, address, place and 
date of birth and the following statement : "The witness is a participant of minor 
importance, although possessing knowledge of how numbers operates." 

The request was routinely approved — as. we believe, are all such requests. Based 
on that performance, it is difficult to imagine that a request would be rejected. 

It is hard to believe that anyone could look at that document and believe that 
an immunity award is the product of a thoughtful evaluation of public interest 
or of considerations of "overriding importance". A more accurate analysis might 
be that the constitutional privilege against self-incrimination has been abrogated 
on grounds of inconvenience, in order to assure that a prosecutor's mildest curi- 
osity will never lack gratification. 

As a matter of fundamental policy, we must decide whether the punishing of 
every malefactor, no matter how minoi', is a more important objective than the 
preservation of such fundamental values as the privilege against self-incrimina- 
tion, the right of privacy, and a general ambience of freedom. 



88 

The contempt proceeding 

The contempt proceeding is frequently consummated on the same day on which 
the witness claims his self-incrimination privilege. The witness is called before 
the grand jury in the morning, claims his self-incrimination privilege, is taken 
promptly before the judge, immunized and ordered to answer. He is returned to 
the grand jury and. if he persists in his refusal, taken hefore the judge 
where a contempt petition is filetl. On the presumption — largely true — that there 
can be no defense, the contempt hearing follows immetliately, with pro forma 
appointment of counsel if necessary. The witness is in jail that afternoon. He has 
no right to challenge the purpose or relevancy of the questions put to him 
{Marcus v. U.S. (3 Cir. 1962) 210 F. 2d 143) or the documents demanded of him 
{Matter of Berry (10 Cir. 1975) 521 F. 2d 179, 184). It is enough that the grand 
jury is inquisitive. That curiosity is conclusive, and sufficient in itself to burden 
the witness with "the cruel trilemma of self-accusation, perjury or contempt" 
which is foreign to "our fundamental values and most noble aspirations". Mnr- 
phij V. Waterfront Commission (1964) 378 U.S. 52, 55. 

The grand jury witness is the least favored person known to the Constitution. 
When his reliance on our "fundamental values and most noble aspirations" is 
weighed against the investigator's convenience, it is simply no contest. 

Appeal of contempt proceedings 

Perhaps the least justifiable of all of the statutes governing grand jury proce- 
dures, is 28 use § 1826(b). That statute provides, in essence, that bail pending 
appeal should be granted a contemnor only in unusual cases, and that the appeal 
must be decided within thirty days. 

The thirty-day requirement asstires that the appeal will not receive deliberate 
consideration. The period includes preparation and transmission of the record, 
opening brief, answer, reply, argument, deliberation and judgment. Thoughtful 
presentation and resolution of the issues is virtually impossible. 

Reviewing courts are not hesitant to confess that this statute precludes giving 
to contempt appeals the same consideration that can be granted in other cases. 

Thus, in Vnited States v. Berry (10 Cir. 1975) 521 F. 2d 179, 181, the appellant 
requested that the relevant documents be examined to determine the validity of 
his claim of privilege. The court refused to consider that aspect of the case 
because of tlie thirty-day ride, stating : "Within that period ... we caji do no 
more than hurriedly review the transcript and the complex briefs." In Rccd v. 
Vnifed States (9 Cir. 1971) 448 F. 2d 1276. 1277, the appellant asked for recon- 
sideration of prior holdings in the light of their application to his case. The 
court refused that request, stating: "We decline to reexamine (prior) decisions 
for the reason that this could only be done en banc, and the time allowed us under 
28 use § 1826 to decide this appeal will not permit this to be done." 

It is not only en banc consideration of serious cases which is rendered impos- 
sible by Section 1826. Fundamental safeguards such as petitions for rehearing 
are precluded. Charleston v. U.S. (9 Cir. 1971) 444 F. 2d 504, 508. Opinions are 
frequently hasty and submitted on a per curiam basis or by unpublished order. 
The most significant area of modern jurisprudence is required to develop in an 
atmosphere of default by the thirty-day limitation. 

The provision serves no honest purpose. If it is intended to prevent unjust 
incarceration, it clearly should be waivable by the defendant. If it is designed 
to prevent dilatoiT appeals, it certainly should not apply where the defcr.rlnit is 
denied bail pending appeal. Every legitimate pun:)ose of the thirty-day limitation 
r-ould be served by a rule which would entitle either party to appellate review of 
the bail order within thirty days. The rulings on such motions would neces- 
sarily screen the frivolous appeals. With that accomplished, appeals presenting 
serious issues could receive deliberate consideration. 

Conclusion 

No aspect of criminal justice, from street investigation to appellate review, hns 
avoided the contamination generated by immoderate use of the grand jury and 
its process against a backdrop of totally inadpnuafe safeguards. 

Xo conr^er^t of individunl freedom has emerged from the iirocess with its vitality 
unsapped. Every authoritarian practice, from arrogance to barbaric torturf^. i- 
vnlidHted and rendered acceptable in furtherance of its more efficient operation. 

We pray that the corrective action proposed through S. 3274 will find fnvor 
v.-ith you, tb.e prvlicv -makers of our nation. We enrri^stly believe that .vour .ntten- 
tion hns seldom been sought in a better or more compelling cause. 



89 



RECUEST FOR IMMUKITT AUTH02tSATI0N 



■,/^'y/Ti 



IC': Irnmiriity and iJ'iur.rdi ■Llni I, k~cn ;613 
vriniinal Division 


FROM: Pctrr F. Vaira, /.fcorn^y in Cliarj-.c 


; ARf A f /^;^^ 


'1-2) ;j<T.-i of Vii tnc-S3(l.r.5T- inre f- ;; .) : 
hLACX, UREAL, JR. 


(9) A'.kircSi of witness: 'i^ \\ 
732 N. Kardin Court / ^ 
Chicnj-.o, Illinois J 


(6) F3I Idsntifi cation flo. 

(7) Local Pol-!C3 No. 

(8) Local Police Zis Cods 


(in) Ei>thplflce: Chicago, Illinois 
(11) Cirtfidats: J'ine 10, 1937 


(38) Alias: vone 


;eO'; Irnv^nity Statute: 18 iJ.:>.C.S0^?-60O3^ 


(1/) H'aturs of F)-PC02dinc;: 


(11) Disln-t: !.crt:horn Dir-trict of Illinois 


(19) i;3,t:d or Deiciiption of Ce.sc/M.ittci : 
United States V. rhnjl5 O-i 


(1?) Djcl'et rio. (if any): 


{V.i) n.d. pile Co. (ifknoyn): 


(13) Violation: (Ti tie and Section): 

Vi ■;.s:c'. 1955 




Ihis bo/ for i.Tnur.ity Unit vi^e o.ily 

(3) IP.U # (4) Index •; ("S) Type o, Tjqiiist: (2i) P,?-^. tc: 



PArrr R (if rorg space is nc-c.'.^d, iLtccM additional ;.hfi_-t£ ) 



1 K'olpti V 



O Tnn 



r v+ m " *- rt 



:i.,::;i'i dccivity in tfi2 arcj: 



The vitnesr. is a participant of ninor i:nporta7icc, nlthough po'^sc^sins knotfledge 
of how numbers operates. 

2. Pertinent Fedsral and local offices have be-^f^Tti fisd^ / / (Criick Sox) ~ 

3. Are any current Federal or'Iccal charges pending aad'i;is t v/jtnissV" ir so, give tci.ails: 

No 



4., If witness is presently ir.:nrccrate:!, state o rcu.TiStances: 
No 






I'lSTRUCTICNS: 1. Please be sccurite in coiTDletir.g ^art f. since data wil, bt- trar.: -^rrc. 
directly to D;t.2 Retriavsl Gysti.i:. 
2. If other individuals navs tsjn suthorized irr-'jii ty in thi^i case or 

matter, list nDr.^s en seps'-Jta paf'^nd attach as supolar.ent. 
3 A1 1 submissions shoi.'ld be ii trirV.cate . 
I'O'i"'-' USA-lGr 11-5-73 



^Ir. Levine. One of the committee's invited witnesses, Justice Stan- 
ley Mosk of the Supreme Court of California, could not attend today 
because he is engaged in his judicial duties. Justice Mosk has submitted 
a detailed statement, however, which will be included in the record of 
these hearings at this point. 

[The prepared statement of Hon. Stanley Mosk, associate justice. 
California Supreme Court, follows :] 

I'RKPARED Statement of Hox. Stanley Mosk, Associate Justice, California 

Supreme Court 

Mr. Chairman : I am in favor of S. 3274 because it is a significant step in tlie 
right direction. However, in all candor, it does not perform on tlie grand jui'.v 



90 

system the major corrective surgery which I believe is necessary to cure the- 
constitutional infirmities tolerated by both federal and state courts. 

Two preliminary matters need detain me but a moment. First, I am concerned 
here only with the grand jury's indicting process and not its investigative func- 
tion, nor with questions relating to selet'tion of its membership (see Mar. Cali-^ 
fornia Grand Jury: Vestige of Aristocracy (1070) 1 Pacific L..J. 36). The grand 
jury serves a valuable and productive role in the area of investigation, particu- 
larly with respect to government corruption or ineptitude. Its public i-eports to 
the citizenry sen^e a salutary governmental and educational purpose. (See my 
dissent in People v. Superior Court (1973 Grand Juiy) (1975) 13 Gal. 3d 430, 
442.) With regard to selection practices, there may lurk constitutional issues to 
be confronted in the future, but they are not relevant to this hearing. 

Second, the traditional response that tlie grand jury is per se constitutional 
because of its express inclusion in the Fifth Amendment is uni>ersuaslve. It 
should be obvious that the Constitution recognizes the grand jury as an insti- 
tution ; it does not delineate how the system is to be administered. It b> not the 
existence of the grand jury which is at issue; it is the procedure, undefined in 
the Constitution, which is questionable. 

To give you my bottom line at the outset, I favor legislation which would 
guarantee to the accused his right to a preliminary hearing, whether or not a 
grand jury indictment is secured first. 

There are difi^erences between federal and state grand jury procedures, on 
which I shall touch later in my statement. 

In most states there are two widely disparate methods of initiating a felony 
prosecution : indictment and information. The choice, with no guiding standards 
in either statute or case law, is subject to the iminhihited strategy or whims of 
the prosecuting attorney. Both proseciitorial methods are ostensibly designotl to 
insure there is probable cause to believe that a felony has been committed and 
that the accused is guilty of it before he is subjected to the rigors, the expense, 
the jeopardy, and the obloquy of a trial. But here the similarity ends. If prose- 
cution is begun by information the acciised immediately becomes entitled to an 
impressive array of procedural rights, including a preliminary hearing before a 
neutral and legally knowledgeable magistrate, representation by retained or 
appointed counsel, the confrontation and cross-examination of hostile witnesses, 
and the opportunity to personally apjjear and aflSi-matively present exculpatory 
evidence. 

By contrast, the indictment procedure is distinctive because of its deliberate 
omission of even minimal safeguards. California Penal Code section 939.7 cap- 
tures the spirit of the proceeding by declaring forthrightly that "The grand jury 
is not required to hear evidence for the defendant . . ." Far from being allowed 
to be represented by counsel or to confront and cross-examine witnesses, the ac- 
cused himself has no right to appear unless called by the prosecution and if 
he is called he is denied the presence of counsel. The proceedings are conducted 
in absolute secrecy, and and in many cases the prospective indictee may not even 
be aware he is the subject of an inquiry. The members of the grand jury, consti- 
tutionally organized to provide a bulwark of objectivity between the citizen and 
the zealous prosecutor, are reduced to total reliance on the very public official 
whose potential excesses they are designed to check. In its raw state, the pro- 
ceeding raises the siJectre of the Star Chamber : the prosecution is able to "dry 
run" its case in secrecy, and the jurors are able to do little more than rubber 
stamp the recommendation of the district attorney. As I shall demonstrate, this 
disparity between the rights accorded defendants whose prosecutions are begun 
by indictment and those who are proceeded against by information raises grave 
issues of constitutional magnitude. Indeed, much recent commentary on the grand 
jury has been strongly critical. (See, e.g.. Antell, The Modern Grand Jury: 
Benighted Supergovernment (19<>i5) 51 A.B.A..T. 153; Comment, Grand Jury 
Proceedings: The Prosecutor, The Trial Judge and Undue Influence (1972) 39 
U.Chi. L.Rev. 761 ; Comment, Federal Grand Jury Investigation of Political 
Dissidents (1972) 7 Harv. Civ. Rights-Civ. Lib. L. Rev. 432; see generally 
Lubbers, Annotated Bibliography on the Grand Jury (1974).) 

The history of the various modes of initiating prosecutions reveals that analogy 
to early discredited English practice is not mere hyperbole; it appears we have 
now come full circle and returned to the pre-Runnymede era when "le graunde 
inquest" was merely an agency of the crown. Most authorities date the origin of 
the grand jury to the Assize of Clarendon (1166) in the reign of Henry IT. (2 
Pollock & Maitland, The History of English Law (2d ed. 1909) p. 642 (herein- 



i 91 

after Pollock & Maitland) ; 1 Holdsworth, A History of English Law (1003) 
l)p. 147-148 (hereinafter Holdsworth) ; 4 Blackstone, Commentaries, p. 301). It 
was there provided that 12 knights or "good and lawful men" of every hundred 
and four were to declare under oath the identities of those in the community 
suspected of public offenses. All persons thus "presented" were then tried by 
ordeals (Edwards, The Grand Jury (1906) p. 7 (hereinafter Edwards)), a 
method undeniably more barbaric than the present ordeal of trial. Failure to 
demonstrate innocence at the ordeal resulted in banishment and the loss of a 
hand and a foot ; success at the ordeal was rewarded by mere banishment. {Id. 
at p. 9.) 

Incidentally, there is a technical difference between an indictment and a pre- 
sentment. A presentment is an accusation made by the grand jury itself, flowing 
from the knowledge and personal observation of the members. An indictment 
comes to the grand jury as a charge from without, usually from a prosecutor or 
the king's officer, to which the grand jury either returns a true bill or a bill of 
"ignoramus." 

"Slowly the character of the institution changed. Originally an important 
instrument of the Crown, it gradually became instead a strong independent 
power guarding the rights of the English people." ( Youngei-, The People's Panel : 
The Grand Jury in the United States, 1634-1941 (1963) p. 2 (hereinafter 
Younger).). By 1352 the panel that accused no longer assumed responsibility for 
the trial itself, and the first seeds of the present bifurcated system of grand and 
petit jury were sown. (2 Pollock & Maitland, p. 649.) As the age of royal 
absolutism developed, this body of freemen became a singularly effective 
deterrent to politically motivated prosecution by the crown. The return by one 
famous grand jury of a bill of "ignoramus" in the attempted prosecution of the 
Earl of Shaftesbury in 1681 is frequently cited as demonstrating the evolution 
of the institution from a prosecutorial arm into an agency responsible for pro- 
tecting the individual from officially sanctioned oppression. 

Thus Edwards states : "So far as we have considered it, we have found it to 
be an arm of the government, acting as a public prosecutor for the purpose of 
ferreting out all crime, the members of the inquest being at all times bound 
to inform the court either singly or collectively their reasons for arriving at 
their verdict and the evidence upon which it was based. The seed, however, had 
been sown in Bracton's time, which was destined to change the grand jury from 
a mere instrument of the crown to a strong independent power which stood 
steadfast between the crown and the people in the defence of the liberty of the 
citizen." (Edwards, p. 27.) 

The establishment of British hegemony in the American colonies resulted 
in the exportation to our shores of British legal institutions, including the grand 
jury. While certain of the colonies, particularly the theocracies, altered the 
institution to conform to religious or social predilections, the colonists them- 
selves continued to regard the grand jury as a fundamental feature of a civilized 
state. Thus when in 1683 the inhabitants of New York forced the Duke of York 
to permit the colonial assembly to pass a "Charter of Libertyes and Priviledges." 
there was included the protection "That in all Cases Capitall or Crinnnall 
there shall be a grand Inquest who shall first present the offence and then twelve 
men of the neighborhood to try the Offender who after his plea to the Indictment 
shall be allowed his reasonable Challenges." (1 Schwartz, The Bill of Rights; 
A Documentary History (1971) p. 383.) 

"By the end of the Colonial period the grand jury had become an indispensable 
part of government in each of the American colonies. Grand juries served as more 
than panels of public accusers. They acted as local representative assemblies 
ready to make known the wishes of the people. They proposed new laws, pro- 
tested against abuses in government, and performed many administrative tasks. 
They wielded tremendous authority in their power to determine who .should 
and who should not face trial. They enforced or refused to enfoi-ce laws as 
they saw fit and stood guard against indiscriminate prosecution by royal officials." 
( Younger, p. 26. ) 

It is thus clear that a functional revolution in the grand jury occurred in 
the six centuries between the As,size of Clarendon and the adoption of the Fifth 
Amendment to the United States Constitution. By the time of the latter, the 
institution had evolved to its purest form : a citizen's tribunal, set resolutely be- 
tween the state and the individual. Unhappily, the contemporary grand jury no 
longer serves that hi.storic role and has regressed to little more than a convenient 
prosecutorial tool. On those isolated occasions when grand jurors assert their 
indei>endence, they are disparagingly referred to as "a runaway grand jury." 



92 

In order to appreciate the change that has taken place since 1791 it is 
necessary to review the development of the parallel method of accusation : the 
criminal information. 

Accusation by information was historically viewed with distrust, because 
originaily it represented simply the prosecutoi*'s naked charge which only in 
the last century has been checked by the development of the preliminary examina- 
tion. This method of accusation is at least as old as the indictment and "came 
very naturally to the centralized royal justice of the thirteenth century." 
(Orfield, Criminal Procedure From Arrest to Appeal (1947) p. 194 (hereinafer 
Orfield).) Ironically, unlike the situation today, the criminal information was 
fii-st seen as antagonistic to the right to indictment. Indeed even in the late 
19th century this was still an open question in the United States. However, in 
Iliirtado V. California (1884) 110 U.S. 516, tlie Supreme Court, over the vigorous 
di.ssent of Justice Harlan, held that the due process clause of the Fourteenth 
Amendment did not require an indictment as a condition precedent to a state 
felony prosecution. 

By the end of the medieval i)eriod the unrestricted use of accusation without 
indictment had become so intolerable that it in practice became restricted to 
misdemeanors. (9 Holdsworth, p. 238; Orfield, p. 195.) But even this limitation 
proved inadequate, because it still enabled "all private persons to prosecute 
criminally any person who had olfended them by any act which could be treated 
as a misdemeanor without the sanction of a grand jury." (1 Stephen, A History 
of the Criminal Law of England (1883) p. 296 (hereinafter Stephen).) In the 
17th century numerous attempts were made to abolish the information entirely ; 
although these efforts were unsuccessful, they did result in further procedural 
curbs. (Orfield, pp. 196-197.) 

Today it is common knowledge that the vast majority of felony prosecutions 
iu most states are initiated by information rather than indictment. (See, e.g., 
Judicial Council of Cal., Annual Rep. (1974) p. 45.) This results, however, in no 
diminution of the rights of the accused because of the development of a proce- 
dural outgrowth of the information, the preliminary hearing. 

The development of the preliminary hearing led to a movement to abolish the 
grand jury in the 1920's and early 1930's. A commission was established by 
President Hoover to inquire into the matter and its report, known as the 
'•Wickersham Report," recommended that the grand jury be abolished. The basis 
for the report was two empirical surveys conducted by Professor Moley of Co- 
lumbia University and Dean Wayne Morse of the University of Oregon. One of 
the principal findings of the surveys was that grand juries tend merely to rubber 
stamp the recommendation of the district attorney. (Moley, The Initiation of 
Criminal Prosecutions by Indictment or hiformatirm (1931) 29 Mich. L. Rev. 402; 
Morse, A Survey of the Grand Jury System (1931) 10 Ore. L. Rev. 101; but see 
Dession, From Indictment to Information — Implications of the Shift (1932) 42 
Yale L. J. 163. ) 

In its earliest form the preliminary examination, like the indictment and in- 
formation, was an oppressive tool of the crown. Most authorities date the origin 
of the proceeding to the inquest made by the coroner after the discovery of a 
crime. (1 Stephen, p. 217 ; 4 Holdsworth, p. 529. ) The proceeding was codified dur- 
ing the reign of Philip and Mary to give justices of the peace the power to con- 
duct what amounted to a British form of inquisition. (1 & 2 Phil. & M., ch. 13 
(1554) ; 2 & 3 Phil. & M.. ch. 10 (1555).) Holdsworth condemned these statutes 
as permitting "an inquisitorial examination of the prisoner, not a judicial en- 
quiry into the facts of the case. They gave, as they were designed to give, the 
executive some of the advantages against prisoners which were conferred by tne 
inquisitorial procedure of foreign states; and it is not till the reforms of the 
last century that the examination lost its original character, and became an en- 
quiry of a judicial nature. Such a procedure may seem strange to our modern 
ideas. But in the sixteenth century, it was necessary in order to secure the ob- 
servance of the law and to protect the state against its enemies." (4 Holdsworth, 
p. 529.) 

The reforms Holdsworth spoke of occurred in 1848, when Parliament decreed 
that defendants at preliminary examinations have the right to counsel, the right 
to have witnesses examined in their presence, and the right to make statements 
and present exculpatory witnesses. (11 & 12 Vict., ch. 42.) The enactment of these 
and further safeguards created the anomalous situation that accusation by in- 
formation, once the bane of English civil libertarians, became imbued with far 



93 

more procedural safeguards than were available when prosecution began by 
indictment. 

This anomaly persists to the present day, due primarily to the fact that the 
indicting function of the grand jury has not changed in character or procedure in 
centuries. By contrast, in England, the country of its origin, there is no longer 
a need to consider reforming the grand jury to comport with modern notions 
of justice and due process, because the British deemed the shortcomings of the 
whole grand jury system compelling enough to abolish the institution in 1933. 

To get down to modern times : there is a certain folklore and mystique about 
the grand jury. It inspires confidence as it launches investigations and calls its 
fellow citizens to account for their alleged misdeeds. The imderlying theory is 
that the institution is impervious to all coercive influences. 

Unfortunately the grand jury is not totally independent in actuality. Though 
free to take part in the interrogation the grand jurors must place trust in the 
prosecutor's guidance. It is he who tells them what the charge is, selects the facts 
for them to hear, shapes the tone and feel of the entire case. It is the prosecutor 
alone who has the technical training to understand the legal principles upon 
which the prosecution rests, where individual liberty begins and ends, the evi- 
dential value of available facts and the weight to be given proposed evidence. 
In short, the only person who has a clear concept of what is happening in the 
grand jury room is the public official whom these 23 laymen are expected to 
check. So that even if a grand jury were disposed to assert its historic independ- 
ence in the interest of an individual's liberty, it must, paradoxically, look to 
the very person whose misconduct they are supposed to guard against for guid- 
ance as to when he is acting oppressively. 

The fru.strations to law enforcement under constitutional government are 
formidable, and one can hardly expect lay citizens to observe the kind of 
restraint acquired by professionals through training and bitter experience. But 
their frequent lack of concern with the sufficiency of legal evidence places in 
doubt any claim that may be made for them as guardians of individual liberty. 
Moreover, because they are unable to comprehend the distinction between 
civil and criminal wrongdoing they are sometimes adamant about calling for 
criminal sanctions in cases which are essentially based upon disputes between 
individuals and in which the state has no legitimate interest. 

Nor are grand jurors overly impressed by constitutional guarantees, such as 
those against unreasonable search and seizure, self-incrimination and the count- 
less inhibitions upon the state which go into the making of due process of law, 
where these impede the progress of a prosecution or investigation. 

Secrecy is deemed the inviolate characteristic of the grand jury. Justice Bren- 
nan, in his dissent in Pittsburgh Plate Glass Co. v. U.S. (1959) SCO U.S. 395, 405, 
described the purposes of grajid jury secrecy : 

"Essentially four reasons have been advanced as justification for grand jury 
secrecy. (1) To prevent the accused from escaping before he is indicted and 
arrested or from tami>ering with the witnesses against him. (2) To prevent dis- 
closure of derogatory informacion presented to the grand jury against an 
accused who has not been indicted. (3) To encourage complainants and wit- 
nesses to come before the grand jury and speak freely without fear that their 
testimony will be made public thereby subjecting them to possible discomfort 
or retaliation. (4) To encourage the grand jurors to engage in uninhibited 
investigation and deliberation by barring disclosure of their votes and comments 
during the proceedings." (Fn. omitted.) 

But he added that "Grand jury secrecy is, of course, not an end in itself. 
Grand jury secrecy is maintained to serve particular ends. But when secrecy 
will not serve those ends or when the advantages gained by secrecy are out- 
weighed by a countervailing interest in disclosure, secrecy may and should be 
lifted, for to do so in such a circumstance would further the fair administration 
of criminal justice." (Id. at p. 403.) 

It is not difiicult to take each of the four traditional arguments, as enumerated 
by Justice Brennau, and demonstrate their invalidity. (Dash, The Indicting 
Grand Jury: A Critical Stage (1972) 10 Amer. Grim. L. Rev. 807, 819^824.) 

The first justification fails because when the prosecutor has probable cause, an 
escape of the suspect can be prevented by an arrest prior to the commencement 
of the grand jury proceeding. Probable cause requirements for an arrest are 
certainly far less demanding than they are for a grand jury presentation. The 
fear that the accused may tamper with v/itnesses lacks substance when we 
realize that no such protection is afforded witnesses at trial where the issue is 

78-905 — 7G 7 



94 

guilt or innocence rather than mere probable cause. Thus, grand jury secrecy 
provides only theoretical rather than real protection against this alleged evil. 

The second argument for secrecy — to protect the innocent accused — clearly is 
suspect in light of the fact that, in many instances, he already has been sub- 
jected to a public session before a magistrate and bound over to the grand jury. 

The third reason — to encourage witnesses and complainants to come before 
the grand jury and speak freely — provides little actual assistance to the prosecu- 
tor. If these witnesses are willing to come forward only in a secret proceeding, 
their testimony is valueless if they are unavailable at a subsequent trial. This 
rationale also loses sight of the fact that secrecy is designed primarily for the 
protection of the grand jury itself as a direct, independent representative of the 
public as a whole, rather than those brought before the grand jury. A witness 
is not a confidential informant ; he must consider his testimony subject to all the 
obligations of oath required in any judicial proceeding. 

The final reason given for maintaining grand jury secrecy — ^to provide for 
uninhibited investigation and deliberation by the jurors — merits examination. 
As noted previously I am not concerned here with the investigating grand jury — 
a body which is justified in operating secretively. Indeed, a real and practical 
benefit is arguably achieved by providing for uninhibited inquiry, particularly 
where governmental functions are involved. Such is not the case, however, with 
the indicting grand jury which has passed the investigating stage and has begun 
to focus on the accused. 

With regard to the grand jurors' "deliberations," it is imperative that secrecy 
be preserved. As the deliberations of a petit jury shall remain private and secret 
in every case, so too should similar sessions of the grand jury. The protection 
of the juror's subjective freedom of exi^ression in deliberation must be preserved. 
Deliberations, however, are but a part of the grand jury process. Just as there 
is no protective secrecy for the jurors hearing evidence on guilt or innocence at 
trial, so too it is unnecessary for a grand jury to proceed in secrecy when it 
hears the evidence on the issue of probable cause. 

Nevertheless, most jurisdictions cling steadfastly to secrecy in all aspects of 
grand jui-y functions and maintain the other anachronistic rules of the discarded 
English past. When the current grand jury procedure is followed, the overwhelm- 
ing probability is that an individual may be compelled to undergo the trauma of 
a felony trial based on an ex parte proceeding from which he and all his evi- 
dence are statutorily excluded. Indeed only a few jurisdictions have arrived at 
the point of recognizing that the prosecutor is under the modest duty to dis- 
close to the grand jury the existence of exculpatory evidence of which he is 
aware. 

In my view the indictment procedure remains constitutionally inadequate. 
Until the accused is given the right to demand a post-indictment preliminary 
hearing there is no question but that he is being denied due process at a critical 
stage of the proceedings, and also that there is a violation of equal protection 
when the rights accorded an indicted defendant are compared with those of an 
individual whose prosecution is initiated by information. 

In Coleman v. Alabama (1969) 399 U.S. 1, the United States Supreme Court 
concluded that the preliminary hearing is a critical stage of the criminal proc- 
ess "at which the accused is 'as much entitled to such aid [of counsel] ... as 
at the trial itself.'" (Id. at p. 10, quoting Powell v. Alabama (1932) 287 U.S. 
45, 57. ) The Alabama preliminary hearing was far less "critical" than its counter- 
part in most states, because its sole purpose was to determine if there was suffi- 
cient evidence against the accused to justify bringing the case before a grand 
jury. Nevertheless the Supreme Court held the "giiiding hand of coimsel at the 
preliminary hearing is essential to protect the indigent accused against an er- 
roneous or improper prosecution." (Id. at p. 9.) 

The court took pains to elaborate the reasons why counsel was necessary : 
"First, the lawyer's skilled examination and cross-examination of witnesses 
may expose fatal weaknesses in the State's case that may lead the magistrate 
to refuse to bind the accused over. Second, in any event, the skilled interroga- 
tion of witnesses by an experienced lawyer can fashion a vital impeachment 
tool for use in cross-examination of the State's witnesses at the trial, or preserve 
testimony favorable to the accused of a witness who does not appear at the trial. 
Third, trained counsel can more effectively discover the case the State has 
against his client and make possible the preparation of a proper defense to meet 
that case at the trial. Fourth, counsel can also be influential at the preliminary 
hearing in making effective arguments for the accused on such matters as the 



95 

necessity for an early psychiatric examination or bail." (Ibid,) These same 
factors, of course, also dictate that indicted defendants receive a post-indict- 
luent preliminary hearing, because at present these advantages are not granted 
to indicted defendants. 

The conclusion is inescapable that if a preindictment proceeding is a critical 
stage of the criminal justice process requiring due process safeguards, a fortiori 
the indictment proceeding itself is a critical stage. Indeed Chief Justice Burger, 
dissenting in Coleman, pointed out the "anomaly" of requiring counsel at a pre- 
liminary hearing when "counsel cannot attend a subsequent grand jury inquiry, 
even though witnesses, including the person eventually charged, may be inter- 
rogated in secret session." {Id. at p. 25.) The chief justice openly wondered 
(ibid.) "how can this be reconciled" with the fact that "at the decidedly more 
'critical' grand jury inquiry" there was no assistance of counsel. 

The bald disparity between the rights afforded an accused at a preliminary 
hearing and those refused a defendant charged with an identical offense before 
the grand jury has led one writer to characterize the holding in Coleman as a 
"tantalizing tease" : "One can imagine a prosecutor piously explaining to an ac- 
cused : 'Yes, indeed, if you have a preliminary hearing, it is a critical stage of 
the prosecution and you are entitled to counsel. You will be able to cross-examine 
witnesses against you, present any testimony you wish to give, challenge whether 
Ijrobable cause has been established and obtain some discovery of the case against 
you — but, of course, that is if I permit you to have a preliminary hearing. If 
I choose to go directly to the grand jury, on the other hand, all these precious 
rights I just outlined for you are not available since you are not exposed to a 
critical stage of the prosecution but only to the grand jury which indicts you.' 
If the accused is a reader of Dickens, he will be compelled to reply : 'If the law 
(says) that . . . then the law is a ass. . . . ' " (Dash, The Indicting Grand Jury: 
A Critical Stage? (1972) 10 Am. Crim. L. Rev. 807, 814-815.) 

The term "anomaly" tends to become overworked when the grand jury's indict- 
ing function is under discussion, but one is continually struck by the fact that 
this proceeding remains untouched by the safeguards which have become firmly 
attached to points in the criminal process of far less significance. For example, 
it was the law at least until recently that a casual suspect at a lineup has more 
rights than an accused before a grand jury. (United States v. Wade (1967) 388 
U.S. 218.) Similarly, a parolee charged simply with violation of conditions of his 
parole has the opportunity to personally appear, cross-examine hostile wit- 
nesses, and be conditionally represented by counsel at the revocation hearing 
(Morrissey v. Brewer (1972) 408 U.S. 471; Gagnon v. Scarpelli (1973) 411 U.S. 
778), yet none of these protections is accorded to the potential indictee. Indeed, 
far more safeguards protect prison inmates at disciplinary hearings (Wolff v. 
McDonnell (1974) 418 U.S. 539) and parole rescission hearings (Gee v. Brown 
(1975) 14 Cal. 3d 571) than are permitted free and presumptively innocent per- 
sons before the grand jury. 

The traditional counterargument that the grand jury merely inquires into 
whether there is probable cause to bind the defendant over for trial, thus avoid- 
ing any need for due process safeguards, can no longer be considered valid after 
Coleman, Morrissey and their progeny. As noted, in Coleman the Alabama pre- 
liminary hearing determined only whether there was probable cause to present 
the case to the grand jury — not even whether there was probable cause to bind 
the defendant over for trial. Nevertheless the Supreme Court held that the 
potential jeopardy to the defendant was significant enough to trigger the demands 
of due process. 

An even more vivid illustration of the point is the recent recognition of the due 
jirocess rights of parolees at the prerevocation hearing. Morrissey mandates two 
separate hearings prior to parole revocation, the first of which, the prerevocation 
hearing, is designed to determine only whether there is probable cause to believe 
the parolee has violated a condition of parole. {Morrissey, at pp. 484-487 of 408 
U.S.) Yet in order to terminate the "conditional liberty" of the parolee the au- 
thorities must give notice of the time, place, and purpose of the prerevocation 
hearing and afford the parolee the opportunity "to appear and speak personally 
in his own behalf, and bring and present letters, documents and other persons who 
can give relevant information to the hearing officer. Adverse witnesses are to be 
made available for questioning by the parolee except when the hearing officer 
determines that an informant would be subject to risk of harm if his identity 
were disclosed. The hearing officer must make a summary or digest of the pro- 
ceedings and must determine if there exists probable cause to hold the parolee for 



96 

revocation proceedings against him." (People v. Vickers (1972> 8 Cal. 3d 451, 
456-457.) 

It is therefore manifest tliat if due process requires these various procedural 
j)rotections in order to determine probable cause to terminate conditional liber- 
ties, equal or creater safeguards must be observed in order to protect the abso- 
lute liberty of the prospective indictee. Here again we see the incongruous 
circumstance of a proceeding which is deemed constitutionally sufficient to 
indict but is inadequate to serve as a substitute for the prerevocation hearing: 
eitiier the ju'^'liminary hearing or the trial itself may nerve as the prerevocation 
liearing if a parolee charged with a new offense is given notice of the dual 
purpose of the proceeding (In re Law (1973) 10 Cal. 3d 21) ; but the grand 
jury proceeding, because of its complete lack of the procedural rights mandated 
by Morrissey, may not be so substituted (In re Valrie (1974) 12 Cal. 3d 139). 
In short, the present grand jury system does not even rise to the constitutional 
standards !)f pai-ole prerevocation hearings. 

In Powell V. Alabama (1932) 287 U.S. 45, 69, the Supreme Court declared 
that a person accused of crime "required the guiding hand of counsel at every 
stage in the proceedings against him." If this were in fact the recognized law 
this hearing would be unnecessary, because it is irrefutable that the grand 
.inry proceeding is a "stage," and indeed a critical stage, of the criminal justice 
process. Unfortunately, to date courts have been loathe to shine the revealing 
light of due process analysis into the secret recesses of the grand jury room. 
Because of this reticence, the state is permitted to subject an individual to the 
trauma of a felony trial without even cursory consideration of his side of the 
story. This, I submit, is a patent violation of the due process clauses of the 
Constitution, rivaled only in most states by an equally blatant violation of equal 
protection of the law. 

Under traditional equal protection analysis it has now become axiomatic that 
persons similarly situated must receive lilce treatment under the law. (In re 
Antazo (1970) 3 Cal. 3d 100, 110.) If "fundamental rights" are not involved 
the state may justify classifications if they are reasonably related to a legitimate 
state goal. If fundamental rights or "suspect classifications" are involved the 
state bears the heavy burden of demonstrating a "compelling" interest. As 
stated in Serrano v. Priest (1971) 5 Cal. 3d 584, "in cases involving "suspect 
clas'<ifieations" or touching on "fundamental interests," . . . the court has adopted 
an attitude of active and critical analysis, subjecting the classification to strict 
scrutiny. [Citations.] Under the strict standard applied in such cases, the state 
bears the burden of establishing not only that it has a compelling interest which 
justifies the law but that the distinctions drawn by the law are necessary to 
fnrtlier i<s pui^poses.' " {Id. at p. 597, quoting Westbrook v. Mihaly (1970) 2 Cal. 
3d 765, 784-785.) 

In all state criminal cases the prosecuting attorney, and by extension the state, 
makes a distinction between those defendants who will lie prosecuted by indict- 
ment and those who will be prosecuted by information. One class of defendants 
receives a preliminary hearing with the attendant rights heretofore enumerated, 
while the other class receives no preliminary hearing and no procedural pro- 
tections. The two classes are in all other respects identical and indeed, as in 
many cases, embrace not only the same crimes but occasionally the same indi- 
vidual. The classification is not based on any state objective wliich may be con- 
sidered legitimate, but rather is grounded on the arbitrary goal of vesting in 
the People vast prosecutorial advantages which the grand jury system affords. 

People V. TThlemann (1973) supra, 9 Cal. 3d 662, is illustrative of the advantage. 
At the preliminary hearing the defendant, through counsel, was able to dis- 
credit the prosecution witnesses as he confronted them. The experienced magis- 
trate refused to hold the defendant for trial. Undaunted, the prosecutor went 
forum shopping and took the case before the grand jury, where, such matters 
being uncontested, it was readily predictable that an indictment would be re- 
turned. It was. 

Moreover, these classifications are not mere economic discriminations ^o which 
the rational relation test may be applied, but rather involve such fundamental 
rights as counsel, confrontation, the right to personally appear, the right to a 
hearing before a judicial officer, and the right to be free from unwarranted pros- 
ecution. These guarantees are expressly or impliedly grounded in both the state 
and federal Constitutions and must by any test be deemed "fundamental." Ac- 
cordingly, in order to justify such a selective denial of fundamental guarantees 
the state must show not only a compelling interest but also that the classifications 
are necessary to that end. 



97 

The goal of prosecutorial advantage could not, of course, be deemed "com- 
pelliug." Indeed this goal could not even be termed "legitimate." But even assum- 
ing arguendo there is some heretofore unperceived purpose for initiating certain 
prosecutions by grand jury indictment which would satisfy the compelling in- 
terest test — an assumption that is extravagantly generous — it is nevertheless 
clear that the denial to these defendants of a post-indictment preliminary hearing 
could not possibly be "necessary" to achieve that hypothetical goal. 

It may be argued, for example, that in certain cases there is an overwhelming 
need for the secrecy which can be obtained only through the grand jury, either 
for the protection of witnesses or, in rare instances, for the protection of the 
defendant himself. (See People v. Sirhan (1972), 7 Cal. 3d 710.) However, once 
an indictment is returned these considerations can no longer be considered opera- 
tive, because whatever secrecy was achieved through the grand jury will be 
forsaken when the defendant is brought to trial. Thus there would appear to be 
no reason, post-indictment, why the defendant could not be accorded a preliminary 
hearing. 

For the foregoing reasons I am of the view that equal protection requires that 
all criminal defendants have the same opportunity to prove to a magistrate that 
there is no probable cause to bind them over for trial. "The purpose of the prelimi- 
nary hearing is to weed out groundless or unsupported charges of grave offenses, 
and to relieve the accused of the degradation and the expense of a criminal trial. 
Many an unjustifiable prosecution is stopped at that point, where the lack of 
probable cause is clearly disclosed." (Jaffe v. Stone (1941), 18 Cal. 2d 146. 150.) 
A proceeding of such significance cannot, consistent with the constitutional man- 
date of equal protection, be selectively denied. 

It may be argued that to afford an indicted defendant the riglit to deuiniid a 
postindictment preliminary hearing would be a superfluous formalism because 
the issue of probable cause had already been decided by the grand jury. However, 
it must be borne in mind that tlie prosecutor elects to initiate a prosecution in a 
forum that would preclude petitioner from testifying in his own behalf. If this 
tactic would be unavailing because of the defendant's right to a subsequent 
preliminary hearing, a prosecutor would have no incentive to engage in such 
df'vious gamesmanship. The safeguard of an available preliminary hearing would 
dissuade prosecutors from taking unfair advantage in their unilateral pre^^enta- 
tion to the grand jury, and would encourage them to present available exculpatory 
evidence. 

]\Iy suggestion is not unprecedented. Recently the Supreme Court of Slichigan, 
exercising the inherent power of the court over matters of criminal procedure, 
held that all indicted defendants are entitled to such examinations as a matter 
of right. By relying on inherent power the Michigan court avoided what was char- 
acterized as "serious questions of equal protection and due process . . . since 
[the present system] denies to an accused indicted by a multiple-man grand jury 
what has become recognized as a fundamental right in most criminal cases — the 
right to a preliminary examination." (People v. Duncan (1972), 201 N.W. 2d 
G29. G35. ) 

While the pragmatic result obtained by the Michigan Supreme Court is sound, 
I would face the constitiitional issues and require that all indicted defendants 
receive a post-indictment preliminary examination. Unless this very minimal 
safeguard is interposed between the state and the accused individual I fear the 
current grand jury procedure is constitutionally infirm and one day a perceptive 
court will so hold. 

I have spoken principally about state proceedings because I am most familiar 
with them. Federal and state grand jury proceedings are similar in most respects^ 
Tlie sessions are held in total secrecy, no one may attend other than the witness 
under examination and a stenograiiher or operator of a recording device. During 
deliberations no one may remain in the room except the grand jurors themselves. 
Under federal rules defendants are not entitled to a copy of grand jury minutes 
as a matter of right, or to read the testimony of witnesses. In most state courts 
a complete transcript is provided to every defendant, and in my state 10 days 
after defendant has his copy, the transcript is made public. 

Finally, the preliminary examination provided in Rule 5c of the Federal 
Rules of Criminal Procedure is comparable to the preliminary hearing held in 
most states after an information is filed. In the federal system the preliminary 
examination is conducted by a magistrate whereas in state courts the preliminary 
lieoring is held by a judge of the court of first instance. 

On the specific procedural section"? of S. 3274 T have few useful comments. As 
to the evidence requirements, I heartily agree that only evidence legally obtained 



98 

shoiild be admitted. If we are to retain the exclusionary rule in trial courts, as 
a means of deterring improper law enforcement practices, it wonld seem anoma- 
lous to permit the fruits of illegal searches and seizures to be used in the early 
stages of the criminal prosecutorial system. If the evidence will be barred at trial, 
it should be barred before the indicting body. 

I also approve the requirement that the government produce for the grand 
jury evidence in its possession that might tend to exculpate the potential defend- 
ant. Certainly the government has no obligation to affirmatively seek exculpa- 
tory evidence on behalf of a suspect. But if it has such evidence at hand, ele- 
mentary fair play commands that the matters be revealed to the deliberative 
body that has the grave responsibility of charging a fellow citizen with commis- 
sion of a serious crime. 

One additional mattei". I have the same apprehension expressed by Justice 
Brennan in his dissent in United States v. Mandujano (1976) — U.S. — (May 19, 
1976) over prosecutors who deliberately delay proceedings before the grand jury 
in order to call putative defendants before that body for interrogation about 
transactions and events for which an indictment is to be sought. That process 
is, as Justice Brennan put it, "a blatant subversion of the fundamental adversary 
principle," that the State establish its case not through the defendant but by 
independent investigation. (Watts v. Indiana. 338 U.S. at p. 54.) 

I would adopt Justice Brennan's suggested rule, holding "that, in the absence 
of an intentional and intelligent waiver by tlie individual of his known right to 
be free from compulsory self-incrimination, the Government may not call before 
a grand jury one whom it has probable cause— as measured by an objective 
standard — to suspect committed a crime, and by use of judicial compulsion 
eomi)el him to testify with regard to that crime. In the absence of such a waiver, 
the Fifth Amendment requires that any testimony obtained in this fashion 
be unavailable to the Government for use at trial. Such a waiver could read- 
ily be demonstrated by proof that the individual was warned prior to ques- 
tioning that he is currently siibjeet to ix)ssible criminal prosecution for the 
commission of a stated crime, that he has a constitutional right to refuse to 
answer any and all questions that may tend to incriminate him, and by record 
evidence that the individual understood the nature of his situation and privilege 
prior to give testimony." (Fns. omitted.) 

In conclusion : if I can be of any help to your committee I shall be pleased 
to do so. The grand jury needs reformation, or perhaps more literally, moderni- 
zation. Over 800 years of usage give a veiT striking respectability to any entity ; 
and grand juries existed before the feudal law and have survived its extinction. 
They are perhaps the oldest of existing institutions ; but if they are to survive, 
they must rest on their utility under constitutional limitations, not on their 
antiquity, for future acceptance. 

Mr. Levine. On behalf of Chairman Tnnney and on l)elialf of tlie 
committee, I thank yon, Mr. Lewis, Mr. Van de Kanip and ISIr. Ger- 
stein for appearing^ this morning. 

Mr. Gerstein, do you have something to add? 

TESTIMONY OF RICHARD E. GERSTEIN— Resumed 

]Mr. Gerstein. Yon asked me for a specific instance of grand jury 
abuse and I told you that I could not recall a specific instance. Since 
then, I have recalled a ver}' specific instance of a very grave abuse. 

INEr. Levine. Yes, sir. 

Mv. Gerstein". Several years agfo in INIiami, a Federal prosecutor 
on two occasions presented to a Federal grand jury evidence which 
he hoped would lead to the indictment of a group of prominent 
bankers. Twice the Miami grand jury refused to return the indict- 
ment, so the prosecutor traveled to Tampa. Fla., some 250 miles distant, 
which was within the Federal circuit and obtained the indictment from 
a Tampa grand jury, who did not know the accused persons, and did 
not know their reputation in tlie community' and, thus, was able to act 
witliout considering any of those matters. 



p 



99 

INIr. Levine. Thank you very much, Mr. Gerstein. 

]Mr. Lewis. I might in that context remind the committee of the 
well-laiown situation of tlie suspected IRA sympathizers in New York 
who were subpenaed before a grand jury — a grand jury in Fort 
Worth, I believe it was. That procedure resulted in bringing those 
persons from their homes, from their confidants and their lawyers, 
subjecting them to immense inconvenience, jeopardy, and vulnerabilitj' 
as witnesses. It is not only defendants who are victimized. 

This is something that cries for reform, as well. 

Mr. Levine. Thank you. 

The record of the hearing will include the written statements of 
the witnesses as submitted. 

The record will include also the statements of members of the com- 
mittee. At this point, also, the record will include some of the current 
constitutional, rule, and statutory provisions relevant to this morn- 
ing's hearing. 

The fifth amendment provides that: 

Xo person shall be held to answer for a capital, or otherwise infamous crime, 
unless on a presentment or indictment of a Grand Jury, except in cases arising 
in the land or naval forces, or in the Militia, when in actual service in time of 
War or public danger ; * * * 

In the Federal Rules of Criminal Procedure, rule 5(c) provides a 
right to a preliminary examination before a magistrate, unless there 
is a prior indictment and unless there is a waiver by the defendant. 
Rule 5,1 spells out that the preliminary examination is an adversary 
proceeding where the defendant is present in person, may confront 
and cross-examine witnesses against him and may introduce evidence 
in his own behalf. Rule 6 details the procedures before the grand 
jury. Rule 7 (a) and (b) provide for a waiver of indictment. The 
former provisions of title 18, United States Code, dealing with grand 
juries have been superseded by these rules, but there is a recently 
added provision, chapter 216, on the special grand jury. Title 28 has 
provisions on recalcitrant witnesses, and Title 18 has provisions on 
the grant of immunity. All these items will be inserted in the hearing 
record at this point. 

[The material referred to follows:] 

[Excerpts From the Federal Rules of Criminal Procedure] 
RULE 5 (C) INITIAL APPEARANCE BEFORE THE MAGISTRATE 

^ ^ 3{C 3fC 9(! •!• I* 

A defendant is entitled to a preliminary examination, unless waived, when 
charged with any offense, other than a petty offense, which is to be tried by a 
judge of the district court. If the defendant waives preliminary examination, 
the magistrate shall forthwith hold him to answer in the district court. If the 
defendant does not waive the preliminary examination, the magistrate shall 
schedule a preliminary examination. Such examination shall be held within a 
reasonable time but in any event not later than 10 days following the initial 
appearance if the defendant is in custody and no later than 20 days if he is not 
in custody, provided, however, that the preliminary examination shall not be 
held if the defendant is indicted or if an information against the defendant is 
filed in district court before the date set for the preliminary examination. * * * 

RULE 5.1 PRELIMINARY EXAMINATION 

(a) Probable Cause Finding, If from the evidence it appears that there is 
probable cause to believe that an offense has been committed and that the 



100 

defendant committed it, tlie federal magistrate shall forthwith hold him to 
answer in district court. The finding of probable cause may be based upon hearsay 
evidence in whole or in part. The defendant may cross-examine witnesses against 
him and may introduce evidence in his own behalf. Objections to evidence on the 
ground that it was acquired by unlawful means are not properly made at the 
preliminary examination. Motions to suppress must be made to the trial court 
as provided in Rule 12. 

(b) Discharge of Defendant. If from the evidence it appears that there is no 
probable cause to believe that an offense has been committed or that the defendant 
committed it, the federal magistrate shall dismiss the complaint and discharge 
the defendant. The discharge of the defendant shall not preclude the govern- 
ment from instituting a subsequent prosecution for the same offense. 

(c) Records. After concluding the proceeding the federal magistrate shall 
transmit forthwith to the clerk of the district court all papers in the proceeding. 
The magistrate shall promptly make or cause to be made a record or summary 
of such proceeding. 

(d) On timely application to a federal magistrate, the attorney for a de- 
fendant in a criminal case may be given the opportunity to have the Recording 
of the hearing on preliminary examination made available for his information 
in connection with any further hearing or in connection Vv'ith his preparation for 
trial. The court may, by local rule, appoint the place for and define the condi- 
tions under which such opportunity may lie afforded counsel. 

(2) On application of a defendant addressed to the court or any judge thereof, 
an order may issue tbat the federal magistrate make available a copy of the tran- 
script, or of a portion thereof, to defense counsel. Such order shall provide for 
prepayment of costs of such transcript by the defendant unless the defendant 
makes a sufficient affidavit that he is unable to pay or to give security therefor, 
in v.-hich case the expense shall be paid by the Director of the Administrative 
Office of the United States Courts from available appropriated funds. Counsel 
for the government may move also that a copy of the transcript, in whole or in 
part, he made available to it. for good cause shown, and an order may be entered 
granting such motion in whole or in part, on appropriate terms, except that the 
government need not prepay costs nor furnish security therefor. 

RULE 6. THE GRAND JURY 

(a) Summoning Grand .Juries. The court shall order one or more grand juries 
to be summoned at such times as the public interest requires. The grand jury 
sliall consist of not less than 16 nor more than 28 members. The court shall direct 
that a sufficient number of legally qualified persons be summoned to meet this 
requirement. 

(b) Objections to Grand Jury and to Grand Jurors. 

(1) Challenges. The attorney for the government or a defendant who has been 
held to answer in the district court may challenge the array of jurors on the 
ground that the grand jury was not selected, drawn or summoned in accordance 
with law, and may challenge an individual juror on the ground that the juror 
is not lesrally qualified. Challenges shall be made before the administration of the 
oath to the jurors and shall be tried by the court. 

(2) Motion to Dismiss. A motion to dismiss the indictment may be based 
on objections to the array or on the lack of legal qualification of an individual 
juror, if not previously determined upon challenge. It shall be made in the man- 
ner prescribed in 28 U.S.O. § 1867 (e) and shall be granted under the conditions 
prescribed in that statute. An indictment shall not l)e dismissed on the ground 
that one or more members of the grand jury were not legally qualified if it ap- 
pears from the record kept pursuant to subdivision (c1 of this rule that 12 or 
more jurors, after deducting the number not legally qualified, concurred in find- 
ing the indictment. 

(c) Foreman and Deputy Foreman. The court shall appoint one of th" jurors 
to be foreman and another to be deputv foreman. The foremnn shall have power 
to administer oaths and affirmations and shall sign all indictments. lie or an- 
other juror desisrnnted by him shall keep a record of the number of iurors con- 
curring in the finding of every indictment and shaH f\fe the record with the 
clerk of the court, but the record shall not be made public except on order of tlie 
court. During the absence of the foreman, the deputy foreman shall act as fore- 
man. 



101 

(d) Who May Be Present. Attorneys for the government, the witness under 
examination, interpreters when needed and, for tiie purpose of taking the 
evidence, a stenographer or operator of a recording device may be present wliile 
the grand jury is in session, but no person other tlian tlie jurors may be present 
while the grand jury is deliberating or voting. 

(e) Secrecy of Proceedings and Disclosure. Disclosure of matters occurring 
before the grand jury other than its deliberations and the vote of any juror 
may be made to the attorneys for the government for use in the performance of 
their duties. Otherwise a juror, attorney, interpreter, stenographer, operator 
fif a recording device, or any typist who transcribes recorded testimony may dis- 
close matters occurring before the grand jury only when so directed by the court 
preliminarily to or in connection with a judicial proceeding or when permitted 
by the court at the request of the defendant upon a showing that grounds may 
exist for a motion to dismiss the indictment because of matters occurring be- 
fore the grand jury. No obligation of secrecy may be imposed upon any person 
except in accordance with this rule. The court may direct that an indictment 
shall be kept secret until the defendant is in custody or has given bail, and in 
that event the clerk shall seal the indictment and no person shall disclose the 
tinding of the indictment except when necessary for the issuance and execution 
of a warrant or summons. 

(f ) Finding and Return of Indictment. An indictment may be found only upon 
the concurrence or 12 or more jurors. The indictment shall be returned by the 
grand jury to a judge in open court. If the defendant is in custody or has given 
bail and 12 jurors do not concur in finding an indictment, the foreman shall so 
report to the court in writing forthwith. 

(g) Discharge and Excuse. A grand jury shall serve until discharged by the 
court but no grand jury may serve more than 18 months. The tenure and powers 
of a grand jury are not affected by the beginning or expiration of a term of 
court. At any time for cause shown the court may excuse a juror either tempo- 
rarily or permanently, and in the latter event the court may impanel another 
person in place of the juror excused. 

BULE 7. THE INDICTME:NT AND THE INFORMATIOJ?" 

(a) Use of Indictment or Information. An offense which may be punished by 
death shall be prosecuted by indictment. An offense which may be punished by 
imprisonment for a term exceeding one year or at hard labor shall be prosecuted 
by indictment or, if indictment is waived, it may be prosecuted by information. 
Any other offense may he prosecuted by indictment or by information. An in- 
formation may be filed withoiit leave of court. 

())) Waiver of Indictment. An offense which may be punished by imprison- 
ment for a term exceeding one year or at hard labor may be prosecuted by in- 
formation if the defendant, after he has been advised of the nature of the charge 
and of his rights, waives in open court prosecution by indictment. 



[Excerpts From Title 18, U.S. Code] 

CHAPTER 216— SPECIAL GRAND JURY 

Sec. See. 

?>?,?,!. Summoning and term. 3333. Reports. 

3332. Powers and duties. 3334. General provisions, 

§ 3331. Summoning and term 

(a) In addition to such other grand juries as shall be called from time to time, 
each district court which is located in a judicial district containing more than 
four million inhabitants or in which the Attorney General, the Deputy Attorney 
General, or any designated Assistant Attorney General, certifies in writing to the 
chief judge of the district that in his judgment a special grand jury is necessary 
because of criminal activity in the district shall order a special grand jury to be 
summoned at least once in each period of eighteen months unless another special 
grand jury is then serving. The grand jury shall serve for a term of eighteen 
months unless an order for its discharge is entered earlier by the court upon a 
determination of the grand jury by majority vote that its business has been com- 
pleted. If, at the end of such term or any extension thereof, the district court 
determines the business of the grand jury has not been completed, the court may 



102 

enter an orOer extending such term for an additional period of six months. No 
special grand jury term so extended shall exceed thirty-six months, except as 
provided in subsection (e) of section 3333 of this chapter. 

(b) If a district court ^^ithin any judicial circuit fails to extend the term of a 
special grand jury or enters an order for the discharge of such grand jury before 
such grand jury determines that it has completed its business, the grand jury, 
upon the affirmative vote of a majority of its members, may apply to the chief 
judge of the circuit for an order for the continuance of the term of the grand 
jury. Upon the making of such an application by the grand jury, the term thereof 
shall continue until the entry upon such application by the chief judge of the 
circuit of an appropriate order. No special grand jury term so extended shall 
exceed thirty-six months, except as provided in subsection (e) of section 3333 
of this chapter. 

§ 3332. Powers and duties 

(a) It shall be the duty of each such grand jury impaneled within any judicial 
district to inquire into offenses against the criminal laws of the United States 
alleged to have been committed within that district. Such alleged offenses may 
be brought to the attention of the grand jury by the court or by any attorney 
appearing on behalf of the United States for the presentation of evidence. Any 
such attorney receiving information concerning such an alleged offense from any 
other person shall, if requested by such other person, inform the grand jury of 
such alleged offense, the identity of such other person, and such attorney's action 
or recommendation. 

(b) Whenever the district court determines that the volmne of business of the 
special grand jury exceeds the capacity of the grand jury to discharge its obliga- 
tions, the district court may order an additional special grand jury for that 
district to be impaneled. 

§ 3333. Reports 

(a) A special grand jury impaneled by any district court, with the concurrence 
of a majority of its members, may, uix)n completion of its original term, or each 
extension thereof, submit to the court a report — 

(1) concerning noncriminal misconduct, malfeasance, or misfeasance in 
office involving organized criminal activity, by an appointed public officer or 
employee as the basis for a recommendation of removal or discipUnary 
action ; or 

(2) regarding organized crime conditions in the district. 

(b) The court to which such report is submitted shall examine it and the 
minutes of the special gi-and jury and, except as otherwise provided in subsections 
(c) and (d) of this section, shall make an order accepting and filing such report 
as a public record only if the court is satisfied that it complies with the provisions 
of subsection (a) of this section and that — 

(1) the report is based upon facts revealed in the course of an investiga- 
tion authorized by subsection (a) of section 3332 and is supix)rted by the 
preponderance of the evidence ; and 

(2) when the report is submitted pursuant to paragraph (1) of subsection 
(a) of this section, each person named therein and any reasonable number 
of witnesses in his behalf as designated by him to the foreman of the grand 
jury were afforded an opportunity to testify before the grand jury prior to 
the filing of such report, and when the report is submitted pursuant to para- 
graph (2) of subsection (a) of this section, it is not critical of an identified 
person. 

(c) (1) An order accepting a report pursuant to paragraph (1) of subsection 
fa) of this section and the report shall be sealed by the court and shall not be 
filed as a public record or be subject to subpena or otherwise made public (i) until 
at least thirty-one days after a copy of the order and report are served upon each 
public officer or employee named therein and an anSAver has been filed or the time 
for filing an answer has expired, or (ii) if an appeal is taken, until all rights of 
review of the public officer or employee named therein have expired or terminated 
in an order accepting the report. No order accepting a report pursuant to para- 
graph (1) of subsection (a) of this section shall be entered until thirty days after 
the delivery of such report to the public officer or body pursuant to paragraph 
(3) of subsection (c) of this section. The court may issue such orders as it shall 
deem appropriate to prevent unauthorized publication of a reix)rt. Unauthorized 
publication may be punished as contempt of the court. 



103 

(2) Such public officer or employee may file with the clerk a verified answer to 
such a report not later than twenty days after service of the order and report 
upon him. Upon a showing of gootl cause, the court may grant such public officer 
or employee an extension of time within which to file such answer and may au- 
thorize such limited publication of the report as may be necessary to prepare 
such answer. Such an answer shall jjlainly and concisely state the facts and law 
constituting the defense of the public officer or employee to the charges in said 
report, and, except for those parts thereof which the court determines to have 
been inserted scandalously, prejudiciously, or unnecessarily, such answer shall 
become an appendix to the report. 

(3) Upon the expiration of the time set forth in paragraph (1) of subsection 
(c) of this section, the United States attorney shall deliver a true copy of such 
report, and the appendix, if any, for appropriate action to each public officer or 
body having jurisdiction, responsibility, or authority over each public officer or 
employee named in the report. 

(d) Upon the submission of a report pursuant to subsection (a) of this section, 
if the court finds that the filing of sucli report as a public record may prejudice 
fair consideration of a pending criminal matter, it shall order such report sealed 
and such report shall not be subject to subpena or public inspection during the 
IJendency of such criminal matter, except upon order of the court. 

(e) Whenever the court to which a report is submitted pursuant to paragraph 
(1) of subsection (a) of this section is not satisfied that the report complies 
with the provisions of sub.section (b) of this section, it may direct that additional 
testimony be taken before the same grand jury, or it shall make an order sealing 
such report, and it shall not be filed as a public record or be subject to subpena 
or otherwise made public until the provisions of subsection (b) of this section 
are met. A special grand jury term may be extended by the district court beyond 
thirty-six months in order that such additional testimony may be taken or the 
provisions of subsection (b) of this section may be met. 

(f ) As used in this section, "public officer or employee" means any officer or 
employee of the United States, any State, tlie District of Columbia, the Common- 
wealth of Puerto Rico, any territory or possession of the United States, or any 
political subdivision, or any department, agency, or instrumentality thereof. 

§ 3334. General provisions 

The provisions of chapter 215, title 18, United States Code, and the Federal 
Rules of Criminal Procedure applicable to regular grand juries shall apply to 
special grand juries to the extent not inconsistent with sections 3331, 3332, or 
3333 of this chapter. 

* lis * * * * * 

§ 6002. Immunity generally 

Whenever a witness refuses, on the basis of his privilege against self-incrimi- 
nation, to testify or provide other infoiination in a proceeding before or ancillary 
to— 

( 1 ) a court or grand jury of the United States, 

(2) an agency of the United States, or 

(3) either House of Congress, a joint committee of the two Houses, or a 
committee or a siibcommittee of either House, 

and the person presiding over the proceeding communicates to the witness an 
order issued under this part, the witness may not refuse to comply with the 
order on the basis of his privilege against self-incrimiimtion : but no testimony 
or other information compelled under the order (or any information directly 
or indirectly derived from such testimony or other iiifomation) may be used 
against the witness in any criminal case, except a prosecution for perjury, giving 
a false statement, or otherwise failing to comply with the order. 

* H: * * * * * 

§ 6003. Court and grand jury proceedings 

(a) In the cas'e of any individual who has been or may be called to testif.v or 
provide other information at any proceeding before or ancillary to a court of 
the United States or a grand jury of the United States, the United States district 
court for the judicial district in which the proceeding is or may be held shall 
issue, in accordance with subsection (b) of this section, upon the request of the 
United States attorney for such district, an order requiring such individual 
to give testimony or provide other information which he refuses to give or 



104 

provide on the basis of liis privilege against self-incrimination, such order to 
become effective as provided in section 6002 of this part. 

(b) A United States attorney may, with the approval of the Attorney General, 

the Deputy Attorney General, or any designated Assistant Attorney General, 

:request an order luider subsection (a) of this section when in his judgment — 

( 1 ) the testimony or other information from such individual may be neces- 

■sary to the public interest ; and 

i{2) such individual has refused or is likely to refuse to testify or provide 
other information on the basis of his privilege against self-incrimination. 
if » * * ^ * * 

[Excerpt From Title 28, U.S. Code] 

§ 182G. Recalcitrant witnesses. 

(a) AVhenever a witness in any proceeding before or ancillary to any court or 
grand jury of the United States refuses without just cause shown to comply 
with an order of the court to testify or provide other information, including any 
book, paper, document, record, recording or other material, the court, upon such 
refusal, or when such refusal is duly brought to its attention, may summarily 
order his confinement at a suitable place until such time as the witness is willing 
to give such testimony or provide such information. No period of such confine- 
ment shall exceed the life of — 

( 1 ) the court proceeding, or 

(2) the term of the grand jury, including extensions, 

before which such refusal to comply with the court order occurred, but in no 
event shall such confinement exceed eighteen months. 

(b) No person confined pursuant to subsection (a) of this section shall be 
admitted to bail pending the determination of an appeal taken by him from 
the order for his confinement if it appears that the appeal is frivolous or taken 
for delay. Any appeal from an order of confinement under this section shall lie 
disposed of as soon as practicable, but not later than thirty days from the filing 
of such appeal. 

******* 

INIr. Levine. The record will remain open for 2 weeks. Additional 
material submitted to the subcommittee will be included in an appen- 
dix to the record. 

The subcommittee stands adjourned. 

[Whereupon, at 12 o'clock noon, the subcommittee adjourned, to 
reconvene at the call of the Chair.] 



APPENDIX 



Coalition to End Grand Jury Abuse. 

Washington, D.C., October 8, 1976. 
Hon. John V. Tunnet, 

Chairman, Senate Judiciary Suhcommittee on Constitutional Rights, Ifussell Sen- 
ate Office Building, Washington, B.C. 
Dear Senator Tunney : We are pleased to present the enclosed statement, 
which represents a summary of the views of the Coalition to End Grand Jury 
Abuse, as per your request. 

For the past three and one-half years, the Coalition, which now consists of 21 
national bar, civil liberties, labor, women's and religious groups, has been 
researching instances of grand jury abuse and proposals for grand jury reform. 
We feel our experience has given us a unique and valuable perspective from wliich 
to consider the grand jury problem, and we welcome this opportunity to share our 
views with you. 

The Coalition stands ready to provide additional information on the grand jury 
question at any time the Subcommittee may so request. 
Thank you. 
Sincerely, 

Judith Avner, 
Sam Pizzigati, 
Co-Directors, Coalition to End Grand Jury Abuse. 
Enclosure. 

Prepared Statement of Judith Avner and Sam Pizzigati, Co-Directors, 
Coalition to End Grand Jury Abuse 

It is fitting indeed that the Senate's first examination of the grand jury system 
be conducted by the Judiciary Subcommittee on Constitutional Rights. The right 
to a grand jury indictment is a fundamental constitutional right. 

Most people don't realize that. We normally do not associate the riglit to a grand 
jury indictment with celebrated liberties like "freedom of speech," but America's 
first generation did. Fresh from their bout with English tyranny, these eighteenth 
century citizens were determined to limit governmental control over tlie charging 
process. In their new nation, prosecutors would not be free to bring their enemies 
or rivals to trial on trumped-up charges or cover up the crimes of the administra- 
tions they served, and to prevent such prosecutorial misconduct, our colonial fore- 
bears incorporated the grand jury into the Bill of Rights in 1791. 

The grand jury, the authors of that document felt, would shield defenseless 
individuals against overzealous or malicious government prosecutors. No person 
would be put through the ordeal of a trial unless an independent community 
panel — the grand jury — decided that there was enough evidence to warrant fur- 
ther prosecution. The grand jury would also protect the citizenry as a whole by 
making sure that ofEenses by government oflacials were investigated and 
prosecuted. 

In other words, the grand jury would be "a shield for the innocent and a sword 
against corruption in high places." How often down through the years have 
courts invoked these words or similar rhetoric to justify the grand jury's powers ! 
But how seldom have these noble words borne any resemblance to the reality of 
the grand jury's actual role in our criminal justice system ! 

Today we have a situation where less than half of our states are suflSciently 
impressed with the grand jury's importance to require an indictment before trial. 
We have a situation where 21 national bar, civil liberties, religiojis, women's and 
labor groups have become so outraged by the perversion of the grand jury's 
original intent that they have formed an organization, the Coalition to End 

(105) 



106 

Grand Jury Abuse, to work for grand jury reform.* We have a situation where 
political activists see the gi-aud jury as a weapon of political inquisition, journal- 
ists as a threat to the freedom of the press, trade unionists as a strike-breaking 
tool and defense lawyers as an assault on the attorney-client privilege. We have 
a situation where an American jurist can accurately assert that "(t)he prosecutor 
can violate or bum the Bill of Rights seven days out of seven and bring the fruits 
of unconstitutional activity to the grand jury. No court in the country has the 
power to look behind what the grand jury considers or why it acts as it does." ^ 
What went wrong with the grand juryV Is the situation beyond repair? 
Tliese are questions that this Subcommittee will have to consider carefully in 
the months ahead; 

THE GRAND JURY : BULWARK OF LIBERTY TO RUBBER STAMP 

The key word in any description of the grand jury that the authors of the 
Bill of Rights so valued is independent. The grand jury was originally intended 
to stand between the people and their government, buffer the citizenry from its 
officials. Indeed, independence was — and still is — a prerequisite for effective 
grand jury fimctioning. Can a grand juiy controlled by the government be ex- 
pected to fairly evaluate the government's case against an accused? Can a grand 
jury dominated by the government thoroughly ferret out government corruption? 

Grand jury independence was, moreover, the reason why grand juries were and 
have been given such mde latitude to operate. The founders of the republic did 
not bother to attach statutory limits to the grand jury's subpoena power or re- 
strict the evidence a grand jury could hear because they saw the grand jury as 
an agent of the community, not an arm of the prosecution. There was no need to 
protect the people from tlie people. 

Before too many years passed, however, the logic behind this rationale began to 
unravel. Tlie broad and vague powers of the grand jury proved too inviting for 
the government to resist, and various officials moved to bend the grand jury to 
their own purposes. One of the first prominent Americans to siieak out against 
this abuse of grand juries was none other than Thomas Jefferson. When his 
political opponents on the federal bench guided grand jury harassment against 
Jeffer.sonians, Jefferson protested that "(t)he charges of the federal judges have 
for a considerable time been inviting the grand juries to become inquisitors on 
the freedom of speech, or writing and of principle of their fellow-citizens." " 
Unfortunately, Jefferson's concern was short-lived. Several years later, after 
Jefferson became president, he targeted grand juries against his own enemies. 

Early on, then, the practice of the "Founding Fathers" belied their rhetoric, 
and as the grand jury evolved, grand jurors played less and less of an inde- 
pendent role. The democratic notions that had spurred the grand jury's constitu- 
tional birth in the new republic came to exist only in the overblown prose of 
court decisions, and observors began to note with increasing frequency that 
grand juries did nothing more than routinely rubber stamp prosecutorial deci- 
sions. The situation has deteriorated to the point where today it is commonly 
acknowledged that a grand jury will do whatever a prosecutor wants it to do. 
If a prosecutor wants an indictment, there will be one, and if a prosecutor wants 
a grand jury to get the government off the hook in a sensitive situation by not 
indicting, the grand jury will do that, too. 

As we complete our Bicentennial year, we do it without the grand jury shield 
America's founders envisioned. 



*These 21 groups are : American Civil Liberties Union, National Lawyers Guild, Na- 
tional Emergency Civil Liberties Committee, National Conference of Black Lawyers, 
National Bar Association, Nation.il Legal Aid and Defender Association, Association 
of Trial Lawyers of America fCriminnl Section). Unitarian Universalist Church, 
United Methodist Board of Church and Society (Department of Law, Justice and Com- 
munity Relations), United Methodist Board of Global Ministries (National Women's Divi- 
sions), Church of the Brethren, .Jesuit Conference Office of Social Ministry. Southern 
Christian Leadership Conference, Amalgamated Meat Cutters and Butcher Workmen of 
North America. International Longshoremen's and Warehousemen's Union, American 
Friends Service Committee, National Student Association, National Organization for 
Women, Women's International League for Peace and Freedom, International Printing 
and Graphic Communications Union. 

■ 1 Statement by Baltimore Judge Charles B. Moylan Jr., Newsweek, 1 December 1975. 
. 2 Leon Friedman, "The Grand Jury: Shield or Sword" (unpublished paper), see Com- 
mittee for Public Justice, A.C.L.U. Foundation, Inc., 1972, p. 26. 



107 

THE GRAND JUKY : A FUNDAMENTAL WEAPON 

If the grand, jury had only lapsed into an anachronistic panel that affords 
an accused little protectiou from the government, that would be reason enough 
to subject the institution to intense scrutiny. But there is another reason. The 
grand jury, which was intended to protect the innocent from the government, 
has evolved into a frightening instrument the government can manipulate against 
the innocent. Over the past decade, the judicial misinterpretation of traditional 
grand jury powers and the legislative addition of new ones have handed law 
enforcement agencies the ability to maneuver as if the Bill of Rights did not exist. 

"I suggest," Watergate Special Prosecutor Charles Ruff has said, "that virtu- 
ally the only restraints imposed on the prosecutor's use of the grand jury are 
those which he imposes on himself (sic) as a matter of personal or professional 
morality or which are imposed on him as a matter of policy by his superiors." * 

Ruff does not exaggerate. Ponder, if you will, the entirely legal prerogatives 
currently enjoyed by prosecutors before Federal grand juries. A prosecutor may 
subpoena anyone from anywhere at any time with whatever notice deemed fit. 
A prosecutor does not have to inform witnesses why they have been subpoenaed 
or if they are under suspicion. No grand jury witness is permitted to have an 
attorney present inside the grand jury chamber during questioning, and that 
questioning can touch on anything the prosecutor chooses : the witness' private 
conversations, political activities, personal relationships, even the attorney-dient 
privilege. The prosecutor can badger a witness with leading questions and snide 
asides and never worry about a court censuring this conduct — since a complete 
transcript of a grand jury proceeding need not be kept. Once witnesses claim 
their Fifth Amendment right to silence, prosecutors can immunize them with 
limited "use" immunity, under which the witnesses must testify or face confine- 
ment for contempt. But even witnesses who do testify under the use immunity 
threat can go to jail. Use immunity does not save a witness from criminal charges. 
It merely bans the use of what the witness may say in a future prosecution of the 
acts described in the witness' testimony. 

Taken as a whole, the package of powers the modern grand jury offers pros- 
ecutors amounts to a blank check for due process atrocities, and that is not 
surprising. If we let prosecutors for instance, issue grand jury subpoenas to what- 
ever witnesses they want, should we be .surprised when prosecutors stage dis- 
ruptive fishing expeditions into the activities of their political opponents? If 
we allow prosecutors to ask any questions they please, should we be .surprised 
when they manipulate the grand jury to intimidate with unorthodox or 
unpopular opinions? If we allow prosecutors to force immunity onto witnesses, 
should be be surprised when prosecutors trap people into jail by asking questions 
they know the immunized witness cannot in good conscience answer? 

In recent years, especially since 1970, fishing expeditions have been staged, 
dissenters have been intimidated, people have been trapped into jail. Naturally, 
we are not maintaining that such horrors accompany every grand jury pro- 
ceeding. Most grand jury deliberations are, on the contrary, perfunctory affairs 
in which the prosecutor briefly presents the government's case and the grand 
jury just as briefly disposes of it. We are maintaining, however, that in those 
instances where a buffer between the government and the individual is most 
needed — .situations where a prosecutor is "out to get" someone or some group for 
personal, political or ideological reasons — the grand jury can be manipulated 
to facilitate the "getting." 

Stripping prosecutors of their complete control of grand jury power, in and 
of itself, will not magically transform the grand jury into a shield for the inno- 
cent. We remain convinced, though, that the introduction of sweeping procedural 
and evidentiary safeguards can help the grand jury regain its respected position 
as a fair arbiter of whether the government has produced enough evidence to 
bring an accused to trial. 

Against this backdrop, we would like to move now to a consideration of the 
specific proposals embodied in S. 3274, the only omnibus grand jury reform bill 
now pending in the Senate. 

ANALYSIS OF S. 3274 

The Coalition to End Grand Jury Abuse strongly supports the principles that 
underlie S. 3274 and considers the bill a significant contribution to the effort to 
reform the Federal grand jury system. 



3 Remarks before the Judicial Conference of the District of Columbia, 2 June 1975. 



108 

We believe that S. 3274's provisions whicli require grand juror approval be- 
fore a subpoena can be issued or, in the case of a recalcitrant witness, before 
contempt proceedings can be begun, coupled with the bill's insistence that newly 
impaneled grand jurors be fully instructed about their rights and duties, are 
fundamental steps in the fight for grand jury independence. Only when members 
of tlie panel know and understand their functions can the grand jury even begin 
to operate as a citizen's shield. Grand juror input in grand jury proceedings )>' 
essential to the integrity of the grand jury process. 

S. 3274's reduction of the maximum period an individual can be confined for 
contempt to six months and its corresponding abolition of reiterative criminal 
and civil contempt are also critically important. Admittedly, setting any time 
limit on a contempt confinement means making a somewhat arbitrary decision. 
However, in light of Supreme Court rulings that give defendants who face a min- 
imum penalty of six months in prison the right to a jury trial, allowing a person 
to spend more than six mouths in jail without the benefit of a jury trial strikes 
us as unjustifiable. As the testimony this .'••ubcommittee has heard and will hear 
in the future indicates, one of the most insidious abuses of the grand jury is its 
use to put and keep individuals behind bars for excessive periods of time for 
contempt when the prosecution cannot prove a substantive violation of the law. 
As concerned citizens, we cannot allow this situation to continue, and a six- 
month limit on contempt confinements would help to prevent this practice. In 
this regard, we also siipport the S. 3274 provision providing for a presumption 
of bail pending appeal of a contempt citation. 

Over the past few years we have witnessed a veritable Supreme Court flip- 
flop on the rights of defendants. Judicial insensitivity to violations of citizens' 
rights has been particularly glaring in the grand jury field. Most recently, the 
Supreme Court has refused to require that Miranda-tyi)e warnings be given to 
grand jury witnesses who are potential defendants. Attorney General Edward 
Levi, in his testimony before the House Judiciary Subcommittee on Immigra- 
tion. Citizenship and International Law June 10, 1976. justified this decision by 
asserting that if witnesses are warned they are targets and advised of their 
rights, they may be reluctant to cooperate with the investigation. In other words, 
citizens should only exercise their rights when the situation is convenient for 
the government. This position, in our minds, is untenable and especially frighten- 
ing coming from our highest law enforcement official. 

There are several provisions in S. 3274 that address the absence of basic rights 
inside the grand jury chamber, and we fully support them. They include requiring 
that : 

a complete transcript be made of grand jury proceedings ; 

a witness be permitted, upon request, to examine and copy their own 

testimony : 
every witness be entitled to the advice of counsel inside the grand jury 

chamber ; 
that subpoenas must advise witnesses of the right to counsel, whether 

their conduct is under investigation, the substantive statutes involved and 

the right against self-incrimination. 
Furthermore. S. 3274 prohibits the use of illegally seized evidence before the 
grand jury, and that should seiwe as notice that an individual's constitutional 
rights must be respected in the preparation of a criminal case. The S. 3274 provi- 
sion which provides that a refusal to answer questions or give other information 
shall not be punished if the question or request is based on any violation of the 
witness' constitutional or statutory rights is equally important. 

Abuse of the grand jury's subpoena power is, unfortunately, no longer an 
aberration. Cases have been reported where subpoenas have been served merely 
because an individual has declined to .speak with agents of the Federal Bureau of 
Investigation. In fact, rarely does the grand jury know who has been sub- 
poenae<l in its name until the subpoenaed individual actually appears. The section 
of S. 3274 requiring an afl5rmative vote of at least 12 grand jurors for a sub- 
l)oena to issue would help eliminate this situation. We also enthusiastically sup- 
port S. 3274's position that no person shall l>e required to testify or be confined if. 
upon evidentiary hearing, the court finds that a primary purpose or effect of the 
subpoena is to secure evidence for the trial of a person already under indictment 
or formal accusation ; that compliance with the subpoena is unreasonable or op- 
pressive and involves minecessary appearances, or the testimony reasonably ex- 
pected is cumulative, unnecessary or privileged ; or that the primary purpose of 
the subiwena is punitive. 



109 

The passage of serious grand jury reform legislation should mark the begin- 
ning, not the end, of Congressional concern over the handling of grand jury 
matters by the executive branch. Ongoing Congressional oversiglit is most difficult 
when the only records compiled on the Department of Justice's grand jury con- 
duct are sparse and incomplete, as they now are. Therefore, we support S. 3274's 
requirement that the Justice Department regularly report to Congress on its 
grand jury conduct. 

Since we agree with the founders of our nation that standing trial is a trau- 
matic expei-ience which should not occur unless there is sufficient probable cause, 
we favor provisions of S. 3274 that would require the government to introduce all 
evidence in its possession tending to negate the guilt of a potential defendant. 
In addition, indictments should only be based on legally admissible evidence. 

OTHEB NEEDED GRAND JURY REFORMS 

As fine a set of proposals as S. 3274 is, it does lack several reforms which our 
study of grand jury abuse has led us to believe are necessary. Moreover, some 
sections of S. 3274 should be strengthened to protect the reappearance of the 
grand jury horrors that have plagued us over recent years. 

First, although we support the establishment of a minimum time period between 
service of a subpoena and the appearance and notice of a contempt hearing and 
the hearing, we feel that in both cases a seven-day minimum is too short. Sub- 
poenaed witnesses need time to retain connsel, become familiar with the con- 
duct of grand jury proceedings and evaluate their situation. Witnesses facing 
contempt hearings — with the looming threat of contempt confinement — need time 
to discuss their position with counsel. Connsel needs time to complete extensive 
legal research, papers and arguments, time difficult to find for a typical lawyer 
who has more than just one witness as a client. We would suggest increasing 
the time stipulated by S. 3274 to 10 days. 

Second, we feel the initial judicial charge to incoming grand jurors is so im- 
portant that the court's failure to instruct the grand jury properly should be, 
in addition to just cause for a witness' refusal to testify, just cause for the dis- 
missal of an indictment. We submit that without the instructions for grand 
jurors detailed by S. 3274, an accused citizen has not received, in a very funda- 
mental sense, the benefit of an independent grand jury assessment of his or her 
case. 

S. 3274's most crucial omission, however, is its silence on the subject of im- 
munity. The Coalition feels that the power of the Department of Justice to uni- 
laterally strip witnesses of their Fifth Amendment right to silence is at the very 
heart of grand jury abuse today. We have noted, with much dismay, the absence 
of any provision in S. 3274 that proposes to reform current immunity laws and 
procedures. While we agree that in some situations immunity may be an effec- 
tive tool of law enforcement, we also believe that an individual's constitutional 
rights are personal and should only be waived, if at all, by that person. When we 
allow the state to forcibly strip witnesses of their rights, we do so at the cost of 
continuing peril to our freedom. 

The government rationalizes the current coercive immunity statute by stating 
that the ability to forcibly immunize witnesses is absolutely essential to the 
investigation and prosecution of organized crime. In our opinion, this position 
ignores the reality of the organized crime world. If the unden\'orld code of silence 
is such that a witness fears for his or her life if he or she testifies, then the 
prospect of incarceration for contempt will hardly be sufficient incentive to get 
the witness' cooperation. 

In addition, in a speech before the Cornell Institute on Organized Crime's 
1976 summer seminar, Mr. Peter Richards, a former special attorney in the 
Organized Crime and Racketeering Section of the Justice Department, com- 
pletely contradicted the Department claim that coercive immunity is indispens- 
able to successful organized crime prosecutions. He told an audience of prose- 
cutors that forcing immunity is "a very bad thing for a prosecutor to do" be- 
cause it does not work. It does not elicit the coopei-ation of otherwise silent 
witnesses. What forced immunity does do is give prosecutors an effective tool 
that can be manipulated to harass and imprison many innocent people who have 
made a principled decision to remain silent. A series of articles by Richard Harris 
that appeared in the New Yorker Magazine and were later inserted into the 
Congressional Record by Sen. Abourezk provide a compelling case study of just 
how this immunity power has been abused. 

78-905—76 8 



110 

Any legitimate investigation — that is, a probe based on evidence, not a fisliing 
expedition — can well be served by consensual immunity. In reality, consensual 
immunity is the form of immunity currently used by serious and conscientious 
prosecutors. Witnesses like John Dean did not have to be forcibly immunized 
in the Watergate case in order to obtain their testimony. They, like countless 
others, welcomed immunity. We submit that the abolition of forced immunity, 
perhaps more than any other single reform, would reduce the fear of the grand 
jury process shared by many without hurting law enforcement efforts. 

There are several immunity-related issues that effective grand jury reform 
should also address. The Organized Crime Control Act of 1970 replaced the 
long-standing transactional immunity statute with "use" immunity. We feel 
that limited "use" immunity does not provide a witness with full constitutional 
protection, especially when immunity is coercive. We support, therefore, a re- 
turn to transactional immunity, as has been proposed by several bills now 
pending before the House of Representatives (including H.R.s 11660, 1277 and 
6006). 

Another provision of the 1970 Organized Crime Control Act removed court dis- 
cretion over the signing of immunity orders. Government prosecutors and Jus- 
tice Department officials now alone decide whether immunity should be ordered. 
We believe there must be additional checks on the granting of immunity to 
prevent "immunity haths" or the utilization of vmreliable testimony. We sug- 
gest that both the court and the grand jury be given the authority to approve 
or reject all proposed immunity grants. 

Prior to 1970, immunity could only be used in the investigation of certain, 
specific offenses. Under the current immunity statute, immunity may be granted 
in the course of an investigation into any offense in the Criminal Code. His- 
torically, the dangers of immunization have led to strong limitations on the 
availability of immunity. We see no justification for continuing the current 
unlimited immimity availabilty. 

CONCLtrSION 

Again we thank you for inviting us to comment on S. 3274. We feel that is an 
extremely valuable piece of legislation and would be glad to provide the sub- 
committee with any information we might have that would assist you in your 
deliberations. We look forward to working with the members at this panel, the 
full Judiciary Committee and the Congress in an effort to restore the grand 
jury to the honored place it once had. 



[Excerpt From "Abuse of Power," a staff report of the Codes Committee of the New York 

State Assembly, May 1976] 

******* 

Numerous courts have protested against the use of grand juries by prosecu- 
tors in an unfair manner. 

In United States v. Dionuio, 93 S. C,t. 7&4, 770 (1975), the Supreme Court 
stated that the Constitution could not tolerate the transformation of the grand 
jury into an instrument of oppression," and in 1972 our own Second Circuit 
Court of Appeals held that ". . . the grand jury is not meant to be the private 
tool of the prosecutor." Umted States v. Fisher, 455 F. 2d 1101, 1105 (2nd Cir. 
1972). 

Unfortunately, neither of these judicial mandates has ever been given sufll- 
cient teeth to properly deal with the abuses daily occurring by grand juries and 
their prosecutorial managing directors. 

Among these abuses are : 

1. ABUSE OF SUBPENA POWER 

Abuse of subpena power stems from the fact that the prosecutor has virtually 
unchecked power to issue grand jury subpenas without prior judicial permis- 
sion or review. After issuance, a subpena is subject to review by a motion to 
quash, but such an order often obtains only after the subpenaed individual has 
suffered irreparable harm, and the time and expense involved in obtaining 
such an order may be considerable. 



Ill 

2. GATHERING EVIDENCE ON INDICTED DEFENDANTS 

Prosecutors on occasion improperly use a grand jury to gather evidence on 
an already pending indictment. This technique has been condemned. In Re 
National Window Glass Workers, 287 F. 219 (N.D. Ohio 1967), the court quashed 
subpenas issued by an Ohio grand jury because the Court concluded that the 
witnesses, who were defendants in a New York action, had been brought before 
the Grand Jury in Ohio to aid the government in preparing its case in New York. 
See also, 8 Moore's Federal Practice S. 6.04 at &-50 (2nd Edition, 1972). 

Such abuses are difficult to prove, however. It is clear that none will be found 
unless it can be demonstrated that the sole purpose of convening the second 
panel is to gather evidence for a pending trial. United States v. Dardi, 330 F, 2d 
316 (2nd Cir. 1964), cert, denied, 379 U.S. 845 (1964). Often the government 
will use the excuse that additional defendants or indictments are being sought. 
See, e.g., United States v. Jo7m Doc, 455 F. 2d 1270 (1st Cir. 1972). 

3. FREEZING TESTIMONY 

Prosecutors also force grand jury appearances to freeze testimony. In United 
States V. Fisher, 455 F. 2d 1101 (2nd Cir. 1972), the Second Circuit found that 
the testimony before the Grand Jury was taken for this purpose. Although the 
Court condemned the practice, it did not dismiss the indictment. 

4. INTERROGATING THE PERSON SUBPOENAED OUTSIDE THE PRESENCE OF 

THE GRAND JURY 

Prosecutors improperly use grand jury subpoenas as a device to force both 
potential defendants and witnesses to discuss a case outside the presence of 
the grand jury. Subpoenas have been issued to witnesses with no intent of 
placing them before a grand jury on the date the subpoena is returnable. Typi- 
cally, the witness reports to the designated grand jury room and waits. When 
the witness becomes anxious, a "sympathetic" assistant district attorney assigned 
to that grand jury will suggest that the witness contact the assistant district 
attorney whose name and phone number appear on the subpoena. 

The United States Court of Appeals for the District of Columbia condemned 
the practice of using the subpoena to inveigle a witness to the United States 
Attorney's office for private questioning in Durbin v. United States, 221 F. 2d 520 
(D.C. Cir. 1952). The Court noted that the grand jury subpoena is compulsory 
process of the district court issued for the benefit of the grand jury : 

"They (the people of the United States) do not recognize the United States 
Attorney's Office as a proper substitute for the grand jury room and they do not 
recognize the use of a gi-and jury subpoena, a process of the District Court, 
as a compulsory administrative process of the United States Attorney's Office. 
Id. at 522. 

Notwithstanding the language of Durbin, absent a showing of additional coercive 
tactics, this practice will bring about no greater sanction than chastisement 
of the prosecutor. United States v. Johns Ma/nville Corp., 213 F. Supp. 65 (E.D. 
Pa. 1962). 

5. IMPROPER EXAMINATION OF WITNESSES — QUESTIONING A WITNESS IN A MANNER 
CALCULATED TO BIAS THE JURORS AGAINST HIM 

Indictments may be set aside in cases where defendants are questioned m a 
manner calculated to discredit or impugn their integrity in the eyes of the grand 
jurors. This practice has been held to violate the due process clause of the 14th 
Amendment to the United States Constitution. United States v. DiOuanzia, 213 F. 
Supp. 232, 235 (E.D. III. 1973) ; United States v. W. T. Ted, 325 F. Supp. 520, 521 
(D. Nebr. 1971). 

In United States v. DiGuanzia, supra, the witness, a target of the grand 
jury inquiry, was asked a series of embarrassing and improper questions : 

"Are you married? 

"To whom are you married? 

"You have a son, don't you? 

"Do you love your son? 



112 

"Why are you ashamed to answer questions about your son? 

"Who is the father of your child? 

"What right have you to refuse my questions? 

"I'll bring you before the judge and require you to answer my questions. 

"What is the Fifth Amendment? Do you know what it means? 

"Are you an American citizen?" Id. at 234-235. 

The Court found that such questions could serve no purpose other than to 
prejudice the grand jurors against the witness, and it ordered the dismissal 
of the indictment. 

6. QUESTIONING A PERSON IN A MANNER CALCULATED TO TRICK HIM INTO 

COMMITTING PERJURY 

Questioning with this motive is, of course, improper. However, the abuse is 
difficult to prove. If a witness is called back several times to answer similar 
questions before a Grand Jury, the Court may more readily order prompt tran- 
scription of earlier testimony, but it will rarely halt the process. Bursey v. 
United States, 466 F. 2d 1059, 1080 n. 10 (9th Cir. 1972). 

7. USE OF GRAND JURY TO INTIMIDATE OB HARASS A "WITNESS 

The Courts have held that it is an abuse of grand jury process to convene 
a grand jury for the express purpose of intimidation. United States v. Reming- 
ton, 191 F. 2d 246 (2nd Cir. 1951), cert, denied, 343 U.S. 907 (1952). Similarly, 
convening several grand juries to investigate one party concerning the same 
matter has been condemned. United States v. Am. Honda Motor, Ine., 273 F, 
Supp. 810 (N.D. 111. 1967) (Same witness, subpoenas, questions, short notice). 

8. UNAUTHORIZED DISCLOSURES OF GRAND JURY PROCEEDINGS 

The dangers and injustices which result from unauthorized disclosure of 
grand jury proceedings have been summarized as follows : 

a. The reputation of the innocent often is ruined by disclosure of grand jury 
testimony, even when no wrongdoing took place and no indictments are returned. 

b. Erroeous information in grand jury leaks is extremely difficult to rebut 
because the sources are not stated, and because erroneous assertions often can 
only be contradicted by revealing the very investigative information which is 
supposed to be secret. 

c. When indictments are returned, defendants may be deprived of a fair trial 
because of the previous notoriety of the publicized version of the pre-indictment 
investigation. 

d. Trial of defendants who are in fact guilty is rendered difficult because of 
the problem of finding an impartial jury. 

e. Premature disclosure of investigations may make witnesses more difficult 
to obtain and may lead to the destruction of evidence. Strengthening the Role 
of the Federal &rand Jury: Analysis and Recommendations, 29 Record of the 
Association of the Bar of the City of New York 464 (May/ June 1974) (herein- 
after New York City Bar Report). 

The courts have criticized prosecutors for improperly disclosing grand jury 
testimony. As one court noted, "the generation of public animus against a 
prospective defendant ... is not part of the prosecution's legitimate business." 
United States v. Sweig, 316 F. Supp. 1148, 1153 (E.D.N.Y. 1970), aff'd. 441 F. 2d 
114 (2nd Cir.), cert, denied, 403 U.S. 932 (1971). The Court, quoting Hoffman v. 
United States, 341 U.S. 479, 485 (1951) indicated that where necessary to protect 
the integrity of the criminal process indictments would fall. However, in Sweig, 
supra, the Court accepted the prosecution's position that the disclosures had not 
been leaked from the United States xVttorney's office. 

However, the law is clear that unlawful disclo.sures will "not result in the 
dismissal of an indictment except in the most extreme cii'cumstances. United 
States V. Hoffa, 349 F. 2d 20, 43 (6th Cir. 1965). aff'd, 385 U.S. 397 (1966) ; 
United States v. United States District Court for the Southern District of West 
Virginia, 238 F. 2d 713, 721-22 (4th Cir. 1956), cert, denied, 352 U.S. 981 (1956). 

Federal courts can punish unauthorized disclosures as a contempt : however, 
this sanction is almost never used. Section 215.70 of New York's Penal Law 
makes improper disclosures a class B. misdemeanor. Unfortunately, these pro- 
vi.sions are similarly ignored. 



113 

A recognized classic "conviction by grand jury leaks" in recent years con- 
cerned a prominent public official. It was the massive assault by press indict- 
ment based upon grand jury leaks of former Vice President Spiro Aguew. Agnew 
was convicted over and over and over by the leaks resulting from the actions of 
a Baltimore Grand Jury. What must be broadly understood by the citizenry is 
that it made no difterence whether the allegations against Agnew were true or 
not true. If this system is to protect the innocent as well as convict the ac- 
cused, the only place for that determination is in a court room and never by 
grand jury and/or prosecutorial leak. 

Similarly, it must be understood and accepted that Agnew's prominence, or 
his being in favor or disfavor politically, has absolutely no bearing in this ex- 
ample or in the principle it represents. 

It is easy to man the barricades for those we love. It is our duty and our 
responsibility to man those same barricades so that all, including those we don't 
love, are assured the same protections. 



Summaries 

The following summarize the purposes of this proposed New York legislation 
and the relationship of one proposed bill to another: 

A major obstacle to a completely fair and impartial trial in the administra- 
tion of criminal justice is that it is founded on the adversary system. There is 
nothing inherently wrong with the system. However, when one adversary gets a 
substantial edge, the objective of impartiality is destroyed or at least impaired. 
If the prosecutor conducts the investigation, a natural tendency to ignore or 
minimize evidence favorable to a defendant often results while prosecution 
testim-ony is maximized. 

******* 

Another major breakdown resulting from the adversary system by prose- 
cutors' improper action is Ihat the prosecutor can present evidence before a grand 
jury in such a manner as to permanently abuse the rights of individuals. Since 
the prosecutor or his colleague will eventually try the case, the temptation is to 
utilize the grand jury presentation in such a way as to get an edge during the 
in camera or star chamber proceedings. 

Our proposal is to create the Office of Grand Jury Counsel whose job would be 
solely to present all relevant evidence and since they would not try the case or 
have a stake in its outcome, the hope is that the agency would present the rele- 
vant evidence in a purely professional impartial manner . 

Another obstacle to fairness in the Grand Jury is the lack of counsel to a 
witness even though a Grand Jury proceeding is a critical stage in criminal 
proceedings. 

Since grand juries often erroneously return indictments, the publicizing of 
which is sufficient to permanently destroy a reputation, even when the mistake 
is later discovered, every effort should be made to find the errors before the 
indictment. Therefore as is the law now with gi-and jury reports, all indictments 
sliould be subject to judicial review before filing. 

No evidence should be allowed before a grand jury which would not be 
admissible before a petit jury at a trial. Otherwise we could destroy our enemies 
by indictment without being able to prove guilt at a trial. (Hearsay evidence, 
procured illegally, etc. ) 

There are no present sanctions for prosecutors nor is there a formal code to 
insure their ethical conduct. This bill specifically spells out responsible prosecu- 
torial conduct and sets up sanctions therefor including actions in tort. 

It is accompanied by a companion bill giving the Office of Counsel to the Grand 
Jury the obligation to prosecute these violations. 

The PA must present evidence negating guilt on the part of the defendant 
(exculpatory evidence; Brady v. Md. — prosecutor must reveal to defense before 
trial). 

The DA must inform all witnesses of their rights relative to a grand jury 
appearance. 

Grand jury leak penalties are increased to a Class A Misdemeanor (one year 
in jail). 



114 

U.S. Court of Appeals, 
District of Columbia Circuit, 
Wa!-:hingfO)i, D.C., September 30, 1976. 

Hon. John V. Tunney, 

Chairman, Senate Subcommittee on Constitutional Rights, Room 102B, Russell 
Office Bldg., Washington, D.C. 

Dear Senator Tunney : This refers to your request for my views on the subject 
of improvement of grand jury procedure, a subject addressed hy S. 3274. One 
major purpose of S. 3274 seems to be to overcome abuses by which the unwary 
person who is the target of a government probe may be induced to provide 
evidence against himself without awareness of his rights and minimum safe- 
guards. Another laudable purpose is to structure the orderly presentation of con- 
tentions by witnesses claiming fundamental rights. 

In the broad, the conversion of the grand jury to a more open system would 
correct some present abuses. The approach of S. 3274 seems wholesome overall, 
subject to such modifications as may prove to be desirable in the light of hearings, 
and comments. I have a few thoughts for consideration : 

1. I see merit in the innovative proposal of a witness' right to have counsel 
present in the grand jury room. But I suggest some caution, particularly as to 
the role counsel would play. As it stands, the proposed § 3330(e) may open the 
way to abuse by attorneys bent on thwarting the grand jury inquiry through 
obstructionist tactics, such as facile irrelevancy and incompetency objections. 
There is no judge present to keep a firm hand. I would give serious consideration 
to ensuring counsel play a passive, advisory role rather than the full-scale advei-- 
sary advocacy expected of them at trial. This is easier to say than do. A minimum 
might be a provision that only the witness may make statements or objections 
(albeit after consultation with his attorney). 

2. Also, the measure provides that a person subi>oenaed shall not be compelled 
to appear in the absence of a grant of immunity if he gives written advance 
notice that he will claim the privilege. In my view, there is advantage to com- 
pelling appearance and particulai-ized interposition of the privilege and little 
basis for prejudice, given the other safeguards of the proposed measure, e.g., 
notice that the witness is a putative defendant, right to counsel in the grand jury 
room, etc. This is not like the situation where a witness is called before a 
petit jury charged with finding the facts, notwithstanding intention of the wit- 
ness to claim the privilege, in which event our court has said that the danger 
of an erroneous inference by petit jurv makes this course prejudicial error. 
Bowles V. United States, 142 U.S. App. D.C. 26, 31-32, 439 F. 2d 563, 541-42 (en 
banc, 1970), cert, denied, 401 U.S. 995 (1971). 

3. I am not clear concerning the intention of §3330A(o), which requires a 
showing of good cause made in order to permit an indictment based on sum- 
marized or hearsay evidence. Does this permit an indictetl defendant to gain 
dismissal of an indictment based on insufiicient evidence? To have the whole 
transcript, prior to trial, for the purpose of exploring such a motion? Does the 
government make its "good cause" showing to the grand jury? Or to the court 
impaneling the gTand jury? Or to the trial court in the event defendant moves 
to dismiss? 

4. An important problem is dealt with in the proposed § 3330. relating to the 
independent grand jury inquiry. It is useful in structuring a citizen's voice in 
cases like corruption, without opening the door to abuses. May I suggest that 
since the function of the Government attorney in such cases is to act as counsel 
to, and amanuensis for, the grand jury, it would be appropriate to i^ermit the 
grand jury to ask the court to select a special attorney not only, as is now pro- 
vided in (b), in cases where the Government attorney refuses to assist or hin- 
ders or impedes the grand jury in the conduct of an investigation under (a), but 
in any case where the grand jury certifies to tlie court that it does not have 
confidence in the Government attorney. The present wording of (b) (1) requires 
an almost impossible threshold showing to invoke the court's discretion. 

Perhaps, too, § 3330 should also specifically address the problem of the in- 
dependent grand jury that does not render an indictment, clarifying the present 
decision law that it may present a "report." by itself, or with the assistance 
of the special attorney if one is appointed; that it may take a recommendation 
to the court that the report be open to the public, or that it be distributed to 
certain officials including the Congress: and that the court shall have the au- 
thority to make such disposition as it deems in the interest of justice. 
Sincerely yours, 

Harold Leventhal. 



115 

Decembee 9, 1976. 
Hon. John V. Tunney, 

U.S. Senate, Committee on the Judiciary, Subcommittee on Constitutional Rights, 
Washington, D.C. 
Dear Senator Tunney : Enclosed is a memorandum incorporating my sugges- 
tions as to grand jury reform. 

By way of background, I was an Assistant U.S. Attorney in Los Angeles for 
more than four years. During that period I was in charge of the Indictment 
Process in the Central District of California, as a result of which I had responsi- 
bility for the operations of from ten to fourteen grand juries concurrently. I also 
served as the Chief of Special Prosecutions in that same Judicial District. During 
the course of that service, I was responsible for the major investigations con- 
ducted both with and without the assistance of the Grand Jury. Presently I am 
engaged in civil and criminal litigation and in that connection represent wit- 
nesses and potential defendants iu Grand .Jury investigations. It is as a re.sult 
of my experience, both as a prosecutor and as defense counsel, that I have sug- 
gested those reforms described in the attached memorandum. 
Very truly yours, 

Brian J. O'Neill. 
MEMORANDUM 

To : Honorable James Abourezk 
From : Brian J. O'Neill 
Date : July 30, 1976 

The critical distinction which should be borne in mind during any evaluation 
of grand jury reform should be the distinction between the functions of an in- 
vestigatory grand jury and an indicting grand jury. Since, under the Constitu- 
tion, all felonies must be prosecuted by indictment, it is required tliat a higli vol- 
ume of cases be presented to a grand jury. That is, even the most run-of-the-mill 
cases, such as bank robberies, mail theft and other one-shot transactions must 
be prosecuted by way of indictment. Since it would be a practical impossibility 
to conduct full grand jury hearings relative to all those cases, the practice in 
most large federal districts is that the inve.stigative agent who is charged with 
the responsibility for conducting the investigation leading to the proposed in- 
dictment appears at the grand jury and presents hearsay testimony relative to 
the case. That is, the investigative agent will testify to the effect that Witness 
A identified the putative defendant as the person who robbed her at the bank. 
The agent will then testify that Witness B, the handwriting expert, has made a 
statement to the effect that tlie handwriting on the note presented to the bank 
teller was the handwriting of the putative defendant. The agent will also testify 
that Witness C, a fingerprint expert, has examined the bank robber's note and 
has concluded that the fingerprints found thereon are the fingei-prints of the 
putative defendant. 

In large districts, such as the Central District of California, the greater 
majority of cases which are indicted are presented in that manner by the in- 
vestigative agent. In that District, there are grand juries wliich sit on a regular 
weekly basis and listen to presentations such as the one described above. Those 
are referred to as indicting grand juries. There are also grand juries whose prin- 
cipal function is investigatory. That is, grand juries which work in conjunction 
with the United States Attorney's Otfice and the various federal investigative 
agencies in taking the testimony of witnesses, subpoenaing documentary and other 
physical evidence and evaluating tlie same prior to making a determination of 
whether or not to indict. These are commonly referred to as investigatory grand 
juries. 



116 

InasmiicU as the investigatory grand jury amasses evidence v.'hich may later be 
used in a criminal prosecution, most of the proceedings before investigatory grand 
juries are recorded by stenographic reportei-s. On the other hand, the proceedings 
before the so-called regular indicting grand juries are not recorded since the 
evidence which is being presented to the grand jury by way of an agent's sum- 
mary has already been gathered. The determination of whether or not to record 
grand jury proceedings is almost always made unilaterally by the United States 
Attorney's office. Under the Federal Rules of Criminal Procedure, the proceedings 
before the grand jury are subject to discovery. However, the discovery of the 
investigative reports of investigative agencies is not permitted under the Federal 
Rules of Criminal Procedure, with limited exceptions. Thus, to the extent that 
the prosecution would wish to limit the discovery of its case in chief, it would 
be to its advantage not to have the grand jury proceedings recorded. That is the 
principal policy reason underlying the practice of non-recordation. 

It is my opinion that the single most important ireform which could be effected 
relative to grand jury proceedings and practice would be to require that all 
proceedings before all grand juries be recorded. There are numerous federal case.s 
in which the District and Appellate Courts have urged that the pi'actice of record- 
ing all grand jury proceedings be adopted. To date, that has not been effected. 

The need for such recordation is critical. In some instances, there is a great 
deal of off-tJie-record colloquy before the grand jury wherein the Assistant United 
States Attorney describes his version of the facts, even though all those facts 
have not been presented to the grand jury. Similarly, the Assi-stant U. S. Attorneys 
often describe to the grand jury their version of the applicable law involved and 
can often make remarks about the character of the defendants or witnesses 
before the grand jury, which cannot help but have an impact upon the grand 
jury's deliberations. Nonetheless, because these are off the record, there is no 
recourse or remedy available to someone who could later be the subject of action 
by the grand jury. 

To protect against that sort of activity, some defense lawyers adopted the 
practice of filing a motion requesting that all proceedings be recorded. However, 
the Courts can, in their discretion, deny such a motion and, in fact, often do. That 
potential for grand jury abuse would be almost certainly eliminated if all pro- 
ceedings were recorded. In connection with the recommended reform of the 
grand jury concerning notice to the grand jury of its rights and duties, I would 
also recommend that whenever the grand jury is instructed at the inception of 
its service those proceedings should themselves be recorded in order to insure 
that the Court satisfy its statutory obligation to advise the grand jury of its 
rights and responsibilities. It is the practice in some District Courts that the 
orientation of the grand jury is provided in part by representatives of the United 
States Attorney's Office. Even under circumstances where the United States 
Attorney's Office is acting in good faith, which is ordinarily the case, there cannot 
help but be some bias reflected in the United States Attorney's presentation. Thus, 
it is recommended that whatever orientation or presentation is made to the grand 
jury of its rights and responsibilities should be made exclusively by the Court 
rather than the United States Attorney and that it be recorded. 

With respect to the proposed reform providing that subpoenaes be issued only 
on an affirmative vote of twelve (12) or more members of the grand jury, it is my 
recommendation that that would create an unwieldy burden. Many investigations 
develop information which is highly complex in nature or involves a sophisticated 
legal question and the need for a particular witness may not be easily understood 
by a grand jury. At present, the attorney for the govenunent generally directs 
the is.suance of subpoenaes. That seems to work in a satisfactory manner in those 
instances where the attorney for the government is acting responsibly. As noted 
above, the best insurance that the attorney for the government acts responsibly 
is tliat all proceedings before the grand jury, from the moment the attorney for 
the government enters the grand jury room until after he leaves, be recorded. 

The provision that a grand jury may not be convened in the District unless 
substantive violations occurred therein, is not a realistic one under circumstances 
where crimes are committed outside tlie United States as rart of a conspiracy 
which is hatched in the United States. That is, as proposed, the reform bill would 
provide that a grand jury may not be convened in a District where only a con- 
spiracy offense is alleged. That would be a reasonable re.striction on grand jury 
activity if provisions wero made where investigations of criminal activity outside 
the boundaries of the United States is involved. 



117 

Similarly, the provision in the proposed reform bill to the effect that once a 
grand jury has considered a matter the government shall not bring the matter to 
another grand jury without the presentation of additional relevant evidence to 
the Court, would not be necessary in my judgment if all proceedings were re- 
corded. The fact of the matter is that the United States Attorney can generally 
secure an indictment in more than 99% of all cases if he wishes one and that the 
grand juries do not hold up the United States Attorney for want of evidence. 

I am in agreement with the provision in the reform act that where a person 
subpoenaed has given written notice of his intent to as.-ert his Fifth Amendment 
privilege against self incrimination, he should not be compelled to attend a grand 
jury proceeding unless for purposes of being immunized by tlie Court. Too often 
an Assistant United States Attorney is well aware, in advance, of a person's in- 
tention to assert his Fifth Amendment privilege and, nonetheless, the person is 
subi'oenaed — for no obvious reason other tlian to ]i;ira«s or intimidate the ])erson. 

With respect to the provision in the reform bill which would give a witness or 
his counsel the right to exuniine and copy any statement of ihe v/itness in the 
possession of the government relating to the matter of investigation, it would 
appear that such a provision coukl be subject to abuse. Much of what occurs dur- 
ing the investigatory stages of the case is confidential. Such information often 
does not lead to cases and n:any investigations die for the reason that no viola- 
tions have occurred or there is not sufficient evidence to sustain the continued 
investigative interest of the government. For that reason, making availalde wit- 
ness statements to other witnesses Avould have the unheauhy effect of creating 
dit-putes or hostility between persons who, at present, wouid be unaware of the 
sti- lenient or testimony of others. That is to ,s;iy, as this is proposed in the reform 
bill, there is a possibility of invading existing business, social or personal rela- 
tionships for no apparent end. 

The reform bill's proposal whereby a grand jury subpoena may be chall'.nged 
in any District to v/hich the subpoeaned witness has access is a good proposal. At 
present, the only District in which such a subpoena can effectively be challenged 
is the district out of which it issues. Since a grand jury subpoena has nationwide 
power to compel, circumstances can and do occur where a person from across the 
country, having been subpoenaed, has no means of challenging that subpoena 
short of appearing at the grand jury hearing. Often this can occasion a loss of 
employment time, great personal inroni,-enience and hardship on persons who 
have little or no stake in the matter under investigation. 

With respect to the reform bill's requirement that the Attorney General file 
detailed annual grand jury reports describing the number and nature of investi- 
gations undertaken by various grand juries, this proposal does not seem calculated 
to achieve that end sought. Presumably, the end sought by this provision would 
be to achieve some accountability as to grand jury performance and utilization. At 
present there are similar reports prepared respecting wiretap applications and 
organized crime Investigations. They consist, in large measure, of exaggerated 
reports of questionable results and jusitifications for activity hased upon some- 
thing less than hard fact.s. 

There are two alternative proposals designed to protect an accused's rights to 
the equivalent of a preliminary hearing. The first of tho'se consists of a statement 
of the right to a preliminary hearing; the second of those guarantees representa- 
tion by counsel before the grand jury. Both of those proposals have some merit. It 
seemed that the more practicable proposal would be the guarantee of a right to 
counsel before an "indicting grand jury." Under the circumstances where all 
proceedings before the grand jury are on record and there is no possibility that 
tlie prosecutor, whether acting in bad faith or good faith, could poi^jon the 
atmosphere against the putative defendant, and, where the statement of applica- 
ble law is presented to the grand jury on the record, the fact that an accused had 
an attorney who could present his version of the case to the grand jury would 
seem to guarantee the ferreting out at an early stage of weak or unfounded cases. 
It would seem that this could be achieved with considerably greater effi- 
ciency than would the creation of a procedure wherel)y numerous preliminary 
hearings were held with the requirement that court personnel be utilized to hear 
prosecution and defense pi'esentations. 

In summary, that characteristic of grand jury proceedings designed to protect 
the rights of citizens — i.e., grand jury secrecy — is the very same characteristic 
which can, if not controlled, lead to the greatest abuse of the rights of citizens. 
That secrecy is occasioned by reason of the existing Federal Rules of Criminal 
Proceedings respecting discovery of grand jury proceedings and the fact that 



118 

with respect to indicting grand juries, all of wliat transpires is "off the record" 
and much of what occurs in investigatory grand juries is "off the record." Under 
(hose circumstances, an objective review of grand jury proceedings is not pos- 
sible. The recordation of all proceedings from the moment the prosecutor enters 
the room until the grand jury is dismissed at the close of the day would insure : 
(1) the making of a record of all statements by grand jurors, prosecutors, wit- 
nesses and agents; (2) the fair characterization and summary of evidence by 
prosecutors' investigatory agents; (3) that off the record statements relative to 
inadmissible or non-existent evidence as to a putative defendant's background, 
associations, etc., would probably be obviated in their entirety ; and (4) a record 
would be available to a witness or a putative defendant which would guarantee 
at least some form of review of the grand jury proceedings. 

Such a requirement of recordation would not be a major reform in that it 
would be consistent with the growing trend in government to avoid secrecy in 
government to the extent reasonably possible. The proceedings before a grand 
jury are generally conducted by responsible prosecutors, responsible and honest 
law enforcement agents and are heard by conscientious and responsible citizens 
That is the ideal. The fact of recordation of all proceedings would help to insure 
that ideal without in any way interfering with or frustrating the lawful func- 
tions of all those concerned in the process. 



Depaetment of Justice, 

Washington, B.C. 
Hon. James Eastland, 
Chairman, Committee on the Judiciary, 
U.S. Senate, Washington, B.C. 
Dear Mr. Chairman : 

This is in response to your request for the views of the Department of Justice 
on S. 3274, 94th Congress, 2nd Session, a bill "to establish certain rules with 
respect to the appearance of witnesses before grand juries in order to better 
protect the constitutional rights and liberties of such witnesses under the Fourth, 
and Sixth Amendments to the Constitution, to provide for independent inquiries 
by grand juries, and for other purposes." 

S. 3274 consists of five sections. Two of the five sections (Sections 2 and 3) 
concern recalcitrant witnesses. In the interest of clarity, this letter discusses 
particular parts of the bill under headings comparable to those used in the bill 
and with citation to the appropriate section and pages of the bill. The two sections 
on recalcitrant witnesses will be discussed together. The purely introductory 
section (Section 1) and the section on making reports concerning grand jury 
investigations (Section 5) will not be discussed. 

I. RECALCITRANT WITNESSES (SECS. 2 AND 5, PP. 1-5) 

The Proposal. Section 1826 of title 28, the civil contempt statute enacted as 
part of the Organized Crime Control Act of 1970, provides, in brief, that a federal 
grand jury or trial witness who refuses to comply with an order to testify or 
produce evidence may be summarily confined until such time as he is willing to 
obey the court's order. A witness so confined must be released when the pertinent 
proceeding is terminated, and in no event may his confinement exceed eighteen 
months. The section also provides that a contemptuous witness may not be 
admitted to bail pending appeal if it appears that his appeal is frivolous or taken 
for delay, and that any appeal shall be disposed of as soon as practicable, but no 
later than thirty days from the time it is filed. 

Section 2 of S. 3274 would amend 28 U.S.C. 1826 to make the following signifi- 
cant changes: (1) a grand jury witness, unlike a trial witness, could only be 
confined for refusing to comply with a court order following a hearing after a 
notice of five days (a hearing could be held on shorter notice of not less than 
48 hours upon a showing of special need) : (2) if a Federal correctional institu- 
tion were located within fifty miles of the court ordering confinement, a con- 
temptuous witness could be confined only at such an institution unless he agreed 
otherwise; (3) the maximum period of confinement for civil contempt would be 
six months; (4) confined once for civil contempt, a witness could not again be 
confined for refusing to testify or provide other information concerning the same 
transaction, set of transactions, event or events; (5) a court could not punish 
a grand jury witness' refusal to answer a question or provide information under 



119 

either § 1826 or 18 U.S.C. 401 if the question or request was based upon evidence 
obtained by an unlawful act or in violation of the witness' rights under the Con- 
stitution or a federal statute ; (6) a court would be authorized to appoint counsel, 
in the same manner as provided in 18 U.S.C. 3006A, for any person financially 
unable to obtain adequate assistance ; (7) an appeal from an order of confinement 
would be expedited only "upon application by a party'' and would not have to be 
determined within thirty days. 

In addition, Section 2 of S. 3274 would rewrite 28 U.S.C. 1826 in a way that is 
clearly not intended ; i.e., to make no provision for confinement of a contemptuous 
trial witness in those instances where there is no federal correctional institution 
within fifty miles of the court. The provision would be properly drafted if the 
portion of line 4 of page 3 of the bill which reads "at a suitable Federal correc- 
tional institution" were changed to "at a suitable place. Such confinement shall 
be at a suitable federal correctional institution . . ." Similarly, to avoid confusion 
in the provisions concerning grand jury witnesses, the words "at a suitable place" 
should be added after "confined" in line 14 of page 2 of the bill. 

Section 3 of S. 3274 would add a new section to chapter 21 of title 18 of the 
United States Code, providing that a i)erson who had once been imprisoned or 
fined for criminal contempt under 18 U.S.C. 401 in a proceeding before a federal 
grand jury could not again be imprisoned or fined under § 401, or under 28 U.S.C. 
1826, for a subsequent refusal to testify or provide other information concerning 
the same transaction, set of transactions, event, or events. 

DISCUSSION 

(A) Preventing summary punisJiment of a grand jury imtness for civil con- 
tempt. To require that a contemptuous grand jury witness be given five days 
notice ordinarily, and no less than forty-eight hours notice upon a showing of 
special need, before he can possibly be confined upon a hearing would both seri- 
ously undermine the civil contempt statute, and hamstring the civil contempt 
remedy as it has been developed and used in the grand jury context for many 
years. 

The legislative history of 28 U.S.C. 1826 shows that the statute was intended 
essentially to codify established law and practice on civil contempts. H. Rep. 91- 
1549, 91st Cong., 2d Sess. 46 (1970) ; S. Rep. 91-617, 91st Cong., 1st Sess. 56-57, 
148-149 (1969). The theory underlying civil contempt is that the recalcitrant 
witness must be subjected immediately and constantly to discomfiture, not for 
punitive purposes, but to induce him to obey the court's command to testify be- 
fore some miscarriage of justice has resulted or a work of public business has 
been put to waste. Tlie ix)wer is an historic and absolutely vital one. 

The power to compel citizens to testify is itself one of the most important and 
necessary powers of government in an ordered society. Murphy v. Waterfrovt 
Commission, 378 U.S. 52, 93 (19()4). "[T]he longstanding principle that the public 
has a right to every man's evidence" is "particularly applicable to grand jury 
proceedings." Branzlurg v. Hayes, 408 U.S. 665, 688 (1972). A judicial power to 
proceed summarily against recalcitrant witnesses is "essential to preserve the 
authority of courts and to prevent the administration of justice from falling into 
disrepute." 15 Cyclopedia of Federal Procedure, 628 (3rd ed. 964). While there 
are due process considerations courts must honor in civil contempt proceedings, 
the nature of civil contempt is such that indictment and jury trial are not re- 
quired, and a reasonable expedition of the proceedings, including appeals, is 
entirely warranted. See United States v. Weittbcrg, 439 F. 2d 743, 746 (9th Cir. 
1971). 

Summary punishment for civil contempt is sometimes justified — and should 
be especially so when the witness has been immunized — on the basis that the 
issues are very simple and that the witness is being required to perform no un- 
common duty. Doubtlessly, the primary justification for civil contempt powers is 
the "conditional nature of the imprisonment — based entirely upon the contemnor's 
continued defiance." Shillitani v. United States, 382 U.S. 364, 371 (1966). All the 
witness need do is discharge his duty of testifying, as other citizens must do, and 
he is entitled immediately to go free. 

It must be emphasized that 28 U.S.C. 1826 permits — but does not require — a 
court to confine the contemptuous witness summarily. In administering this 
statute, the courts have generally ruled that before a grand jury witness may be 
held in civil contempt, he is entitled to certain procedural regularities, including 
the time needed to adequately prepare a defense ; the reasonable time needed to 



120 

prepare a defense varies, however, according to the circumstances of each case. 
See, e.g., In re Sadin, 509 F. 2d 1252 (2d Cir. 1975). Moreover, under 28 U.S.C. 
1826 the witness who is held in summary contempt can be admitted to hail pend- 
ing appeal unless his appeal is frivolous or taken for delay. Thus, the present 
statute allows for results similar to those that the proi)osed legislation would 
mandate. "Under current law, however, while there is latitude for courts to deal 
with the rare situation where the witness's refusal to comply with the court's 
order raises some genuine issue, there is also the necessary flexibility to deal 
speedily with the more frequent situation — particularly in the ease of immunized 
witnesses — where no genuine issue exists. 

By depriving the courts of their traditional power to deal quickly and effec- 
tivly with contemptuous witnesses, this bill would exacerbate one of the most 
serious problems in the criminal iustice system — the problem of delay. By leaving 
unchanged the courts' power under 28 U.S.C. 1826 to deal summarily with con- 
temptuous trial witnesses, this bill recognizes the imperative need to act quickly 
to prevent the delay and disruption of trials. But as important as it is to prevent 
breaks in the progress of a trial, "it is no less important to safeguard against un- 
due interruptions of the inquii-y instituted by a grand jury." ColMcilich v. United 
States, 309'U.S. 323, 327 (1940). Especially in complex cases a grand jury in- 
vestigation cannot be run effectively by fits and starts. The testimony of a key 
witness can determine who else will be subpoenaed, which questions will be 
asked, and what physical evidence will be demanded. Grand jury investigations 
must often be pressed vigorously so as to minimize risks that the witnesses will 
flee or be intimidated, or join in fabricating testimony, or tamper with physical 
evidence. The damage one witness can do by stalling matters five days is mag- 
nified if succeeding witnesses do the same, and a prolongation of the proceedings 
will often work personal hardship upon the grand jurors. Even under current 
law a witness is sometimes able to delay the resolution of contempt proceedings 
until after the expiration of the gi-aud jury's term, requiring that a nev\' grand 
jviry be empanelled to recommence the investigation. See, e.g.. In re Weir, 520 F. 
2d 662 C9t]i Cir. 1975) (fifteen months expired between the time the witness was 
first held in contempt and the order of confinement). There is simply no justifica- 
tion for allowing every balking grand jury witness two days delay as a matter of 
course (five days absent a showing of special need) when such a delay might dis- 
rupt the orderly presentation of evidence or necessitate a complete break in the 
investigation ; in the end, the witness might profess to have no pertinent informa- 
tino. Particiilarly in view of the fact that the courts presently possess and ex- 
ercise the power to delay a contempt hearing so long as is reasonably necessary 
to permit the witness to prepare an adequate defense, any sympathetic claim 
which a contumacious witness might have to an automatic two or five day respite 
must surely yield to the public interest in the expeditious administration of 
criminal justice and to the personal concerns of those who are performing jnvy 
duty. The proposal for automatic delay, unrelated to the legitimate needs of the 
contumacious witness, would drain off much of the vitality of the civil contempt 
remedy, and in turn, the vitality of the investigative type of grand jury. 

(Bt Reanirinf/ that a contemptuous vjitness he confined at a, Federal correc- 
tional institution if one is located irithin flftii miles of the eoicrt ordering 
confinement. It would be inconsistent with the tradition of recognizing a snm- 
mary power in the courts for the contemptuous witness to be confined at an.v 
unnecessary distance from the situs of the proceeding. Such a witness is properly 
detained nearby, to induce him to testify fully as the court orders, and to permit 
the proceeding to be resumed as expeditiously as possible upon his decision to 
testify. Moreover, unlike the person who has been adjudged in criminal contempt 
under 18 U.S.C. 401^02, or Rule 42 of the Federal Rules of Criminal Procedure, 
a person confined for civil contempt is not to be regarded as a criminal to be 
corrected. The witness held in civil contempt is properly detained with those 
held to answer to charges, rather than with convicted felons. 

(C) Limiting confinement for civil contempt to si.T months. The Department 
of Jnstice is firmly convinced that softening the force of ci^'il contempt procedures 
wonid he inimical to the public interest. We recognize that a loose a^alosry may 
be drawn to the criminal contempt situation in which a court is unable, without 
a jury trial, to sentence a witness to a term in excess of six months. Bloom v. 
United States. 891 U.S. 194 (1968). But likening the civil contem]it power to any 
sort of criininal law situation is only to invite confusion. There is simjilv 7io crime 
being punished ; confinement for civil contem.pt is remedial in purpose, not puni- 
tive; and the person held in civil contempt has the unique power of ending his 



121 

coufinement by obeying the order. See Shillitani v. United States, supra, 38i U.S. 
371; Gompers v. Bucks Stove Co., 221 U.S. 418 (1911). By contrast, the person 
confined for criminal contempt cannot terminate or shorten his sentence by any 
act of his own. Ducll v. Ducll, ITS F. 2d 683 (D.C. Cir. 1949) . 

The ability to punish the contemptuous witness for criminal contempt is no 
substitute for the ability to confine him in civil contempt. In general, the 
contumacious witness should be pressed to discliarge his testimonial duty for as 
long as the proceeding is pending that his contempt may pervert or abort. See 
Shillitani v. United States, supra, 384 U.S. 3(34. The general rule should admit of 
only one exception. 

Until relatively recently grand juries could not exist for longer than eighteen 
months. See Rule 6(g) of the Federal Rules of Criminal Procedure. In 1970 the 
Congress provided for special grand juries in populous areas, primarily (but not 
entirely) to conduct organized crime investigations. To insure that the juries 
would be able to conduct thorough investigations, it was provided that their 
terms could be extended for up to thirty-six months. 18 U.S.C. 3331. The civil 
contempt statute enacted at the same time prohibited the confinement of a re- 
calcitrant witness for longer than eighteen months under any circumstances. 
28 U.S.C. 1826(a). Such an absolute limit is justified, we agree, in order that 
civil contempt may retain its distinct, non-punitive character. .See Shillitani v. 
United States, supra, 384 U.S. at 30S-372. It remains, however, that in order to 
make sure that the civil contempt mechanism will have ample time in which 
to work its purpose of inducing the witness to obey the oi'der of the court, the 
witness should face more than a possible six months in confinement. The 
Department strongly urges that the maximum period of confinement available 
to tiie courts for civil contempt not be i-educed below eighteen monrhs. 

(D) Preventing repeated confinements for successive contempts. The Depart- 
ment is opposed to the proposal. V/e recognize that a loose analogy may be drawn 
to the constitutional provision against double jeopardy, but any such attempted 
analogy does not withstand analysis. In the first place, the double jeopardy 
clause does not itself bar successive prosecution for separate and successive 
acts ; the fact that a defendant has once been convicted of bank robbery does 
not preclude his conviction for a later robbery of even the same bank. Moreover, 
the double jeopardy provision applies to the imposition of criuiinal penalties; 
as has already been emphasized, the civil contempt power cannot be likened 
to any sort of criminal law situation. 

We are also aware of the argument that once confinement has proven futile to 
induce a witness to testify, a repetition of the process might well be equally 
futile, and take on punitive aspects not in keeping with the purpose of the civil 
contempt power. But the proposed legislation is not necessary to prevent re- 
peated confinements for contempt that could serve no purpose. Nothing in cur- 
rent law requires a court to confine a witness in civil contempt. Whatever legal 
rights a repeatedly contumacious witness may have, see Shillitani v. United 
States, supra, 384 U.S. at 371 n. 8, those rights can be secured in the courts. If a 
judge sees no useful purpose to be served by utilizing his civil contempt pov>'ers, 
he may refrain from doing so. 

Furthermore, the proposed legislation would prevent repeated confinements 
for civil contempt even in those instances where there is every reason to be- 
lieve a repeated order of confinement would not be futile or merely punitive, and 
indeed, that it is necessary to prevent a miscarriage of justice. For example, as 
the proposed legislation is drafted, a witness confined for civil contempt might 
yield and answer the questions posed up to that time, and then refuse on the next 
day of the trial or grand jury proceeding to answer any further questions or 
provide other information ; or he might testify in the grand jury proceeding and 
refuse to testify at trial ; or be might testify against one defendant and refuse to 
testify in a companion case — the court being in all such instances impotent to 
use the civil contempt statute. The witness's refusal to testify could cause an inno- 
cent person needlessly to be charged, or a guilty person to be acquitted, and, 
with some new or different light shed upon the basic transaction, it could gain 
a broader or greater significance than previously imagined; hence, the need for 
the witness's testimony in the second instance might be distinct from and greater 
than the earlier need. Even if the need is essentially the same in both instances, 
the initial confinement may have been only for a brief period at the end of the 
grand jury's term, or have been abbreviated for other i*easons. 

Extreme caution must be exercised in legislating restrictions upon judicial 
discretion to deal with successive contempts. As was pointed out above, judicial 



122 

power to deal summarily with recalcitrant witnesses preserves the authority of 
the courts and prevents tlie administration of justice from falling into disrepute. 
Restrictions upon the courts' power to repeatedly hold a witness in civil contempt 
would in itself pose serious problems. But the proposed legislation would go 
even further and deprive the courts of any contempt power whatsoever — crim- 
inal as well as civil — over the repeatedly contumacious witness, so long as his 
contempts involved refusals to testify or provide information concerning the 
same transaction, set of transactions, event or events for which he was once, how- 
ever briefly, confined. Confinement for civil and criminal contempt cannot readily 
be equated, as is done in the proposed legislation ; the purpose of one is reme- 
dial — to induce the witness to comply with the court's order — while the purpose 
of the other is punitive — to punish defiance of the court. The fact that a witnes^s 
was once confined to induce hi.s testimony should have no necessary effect upon his 
subsequent exposure to criminal sanctions, should sucli become appropriate. 
and vice versa. Nor is there any reason for singling out the criminally contu- 
macious grand jury witness for immunity from subsequent criminal or civil con- 
tempt sanctions, as proposed by Section 3 of S. 3274. The public interest cannot 
be served by legislating a total judicial inability to .deal with repeatedly con- 
tumacious witnesses. 

(E) Authorizing a court to appoint counsel to represent an indigent con- 
temptuous witness. The Department has no objection to this proposal which 
would pei-mit, but not require, a court to appoint counsel to represent an indigent 
contemptuous witness. Several courts have ruled that a witness has a right to 
counsel at a civil contempt proceeding, but it is highly doubtful that the present 
statutory authority for appointment of counsel, IS U.S.C. 3006A, applies to such 
proceedings, 

(F) Justifying a, grand, jury witness's refusal to answer questions based upon 
an tinlawful act or the violation of a legal right. Under current law, a witness is 
often protected at trial from answering questions based upon a violation of a 
right or privilege. An exception is made when the evidence is admitted for im- 
peacliment puri^oses, since the courts have held that the incremental deterrence 
which might be gained from extending the exclusionary rule to this situation is 
outweighed by the need to guard against a person's committing perjury. See e.g., 
Harris v. New York, 401 U.S. 222 (1971) ; cf. Harrison v. United States, 392 U.S. 
219 (1968). But the situation before a grand jury is different. There the courts 
have consistently held that the Constitution imposes no bar to compelling a wit- 
ness to respond to questions derived from improper activity, since the exclu- 
sionary rule as it operates at trial is deterrent enough to prevent deliberate 
invasions of rights, allowing a grand jury witness to invoke the exclusionary 
rule would unduly interfere with the effective and exi^editious discharge of the 

grand jury's duties, and the need of the grand jury for the witness's evidence 
in its investigation is paramount. See United States v. Calandra, 414 U.S. 338, 
350 (1974) ; and cases cited therein. Of course, a grand jury witness may invoke 
any applicable privilege not to testify (e.g. Fifth Amendment or attorney-client 
privilege) and may quash an overly broad subpoena to produce evidence, but he 
may not refuse to testify merely because of the alleged illegal source of the 
question. The only apparent exception to this principle arises under 18 U.S.C. 
2515, part of a comprehensive scheme enacted by Congress to protect the 
privacy of oral and wire communications against the threat of wiretapping 
and electronic surveillance. The Supreme Court has construed this legislation, 
in light of its special purposes, as affording a defense to witnesses who refuse to 
answer questions based upon unlawfully intercepted communications. Gclhard v. 
United States, 408 U.S. 41 (1972). 

The proposed legislation is evidently designed to extend the Gclbard prece- 
dent in the grand jury setting across the gamut of an individual's rights and 
privileges, and indeed, would provide a defense for a witness's refusal to answer 
a question based upon any unlawful act, not only violations of his own rights. 
Such a measure would be unjustified. For one thing, it would enable a fully 
immunized witness, not himself in any jeopardy, to decline to testify because 
the questions were derived from a violation of someone else's rights. The possi- 
bility that justice will be defeated and the grand jury's investigation thwarted 
in these circumstances outweigh any conceivable need to further shield the 
witness from giving testimony. Moreover, the creation of such a defense would 
afford an opportunity for witnesses so inclined to delay a grand jury's pro- 
ceedings by challenging the source of questions even in instances where there 
is no reason to believe they are based upon illegal conduct ; it would also precipi- 
tate the litigation of issues presently reserved for trial on the merits. Saddling 



123 

a grand jury "with minitrials and preliminary showings would assuredly impede 
Its investigation and frustrate the public's interest in the fair and expeditious 
administration of the criminal laws." United States v. Calandra, supra, 414 U.S. 
at 350, quoting United States v. Dionisio, 410 U.S. 1, 17 (1973). The courts, we 
believe, have generally dra^vn the proper balance in this area. The Oelbard case 
stems from legislation dealing with an unusually sensitive and acute problem, 
and is not to be extended across the board ; it certainly should not be extended 
to the wholly novel length of permitting a grand jury witness to refuse to 
answer questions not based upon any violation of his own legal rights. The 
Department strongly objects to this proposal. 

(G) Expediting appeal only vpon application of a party; not requinng deci- 
sion within thirty days. Tlie summary contempt power is of such an exceptional 
nature, as indicated above, that we believe the existing requirement that appeals 
be disposetl of within thirty days is fully Avarranted. Similarly, we do not see any 
justification for making exi>edition of an appeal depend upon any kind of appli- 
cation. The government would rarely, if ever, be content about delay in handling 
an appeal, and would, therefore, be filing an application in virtually eveiy case. 

n. CERTAi:>r grand jury matters 

Section 4 of S. 3274 is a relatively lengthy section which deals with three dis- 
tinct subject matters. These three matters are: (1) notice to the grand jury of 
its rights and duties; (2) independent grand jury inquiry; and (3) certain 
rights of grand jury witnesses. We will discuss each of these three matters sepa- 
rately in turn. 

(1) Notice to the grand jury of its rights and duties (pp. 5-7). 

The proposal. Under Section 4 of S. 3274, a new section would be added to 
chapter 215 of title 18 of the United States Code to require that the district court, 
upon emi)aneling a grand jury, give it adequate and reasonable written notice 
of, and assure that it reasonably understands the nature of, its rights and duties, 
as enumerated. Failure to instruct a grand jury as required would be ''just cause"' 
within the meaning of 18 U.S.C. 1826 for a witness's refusal to testify or pro- 
vide other information before that grand jury. 

Discussion. Notifying a grand jury of its inghts and duties. There is no objec- 
tion in principle to requiring that district courts notify grand juries of their rights 
and duties. At present the courts give appropi'iate instructions to grand juries as 
a matter of practice. We do question the need for providing such instructions in 
written rather than oral form. There is no indication that grand jurors fail to 
understand the instructions as presently given, and the judge is always available 
to p^rovide further instruction or clarification if such is desired. 

Our central objection, however, is to the rights and duties enumerated in the 
proposal. For example, the requirement that a grand jury be notified, at the 
time it is empanelled of "the subject matter of the investigation" would create 
practical difficulties and be of highly dubious value. The majority of grand juries 
are not empanelled to undertake any specific investigation, but rather to hear 
many diverse kinds of cases, and take on such investigations, not previously 
planned or definitely scheduled, as might arise during their term. Our objections 
to other of the enumerated rights will be made evident in the discussion below. 

Furthermore, we must also object to the provision in the proposal which would 
prevent a witness from being held in civil contempt for refusing to testify or 
provide information to a grand jury if the jury had not been properly instructed 
at the time it was empanelled. In the first place, as drafted this provision would 
make no allowance for the possibility that the grand jury received proper instruc- 
tions subsequent to its empanelment, but prior to the date of the witness's ap- 
Ijearance. This proAdsion also could be expected to give rise to litigation in vir- 
tually every contempt proceeding over whether the grand jury had been ade- 
quately instructed, for example, as to the subject matter of the investigation or 
the criminal statutes involved. Finally, the kinds of rights involved in this pro- 
posal have no inherent relationship to the witness's obligation to testify or pro- 
vide information if so ordered by the court ; they are not of such basic char- 
acter that a failure to notify the grand jury of them should occasion remedial 
action absent some particular prejudicial effect upon the witness. 

(2) Independent grand jury inquiry (pp. 7-10) . 

The proposal. Section 4 of S. 3274 would also add a section to chapter 215 of 
title 18 that would, in brief, give every grand jury the right, after giving notice 
to the court, to inquire upon its own initiative into Federal offenses alleged to 
have been committed by officers or agents of the United States or of any State 



124 

or local government. The grand jury would serve for twelve mouths thereafter, 
unless discharged sooner upon a determination by the members that the jury's 
business had been completed. If the court determined that the jury's business 
had not l:een completed after the end of the twelve months, or any extension 
thereof, the court could extend the jury's term further, six months at a time, 
but no jury could serve for more than twenty-four months after giving notice of 
its intent to conduct an independent inquiry. If the district court failed to extend 
the jury or ordered its discharge before tlie jury detennined that its business 
was completed, the jury would be authorized, pursuant to a vote of twelve or 
more of its members, to apply to the chief judge of the circuit court for an 
extension of its term, which would continue automatically while the application 
was pending; but no grand jury term so extended could exceed twenty-four 
months. 

The grand jury could request the attorney for the government to assist it in 
conducting its inquiry. If, however, the attorney for the government refused to 
assist, or hindered or impeded the grand jury in conducting an Independent 
inquiry under this section, the grand jury (pursuant to a vote of twelve or 
more of its members) could request that the court appoint a special attorney 
to assist the grand jury in its inquiry. A special attorney appointed by the 
court would have certain broad authority to appoint and fix the compensation 
of assistants, investigators, and other personnel. Notwithstanding the provi-sions 
of 28 U.S.C. 51G and 519, the special attorney would possess the exclusive au- 
thority to assist the grand jury in its independent inquiry and to sign any 
resulting indictment. 

(A) Independent Grand Jiin/ Inquiry. The Fifth Amendment to the Con- 
stitution makes the grand jury an integral part of the Inderal criminal justice 
system, and the law has traditionally accorded grand juries broad powers of 
inquiry. See, e.g.. United States v. Calandra, 414 U.S. 33S. 342-345 (1947) ; 
United States v. Morton Salt Co., 338 U.S. 632. 642^643 (1950) ; Blrtir v. United 
States, 250 U.S. 273, 282 (1919). But this proposal goes well beyond traditional 
practice in making grand juries independent of the judicial branch of government. 

It is difficult to express precisely the nature of the relationship between the 
courts and grand juries, but it is clear that grand juries are not fully inde- 
pendent of the courts. Grand iuries have often l^een referred to as "arms" or 
"appendages" of the courts. Thus, in Brown v. United States, 359 U.S. 41, 49 
(1959) , for example, the Court noted that : 

A grand jury is clothed with great independence in many areas, but it 
remains an appendage of the court, powerless to perform its investigative 
function v.'ithor,t the court's aid. liecause powerless itself to compel the testi- 
mony of witnesses. It is the court's process which summons the witness to attend 
and give testimony, and it is the court which must compel a witness to testify, 
if, after appearing, he refused to do so. 

It has also been observed that "a grand jury may so exceed its historic 
authority as to justify a court in interfering ^^^th its investigatorial power." 
In re April 19r,G Term. Grand Junj. 239 F.2d 269 (7th Cir. 1956). 

As part of this relationship, the district courts have traditionally adminis- 
tered the empaneling and discharging of grand juries. Under the proposed 
legislation, however, a regular grand jury had sat for nearly eighteen months 
and a spedal grand jury that had sat for nearly thirty-six months could take 
on new business, by a vote of the members, and extend their term'^ of service, 
if necessary to complete the new business, for as long as twenty-four months 
more. 

This could occur whether or not the planned subject of inquiry had alread.v 
been, was being, or was going to l*e investigated by another grand jury, and 
whether or not the court felt that the extension was otherwise in the public in- 
terest. If many grand juries exercised this power to extend (which the courts 
would be obliged to call to the jurors' attention), serious administrative problems 
could develop. 

This Department knows from pa«t experience that courts do not like to have 
several grand juries empaneled at the same time, b.ecause thnt can lead to a 
sporadic, uneconomical, find otherwise disorderly use of grand juries. Since grand 
jury service often entails hardship or inconvenience for the jurors, the courts 
tend to avoid using one jury for a long time and prefer instead to empanel suc- 
cessive grand juries for relatively short pei'iods if the woj-klond allows. But the 
thrust of the proposed legislation is to authorize, if not invite, a majority of 
members of a grand jury to determine, without the benefit of any overview of 



125 

the system, their own length of sen'ice and to preempt the work other juries 
might do, no matter how much the court might wish to order its business differ- 
ently, and in the face of the overriding fact that the court (not the grand jury) 
controls the subpoena process. AVhile we recognize that the proposed legislation 
is patterned after 18 U.S.C. 3331, the purpose of 3331 was "to make available a 
sufficient number of grand juries in each judicial district to accommodate the 
general needs of the district and tlie special needs of the typically lengthy or- 
ganized crime case." H. Rep. 91-15^9, 91st Cong., 2d Sess. 39 (1970). The instant 
proposal goes unnecessarily far in expanding the basic idea of 18 U.S.C. 3331 and 
would interfere unwisely with the judiciary in its handling of the grand jury 
system. 

This proposal would probably not create as much administrative difficulty as 
certain other proposals pending in the Congress to authorize independent grand 
jury inquiry, since it would apply only when Federal, state, or local governmental 
officials are alleged to have committed Federal violations. We do not, however, 
see any appropriate reason for treating such investigations as unique. We infer 
tliat the intention is to foster independent grand jury inquiry principally when 
questions arise about the conduct of a governmental official in his public office. 
But even so limited, the proposal cannot l)e justified in our view ; it simply breaks 
too sharply with longstanding practice which has, in fact, worked well. It should 
be noted that grand juries have never lost the power to determine which matters 
they wish to investigate, what witnesses they would like to hear, and which ques- 
tions to ask. The maintenance of this traditional independent investigatory power, 
however, has n^wer and does not now require that the historic relationship be- 
tween the courts and grand juries be diminished. Furthermore, the proposal is 
undermined by its reliance upon a special court-appointed attorney outside the 
executive branch of government. 

(B) Special attorney for tJie grand jury. This Department opposes, as a matter 
of fundamental principle, any legislation that would authorize courts to appoint 
attorneys to do the job of this Department. We think it clear that, as the agency 
of the executive branch of government charged with the responsibility of taking 
care that the law be enforced, his Department is entitled to provide counsel for 
gi'and juries. It is an executive function to do so since it is an executive function 
to approve indictments, and determine whether prosecutions should be initiated. 

At the outset, it should be noted that the signing of an indictment by a special 
court-appointed attorney in lieu of a government attorney, pursuant to the pro- 
visions of S. 3274, would probably not operate to create a valid indictment. It 
has been held that the signature of a govei'nment attorney is essential to the 
validity of an indictment and that the signing is an executive act not to be com- 
pelled by the judiciary, the relevant provisions of Rule 7 of the Federal Criminal 
Rules reflecting simply a recognition of the power of Government counsel to 
permit or not to permit the bringing of an indictment. United States v. Cox, 342 
F. 2d 167 (C.A. 5, 1965), cert, den., 3S1 U.S. 935. The Court there said : 

"The role of the grand jury is restricted to a finding as to whether or not 
there is probable cause to believe that an offense has been committed. The 
discretionary power of the attorney for the United States in determining whether 
a prosecution shall be commenced or maintained may well depend upon matters 
of policy wholly apart from any question of probable cause. * * * It follows, 
an incident of the constitutional separation of powers, that the courts are not 
to interfere with the free exercise of the discretionary powers of the attorneys 
of the United States in their control over criminal prosecutions" (at 342 
F.2d 171 ) . 

Moreover, although under the relevant provisions of S. 3274 the appointment 
of a special attorney would be limited to those instances where the attorney 
for the government refused to assist, or hindered or impeded the grand jury in 
conducting an independent inquiry, even the appointment of a special attorney 
in such limitetl circumstances would bo an encroachment upon the free exercise 
of the Executive's discretionary prosecutorial authority. The courts have con- 
sistently ruled that they are without power to interfere with the government 
prosecutor's decision not to commence or initiate a prosecution, on the grounds 
that the determination is within the ambit of the Attorney General's and United 
States Attorney's executive discretionary power. See, e.g. Peek v. Mitchell, 419 
F.2d 575 (6th Cir. 1970) : Tlfo.se-s v. Katzcnharh, 359 F.2d 234 (D.C. Cir. 1965). 
In Milliker v. Stone, 7 F.2d 397, 399 ( S.D.N. Y. 1925), the court stated that 
"federal courts are without power to compel the prosecuting officers to enforce 

78-905—70 9 



126 

the penal laws, whatever the ground of their failure may be. The remedy for 
inactivity of that kind is with the executive and ultimately the people." 

We recognize that a loose analogy may be drawn between the appointment of 
a special attorney contemplated by S. 3274 and the courts' present authority 
under 28 U.S.C. 546 to appoint a United States Attorney when that position is 
vacant until the vacancy is filled. However, crucial distinctions exist. 28 U.S.C. 
546 is the present codification of a statute first enacted in the nineteenth century, 
at a time when transportation and communication facilities were such that absent 
temporary appointment authority in the local courts, the position of United 
States Attorney might have remained unoccupied for a substantial period of time 
following the resignation, death or inability to serve of the previous incumbent. 
It is not the intent or effect of this provision to enable a court to deprive the 
President of his power to appoint the United States Attorney, but rather to 
enable the court to fill a vacancy until such time as the President should act, 
and no longer. United States v. Solomon, 216 F. Supp. 835 ( S.D.N. Y. 1963) ; 
Matter of Farrow, 3 F. 112 (C.C. Ga. 1880). The exercise of this appointive 
power in no way binds the executive ; rather, the executive branch remains free 
to clioose another United States Attorney at any time, regardless of the judicial 
appointment. On the other hand, under the current proposal, the specially ap- 
pointed attorney would supplant the executive's authorized attorney, albeit 
temporarily. 

The proposed legislation would also, we submit, be unsound as a matter of 
policy, and not only constitutional law. Enforcement of the criminal laws is no 
mechanical task. In discharging its responsibility of determining when to initiate 
a prosecution, this Department must construe statutes and legal precedents, make 
legal and factual judgments, formulate prosecutive policy, and exercise sound 
discretion. In all likeliliood, it would be adherence to Departmental prosecutive 
standards and policies which would lead the attorney for the government not to 
assist a grand jury inquiry, the precise circumstance which would trigger appoint- 
ment of a special attorney. Certainly no one should have to answer to criminal 
charges lodged by a grand jury upon the advice of an attorney not subject to 
the prosecutive policies of the Department of Justice, and, indeed, not apparently 
subject to any control at ail. Criminal charges should not be brought against an 
individual when, under standards or policies employed by the Department, the 
case is not prosecutable. In short, the special attorney contemplated under this 
legislation might well obtain indictments (upon probable cause) in precisely 
those situations where existing, and legitimate. Departmental prosecutive policy 
mandates against prosecution. Since under this legislation the role of the special 
attorney would end with the signing of any indictments, the ultimate responsi- 
bility for pursuing the case through trial and appeals would revert to the De- 
partment's attorneys, who had determined in the first instance that it should not 
be maintained. Indictments should surely not be returned where the cases are 
not to be, as they probably would not be, pursued. 

In those rare instances where the appointment of a special prosecutor has 
been deemed necessary to insure public confidence in the integrity and thorough- 
ness of an investigation, the executive has done so. But there are compelling 
legal and practical reasons militating against this proposal, and the Depart- 
ment must oppose its enactment. 

(3) Certain Rights of Grand Jury Witnesses (pp. 10-19). 

The Proposal. Section 4 of S. 3274 would also add a section to chapter 215 of 
title 18 to grant certain rights to grand jury witnesses and to make certain 
other requirements. Under the section, a grand jury subpoena could be issued 
only upon the vote of the grand jurors. Grand jury subpoenas would not be 
returnable on less than seven days notice, unless the witness consented to earlier 
compliance, or the court found that good cause existed for requiring compliance 
in less than seven days. The witness would be advised in the subpoena of his 
right to council, his privilege against self-incrimination, the subject matter of the 
grand jury's inquiry, the Federal statutes involved, and whether his own conduct 
was under investigation. A witness not so advised would acquire, upon testify- 
ing, both a use immunity and a transactional immunity from prosecution. If a 
witness prior to his appearance gave written notice of his intention to assert 
the Fifth Amendment privilege, he could not be compelled to appear before 
the grand jury unless granted immunity. Upon his appearance before the grand 
jury, the witness would be entitled to the assistance of counsel, either retained 
or (as appropriate) appointed by the court ; counsel could accompany the witness 



127 

into the grand jury room, and would not be under any duty to keep the proceed- 
ings secret. 

A grand jury could conduct an inquiry only in a district in which it is 
believed substantive criminal conduct occurred. A grand jury convened to inquiry 
into both violations of substantive criminal statutes and violations of statutes 
forbidding conspiracy to violate substantive criminal statutes could not be 
convened in the district in which only the conspiracy occurred. 

For the convenience of witnesses and where the interests of justice required, a 
district court could, on the motion of a witness, transfer a grand jury proceeding 
to any district where it might properly have been instituted. In considering an 
application for such a transfer, the court would consider all relevant circum- 
stances, including the distance of the grand jury investigation from the places of 
residence of subpoenaed witnesses, financial and other burdens placed upon 
witnesses, and the existence and nature of related investigations and court pro- 
ceedings, if any. 

Once a grand jury failed to return an indictment, no grand jury inquiry 
could be initiated into the same transactions or events first considered, unless 
the government made a proper showing that it had discovered additional evidence 
relevant to the inquiry. 

It would be required that a complete stenographic record be kept of all grand 
jury proceedings, including all introductory remarks and all interchanges between 
the attorney for the government and anyone participating in the proceeding, 
but not of any consultations between ^\'itnesses and their counsel or of the secret 
deliberations of the grand jurors. Each witness would be entitled, personally or 
by counsel, to examine and copy a transcript of his own testimony ; a witness 
proceeding in forma pauperis would be given a copy of the transcript upon 
request. The transcript would have to be available for inspection and copying not 
later than forty-eight hours after the conclusion of the witnesses's testimony, 
unless, for cause shown, more time was required to prepare the transcript. After 
examining the transcript, the witness could request permission to appear before 
the grand jury again to explain his testimony, and such additional testimony 
would become part of ofiicial transcript. 

Before testifying under the grand jury subpoena, each witness would be en- 
titled to examine and copy, personally or by counsel, any statement in the govern- 
ment's possession that the witness had made about the subject matter of the 
inquiry. The witness could not be confined for refusing to testify if he had not 
been fully advised of his rights ; or if the court found that a primary purpose or 
effect of subpoenaing the witness was to prepare for a trial of Federal, State or 
local charges ; or if compliance would be unreasonable or oppressive because it 
would involve unnecessary appearances by the witness, or because his testimony 
would be cumulative, unnecessary, or privileged ; or if a primary purpose in sub- 
poenaing the witness was for harassment ; or if the witness had been confined for 
his refusal to testify before a grand jury investigating the same transaction or 
event. 

If, before appearing under the grand jury subpoena, the witness wished to file 
a motion to quash the subpoena or for other relief, there would be concurrent 
jurisdiction to decide the matter in the district court issuing the subpoena and 
in any other district court for a district in which the witness resides or was served 
the subpoena. Once the witness appeared before the grand jury, any motion for 
relief could be made only in the district court that empaneled the grand jury. 
Filing a motion to quash or for other relief would stay the witness' appearance 
until the motion was decided. 

Tlie attorney for the government would be limited before the grand jury to 
asking questions or requesting the production of books, papers, documents or 
other objects relevant to the subject under inquiry. He would be prohibited from 
submitting any evidence to the grand jury which was obtained by an unlawful act 
or in violation of the witness' legal rights. 

A grand jury would be authorized to indict when (1) the evidence before it was 
legally sufficient to establish that the offense was committed, and (2) competent 
and admissible evidence before it provided reasonable cause to believe that the 
person committed the offense. An indictment could be based solely upon sum- 
marized or hearsay evidence only if the court found there was good cause for 
doing so. The attorney for the government would be required to present to the 
grand jury all evidence in his possession which he knows would tend to negate 
the guilt of those under investigation. 



128 

The district court would be required to dismiss any indictment returned in its 
district if it found tliat : (1) tlie evidence before the grand jury was legally in- 
sufficient to establish that the offense was committed; (2) there was not com- 
petent and admissible evidence, or summarized or hearsay evidence allowed by 
the court for good cause shown, before the grand jury to provide reasonable 
cause to believe that the indicted person committed the offense; (3) the attorney 
for the Government had not presented to the grand jury all evidence in his pos- 
session which he knew would tend to negate the guilt of the indicted person ; or 
(4) the attorney for the Government had submitted to the grand jury evidence 
obtained by an unlawful act or a violation of the witness' legal rights. 

Any person would be authorized to approach the attorney for the Government 
and request to appear before the grand jury or to urge it to institute an independ- 
ent inquiry as otherwise provided for in this legislation. The attorney for the 
Government would be required to keep a record of all denials of such requests 
and the reasons therefor. A person whose request to appear before the grand jury 
was denied could petition the court for a hearing on the denial, and the court 
could permit him to appear or testify if it found that his appearance or testi- 
mony would serve the interests of justice. 

Discussion 

(A) Requiring that all grand jury sxihpoenas 6e voted upon 6?/ the grand 
jurors. This proposal would entail serious practical problems, as it would pre- 
vent the prosecutor from scheduling witnesses in advance of a grand jury session. 
Particularly in less populated districts, where grand juries are not continually 
in session and jurors must often travel considerable distances to attend grand 
jury sessions, effective use of the grand jurors' time requires that presentations 
be prepared before the grand jury convenes. To require that the jurors convene 
solely to vote upon the issuance of subpoenas, concerning which they would 
rarely have any basis for disagreement with the United States Attorney, would 
involve wholly unwarranted hardship upon the jurors and unnecessary public 
expense. 

There is nothing untoward about the government attorney's marshaling the 
witnesses and the evidence for a grand jury presentation ; in doing so he is 
simply employing his knowledge of the facts and the law concerning the case to 
aid in its orderly presentation. Indeed, the Supreme Court has explicitly noted 
that the government prosecutor has a participatory role in grand jury proceed- 
ings, and is "vested with a certain discretion with respect to . . . the number 
and character of the witnesses . . . and other details of the proceedings." Hale v. 
Henkel. 201 U.S. 43, 65 (1906). The proposal that grand jurors be required to 
vote upon all subpoenas would, we submit, unduly interfere with the efficient 
preparation of grand jury sessions and use of the grand jurors' time, while add- 
ing nothing to the grand jurors' present ability to request the summoning of 
those witnesses they particularly wish to hear. 

(B) Requiring that subpoenas not he returnable on less than seven days 
notice. Giving a witness seven days notice before requiring his appearance 
before a grand jury is possibly justifiable as a general standard ; in fact, the 
majority of witnesses subpoenaed to appear before grand juries presently receive 
such notice. As the proposal provides that the witness may agree to appear 
earlier, and that a subpoena may be returnable in less than seven days upon a 
showing to the court that "good cause exists" for requiring earlier compliance, 
it is considerably less rigid than other notification proposals pending in the Con- 
gress. Nonetheless, the Department is opposed to legislation which would auto- 
matically delay a witness's appearance for seven days, absent his consent or a 
judicial determination of "good cause" for expedition. 

As indicated above, service on grand juries in certain districts requires the 
members to travel great distances, and United States Attorneys in such dis- 
tricts are particularly careful to be efficient in their presentations, so that the 
jurors can complete their work without undue delay and return as quickly as 
possible to their homos and occupations. If the jurors in such districts wished 
to liear a witness not previously subpoenaed (for want of information. fore- 
Sight, or whatever) it might be possible to require the witness to appear 
promptly, for it is entirely unclear under this proposal whether the iinderstand- 
a:ble interests of the jurors in expedition would suffice for the necessary showing 
of good cause. Nor, under this proposal, does it appear that any consideration 
could be given to the not luirealistic possibility that the witness would not be 



129 

noticeably iuconvenienced by beiug required to appear on less than seven days 
notice ; no provision is made for balancing the relative interests of the jurors 
and the witness in expedition. 

Focusing particularly upon the investigative type of grand jury, this proposal 
could have disastrous consequences. One of the benefits of grand jury secrecy 
and of comjiulsory grand jury process is that the proof of criminal conduct can 
be developed in a case before the defendants and their allies have sufficient 
time or awareness to obstruct the investigation. Speed and vigor are often the 
decisive factors. Speed in investigation minimizes the risk of collusion among 
witnesses; of their being killed, intimidated or bribed; of their avoiding 
process or fleeing the jurisdiction and of records and other physical evidence 
being tampered with, hidden or destroyed, to name but the most prominent ex- 
amples. It might be argued that the "good cause" exception in the proposal 
would provide latitude for dealing with those situations where there is a par- 
ticular need for speed. But a specific showing, required to be based on facts 
supporting a finding of "good cause" applicable to a particular witness, may be 
difficult to make, especially at the outset of an investigation; a grand. jury may, 
and often must, commence investigations upon suspicion that a crime has been 
committed. In United States v. Diomisio, 410 U.S. 1 (1973), the Court overturned 
a lower court holding that required a preliminary showing of reasonableness in 
order to comply with a grand jury subpoena noting ( id. at 17) : 

Any holding that would saddle a grand jury with minitrials and preliminary 
showings would assuredly impede its investigation and frustrate the public's 
interest in the fair and expeditious administration of the criminal law. 

The Court's reasoning is particularly applicable to the proposed legislation. 

Abstract thouijhts for the p(jssible convenience of witnesses must certainly 
yield to the greater public interest in the success of the investigative type of 
grand jury as an instrument for effective law enforcement. As a practical matter, 
it cannot generally be assumed that a grand jury appearance is inherently more 
inconvenient on less than seven days notice, or that witnesses will consent to an 
earlier appearance in those instances where no inconvenience is involved. What 
we have said in support of the preservation of the summary contempt powers of 
courts applies here as well : allowing witnesses automatically to delay grand 
jury proceedings would drain away much of the vitality of the investigative 
type of grand jury. 

(C) Requiring that every grand jury witness l)e advised of his rights and 
according a witness use and transactional immunity if he is not so advised. A 
requirement that a person be advised of his rights, including his privileges 
against self-iuerimiuation before he may be questioned, has been applied only in 
the context of custodial police interrogation. The rationale for this requirement 
is that the circumstances of such interrogation are so potentially compulsory as 
to require that the Fifth Amendment guarantee receive "practical reinforcement." 
Michigan v. Tucker, 417 U.S. 433, 444 (1074). The setting in which grand jury 
questioning occurs does not present equivalent risks of improper compulsion, 
however, and there is no need that all grand jury witnesses be informed of their 
rights prior to their appearance, as v/ould be required by the proposed leiiislation. 

See United States v. Mandujano, U.S. , No. 74-754, decided May 19, 

1976 (slip op. at 14-1")). The underlying rationale for the imposition of a general 
notification requirement appears to be that witnesses would be less likely to vol- 
unteer potentially incriminatory information if explicitly informed of their right 
not to do so, and this is hardly an improbable assumption. But it is highly un- 
likely that a conscious decision not to provide incriminatory information would 
be overborne in the grand jury, and we should not adopt a policy of affirmatively 
discouraging witnesses from providing evidence. The success of a grand jury in- 
vestigation oftentimes depends upon securing information from those who are 
involved in or on the fringes of criminal activity, and who, therefore. i:)ossess 
particularly valuable knowledge of the conduct which is the subject of the in- 
quiry. Providing .such witnesses with an explicit notification of their Fifth Amend- 
ment right would do little in terms of preventing compulsory self-incrimination, 
but at the high cost of discouraging them from providing the grand jury with 
the information needed to perform its functions. 

It should be noted that it is already the practice in many districts to inform 
the target of a grand jury investigation who is subpoenaed of his status as such, 
that he cannot be required to incriminate himself, and that his testimony may 
be u.sed against him ; witnesses are generally informed that they may consult 



130 

with counsel outside the grand jury room. The Department is opposed, however, 
to the broad notification re<]uirements of the proposed legislation. 

The related proposal that a witness who is not informed of his rights be ac- 
corded both use and transactional immunity is wholly unwarranted. It certainly 
ought not to happen that a witness could appear with counsel and testify before 
a grand jury and gain an immunity from prosecution because he had not been 
advised of his right to counsel, or because he had not been cited to the kidnapping 
statute in what was obviously a kidnapping investigation, or for any similarly 
insubstantial reason. Even in instances where it is found that a defendant's con- 
fession was improperly coerced, the only remedy afforded is the exclusion of that 
confession and its fruits from the prosecution's direct case at trial, not any 
general immunity from prosecution. Granting immunity from prosecution is much 
too important a matter to arise automatically from legislation of this kind, in 
total disregard of the circumstances of a particular case. 

(D) Requiring that a witness he afforded immunity if he serves advance 'written 
notice of an intention to claim the privilege against self-incrimination. The Depart- 
ment must register its strongest opposition to this proposal, which would seri- 
ously interfere with the continued operation of the investigative type of grand 
jury. As a practical matter, this proposal would encourage a person subiwenaed 
to appear before the grand jury to affirm that he would assert the Fifth Amend- 
ment privilege, so as to secure immunity, or avoid appearing altogether. The 
Fifth Amendment privilege provides grounds for refusing to answer a question 
only when it is "evident from the implications of the question, in the setting in 
which it is asked, that a responsive answer to the question or an explanation of 
why it cannot be answered might be dangerous because injurious disclosure 
would result." Hoffman v. United States, 341 U.S. 479, 486-87 (1952). As a gen- 
eral proposition, any affirmance by a witness, prior to his appearance, that he 
would assert the Fifth Amendment privilege would be based upon rank specula- 
tion as to the questions which he might be asked. Nor can it be assumed that a 
witness who might be asked to testify concerning potentially privileged matters 
would be questioned solely on such matters. Indeed, under this proposal a witness 
who believed he would assert the privilege in response to a particular question 
could not be made to appear before the grand jury unless granted immunity, 
despite the fact that the particular question might never be asked. 

As we noted above, granting immunity from prosecution is a serious matter 
and cannot lightly be considered. Particularly at the outset of an investigation, 
the government would oftentimes not be in possession of suflicient information 
to determine whether a witness should be afforded immunity or excused from 
appearing. The Supreme Court has expressly recognized that "[t]he obligation 
to appear is no different for a person who may himself be the subject of the 
grand jury inquiry," United States v. Dionisio, 410 U.S. 1, 10 n. 8 (1973). 
As "[i]t is entirely appropriate — indeed imperative — to summon individuals 
who may be able to illuminate the shadowy precincts of corruption and 
crime" (United States v. Mandujano, supra, slip op. at 8), and as the Fifth 
Amendment privilege itself affords the witness sufficient protection in the event 
that incriminating questions are asked, permitting a witness to avoid a grand 
jury appearance by speculating that he would claim the privilege in response 
to unknownn questions is wholly inappropriate and objectionable. 

(E) Allowing tcitness's counsel inside the gi-and jury room. It has been long- 
standing Federal practice that a witness may not have his counsel accompany 
him inside the grand jury room, but the ^vitness may leave the room from time 
to time, as he likes, to consult with his counsel. It has also been long-standing 
Federal practice that the obligation to keep the proceedings secret, which is 
imposed upon the grand jurors, the stenographer, and government counsel, may 
not be imposed upon witnesses. See Rule 6 of the Federal Rules of Criminal Pro- 
cedure. Since the witness may tell his counsel all about the proceedings anyway, 
the argument has been made that permitting counsel to accompany the witness 
into the grand jury room would both permit counsel to better advise the witness 
concerning his rights, and involve little more breach of grand jury secrecy than 
the current practice. There are, however, strong reasons why counsel should not 
be permitted in the grand jury room. 

In the first place, the grand jury's continued ability to function as an informal 
non-adversarial proceeding would be deeply affected by the presence of witness 
counsel, even were he restricted solely on the role of advising the witness con- 
cerning his rights. Counsel so desiring could create substantial delay, objecting 
to the form of questions, engaging in colloquy over the relevance of a particular 



131 

line of inquiry, or raising spurious claims of privilege. Nor would delay result 
only as the product of intentional obstruction. Lawyers are trained in the tech- 
nical rules of evidence which apply at trial, and, more generally, in the adversary 
process of raising every conceivable objection and argument which could be made 
on behalf of the client. In the courtroom, the judge is immediately on hand to 
quickly resolve objections or disputes. No judicial figure would be present in 
the grand jury room, however, and obtaining resolution of even frivolous claims 
would require suspension of the grand jury proceeding. In short, permitting 
counsel to accompany witnesses into the grand jury room would introduce aspects 
of the adversarial process into grand jury proceedings, but without the presence 
of the judicial figure necessary to prevent adversarial proceedings from becoming 
bogged down in interminable delay. 

An equally important concern relates not to delay of the grand jury proceeding 
but to violation of its secrecy. Not infrequently, particularly in investigations of 
organized crime, business frauds and other white-collar offenses, one attorney 
represents several potential witnesses ; at times, counsel is retained by the very 
business, union or other organization whose activities are under investigation to 
represent all persons connected with the group. In such situations, the individual 
witness may possess relevant information and be willing to cooperate with the 
investigation ; understandably, however, he may desire that his cooperation not 
become known to his employer, fellow union members, or others whom he knows 
his attorney represents or with whom the attorney has been associated. Even at 
present, the multiple representation of witnesses by a single attorney has oc- 
casioned problems in conducting complex investigations. While cognizant of these 
difficulties, courts have generally been fearful of interfering with a witness's 
right to counsel of his apparent choice and have not required separate representa- 
tion. But under the present system, the witness, while able to disclose as much of 
his testimony as he chooses and secure whatever advice he deems necessary, re- 
tains the important right to conceal the extent of his cooperation or the fact that 
he was required to supply evidence against others. Were the practice changed 
to admit counsel into the jury room, the witness might feel less free to testify ; 
as a practical matter, he could not bar his attorney from the grand jury room 
without his action being given the worst possible interpretation by those who 
might wish that the investigation be thwarted. 

In sum, permitting counsel to accompany witnesses into the grand jury room 
would have the potential effect of producing time consuming delays, interfering 
with the grand jury's ability to conduct an effective investigation, and dis- 
coura,glng witness cooperation. But even viewed solely from the witness's per- 
spective, current practice has certain advantages. Rather than placing witnesses 
in potentially difficult situations, it is better that they be left with the slight 
inconvenience of having to leave the grand jury room to consult with counsel. 

(F) Limitations on grand jury venue. The form of this provision would be 
considerably improved if it began with a statement that a grand jury investiga- 
tion could be conducted only in a district in which the oi¥ense may have been 
committed, and then added the desired exception. Drafted solely in terms of 
"substantive criminal conduct," the provision may not allow for inquiry into a 
criminal conspiracy that never resulted in any substantive violation. 

We do not see a justification for the provision for a special limitation on grand 
jury venue in conspiracy cases in which substantive offenses may also have been 
committed. Conspiracy under 18 U.S.G. 371 is, of course, a crime separate from 
any that may be committed in carrying out the object of the conspiracy. When a 
conspiracy results in the commission of another offense, venue for prosecution 
may possibly lie in a number of districts. Venue for conspiracy attaches in the 
district in which the conspiratorial agreement was reached and also in any dis- 
trict in which an overt act was done to effectuate the object of the conspiracy. 
United States v. OversJion, 494 F. 2d 894, 900 (8th Cir. 1974), and cases cited 
therein. Conspirators who are guilty of the resulting offense by reason of aiding 
and abetting it would be triable, along with the actual perpetrators of the offense, 
in the district of venue for that offense. United States v. Jackson, 482 F. 2d 1167 
(10th Cir. 197.3), cert, denied, 414 U.S. 1159. Certain Federal offenses, especially 
those involving the mails or interstate or foreign commerce, are continuing 
offenses and, under 18 U.S.C. 8237, are triable potentially in several districts. 

The government would probably most often proceed against persons for con- 
spiracy and a resulting offense in a district of venue for the resulting offense, 
since more of the defendants would be triable there than in any other district. 
This is in line with the proposal. The matter is not so simple, however, at the 



132 

investigative stage; information as to the possible substantive offenses coiu- 
mitted in furtherance of the conspiracy may be indefinite when the grand jury 
begins its inquiry. Furthermore, it can be seen from the above that venue could 
lie for a conspiracy and resulting offense in a district in which only one of sev- 
eral conspirators was ever personally present (to commit the crime which is 
the object of the conspiracy), so that venue there would not necessarily be most 
convenient for the witnesses and ixjtential defendants. Accordingly, the proposal 
seems to us to be arbitrary, and it could operate in a needlessly troublesome 
way. We would, therefore, oppose its adoption. 

(G) Autliorizing a court to transfer a grand jury inquiry upon the motion of a 
witness. Tliere are several aspects of this proposal that we find objectionable. 
Although the proposal is patterned after Rule 21(b) of the Federal Eules of 
Criminal Procedure, it seems most improper nevertheless that a balancing of 
convenience of witnesses should allow for a disruption of grand jury proceed- 
ings. Under the proposal the issue of transfer would arise upon a motion of a 
single witness, but the other witnesses "who have been subpoenaed" might be 
unconcerned about the inconvenience, and they might not, in any event, be repre- 
sentative of all the witnesses to be called. A transfer could waste the work of 
one grand jury and cause considerable delay before another grand jury could 
take up the investigation. Our fundamental objection, however, lies elsewhere. 
Questions of venue are not mere matters of legal procedure : they involve 
"deep issues of public policy." United States v. Johnson, 323 U.S. 113, 276 (1944). 
Venue is a matter of the public's intei-est and the Sixth Amendment rights of 
criminal defendants ; witnesses as such do not fit into the scheme of things. Thus, 
a transfer of a criminal prosecution under Rule 21 is predicted upon motion of 
the defendant, and while the convenience of the witnesses is an important con- 
sideration, the witnesses will not be he'ard to ask for a transfer. Carrying this 
over to the matter under discussion, a grand jury inquiry should not 1)e trans- 
ferred at the behest of a witness when such a transfer could, for all that is 
known, be disadvantageous to the prospective defendants. A transfer could also 
interfere with the intent of the attorney for the government to determine the 
reaction of the grand jurors in a particular district to a imrticular set of facts. 
While the proposal wou'd rIIov.- a judge to consider a broad range of matters, 
the judge cannot properly or practicably be surrogate for prospective defendants, 
or, indeed, for those v.itnesses yet to be subpoenaed, w])ose convenience, under 
this piT)pos)al, might subsequently require that the grand jury's investigation be 
transferred to yet another district. 

(H) Preventing any suhsequent grand jvry inquiry in the a'bsence of new 
evidence after one gravid jury hn^ failed to indict. We emiphnsize, at the outset, 
that a grand jury which does not indict does not necessarily return a no bill 
(see Rule 6(f) of the Federal Rules of Criminal Procedure). A grand jury may 
fail to indict for want of time to hear all the evidence before its discharge, or 
for various other reasons having nothing to do with the merits of the case. For 
example, the investigation could indicate tlie existence of venue in another 
district where the ease might more properly be instituted. Certainly su"h in- 
conclusive action by a grand jury should not prevent subsequent grand jury 
investigation. 

Even if a grand jury returned a no bill because of some oversight on the pnrt 
of the attorney for the government in presenting the available evidence, or the 
presentation was otherwise poorly done, that would h'ardly be justification for 
giving the prospective defendant an effective immunity from prosecution, in 
the absence of new evidence. Puriwsf'f"! violations of constitutionvnl rights may 
not work such a result, which is an infliction of an injury upon society, 'and a 
failure of a grand jury to indict hardly injures the defendant. Indeed, it mny 
never have come to tlie defendant's notice that one grand jurv failed to indict 
him. The prnpowRl would reverse lonsrstanding princinles. Unifed Stntrs v. 
Thompson, 2.51 U.S. 407 (1920). and the Demrtment is opoosed to this legislation. 
(I) Requiring that a stenogrophic record and prompt frmiscription he made 
of all grand jury procredings and that a witness he permitted to inspect and cnpit 
a transcript of his festimnny within forty-eight hours after the conclusion of his 
appearance. At the outset, we note that the requirement of a stenograohic record 
and prompt trnnscritpion would he both verv diflficult to comoly with nnd un- 
nece««ariiv exoensive. One of the minior factors preventing thp rPCOT^dation of 
crand jurv testimonv at the nresent time is the unavailaHilitv of onvrf renortf>rs 
in m'anv areas, and this proposil fnils to tnkp nccount of this ve-v rp-nl nrn'^<^i'-n1 
difficultv. Providins- for the sonnd recordotinn of grand ju^v te^f n^onv niiirht 
overcome fliis obstacle; so much of the testimony could subFiequently be tran- 



133 

scribed as is necessary for trial or other purposes. Even tliis measure would 
require that funds be provided to the districts to enable them to acquire sound 
recordation equipment, and in sufficient quantity, where such is not presentlv 
available. 

Moreover, we submit that there is no cause for any recording requirement to 
be as broad as that of the proposed legislation, which would require not only the 
recordation of grand jury testimony, but also of all other grand jury proceed- 
ings including exchanges between prosecutor and jurors when no witness is 
present. The rationale for such a broad requirement appears to be that it would 
discourage improper prosecutorial comments, and decrease the risk that the 
grand jury might be influenced to return an indictment when probable cause 
did not in fact exist. But safeguards already exist for discouraging and control- 
ling prosecutorial misconduct. As an attorney, the prosecutor is held to perform 
to the highest professional standards of an officer of the court, a member of 
the bar of a State and an employee of this Department. For any misconduct in 
office he is accountable to the court, the state bar association, and the Depart- 
ment. In addition, it is ordinarily against a prosecutor's own interest to obtain 
an unsound indictment, even assuming that the grand jurors would respond 
to improper conduct by returning a charge rather than rejecting inflammatory 
overtures. As the Supreme Court has noted "for the most part, a prosecutor 
would be unlikely to request an indictment where a conviction could not be 
obtained." Utiited States v. Calandra, 414 U.S. 338, 351 (1974). 

Requiring the recordation of all grand jury proceedings would have serious 
disadvantages. Chief among these is the likelihood that such a requirement 
would promote increased litigation over the conduct of grand jury proceedings. 
The underlying premise of this proposed requirement seems to be that the record 
would subsequently be available for review to determine if misconduct in fact 
occurred. While the occurrence of any misconduct would certainly be the rare 
exception and not the rule, it would be unrealistic to assume that frequent re- 
(luests would not be made for the disclosure or for judicial review of the grand 
jury's proceedings upon the mere speculation that such may have been the case. 
Recordation of all grand jury proceedings might also give rise to requests that 
the prosecutor's informal advice to the grand jury concerning the elements of an 
offense be viewed with the same scrutiny as is given to the trial judge's closing 
charge to the jury. 

The prevailing rule that "[a]n indictment returned by a legally constituted 
grand jury, if valid on its face, is enough to call for trial of the charges on the 
merits" Costello v. United States, 350 U.S. 359, 363 (1956) is based upon sound 
policy. Given the delay attending the pretrial stages of criminal proceedings, and 
the pressing need to secure a speedy determination of the defendant's guilt or 
innocence, the Department strongly opposes legislation that would lead to further 
time-consuming litigation over such a preliminary stage as the grand jury. 

The proposal that every witness be provided, on request, with a transcript 
of his testimony for copying, or with a copy of the transcript if he is proceed- 
ing in forma pauperis, is also objectionable. Transcribing all grand jury testi- 
mony would be highly expensive. In general, a transcript could probably not 
be obtained within forty-eight hours of the witness' appearance, necessitating 
further litigation to demonstrate that the imavailability of the transcript was 
for "cause." But more importantly, permitting grand jury witnesses to obtain 
a copy of their testimony on request would be inconsistent with the policies 
underlying grand jury secrecy, and prejudicial to those witnesses who, some- 
times in fear of physical violence or even threats upon their lives, wish their 
cooperation to remain secret. At present, in addition to those instances in which 
the production of grand jury transcripts is authorized or required by statute 
or rule, the courts possess the discretionary power to direct the disclosure of 
grand jury materials when some "particularized need" for doing so is shown. 
Pittsin'rgh Plate Glass Co. v. United States, 360 U.S. 395 (1959). Departure from 
this standard wnuld be unwise. As a practical matter, it cannot be disregarded 
that if a transcript could be obtained as a matter of right, witnesses might be 
pressured into obtaining them so that those being investigated could see w^hether 
they had been implicated in the w^itness' testimony. 

(.1) Entitling a tvitness to e.ramine and copy any statements previously given 
1)]/ him. The Department is opposed to this proposal. As a general m^atter, wit- 
nesses should not have discovery rights in preliminary proceedings prior to 
trial, and certainly not before grand juries. The proposal presages delays caused 
by litigation concerning whether a particular writing or recording is a "state- 



134 

ment" within the meaning of 18 U.S.C. 3o00(e), or whether it is related to the 
subject of the grand jury's inquiry. Moreover, the proposal sweeps too broadly 
and would afford no basis for the government's withholding a prior recorded 
statement when to furnish it would reveal an ongoing, judicially authorized wire- 
tap or the identity of an undercover agent or confidential informant with whom 
the witness had conversed. 

(K) Permitting a witness to resist questioning on various grounds. The pro- 
posal has several aspects with which we agree. It is well established, for exam- 
ple, that a court may grant a motion to quash if a subpoena is imreasonable and 
oppressive, and that grand jury process may not properly be used for the domi- 
nating purpose of preparing a case pending trial. United States v. Dardi, 330 F. 
2d 31G, 336 (2d Cir. 1964), cert, denied, 379 N.S. 845; see also United States v. 
Procter dc OamUe Co., 356 U.S. 667 (1958). We have immediate difficulty, how- 
ever, with the formulation of the proposal. It prevents a witness from being con- 
fined when it might more properly excuse an apparent contempt ; and it seems to 
operate when the witness is already in appearance, perhaps under court order, 
in which event he should have complained earlier. 

Furthermore, we have serious objections about other aspects of the proposal. 
The matter of multiple confinements for multiple contempts we discussed above. 
In addition, there should not be any blanket prohibition against compelling testi- 
mony because the person under investigation is under pending indictment for 
similar conduct by the Federal, State or local government. Such a prohibition 
would interfere, in the first place, with inquiries looking toward possible super- 
seding indictments that would more properly charge the defendants ; it should 
not be necessary to dismiss a pending indictment before ascertaining whether 
additional or more serious charges can be filed. Also, it should be emphasized that 
Federal and State charges may be based upon the same facts without being com- 
parable charges. For example, the Federal charge could be for income tax evasion 
when the State charge is for bribery or another crime involving a receipt of 
monies. Federal and State charges may also be of similar kind for identical 
activity {e.g., income tax violations). Under no event should this be of vital 
concern to a witness. 

The grand jury's Inquiry is "not to be easily thwarted or limited by witnesses." 
United States v. George, 444 F. 2d 310 (8th Cir. 1971). The proper objectives 
involved in thLs proposal are already well within judicial control, and there is 
no need for this legislation. 

(L) Empowering district courts other than courts of issuance to quash sub- 
poenas, and permitting motions to quash to he made at any time and automatically 
to stay the witnesses appearance. To require courts of equal stature to review 
and pass upon each other's compulsory process at a distance raises serious prac- 
tical difliculties. Motions to quash must frequently be resolved in the context of 
the issues raised by the particular grand jury investigation, and a court would 
have no knowledge of the course of an investigation being conducted by a grand 
jury in another district. Motions which might be speedily resolved by a court 
familiar with the grand jury investigation being conducted in its district would 
require far more time for disposition by a court totally unfamiliar with the 
inquiry, and removed from the situs of the proceedings. Under this proposal, the 
potential for delay and disruption of a grand jury's investigation would be enor- 
mous. Given the relative ease of modern travel, there is simply no justification 
for permitting a witness to move to quash a subpoena in any court order than 
that which issued the subpoena. 

The delay and disruption which would be caused by conferring concurrent 
jurisdiction over motions to quash upon courts in several districts would be 
exacerbated by the related proposal to permit such motions to be made at any 
time and automatically to stay the witness' appearance. Ordinarily a witness is 
not compelled to testify or produce information pending the resolution of a 
motion to quash. But under this proposal, a witness could file a motion to quash 
in a distant jurisdiction at the last hour before his scheduled appearance, despite 
the fact that a grand jury session was scheduled primarily to hear that witness ; 
there might be no way to warn the jurors in sufficient time to avoid their 
assembling unnecessarily. This proposal invites abuse by recalcitrant witnesses, 
woiild work hardship upon citizens serving as grand jurors, and would needlessly 
create havoc in grand jury proceedings. 

(M) Restricting the attorney for the Government to aslcinq questions or 
requesting the production of documentary materials or other objects relevant 
to the matter under investigation. We are uncertain of the precise intent of 



135 

this proposal. As drafted, it would have the wholly impractical effect of pro- 
hibiting the prosecutor from responding to juror inquiries — even as to such 
matters as the time or expected length of the nest scheduled session — and. 
from submitting proposd indictments, or explaining proposed indictments sub- 
mitted to the jurors for their consideration and vote. The grand jury could not 
possibly continue to function under the restrictions of prosecutorial involve- 
ment apparently contemplated by this proposal. 

It must be emphasized, as we have noted earlier, that the government prosecu- 
tor has a recognized participatory role in the grand jury proceedings, both as a 
matter of longstanding practice, and constitutional law. "As criminal prosecu- 
tions are instituted by the State through an oflScer selected for that purpose, 
he is vested with a certain discretion with respect to the cases he will call to 
[the grand jurors'] attention, the number and character of the witnesses, the 
form in which the indictment shall be drawn ; and other details of the proceed- 
ing." Hale v. Henkel, supra, 201 U.S. at 65. Artificial, unnecessary, and unwork- 
able restrictions should not be placed upon the prosecutor's paiticipatory role, 
which serves to aid grand jurors in conducting their inquiries. 

(N) Applying the exclusionary rule to grand jury proceedings. In United 
States V. Calandra, supra, 414 U.S. 338, the Supreme Court refused to extend 
the exclusionary rule to grand jury proceedings. The proposal to prohibit the 
prosecutor from submitting any evidence to the grand jury that was obtained 
by an unlawful act or in violation of a witness's legal rights appears designed to 
legislatively overrule the Calandra decision, and we strongly object. 

The Calandra decision was based upon the sound reasoning that extending 
the exclusionary rule to grand jury proceedings "would unduly interfere with 
the effective and expeditious discharge of the grand jury's duties" (id at 350), 
and would add little additional deterrence to unlawful police conduct beyond that 
presently provided by the application of the exclusionary rule at trial. Our 
opposition to the extension of the exclusionary rule to grand jury proceedings is 
not based on any notions that the use of illegally obtained evidence should be 
sanctioned in this context. On the contrary, as we have noted earlier, it would 
be against the prosecutor's own interests to obtain an indictment when the 
available evidence could not be used to obtain a conviction. But to apply the 
exclusionary rule to the grand jury would "precipitate the adjudication of issues 
hitherto reserved for the trial on the merits ;" "might necessitate extended 
litigation of issues only tangentially related to the grand jury's primary objec- 
tive" and would result in "protracted interruption of grand jury proceedings," 
at times causing delay "fatal to the enforcement of the criminal law." United 
States V. Calandra, supra, 414 U.S. at 349-50. The speculative and certainly 
minimal increased deterrence of police misconduct which might be achieved 
by this measure is wholly outweighed by the damage that would be done to the 
grand jury's ability effectively to perform its functions. 

(O) Authorizing a grand jury to indict only on the "basis of competent, ad- 
missible and legally sufficient evidence, or summarized or hearsay evidence if 
good cause is shown; requiring the prosecutor to submit to the grand jury all 
evidence in his possession which he knows will tend to negate the guilt of thos& 
under investigation. This provision correlates with the provision of S. 3274 con- 
cerning grounds for dismissal of an indictment. The entire matter is discussed 
below. 

(P) Requiring the dismissal of an indictment for certain reasons relating to 
the evidence before the grand jury. As we noted earlier, the prevailing rule is 
that "[a]n indictment returned by a legally constituted and unbiased grand 
jury, like any information drawn by the prosecutor, if valid on its face, is 
enough to call for trial of the charges on the merits." Costello v. United States, 
supra, 350 U.S. at 363. This rule is based upon sound policy, and we are totally 
opposed to any proposal to require that indictments be dismissed for reasons re- 
lated to the evidence before the grand jury. As the Court stated in Costello (id 
at 363-64) : 

If indictments were to be held open to challenge on the ground that there was 
inadequate or incompetent evidence before the grand jury, the resulting delay 
would be great indeed. The result of such a rule would be that before trial on 
the merits, a defendant could always insist upon a kind of preliminary trial to 
determine the competency and adequacy of the evidence before the grand jury . . . 
[Such a] rule . . . would result in interminable delay but add nothins to the as- 
surance of a fair trial. 



136 

In addition to our general objection to requiring the dismissal of an indict- 
ment on tlie basis of the evidence that was before the grand jury, we must also 
register more particular objections to the specific features of this proposal. For 
example, the proposal would require that an indictment be dismissed if the evi- 
dence before the grand jury was legally insufficient to establish that the offense 
"was committed," or if there was not competent and admissible evidence, or 
-summarized or hearsay evidence allowed by the court, to provide "reasonable 
cause" to believe that indicted person committed the offense. But the role of the 
grand jury is to determine whether probable cause exists to believe that a certain 
individual committed a certain offense. See, e.g. United States v. Cow, supra, 
342 F.2d at 171. 

Moreover, requiring that the grand jury act only on the basis of "competent 
and admissible" evidence would change the character of grand jury proceedings. 
The grand jury has historically functioned as an informed body of laymen, free 
from technical rules. "Because the grand jury does not finally adjudicate guilt 
or innocence, it has traditionally been allowed to pursue its investigative and 
accusatorial functions unimpeded by the evidentary and procedural restrictions 
applicable to a criminal trial." United States v. Calandra, supra, 414 U.S. at 349. 
Prohibiting the use of summarized or hearsay evidence except when allowed by 
the court upon a showing of good cause would be needlessly restrictive and would 
lead to delay. At times, the requirement for prior court authorization of the use 
of hearsay evidence might prevent an indictment from being returned before the 
statute of limitations had run. Evidence that is incompetent or inadmissible in 
a. court of law may nonetheless be highly reliable, and the grand jury should be 
left to operate upon the good judgment of the laymen. 

Requiring that an indictment be dismissed if the attorney for the government 
liad not presented to the grand jury all evidence in his possession which he knew 
would tend to negate the guilt of the indicted i>erson would also be inconsistent 
with the nature of a grand jury proceeding, and would certainly generate exten- 
sive pre-trial litigation over the extent of the information in the government's 
possession at the time of the indictment. As was mentioned earlier, there is, real- 
istically, no motivation for a government attorney to seek an indictment that 
will not admit of successful prosecution ; the prosecutor would be shortsighted 
in not presenting to the gTand jury evidence that he recognized to be of an 
exculpatory nature. But his failure to do so would not necessarily be significant, 
or prejudicial to the defendant. "A grand jury proceeding is not an adversary 
hearing in which the guilt or innocence of the accused is adjudicatecl. Rather, it 
is an C.T parte investigation to determine whether a crime has been committed 
and whether criminal proceedings should be instituted against any person." 
United States v. Calandra, supra, 414 U.S. at 343-344. The grand jury makes a 
determination of whether there is probable cause to believe that a crime has 
been committed ; as a general matter it does not, nor could it pass upon affirma- 
tive defenses. Dismissing indictments because of a failure to present exculpatory 
information would be a punitive measure unrelated to any actual prejudice to 
the accused, and. in all likelihood, even were an indictment to be dismissed— 
•after extensive litigation and delay — a new one would be obtained. The current 
practice of proceeding toward trial with the government then being obliged to 
disclose any exculpatory information to the defense, as is required under Brady 
V. Maryland, 373 U.S. 83 (1963) and succeeding cases, is far preferable. 

Our objections to the application of the exclusionary rule to grand jury pro- 
ceedings have been discussed above. Requiring that an indictment be dismissed 
if the attorney for the government submitted evidence to the grand jury that 
was obtained by an imlawful act in violation of a witness's legal rights is wholly 
unwarranted. LFnder this proposal, an indictment would have to be dismissed if 
any evidence before the grand jury had been illegally obtained, regardless of 
whose rights had been violated, and regardless of whether the tainted evidence 
had had any bearing upon the accused's indictment. Even in the trial context, 
the Supreme Court has refused to permit the exclusionary rule to be invoked 
liy one who was not himself the victim of the unlawful action. Alderman v. 
United States, 394 U.S. 165, 174-75 (1969). The present proposal would add 
little additional deterrent to improper iwlice conduct, and at the high cost of 
encouraging every defendant to challenge his indictment on the mere speculation 
that some piece of tainted evidence may have been before the grand jury. 

(Q) Requiring that an attorney for the government maintain a public record 
of all denials of, and reasons for the denial of, requests to testify in a grand, jury 
inquiry, and requests to appear before a grand jury to urge it to proceed with an 



137 

independent inquiry; authorizing a court to permit a person to testify or appear 
before a grand jury if, upon a hearing, it finds that such testimony or appearance 
would serve the interest of justice. The United States Attorney's oiBces receive 
•substantial numbers of citizen complaints, a large percentage of which do not 
warrant referral to federal investigative agencies or any other action. This 
proposal would impose an unnecessary administrative burden on United 
States Attorney's offices, which are already hard pressed for time to perform 
their duties. There are presently existing means by which a citizen can make 
his view known should he believe that federal prosecutors or investigative 
agencies are not acting with sufficient diligence in a particular matter, e.g., 
informing the press or his congressman, or even, in appropriate circumstances, 
commencing a civil action. The prosecutor's discretion to determine which 
matters warrant presentation to the grand jury and which witnesses shall be 
called promotes the efficient use of the grand jurors' time. Given the checks 
which already exist to prevent abuses of this discretionary authority, the 
proposed procedures are unnecessary. Moreover, as we object to the proposed 
legislation's provision for independent grand jury inquiries, for the reasons 
discussed earlier, we similarly object to the proposal relating to a citizen's 
request to appear before the grand jury to urge it to conduct such an inquiry. 

III. CLEARANCE FOE SUBMISSION OF THIS REPORT 

The Office of Management and Budget has advised this Department that there, 
is no objection to the submission of this report from the standpoint of the 
Administration program. 
Sincerely, 

Michael M. Uhlmann, 
Assistant Attorney General, O-fjlce of Legislative Affairs. 



Watergate Special Prosecution Force, 

U.S. Department of Justice, 
Washington, D.G., September 30, 1976. 
Hon. John V. Tunney, 

Chainnan, Suhcommittee on Constitutional Rights of the Committee on the 
Judiciary, U.S. Senate, Washington, D.C. 
Dear IMr. Chairman : This is with reference to my conversation of September 29 
with Martin Levine of your staff. 

As I indicated to Mr. Levine, I am not in a position at this time to provide a 
formal statement concerning the grand jury matters under inquiry by the Senate. 
I did indicate, however, that if you felt it was useful, I would be glad to have 
the substance of my comments on S. 3274, which I had previously provided to 
Senator Abourezk, included in the Record. Accordingly, I am attaching a copy 
of my August 23, 1976, letter to Senator Abourezk. 

If I can be of further assistance either now or during the next Session, please 
advise me. 

Sincerely, 

Charles F. C. Ruff, 

Special Prosecutor. 



Watergate Special Prosecution Force, 

U.S. Department op Justice, 
Washington, D.C, August 23, 1916. 
Hon. James Abourezk, 
U.S. Senate, 
Washington, D.C. 

Dear Senator : This is in reply to your request for my comments on S. 3274, 
a bill which contains a number of proposed revisions in present grand jury 
procedure. 

Although I do believe that there are a number of areas in which grand jury 
procedure's might appropriately be amended to provide greater protection for 
both witnesses and defendants, I nonetheless believe it equally important that 
the role of the grand jury as the vehicle for investigation of sophisticated white 
collar and organized crime be maintained. The comments that I have set out 
below represent solely my personal views concerning the point at which the bal- 



138 

ance should he struck between the interests of witnesses and defendants, on the 
one hand, and the interests of the public on the other. My remarks are necessarily 
sketchy, but I would be glad to discuss them further with you or with members 
jof your stafE. 

SECTION 2 

By combining a maximum period of confinement not to exceed 6 months with 
a ban on repeated confinement for witnesses who refuse to testify about the same 
transaction, the bill would in essence give perpetual immunity to any witness who 
is willing to serve the relatively short term provided for. Although it is difficult of 
course to judge just how many months in jail will serve as a meaningful sanction 
in the case of a witness who does not wish to testify, it is safe to say that, in my 
experience, the thi-eat of only six months' confinement is insufficient, particularly 
when the witness is on notice that at the end of those six months he will never 
again be obliged to give testimony concerning the same transaction. As a matter 
of policy, the Department of Justice does not, other than in exceptional cases, 
permit the repeated summoning of a witness who has once been held in civil con- 
tempt, and I would therefore support legislation which would make that policy 
mandatory, but I do not believe that such a bar against repeated civil contempt 
findings should go into effect imtil the witness has served a total of 18 months. 
It is safe to say that two groups of people will make up the bulk of those for 
whose benefit this section would apply. First, there will be the witness sufficiently 
well-connected to an organized criminal operation to be willing to undergo con- 
finement, knowing either that cooperation with the Government will mean risk 
of bodily injury or that he and his family will be well taken care of during and 
after his confinement. Second, there will be the witness who holds strong personal, 
moral or political views about the propriety of cooperating vsdth the Government, 
and for such a witness it would seem that the 18-month maximum confinement 
would be an appropriate balance between concern for the Government's legitimate 
right to know and protection against official abuse of grand jury processes. 

The suggested provision for confinement in a suitable Federal correction 
institution is, in my judgment, wholly appropriate. 

I have some question about the provision that the bar against repeated confine- 
ment should apply whether the witness refuses to testify in the grand jury or in 
any other forum. It would seem to me that because of the different nature of the 
inquiry, refusal to testify at trial or, for example, in a congressional hearing 
could be subject to wholly separate sanction without there being any real risk 
of abuse. 

The provision of subsection (e) to the effect that refusal to answer is not 
pvmishable if the question is based in whole or in part on evidence obtained by an 
unlawful act, or in violation of the witness' constitutional rights, or rights estab- 
lished by any statute of the United States, seems too broad and raises a number 
of troubling questions. Putting aside the present state of the law as set down in 
United States v. Calandra and Gelbard v. United States. I question whether it is 
an appropriate policy judgment to extend the exclusionary rule in this way. For 
example, the words "evidence obtained by an unlavpful act" may encompass a 
wide variety of conduct — some of a very minor nature, some of greater substance 
but nonetheless not having a direct impact on the witness' rights. Similarly, the 
reference to rights established by any statute of the United States encompasses 
violations of statutes having no relationship whatsoever to the nature of the 
grand jury's inquiry. Further, the reference to evidence obtained by an unlawful 
act does not indicate that the unlawful act must have been committed by a 
Government agent, heretofore a prerequisite to application of the exclusionary 
rule. More importantly, however, subsection (e) does not address itself to the 
question of what procedure vsdll be used to test the legitimacy of the witness' 
refusal to answer. The Gelhard opinion is instructive in its concern for the risk 
that gi-and jury proceedings will be disrupted by mini-trials, and I think it 
equally important here that if an exclusionary rule is enacted, provision be made 
for the type of abbreviated procedure suggested in Geliard. In any event, I be- 
lieve the exclusionary rule should be restricted to violation of the witness' con- 
stitutional rights and statutory rights similar to those created by the wire- 
tapping statute. 

SECTION 4 

I would agree that it is important for the grand jury to be instructed fully 
concerning its rights, authority and power not only on empanelment but period- 
ically thereafter. The list of such instructions proposed in Section 3329 seems, 
by and large, to be appropriate, but one or two comments are in order. First, 



139 

proposed Section 3329(2) refers to the conduct of an independent inquiry about 
wliicli I will have more detailed comment below. Second, subsection (6) con- 
cerning the issuance of subpoenas only on the vote of 12 or more members of 
the grand jury will also be discussed below. Third, of more general concern is 
that the sanction provided — that is, permitting the witness to refuse to testify 
before an improperly instructed grand jury — seems irrelevant to the purpose 
to be served by the requirement for instructions. If this is the only sanction to 
be imposed, it would permit a witness to refuse to testify for no legitimate per- 
sonal reason, but would permit a defendant to be indicted by a grand jury that 
was not fully aware of its rights and authority. 

I find the provisions concerning independent grand jury inquiry (proposed 
Section 3330) extremely troubling in a number of respects : 

First, it is not clear to me why the grand jury's power to conduct such an 
inquiry should extend to offenses committed by officers of state government. 
Whatever the legitimate function of a grand jury may be as the overseer of the 
conduct of government within its own jurisdiction, I question whether it has the 
same inherent right to inquire into the conduct of officers of any other sovereign. 

Second, the most important difficulty presented by this section concerns the 
role of the attorney for the Government and/or the special attorney appointed 
by the court. Subsection (b)(1) seems to suggest that the grand jury is, in and 
of itself, a body with both investigative and prosecutorial functions. If an attor- 
ney for the United States exercises his legitimate judgment by advising the 
grand jury that they are going beyond the bounds of their legitimate powers and 
by refusing to sign an indictment, this subsection would permit the grand jury 
to request the appointment of a special attorney to "assist" them. Subsection 
(b) (2) provides that "any indictment returned by a grand jury . . . shall be 
signed by the special attorney in lieu of any attorney for the Government." Does 
this mean that the special attorney has no discretion whether or not to sign such 
an indictment? If it does, the provision is both ill-advised and, in all likelihood, 
unconstitutional. Similarly, does the court have any discretion as to whether to 
appoint a special attorney on the request of the grand jury, and once the special 
attorney is appointed, to whom is he responsible? I have substantial qualms 
about the propriety of any prosecutor's being appointed other than by the 
Executive Branch but even greater qualms about the appointment of such an 
attorney responsible to no one in the exercise of his discretion or perhaps, if my 
reading of the section is correct, possessing no discretion concerning the signing 
of an indictment. 

Many of these issues may be resolved by passage of the pending bill to create 
a permanent special prosecutor, for a number of the cases that would fall within 
proposed Section 3330 will be within his jurisdiction, and perhaps provision could 
be made for assignment of an assistant special prosecutor to replace the Govern- 
ment attorney where the grand jury can make a substantial showing of 
misconduct. 

Section 3330A would provide that subpoenas must issue on a vote of a majority 
of the grand jury and cannot be returnable in less than seven days except with 
the consent of the witness or on a showing of good cause. This provision is wholly 
impractical and would result in endless delays of even the most routine of grand 
jury investigations. But more importantly, the provision provides no real pro- 
tection for the witness. If each subpoena issued had to be approved by the 12 
members of the grand jury, it would be necessary to convene them for that pur- 
pose and then convene them a week later to hear the testimony. In the frequent 
situations where speed is of the essence, vital testimony might be lost. Beyond 
that, the requirement of the vote would quickly become nothing more than a pro- 
cedural mechanism, for, given the broad investigative powers of the grand jury, 
the prosecutor's request for issuance of a subpoena will surely be tested only by 
the most liberal standards of relevance. 

It is entirely appropriate that each witness be advised of his rights, but I 
question whether he should be granted transactional immunity if he is not so 
advised. Even now, if a witness is interrogated in a police station, he is not 
granted transactional immunity merely because the police failed to advise him of 
his Miranda rights, and I see no reason why any more stringent sanction should 
be applied in the case of a grand jury witness. 

Section 3330A(d) provides that no witness should be compelled to appear if he 
has given written notice of his intention to exercise his privilege against self- 
incrimination. I favor the enactment of this provision, for, indeed, it represents 
the policy presently pursued by this Office. 



140 

Perhaps the most controversial subject of this bill and its companion bills is 
that grand jury witnesses should be entitled to the presence of counsel in the 
grand jury room (section 3330A(e)). Although a large number of my fellow 
prosecutors would probably disagree, I do not see that any substantial difSeulties 
would be posed by such a requirement so long as two conditions are met: first, 
that counsel be restricted to rendering advice to his client concerning his consti- 
tutional and statutory rights, and second, that Congress provide the funds neces- 
sary to support the appointment of counsel for indigent witnesses. I would sug- 
gest that subsection (e) be amended to specify what role counsel may play. 

I understand that it is the purpose of Section 3330A(f) to avoid the holding of 
grand jury investigations in jurisdictions remote from the homes of relevant 
witnesses and subjects ; however, the language of subsection (f ) is somewhat con- 
fused. In lines 10 and 11, for example, what is "substantive criminal conduct?" 
Does this mean that there must have been a complete substantive violation of the 
penal code in that district or only that one overt act or one portion of the sub- 
stantive offense must have occurred there? Similarly, in lines 17 and 18, does the 
section mean that the grand jury may be convened where one overt act occurred 
even if that overt act did not in fact constitute a violation? In my judgment, the 
purposes of this subsection can best be served by liberalizing the standards for 
motions to quash subpoenas and perhaps by providing for transfer of grand jury 
proceedings where a clear showing is made of the Government's intent to abuse 
the process. As the subsection is written now, it would throw the whole question 
of criminal venue into a state of confusion. 

Although I agree, as noted above, that there may be a need for liberalized 
standards for motions to quash, it would seem that subsection (g) opens the door 
to multiple transfers of grand jury proceedings at the whim of individual wit- 
nesses. The burden on those witnesses may be taken care of by delay in the 
return date of the subpoena and motions to quash based on undue financial and 
other difiiculties or on a showing of harassment, but this kind of relief should be 
extraordinary and not routine. 

The provision for prohibiting a new grand jury inquiry after a grand jury has 
failed to return an indictment seems reasonable, but I should note that the sub- 
section provides no sanction. 

I agree with the provision that all grand jury proceedings should be recorded, 
but I strenuously oppose the requirement that every witness be entitled to ex- 
amine the transcript of his own appearance. I see no purpose to be served by 
such a provision from the point of view of the witness, and I believe its only 
result would be that grand jury transcripts containing confidential information 
and information potentially damaging to third parties vn'ouuI be in regular cir- 
culation. If the intent is to protect a witness against a perjury charge based on 
an inadvertent contradiction, I do think it would be appropriate to provide that 
any witness called for a second time before the grand jury may examine, together 
with his counsel, the transcript of his prior testimony. On this point I do not 
believe tliat it is necessary to extend the full protections of the Jencks Act to 
grand jury witnesses and would therefore oppose enactment of subsection (j). 
It seems to me to be an entirely legitimate technique of interrogation for a prose- 
cutor to confront a witness with prior inconsistent statements made to an FBI 
agent, for example, in order to attempt to develop truthful testimony, and I do 
not think that the risks of abuse involved in that process are sufficient to war- 
rant total elimination of that wholly legitimate cross-examination technique. 

I would agree that it is appropriate to legislate against misuse of the grand 
jury for puri:»oses of discovery in connection v.ith pending indictments, but I ques- 
tion the need to include those under indictment by a State. It may well be wholly 
legitimate for the United States "to secure other information regarding the activi- 
ties" of a defendant in a State case where potential violations of federal law are 
at issue. Further, I see no reason to give a witness standing to object to qiiestions 
on that ground if the right at issue is that of the defendant. Here, too, I would 
suggest that there must be some concern over the risk of protracted evidentiary 
hearings in the midst of a grand jury investigation. 

Clearly no sanction should be imposed on a witness if the purpose of calling 
him is simply harassment, but I have some difficulty ■nith the use of the word 
"unnecessary" as a test for the legitimacy of the issuance of a subpoena. The 
use of that word opens up the possibility of extensive litigation, the purpose of 
which will be to substitute for the judgment of the prosecutor and the grand 



141 

jury the judgment of the court concerning what is or is not necessary to the de- 
velopment of an investigation, and conciirrent with this litigation will occur 
broadscale discovery of the nature and scope of the grand jury's inquiry. 

As a substitute for the provisions of subsection (i), I would suggest a provi- 
sion permitting a motion to quash or to delay the return date of a subpoena in 
the district in which the witness resides only after a request has been made of 
the attorney for the Government and he has refused any relief. Such a provision 
would, I believe, appropriately balance the concern for expedited conduct of the 
grand jury's investigation and the concern for the rights of the individual v\-itness. 
The provision of subsection (m) seems meaningless but raises again the ques- 
tion of how the issue of relevancy will be raised and litigated. Similar questions 
are raised by the provision of subsection (n), and, too, I would have some ques- 
tion about the necessity for extending the exclusionary rule to evidence obtained 
in violation of all statutory rights. 

Subsection (o) (1) requires that the e\'idence be legally sufficient "to establish 
that such offense was committed." And subsection (i) (2) requires that the evi- 
dence give "reasonable cause to believe" that the person indicted committed the 
offense. Is it intended that there be two different standards of proof here? If so, 
I see no basis for the distinction. Further, again it must be asked bow the indict- 
ment will be tested. Will there be a review of the grand jury transcript in every 
case and if so by whom? Must the defendant make a showing of some sort before 
he is entitled to have the transcript reviewed? Is it intended that a showing be 
made to the court before summarized or hearsay evidence is used, or is it intended 
that the Government may justify the use of such evidence after the fact? 

If the last sentence of subsection (o) is intended to provide that knowing sup- 
pression of exculpatory evidence is prohibited, I would agree with the provision 
but ask again what procedure is contemplated for its enforcement. If the last 
sentence is intended to open up a full-blown retrospective examination of all 
the evidence which the Government might have presented to the grand jury to 
determine whether it might have led the grand jury to refuse to indict, I would 
suggest that the protections of Brady are difficult enough to apply at trial and 
ought not to be inserted into the investigative process. At this point, I think it is 
important to recognize that in those state jurisdictions where charging is by in- 
formation, the prosecutorial decision to act is made with no controls whatsoever 
although some preliminary hearing may be required after the information is 
filed. If, the state prosecutor is able to put on enough evidence to establish prob- 
able cause, his conduct in exercising his discretion may never be tested or in any 
event will be subject only to the tests of his ability to persuade a judge and jury 
at trial. Since the federal prosecutor must convince 12 members of the grand 
jury to indict, I question whether it is really necessary to reach back into the 
grand jury process to apply those standards which we now normally reserve for 
the protection of the defendant at trial. 

I would agree that provision should be made to permit individual witnesses 
to appear before the grand jury and would only question the provision of sub- 
section (q) that would permit judicial hearings upon the Government's re- 
fusal to permit the citizen to testify. My concern is that any such hearing be held 
in camera to avoid the adverse publicity which would result from the disclosure 
of the nature of the proposed testimony. 

I hope that these comments are helpful, and if I may be of any further assist- 
ance, please advise me. 
Sincerely, 

Charles F. C Rtjff, 

Special Prosecutor. 

November 11, 1976. 
Hon. John V. Tunnet, 

Chairman, Subcommittee on Constitutional Rights, 

U.S. Senate. 

Dear Senator Tunney : The attached letter is sent for your information. 
Yours very truly, 

Sam Nunn, 

U.S. Senator. 
[Enclosure] 



78-905 — 76 10 



142 

Law Offices, 
Denmark Groover, Jr., 
Macon, Ga., October 13, 1976. 
Senator Sam Nunn, 
Senate Office Building, 
Washington, D.C. 

Dear Sam : There is developing in the Federal Judicial System a practice 
which has been authorized by Congress and approved by the Supreme Court 
which, in my opinion, completely ignores and is in danger of destroying the 
basic freedoms of American citizens as those freedoms were originally intended. 

Since you are a member of the Senate and it seems apparent that any correc- 
tive action must be taken by the Congress, I would like to call those matters 
to your attention for your consideration and possible suggestion to your col- 
leagues of some remedial action. 

I have been practicing law for thirty years, during which time it has become 
firmly apparent that while the Grand Jury System is a protective device against 
false charges, in many instances it can, when improperly used, be as bad as a 
Spanish Inquisition. 

I am sure you may have had experiences which have demonstrated to you that 
given three or four strong personalities on a grand jury, State or Federal, and 
particularly an aggressive and ambitious District Attorney, State or Federal, 
that the grand jury can be used as an instrument of destruction more cruelly 
than any "cruel and inhuman punishment" conceived of by others less subtle in 
their approach. 

I have seen local political disagreements taken to the Grand Jury Room and 
indictments and inquisitions by the Grand Jury used for political purposes. 
I have seen the news media stampeding an ambitious prosecutor and publicity- 
minded grand jury into investigating and sometimes indicting persons in public 
life primarily because of their political differences. 

The Congress of the United States has now authorized investigatory grand 
juries which are authorized to be in session for a period of eighteen months. 
This grand jury has become a substituted investigatory arm for the United 
States Attorney in many instances. For example, they will issue a subpoena to a 
witness to appear before a grand jury and when the vntness appears at the ap- 
pointed time and place, the United States Attorney or some member of the FBI 
will interrogate that individual and if his evidence is not what they desire he 
will not go before the grand jury. In other words, they are using Grand Jury 
Subpoenas to haul citizens away from their jobs for them to investigate in the 
comfort of their offices and are not in good faith subpoenaing persons primarily 
to appear before the grand jury. 

When a witness goes before a grand jury, he does not have the benefit of 
counsel in the room. He does not have the immediate protection of a judge, 
and he is subject to harassment and intimidation in many, many instances. 

The United States Attorneys have now, and this is what prompts this letter, 
adopted a practice when they suspect a person of a crime of subpoenaing him 
before the grand jury and interrogating him about that crime. This practice 
would not be so bad except for recent rulings of the Supreme Court of the 
United States. 

As a lawyer you Imow that the United States or a State may not call as a wit- 
ness a defendant and that the only way that that defendant can be subjected to 
examination is if he voluntarily gives evidence himself. The practice being fol- 
lowed by the United States Attorneys, however, and approved by the Supreme 
Court is that even though the United States Attorney knows that the person 
summoned is the "target'' of the investigation or as sometimes called the "de 
facto defendant", still that person is required to appear and may not, as in an 
investigation by police officers, invoke his right to remain silent. 

The Fifth Circuit Court of Appeals in the case of United States v. Mandnjano, 
496 F. 2d 1050 held that when the United States summoned a person under those 
circumstances that such person was entitled to remain silent and reversed a per- 
jury conviction based on testimony given in such a proceeding. The Supreme 
Court of the United States without a majority held, relying on the completely 
spurious reasoning that a grand jury was always a bulwark of protection to 
citizens, that a person so summoned did not have the right to remain silent but 
must assert his privilege on each individual question, subject to his claim of 
privilege being denied by the trial judge. 



143 

I suggest that when the United States summons a person who is in fact the 
target of an investigation tlien pending before such a grand jury or reasonably 
believed to be the target that the United States should be prohibited from calling 
that witness or the witness should have the same right to absolute silence that 
he has when being interrogated by a member of the gendarme. 

Congress has granted the government the right to grant immunity in order to 
get testimony it feels it needs. Congress should now intercede and prohibit by 
appropriate legislation the practice of : 

(a) utilizing the grand jury subpoena from summoning witnesses to be inter- 
viewed by the United States Attorney or the FBI. Those witnesses are incon- 
venienced and in some cases financially punished. Let the government's agents 
go see them unless it is bona fide intended to put them before the grand jury ; 

(b) prohibiting the government from calling a person to appear before a grand 
jury when that person is the target or reasonably believed to be the target of the 
investigation, or in lieu of a prohibition against calling him, permit such a person 
who has reasonable cause to believe that he is the target to refuse to answer any 
questions whatsoever. In other words, give him what the Fifth Amendment con- 
tains — "the right not to be a witness against himself." 

Adlai Stevenson once said "do not burn down the barn in order to get rid of the 
rats." The "law and order syndrome" and the "Watergate complex" has so infected 
American thinking that I am afraid that we are seriously infringing on the rights 
of American citizens. 

What I am suggesting is not designed to make it easier for persons guilty of a 
crime to evade their apprehension or punishment, but what I am suggesting is that 
unless Congress steps in and remedies some of the wrongs that I see in my daily 
practice, our citizens are going to continue to be subject to tyrannical conduct. 
Believe me, it is not merely an isolated situation nor is it merely directed toward 
the outlaw element. It is used against all citizens and is currently being used 
without restraint. 
Sincerely, 

Denmark Geooveb, Jr. 

[From the American Criminal Law Review (Vol. 10), Summer 1972] 

The Indicting Gband Jtjey: A Critical Stage? 

(By Samuel Dash*) 

INTRODUCTION 

Not so many years ago few lawyers would have anticipated the series of 
Supreme Court decisions which put flesh on the bones of the fifth and sixth 
amendments. These decisions guaranteed the right of the accused to counsel 
during custodial interrogation, at the lineup, at the preliminary hearing, at trial 
and on appeal. Except for the confession area, the Court has utilized the concept 
of "critical stage of the prosecution" to produce this revolution in sixth amend- 
ment rights. Strangely, one important criminal procedure affecting the rights of 
the accused has been ignored by this sweep of Supreme Court ridings : the indict- 
ing grand jury inquiry. But, as with the emperor's clothes in the well-known fable, 
the transparency of the argument against the participation of counsel in the 
grand jury process is now apparent. 

In his dissenting opinion in Coleman v. Alabama,^ Chief Justice Burger chal- 
lenged those members of the Court voting for the right to counsel at preliminary 
hearings : "If the current mode of constitutional analysis subscribed to by this 
Court in recent cases requires that coimsel be present at preliminary hearings, 
how can this be reconciled with the fact that the Constitution itself does not per- 
mit the assistance of counsel at the decidedly more 'critical' grand jury inquiry?" " 
It becomes progressively more difficult to fault his conclusion that the indicting 
grand jui-y process is a more critical stage than the preliminary hearing. How- 



•B.A., 1947, Temple University ; J.D., 1950, Harvard University ; Chairman, Section of 
Criminal Law, A.B.A. 1970-71 ; Criminal Law Section Delegate, House of Delegates, 
A.B.A. ; District Attorney of Philadelphia, Pennsylvania 1955-56 ; Professor of Law and 
Director, Institute of Criminal Law and Procedure, Georgetown University Law Center. 
Member of the Bar of Pennsylvania, Illinois and the Supreme Court of the United States. 

1 .399 U.S. 1. 21 (1969). 

a Id. at 25. 



144 

ever, there does not appear to be any constitutional bar,^ as he believed, to the 
assistance of counsel at the indicting grand jury inquiry. 

Significantly, these two stages of the criminal process — the preliminary hear- 
ing and the indicting grand jury — perform the same function. They both lead to 
a determination of whether the prosecutor can establish a probable cause case 
against the accused.* Moreover, there is absolutely no difference in the applicable 
standard of probable cause.'^ It is at this point, however, that similarity ceases. 
Rooted in tradition," the grand jury continues as a secret, ex parte inquiry guided 
by a predisposed prosecutor.' The accused is denied any opportunity to confront 
his accusers, to cross-examine them, or to have the assistance of counsel. The pre- 
liminary hearing, by contrast, is an open procedure where the accused, standing 
before an impariial magistrate and accompanied by counsel, may cross-examine 
government witnesses and introduce evidence of his own on the issue of probable 

cause.* . . ^, . - 

This discussion posits that the indicting grand jury inquiry is, as Chief 
Justice Burger said in Coleman, an even more critical stage than the preliminary 
hearing. In contrast to Chief Justice Burger's view, however, the present inquiry 
will explore whether there is any reason based on law, policy, tradition or logic 
why the Coleman ruling should not apply with equal force to the indicting 
grand jury. 

It must be emphasized that the focus here is entirely upon the indicting grand 
jury as distinguished from investigating grand juries. In many jurisdictions, 
notably the federal, a lawfully convened grand jury can perform both functions. 
Yet in a number of states, as in Pennsylvania, for example, the investigating 
function is performed exclusively by a specially convened grand jury," while 
the indicting function is the business of the regularly convened monthly grand 

3 The relevant provisions of the Constitution provide : 

No person shall be held to answer for a capital, or otherwise Infamous crime, 
unless on a presentment or indictment of a Grand Jury, except in cases arisiu^r in 
the land or naval forces, or in the Militia, when in actual service in time of War 
or public danger . . . 
U.S. Const, amend V. , -^ .-, . ^^ . ^^ ^ , ^ 

In all criminal prosecutions, the accused shall enjoy the right to a speedy and 
public trial, bv an impartial jury of the State and district wherein the crime shall 
have been committed, which district shall have been previously ascertained by law, 
and to be informed of the nature and cause of the accuiation ; to be confronted with 
the witnesses against him ; to have compulsory process for obtaining witnesses in 
his favor, and to have the Assistance of Counsel for his defense. 
U.S. Const, amend VI. 

*Fed. R. Crim. P. 5(c); United States v. Heap, 345 F.2d 170 (2d Cir. 1965); see 
Sciortiuo v. Zampauo, 385 F.2d 132 (2d Cir. 1967) (return of indictment eliminates need 
for preliminary hearing as probable cause has already been demonstrated) ; Weinberg & 
Weinberg, The Congressional Invitation to Avoid the Preliminary Hearing: An Analysis 
of section 303 of the Federal Magistrates Act of 1968, 67 Mich. L. Rev. 1361, 1372 (1969) 
[hereinafter cited as Weinberg & Weinberg] : cf. Goldstein, The State and the Accused: 
Balance of Advantage in Criminal Procedure, 69 Yale L.J. 1149, 1166-72 (1960) [here- 
inafter cited as Goldstein]. 

= .s'ee P. Weinberg, The Preliminary Hearing in the District of Columbia, 1969 (unpub- 
lished manuscript on file in Institute of Criminal Law and Procedure, Georgetown University 
Law Center, Washington, D.C.). 

« W. Holdsworth, History of English Law 312-23 (1956) ; T. Plucknett, History of the 
Common Law 111-20 (1956) ; J. Stephen, A History of the Criminal Law In England 
1S5_S6, 252-54 (1883) ; Morse, A Survey of the Grand Jury System, 10 Ore. L. Rev. 101, 
102-18 (1931) ; Whyte, 7s the Grand Jury Necessary f, 45 Va. L. Rev. 4C1. 462-82 (1959). 

' Cf. Orfleld, The Federal Grand Jury, 22 F.R.D. 343, 425 (1959) (discussion of the 
accused's lack of rights before the federal grand jury, the U.S. Attorney's role, the con- 
stitutional right to a grand jury proceeding, and the grand jury before and after the 
advent of the Federal Rules of Criminal Procedure) ; Antell. The Modern Grand Jury: 
Benighted Supergovernment, 51 A.B.A.J. 153 (1965). See generally, L. Orfleld Criminal 
Procedure from Arrest to Appeal 135-93 (1947) (discussion of the mechanics, powers, 
and secrecy of the grand jury process in the context of the entire criminal procedure) ; 
Dession & Cohen, The Inquisitorial Function of the Grand Jury, 41 Yale L.J. 687 (1932) 
(study of the power of and restraints on the grand jury as opposed to the prosecutor 
and magistrate in light of the Wickersham report) ; McCIintock, Indictment by a Grand 
Jury, 26 Minn. L. Rev. 193 (1942) (a general survey of indictment procedures with 
sugL'cstions for improving the speed and fairness of the results of grand jury findings). 

»8ee, e.g., Washington v. Clemmer, 339 F.2d 725 (D.C. Cir. 1964) (accused in rape 
case has right to subpoena prosecutrix and to introduce evidence and cross-examine 
prosecution witnesses) ; Fed. R. Crim. P. 5(c). See also E. Barrett Prettyman Fellows 
196.5-1966. The Preliminary Hearing in the District of Columbia 6-7 (1967) ; Weinberg 
& Weinberg, supra note 4, at 1382. 

Bin re Grace, 397 Pa. 254, 154 A.2d (1959) (prosecutor's allegations of the illegality 
of actions of union officials did not meet test of emergency conditions required before 
a special investigating grand jury can be called in Pennsylvania) ; In re Communication 
of the Grand Jury in the Case of Lloyd and Carpenter, 5 P.L.J. (Clark) 55 (1845) (the 
court refused to grant the grand jury's request for an order to produce certain records 
in a case involving charges brought before the entire grand jury by one grand juror). 



145 

jury. The two functions must be distinguished, however, because the argument 
here favoring participation by counsel in the grand jury proceedings is relevant 
primarily to the indicting grand jury.^" Whatever the validity of the reasons 
traditionally given for grand jury secrecy, those arguments apply solely to the 
investigating grand jury. 

The distinction between the two grand jury functions is a very real one. An 
investigating grand jury performs the function its name implies. It investigates 
whether any crime has occurred and, if so, which persons may have been involved 
in its commission. The indicting grand jury, in turn, passes on the evidence 
presented by a prosecutor against a specific person accused of committing a par- 
ticular crime and determines whether that evidence meets the standard of prob- 
able cause." Thus, no one has been accused when an investigating grand jury 
begins its work, whereas an accused individual is always the focus of an indict- 
ing grand jury. Indeed, an indicting grand jury usually has before it a bill of 
indictment prepared by the prosecutor which charges a specific person with a 
specific oifense."'^ 

There are instances, of course, where the same grand jury can perform both 
functions. If a grand jury begins as an investigating grand jury and reaches a 
point where the prosecutor believes there is sufficient evidence to obtain an in- 
dictment against a specific person, the grand jury is then transformed into an 
indicting grand jury which i)asses on the probable cause case offered against the 
accused by the prosecutor.^^ The point at which the function of the grand jury 
has changed is clearly visible to the grand jury and the prosecutor, since it is 
marked by the focus of the investigation specifically upon the accused." 

A common feature, nonetheless, of both the investigating and the indicting 
grand juries is secrecy. Both are ex parte proceedings with only the grand jurors, 
the witnesses and the prosecutor present. Yet the preliminary hearing, which 
performs the exact same function as the indicting grand jury, is an open pro- 
ceeding at which the accused, with his counsel present, is permitted to cross- 
examine witnesses and to offer testimony. Seemingly inexplicable, the differences 
in procedures at the preliminary hearing and the indicting grand jury appear 
all the more unusxial, if not intolerable, in light of the Supreme Court's ruling 
in Coleman v. Alabama. 

COLEMAN v. ALABAMA : ITS HOLDING AND IMPLICATIONS 

Charged with assault with intent to murder, John Henry Coleman and two 
codefendants argued, inter alia, that Alabama's preliminary hearing pi'ini- to 
the issuance of an indictment was a "critical stage" of the prosecution, and that 
the failure of the state to provide them with an appointed attorney amounted to 
an unconstitutional denial of their sixth amendment right to counsel. The Court, 
in examining the Alabama procedure, noted that the pi-eliminary hearing is not 
a prerequisite to a prosecution ; ^° the primary purpose of the hearing is to deter- 
mine if there is sufficient evidence to warrant presenting the defendants' case 
to the grand jury.^" Recognizing that it previously had held that a person accused 
of crime requires "the guiding hand of counsel at every step in the proceedings 
against him. . . ." and that an accused is guaranteed "that he need not stand 
alone against the state at any stage of the prosecution, formal or informal, in 
court or out, where counsel's absence might derogate from the accused's right 
to a fair trial . . . ," " the Court announced that the test for determining 
whether the presence of counsel is necessary requires tliat the Court "scrutinize 
any pretrial confrontation of the accused" to see if his basic rights have been 
affected.^** Applying this test, the Court found that — 



'" This article •will not explore the right of a witness called before an investigating 
grand jury to have counsel with him in the grand jury room. 

11 ^re. e.g.. United States v. Heap, 345' F.2d 170 (2d Cir. 1965) ; Orfteld, The Federal 
GrnndJiirii, 22 F.R.D. 343 (1050). 

1- L. Oriield, Criminal Procedure from Arrest to Appeal, 156-57 (1947). 

!■' Although some of the evidence supporting probable cause may have been heard 
already during its fulfillment of the investigative function, the grand jury should be 
required to rehear this evidence in the presence of the accused and his counsel before 
returning an indictment. Additionally, counsel should be given the transcript of the 
witness' earlier testimony. 

11 This is the familiar test of the point of which an accused becomes entitled to 
coiins»l during a police interrogation. Escobedo v. Illinois, 378 U.S. 478, 490-91 (1964). 

i"-3fl9 U.S. 1, 8 (1969). 

lo/rf. at 8. 

1- Id. at 7. 

IS Id. at 7. 



146 

plainly the guiding hand of counsel at the preliminary hearing is essential 
to protect the indigent accused against an erroneous or improper prosecution. 
First, the lawyer's skillful examination and cross-examination of witnesses 
may expose fatal weaknesses in the state's case that may lead the magistrate 
to refuse to bind the accused over. Second, in any event, the skilled interroga- 
tion of witnesses by an experienced lawyer can fashion a vital impeachment 
for use in cross-examination of the state's witnesses at the trial, or preserve 
testimony favorable to the accused of a witness who does not appear at the 
trial. Third, trained counsel can more effectively discover the case the State 
has against his client and make possible the preparation of a proper defense 
to meet that case at the trial. Fourth, counsel can also be influential at the 
preliminary hearing in making effective arguments for the accused on such 
matters as necessity for an early psychiatric examination or bail.^" 
The prevailing opinion by Justice Brennan, insofar as it held that the defend- 
ant was entitled to an attorney at the preliminary hearing, was concurred in by 
Justices Black, Douglas, Harlan, White and Marshall. Dissenting, Mr. Justice 
■Stewart, with whom the Chief Justice joined, explained that the thrust of the 
prevailing opinion was that the Constitution "required Alabama to provide a 
lawyer for the petitioners at their preliminary hearing, not so much, it seems, 
to assure a fair trial as to assure a fair preliminary hearing." ^ Based on the 
fact that cases relied upon by the majority were concerned with assuring the 
fairness of the trial itself, and that "in this case no evidence of anything said or 
done at the preliminary hearing was introduced at the petitioners' trial," *^ 
Justice Stewart concluded that the defendants had not been "affirmatively 
prejudiced :" ^ 

Coleman may appear at first glance to provide the accused with additional 
protection as he moves through the criminal process. But does it? Not unlike 
Alice in Wonderland's Cheshire cat, a preliminary hearing is sometimes there 
and sometimes not. The criminal procedures of the federal system ^ and of the 
majority of state jurisdictions,^ are similar to those in Alabama : they do not 



19 Id. at 9. 
2« Id. at 27. 

22 Id. at 28. 

2s Fed. R. Crlm. P. 5(c) provides : 

(c) Preliminary Examination. The defendant shall not be called upon to plead. If 
the defendant waives preliminary examination, the commissioner shall forthwith hold 
him to answer in the district court. If the defendant does not waive examination, the 
commissioner shall hear the evidence within a reasonable time. The defendant may 
cross-examine witnesses against him and may introduce evidence In his own behalf. 
If from the evidence it appears to the commissioner that there Is probable cause to 
believe that an offense has been committed and that the defendant has committed it, the 
commissioner shall forthwith hold him to answer in the district court ; otherwise the 
commissioner shall discharge him. The commissioner shall admit the defendant to bail 
as provided in these rules. After concluding the proceeding the commissioner shall 
transmit forthwith to the clerk of the district court all papers in the proceeding and 
any bail taken by him. 

2* The following states provide that the prosecution of criminal cases may be com- 
menced by the filing of an information or indictment at the option of the prosecutor. 

Arizona — Ariz. Rev. Stat. Ann. R. Crim. P. 78 & 79 (1956) ; Arkansas — Ark. Const, 
amend. XXI (1947) ; California* — Cal. Penal Code §§ 737 & 738 (West 1970) ; Colo- 
rado — Colo. Rev. Stat. Ann. § 39-4-1 (1963) ; Connecticut — Conn. Gen. Stat. Ann. 
§ 54-46 (1958) ; Florida— Fla. Stat. Ann. § 932.47 (1944) ; Idaho— Idaho Code § 19-1301 
(1948) ; Indiana— Ind. Ann. Stat. S 9-908 (1956) ; Iowa — Iowa Code Ann. § 769.1 (1950) ; 
Kansas* — Kan. Stat. Ann. § 22-3201 (Supp. 1970) ; Louisianat — La. Code Crim. Proc. 
Ann. § 382 (West 1967) ; Michigan* — Mich. Comp. Laws Ann., Code Crim. Proc. 
§§767.1 & 767.42 (1968); Minnesota*— Minn. Stat. Ann. §§628.29, 628.31 & 628.32 
(1947) : Missouri — Mo. Const, art. I, §17; Mo. Rev. Stat. § 545.010 (1959) ; Montana*— 
Mont. Rev. Code Ann. §95-1501—95-1502 (1969); Nebraska* — Neb. Rev. Stat. §§29- 
1601 & 29-1607 (1964) ; Nevada* — Nev. Rev. Stat. §§ 171.196 & 172.015 (1968) ; New Mex- 
ico*— N.M. Const, art. 2, § 14 (1953) ; North Dakota* — N.D. Cent. Code § 29-09-02 (1960) ; 
Oklahoma — Okla. Stat § 22-301 (1969) ; South Dakota* — S.D. Comp. Laws Ann. 
§§23-2-5 & 23-36-1 (1967); Utah* — Utah Code Ann. §§77-6-1 & 77-17-1 (1953); 
Vermontt — Vt. Stat. Ann. tit. 13, § 5651 (1958), as amended (Supp. 1971) ; Wash- 
ington — Rev. Code § 10.37.015 (1961) ; Wisconsin* — Wis. Stat. Ann. §§ 955.12 & 955.18 
(1958) ; Wyoming— Wyo. Stat. 7-118 (1959). 

♦These states by statute specifically require a preliminary hearing as a prerequisite 
to prosecution by information rather than grand jury indictment. 

fThese states by statute allow the information to be substituted for Indictment only 
in non-capital cases and life imprisonment. 

The following states require a grand jury Indictment In felony cases, but specifically 
provide by statute that a defendant may waive indictment. Most of these states allow 
a waiver only in non-capital cases and some of them require the presence of counsel, 



147 

require that the prosecutor provide a preliminary hearing for the accused. He 
may avoid the preliminary hearing and go directly to the grand jury,^ thereby 
creating the anomalous situation in which basic sixth amendment rights given 
to the accused may, in effect, be snatched away by the simple prosecutorial 
maneuver of by -passing the preliminary hearing.^ 

One method used by the prosecutor in many jurisdictions to avoid a prelimi- 
nary hearing is to present his probable cause case directly before a grand jury 
prior to making an arrest. It is also fairly common for the government to seek 
a continuance of the preliminary hearing date " until an indictment issued by 
the grand jury effectively eliminates the need for the preliminary hearing.** 
Under the provisions of the Federal Magistrates Act,"' for example, an indictment 
moots the preliminary hearing. Some courts have contended that since the pur- 
pose of a preliminary hearing is only to afford the accused an opportunity to 
challenge the existence of probable cause, "a post indictment preliminary hearing 
would be an empty ritual as to the government's burden of showing probable 
cause." '" 

The reasoning of these cases may be suspect, however, in light of Coleman'' s 
acknowledgement of the importance of pretrial discovery." Some judges, pri- 
marily in the District of Columbia, have recognized that a signiScant purpose of 
the preliminary hearing is to afford the accused "a chance to learn in advance of 



consent of the prosecuting official, or a waiver by the defendant in writing before the 
defendant will be allowed to waive the Indictment by a grand jury. 

Alabama— Ala. Code, tit. 15, §§227 & 260 (1958); Alaska — Alas. Stat. § 12.80.020 
(1962) ; Delaware — Del. Code Ann., Rules Superior Court (Criminal No. 7) (1971) ; 
Georgia— Oa. Code Ann. § 27-704. (1953) ; Illinois— 111. Ann. Stat. § 38-111-2 (1970) ; 
Maine — Me. Rev. Stat. Ann. tit. 15, § 701 (1964) ; New Hampshire — N.H. Rev. Stat. 
Ann. §§601:1 & 601:2 (1955); New Jersey— N.J. Stat. Ann. § 2A :152-3 (1971) & 
§2A:7-25 (1952); North Carolina- N.C. Gen. Stat. §§15-137 & 15-140.1 (1965); 
Ohio — Ohio Rev. Code Ann. § 2941.021 (1971) ; Oregon — Ore. Rev. Stat. § 131-010 
(1971); Pennsylvania — Pa. Const, art. 1, §10 (1969) & Pa. Stat. Ann. tit. 19, §241 
(1964) ; Rhode Island — R.I. Gen. Laws Ann. 12-12-19 (1969) ; South Carolina — S.C. 
Code Ann. §§ 17-401 & 17-511 (1962) ; Virginia — Va. Code Ann. 19.1-462 (1969). 

Statutes in the following states require a grand jury indictment in felony cases. 
Hawaii — Hawaii Rev. Stat. § 711-6 (1968) ; Kentuckv — Kv. Rev. Stat. Ann. Rules Crim. 
Proc. 6.02 (1969) ; Maryland — Md. Rules of Procedure 708 (1971) ; Massachusetts — 
Mass. Gen. Laws Ann. ch. 277, § 15 (1959) ; Mississippi — Miss. Code Ann. § 2440 (1956), 
see also Miss. Const, art. 3, § 27 ; New York — N.Y. Code Crim. Proc. § 4 (McKinney 
1958) ; Tennessee — Tenn. Code Ann. § 40-1703 (1955) ; Texas — Tex. Const, art. 1, § 10 
(1955) ; West Virginia — W. Va. Code Ann. 62-2-1 (1966). 

23 When a person Is first arrested after indictment, rather than on complaint, he is not 
entitled to a preliminary examination. See, e.g.. Crump v. Anderson, 352 F.2d 649 
(D.C. Cir. 1965) ; Butler v. United States, 141 F.2d 433 (4th Cir. 1951) (no purpose 
to be served by preliminary hearing after indictment) ; E. Barrett Prettvman Fellows 
1965-1966, The PreUminary Hearing in the District of Columbia 16 (1966). This type 
of Indictment is called a "Grand Jury Original" and the accused is arrested under the 
indictment pursuant to Fed. R. Crim. P. 9. 

2» The primary reason the prosecutor engages In such a strategy Is to prevent the 
defense from gaining any discovery of his case. Before the grand jury he can secretly 
obtain the assessment of laymen of the strength of his case without providing any 
advantage to the defendant. As Professor Goldstein has noted, the grand jury can be 
"used as a full fledged deposition procedure for the prosecution without the embarrassing 
presence of the defendant or his counsel." Goldstein, supra note 4, at 1191. See also 
Schmertz, The Indicting Grand Jury ; A Field Survey of Evidentiary Problems, March 
1972 (unpublished manuscript on file. Institute of Criminal Law and Procedure, George- 
town University Law Center, Washington. D.C.) ; Traynor, Ground Lost and Won in 
Criminal Discovery, 39 N.Y.U. L.J. 228, 231 (1964) (survey of the practice and pro- 
cedure of discovery in America with a comparison of the restrictive measures of federal 
procedure and the extensions of discovery In California) [hereinafter cited as Traynor]. 

27 Weinberg & Weinberg, supra note 4, at 1364. 

28 Responses to questions of a Senate Subcommittee holding hearings on the proposed 
Federal Magistrates Act offered striking evidence of this point. In answering a question 
as to why the preliminary hearings were not held, one U.S. Commissioner stated : "When 
appointed I was Instructed by U.S. District Attorney to set hearings far enough in 
advance to allow for grand jury indictment." Another responded : "It is the policy of 
the U.S. Attorney not to have preliminary hearings." Report by Subcomm. Staff on 
U.S. Commissioners' Responses to Subcomm. Questionnaire, Appendix I, Hearings on 
S. 3.'t75 and S. 945 Before the Suhcomm. on Improvements in Judicial Machinery of 
the Senate Comm. on the Judiciary, 89th Cong., 2d Sess. (1966) 90th Cong., 1st Sess. 
(1967) at 483. 

29 28 U.S.C. §§ 604, 631-639 (1970). 

soSciortino v. Zampano, 385 F.2d 132, 133 (2d Cir. 1967). See United States v. Chase, 
372 F.2d 453 (4th Cir. 1967) ; United States v. Heap, 345 F.2d 170 (2d Cir. 1965). See 
also L. Orfield, Criminal Procedure Under the Federal Rules 274 (1966). 

31 399 U.S. at 9. 



148 

trial the foundation of the charges and the evidence that will compose the gov- 
ernment's case against him." ^- 

Tlie prosecutor's discretionary prerogative to avoid entirely the preliminary 
hearing makes the Supreme Court decision in Coleman a tantalizing tease. One 
can imagine a prosecutor piously explaining to an accused: "Yes, indeed, if you 
have a preliminary hearing, it is a critical stage of the prosecution and you are 
entitled to counsel. You will he able to cross-examine witnesses against you, pre- 
sent any testimony you wish to give, challenge whether probable cause has been 
established and obtain some discovery of the case against you — but, of course, 
that is if I permit you to have a preliminary hearing. If I choose to go directly 
to the grand jury, on the other hand, all these precious rights I just outlined for 
you are not available since you are not exposed to a critical stage of the prosecu- 
tion but only to the grand jury which indicts you." If the accused is a reader of 
Dickens, he will be compelled to reply : "If the law (says) that . . . then the law 
i.s a ass. . , ." ^ 

The present procedure which allows the prosecutor to engage in what must be 
characterized as the "game" of circumventing the procedural safeguards afforded 
by a preliminary hearing must be condemned as a method marred by logical 
inconsistency. The preliminary hearing determination of probable cause results 
only in the presentation of the case to the grand jury ; ** it is the latter body's 
indictment, based on yet another assessment of probable cause, which leads di- 
rectly to the criminal trial itself.^ Thus, not only can a stage which the Supreme 
Court has deemed "critical" be eliminated merely at the prosecutor's whim, but 
it can also be replaced by a stage which, while still thought too remote from 
trial to be termed "critical," resolves the identical issue and is, in practice, one 
step closer to the final determination of guilt or innocence. 

The Court's opinion in Coleman must apply with equal if not greater force to 
tlie indicting grand jury. If the accused is in need of a lawyer to argue the prob- 
able cause issue before a judicial officer, the presence of counsel is even more 
indispensable when a body of laymen is called upon to apply this legal standard.^" 
Moreover, the same need exists before a grand jury as at the preliminary hear- 
ing for a defense lawyer to freeze the testimony of prosecution witnesses for the 
purpose of impeachment at trial. Furthermore, since the Supreme Court con- 
cluded in Coleman that it is essential that the accused obtain through counsel 
some discovery of the prosecutor's case against him in a preliminary hearing, 
there is no possible rationalization for denying the accused his right to discovery 
at a probable cause grand jury proceeding where the prosecutor has denied him 
a preliminary hearing.®^ 

The Supreme Court's opinion in United State.'^ v. Wade '^ adds additional weight 
to the compelling conclusion that tlie indicting grand jury inquiry is a critical 
stage of the prosecution requiring the implementation of sixth amendment rights. 
The Court there emphasized that, when left in the control of law enforcement 
officials, proceedings against an accused can "seriously, even crucially, derogate 
from a fair trial." ^ Quoting from its opinion in ^liranda v. Arizona, the Court 
reiterated its admonition that "privacy results in secrecy and this in turn results 
in a gap in our knowledge as to what in fact goes on . . . ." *" 



"2Bhie V. Unitpf! States. .^42 F.2d R90, nO (D.C. Civ.), cert, denied, ?.S0 U.S. 944 
(1965). In the Blue case the court enunciated the reasons for the preliminary hearing: 
Tt has generally been thouffht that the purpose of a nreliminary hearing is to 
afforrl the accused (1) an opportunity to establish that there is no probable cause 
for his continued detention and thereby to regain his liberty and. possibly, escape 
prosecution, and (2) a chance to learn in advance of trial the foundations of the 
charge and the evidence that will comprise the government's case against him. 
Trl. See TTnited States ew rel. Wheeler v. Flood, 269 F. Supp. 194 (E.D.N.Y. 1967) ; cf 
Ross V. Sirica, 380 F.2d 557 (D.C. Cir. 1968) ; Note. The Preliminary Hearing in the 
DiMrtrt of Columbia — An Emerging Discovery Device, 56 Geo. L..T. 191 (1967) (an 
analysis of recent law in the District of Columbia and the advantages and disad- 
vnntages of usintr the preliminary hearing as a vehicle for broader discovery). 

""■ C. Dickens. Oliver Twist .S98 (Reprinted ed. 1942). 

=* E. Bnrrett Prettvman Fellows 1965-1966, The Preliminary Hearing in the District 
of roliiniina 6 (1966) ; Goldstein, supra note 4, at 1169. 

^^ See United States v. Heap, 345 F.2d 170 (2d Cir. 1965) ; Goldstein, supra note 4, at 
1169. 

2" The author has been unable to find a study which attempts to compare the abilities 
of the indge and grand .iurors as they examine the existence of probable cause. The 
cnrrespiinding issue of the relative competency of petit jurors is far from resolved. 
Cf. H. Kalven k H. Zeisel. The American Jury 8 (1966). 

•"•■ See note 32 supra and accompanying text. 

'«3SS U.S. 218 (1967). 

^1(1. at 228. 

*^I(1. at 230. quoting from Miranda v. Arizona, 384 U.S. 436 (1966). 



149 

The Court in Wade focused on improper suggestions about the identification of 
the accused made by police at a line-up." Similar improper and prejudicial acti- 
on the part of a prosecutor can occur in the grand jury room. A recent study of the 
practices of federal prosecutors before indicting grand juries reveals that prose- 
cutors often disclose to the grand jury the prior criminal records of those accused, 
or introduce as part of their probable cause case illegally obtained confessions 
which would not be admissible at trial/^ 

Any consideration of the application of Coleman to the indicting grand jury 
inquiry must not fail to recognize that the common law heritage of criminal 
justice demands that the prosecutor's allegations be scrutinized for proliable 
cause by an impartial arbiter.*' The safeguard of the preliminary hearing " or 
the grand jury *^ has been retained to serve as a bulwark against possible harass- 
ment of an accused. If a prosecutor's case is insuflicient, the hearings will prevent 
the subjugation of an accused to the rigors of a criminal trial.*' The presence of 
the accused, assisted by counsel, assures that this protection will l)e real and 
not illusory. Perhaps most importantly, the preliminary hearing provides the 
accused with an early opportunity to learn the nature of the charges against him. 
This point was emphatically articulated as early as 1S45 by Judge Edward King 
in the landmark PeJinsylvania case of Lloyd and Carpenter*" iu which he eluci- 
dated the rationale of preliminary screening procedures in the American criminal 
justice system : 

By the opportunity given to the accused of hearing and examining the 
pTosecutor and his witnesses, he ascertains the tii'ie. place, and circiun>-tauces 
of the crime charged against him, and thus is enabled, if he is an innocent 
man, to prepare his defense, a thing of hardest practicability if a preliminary 
hearing is not afforded to him. For how is an accused effectively to prepare 
his defense unless he is informed, not merely what is charged against him, but 
when, where, and how, he is said to have violated the public law? It is not 
true that a bill of indictment found, without a preliminary hearing, furnished 
him this vital information. Hence the inestimable value of preliminary, public 



« 3SS U.S. 218, 227-89 (1967). 

*3 Schmertz, The Indicting Federal Grand Jury: A Field Survey of Evidentiary Prae- 
tires. March 1072 (unpublished manuscript on file, Georgetown University Law Center. 
Vv'asliington, D.C. ) At this point it should be noted that while all Supreme Court 
'"critical stage" cases have involved situations in wliich the accused was present, this 
is not necessarv for a determination of "critical stage." See United States v. Zieler 
427 F.2d 1305 (3d Cir. 1970). 
^3 Goldstein, stipra note 4, at 116-3-72. 

*« The preliminary hearing appears to have developed from the early English coroner's 
inquest. Several statutes during the course of the 15.50's gave justices of the peace 
iurisdiction over the preliminary examination for the purposes of setting bail and 
binding over witnesses against the defendant for trial. During the course of the seven- 
teenth century the jireliminary hearing assumed an inquisitorial character with .iustices 
closely examining the accused. See L. Orfield, Criminal Procedure from Arrest to 
Appeal 5.3-58 (1074). Cf. 4 Holdsworth, History of English Law 520 (1923) : 1 Stephen. 
History of Criminal Law in England 217 (1883) ; Note The Preliminary Hearing — Art 
Interest Analysis 51 Iowa L. Rev. 164 (1965). 

*^ The origin of the errand .iury has usually been traced by historians to the Assize of 
Clarendon issued by Henry II in 1166. Originally established "to discover and present 
facts in answer to inquiries addressed to them by the kings" (T. Plunkett, History of 
the Common Law 126 (1956) the grand jury has come to serve two great functions : 

One is to bring to trial persons accused of crime upon just grounds. The other Is 
to protect persons against unfounded or malicious prosecutions by insuring that 
no criminal proceedings will be undertaken without a disinterested determination 
of probable guilt. 
Orfield. The Federal Grand Jury, 22 F.R.D. 343, 394 (1959). Many other commentators 
have studied the history of the grand jury. Some of their works are cited in note 6 supra. 
It is noteworthy that the grand jury was abandoned by England in 1933 (Adminis- 
tration of Justice Act of 1933, 23 & 24 Geo. 5, c. 36) and replaced by the preliminary 
hearing screening process. On its passage, one commentator noted : 

The grand jury has long lagged superfluous on a stage where it had once played 
a great part. Its performance had grown perfunctory, and its service a burden 
to reluctant actors. During its last years it was kept in being only by that strong 
sentiment among lawyers which resents change however salutory ; but though 
the English people are patient tbpre is a certain vein of common sense in its 
making, which in the long run prevails. 
Lnick. Aholition of the Grand Jury in England, 25 J. Crim. L. & C. 623 (1934). 

^' According to the Supreme Court, the grand jury continues to serve an invaluable 
function in our society "standing between the accuser and the accused, whether the 
latter be individual, minority group or other, to determine whether a charge is founded 
upon reason or was dictated by an Intimidating power or malice. . . ." Wood v. Georgia, 
370 U.S. 375, 390 (1962). Contra, Antell, The Modern Grand Jury: Beniahted Sltiper- 
government, 51 A.B.A.J. 153, 154 (1965) ("[i]t Is simply not true that the grand jury 
system protects the individual from oppression ; indeed, it has a far greater potentiality 
as an instrument of oppression.") 
"5 P.L.J. (Clar) 55 (1845). 



150 

investigations, by whicli the accused can be truly informed, before he comes 
to trial, what is the offense he is called upon to respond to. It is by this 
system that criminal proceedings are ordinarily originated. Were it other- 
wise, and a system introduced in its place, by which the first intimation to 
an accused of the pendency of a proceeding against him, involving life or 
liberty, should be given, when arraigned for trial under an indictment ; the 
keen sense of equal justice, and the innate detestation of official oppression 
which characterizes the American people, would make it of brief existence.** 
Given this history of pretrial safeguards, and given the fact that in many 
jurisdictions a grand jury indictment is required by constitution or by statute 
before an accused may be tried,*® it is strange, especially in light of Coleman, that 
the grand jury proceeding has not yet been held to be a "critical" stage under the 
sixth amendment. 

If, indeed, the grand jury in determining probable cause serves the identical 
purpose as the preliminary hearing, why is the reasoning in Coleman not 
applicable to the grand jury? What arguments permit the indicting grand jury 
to remain a secret proceeding with only one side, the government, permitted to 
be present? Only two explanations are possible: (1) the historic secrecy of the 
grand jury; and (2) the tradition in criminal cases of denying the accused the 
right of discovery of the prosecution's case prior to trial. Each explanation requires 
analysis. 

GRAND JXJEY SECRECY 

One of the weaknesses of the American criminal law is that legal fictions 
become so firmly entrenched that it is considered sacrilegious to disclose or 
dislodge them. A concept that is apparently antiquated will be retained solely 
because of the sacrosanct preeminence ascribed to it by tradition. As other legal 
institutions attempt to adjust to and grow with the times, the legal fiction, with 
remarkable resilience, continues unimpeded and unchanged.™ Such is the case 
with the concept of grand jury secrecy.^* Regarded with the unquestioning 
reverence that befits a policy "older than our nation itself," '^ secrecy at a grand 
jury session has come to be recognized as "indispensable." " 

Oi-iginally conceived to prevent abuses by the Crown," grand jury secrecy has 
been preserved for a number of reasons — all of which, according to the Court, are 
as "important for the protection of the innocent as for the pursuit of the guilty." ^ 
Mr. Justice Brennan has summarized the rationale as follows : 

Essentially four reasons have been advanced as justification for grand jury 
secrecy. (1) To prevent the accused from escaping before he is indicted and 
arrested or from tampering with the witnesses against him. (2) To prevent 
disclosure of derogatory information presented to the grand jury against 
an accused who has not been indicted. (3) To encourage complainants and 
witnesses to come before the grand jury and speak freely without fear that 
their testimony will be made public thereby subjecting them to possible dis- 
comfort or retaliation. (4) To encourage the grand jurors to engage in 
uninhibited investigation and deliberation by barring disclosure of their 
votes and comments during the proceedings.^' 
On close examination these traditional arguments, when applied to the indict- 
ing grand jury, are at best as substantial as gossimer. The first justification fails 
because when the prosecutor has probable cause, an escape of the suspect can be 
prevented by an arrest prior to the commencement of the grand jury proceeding. 

« Td. at 57. 

«U.S. Const, amend. V. But cf. Hurtado v. California, 110 U.S. 516 (1884) (require- 
ment of indictment by the grand jury has not been held applicable to the states under 
the fifth amendment). See note 24 supra. 

50 Cf. 3 R. Pound, Jurisprudence 449-466 (1959). 

51 The only persons who may be in the grand jury room other than grandjurors them- 
selves are attorneys for the government, the witness under examination, interpretor 
when needed, and for the purpose of taking evidence, a stenographer or operator of a 
recording device. Of. Fed. R. Crim. P. 6(e). See also Wright, Federal Practice and Pro- 
cedure § 105 (1969). 

B2 Pittsburgh Plate Glass Company v. United States, 360 U.S. 395, 399 (1959). 

53 United States v. Johnson, 319 U.S. 503, 513 (1943). 

5* See Calkins, Grand Jury Secrecy, 63 Mich. L. Rev. 455, 456-457 (1965) [hereinafter 
cited as Calkins]. See also T. Edwards, The Grand Jury 28 (1906) : "The independence 
which the institution had attained was soon to be put to the severest tests, but pro- 
tected by the cloak of secrecy and free from the control of the court as to their findings, 
they successfully thwarted the unjust designs of the government." 

58 United States v. Johnson, 819 U.S. 503, 513 (1943). 

5« Pittsburgh Plate Glass Company v. United States, 360 U.S. 395, 405 (1959) (dis- 
senting opinion). 



151 

Probable cause requirements for an arrest are certainly far less demanding 
than they are for a grand jury presentation.^^ The fear that the accused may 
tamper with witnesses is sufficiently answered by noting that no such protection 
is afforded witnesses at trial where the issue is guilt or innocence rather than 
mere probable cause. Of course, it is slightly inconsistent to suggest that pro- 
tection is needed at this stage of the proceedings but unnecessary at trial. If an 
accused were determined to influence or intimidate witnesses, he would do so 
whenever he could — prior to or at trial. Thus, grand jury secrecy provides only 
theoretical rather than real protection against this alleged evil.^ 

The second argument for secrecy — to protect the innocent accused — clearly 
is suspect in light of the fact that, in many instances, he already has been sub- 
jected to a public session before a magistrate and "bound over" to the grand 
jury.™ A further weakness of this thesis appears when it is recognized that the 
grand jury constitutes, according to the commentators, a mere "rubber stamp" 
for prosecutors."" Since most indicting grand jury proceedings are but perfunc- 
tory rituals leading to trial, the accused is seldom spared the ignominy of public 
disclosure. Finally, the argument to protect the accused becomes meaningless in 
light of the fact that the accused himself wants to know whether the grand 
jury is actually receiving evidence as the basis for a possible indictment. In 
fact, the presence of covmsel is essential to conceal the investigation of an in- 
nocent person effectively. An attorney can challenge the existence of probable 
cause and prevent the accused from erroneously being subjected to a trial — a 
trial which would ultimately command greater notoriety than the simple return 
of a grand jury indictment. 

The third reason — to encourage M-itnesses and complainants to come before the 
grand jury and speak freely — provides little actual assistance to the prosecutor. 
If these witnesses are willing to come forward only in a secret proceeding, their 
testimony is valueless if they are unavailable at trial.^ This rationale also loses 
sight of the fact that secrecy is designed for "the protection of the grand jury 
itself as a direct, independent representative of the public as a whole, rather 
than those brought before the grand jury.*^ As one commentator has explained : 
"A witness is not a confidential informant, he must consider his testimony sub- 
ject to all the obligations of oath required in any judicial proceeding." ** While it 
is desirable that witnesses speak freely, a malicious witness before the grand 
jury may be more likely to fabricate a story implicating the accused, knowing 
that he will not be subject to cross examination. Fears of fake testimony are 
founded in the real and substantial consequences which, regardless of the out- 
come of the trial, flow from an indictment. It is against the backdrop of these 



57 The requirement Justifying an arrest warrant is "that enough information be pre- 
sented to the Commissioner to enable him to make the judgment that the charges are 
not capricious and are sufficiently supported to justify bringing into play the further 
steps of the criminal process." Jaben v. United States, 381 U.S. 214, 225 (1965). For 
an indictment to be found 12 or more jurors must concur. Fed. R. Crim. P. 6(f). Ad- 
ditionally, before returning an indictment a grand jury "ought to he thoroughly per- 
suaded of the truth of the indictment, so far as the evidence goes ; and not rest satisfied 
merely with remote possibilities." Beaver v. Henkel 194 U.S. 73, 84 (1904). 

58 Cf. Calkins, supra note 54. at 4C2. See also State v. Rothrock. 45 Nev. 214, 222, 200 
P. 525. 527 (1921) (secrecy allows grand jurors to meet and deliberate without fear of 
retaliation). 

^°As explained earlier, the preliminary hearing is but a step preceding the grand 
jury. Cf. Washington v. Clemmer, 399 F.2d 715, 724-725 (D.C. Cir. 1964) (separate 
opinion of Burger, J.) (preliminary hearings serve the purpose of determining probable 
cause for holding the defendant for action by grand jury). 
«" The Wickersham Report concludes : 

Under modern conditions the grand jury is seldom better than a rubber stamp 
of the prosecuting attorney and has ceased to perform or be needed for the function 
for which it was established and for which It was retained throughout the cen- 
turies. ... An unnecessary work burden should be lightened by eliminating the 
necessity of indictment and permitting prosecution to be instituted and accusation 
to be made through the simpler process" of information. 
National Commission of Law Observance and Enforcement, Report in the Prosecution 124 
(19.^1). See generally, J. Bentham, Rationale of Judicial Evidence If 2, at 15 (1918) ; 
R. Pound and F. Frankfurter, Criminal Justice In Cleveland, 176. 211-212, 248 (1922) ; 
Dession, From Indictment to Information — Implications of the Shift, 42 Yale L.J. 163 
(1932) ; Morse. A Survey of the Grand Jury System, 10 Ore. L. Rev. 101 (1931) ; 
Younger, The Grand Jury Under Attack, 46 J. Crim. L.C. & P.S. 26, 214 (1955). 

« Calkins, supra note 54, at 461. But see Pittsburgh Plate Glass Companv v. United 
States. 360 U.S. 395, 400 (1959) (suggesting that secrecy is the state's inducement to 
the witness for coming forward with testimony). 

!f JJ",^,*^? ^^ States V. Amazon Industrial Chemical Corp., 55 F.2d 254, 261 (4th Cir. 1931). 
o^^ t^J^^^^aJ^^!^9: °°*® ^*' ^* 451- ^^^ «^«o Pittsburgh Plate Glass Co. v. United States, 
6b0 U.S. 395, 406t-407 (1959) (dissenting opinion) (a witness called before grand jury 
cannot remain a secret informant). 



152 

fears that an opinion of United States Court of Appeals for the Sixth Circuit 
has examined the dangers and abuses of secrecy : 

It is a serious thing for any man to be indicted for an infamous crime. 
Whether innocent or guilty he cannot escape the ignominy of the accusa- 
tion, the dangers of perjury and error at his trial, the torture of sus- 
pense and the pains of imprisonment, or the burden of bail. The secrecy 
of any judicial procedure is a tempting invitation to the malicious, the am- 
bitious, and the reckless to try to use it to benefit themselves and their 
friends and to punish their enemies. If malicious, ambitious or over-zealous 
men, either in or out of office, may with impunity persuade grand juries 
without any legal evidence, either by hearsay testimony, undue influence, 
or worse means, to indict whom they will, and there is no way in which 
the courts may annul such illegal accusations, the grand jury, instead of 
that protection of "the citizen against unfounded accusations, whether it 
comes from government or be prompted by partisan passion, or private 
enmity" . . . which it was primarily designed to provide, may become an 
engine of oppression and a mockery of justice.*" 
The final reason given for maintaining grand jury secrecy — to provide for 
uninhibited investigation and deliberation by the jurors — merits examination 
with regard to both investigative and deliberative functions. As noted above, 
this article does not specifically consider the investigating grand jury — a body 
which, concededly, might be justified in operating secretively. Indeed, a real and 
practical benefit is arguably achieved by providing for "uninhibited investiga- 
tion." Such is not the case, however, with the indicting grand jury which has 
passed the investigating stage and has begun to focus on the accused. 

With regard to the grand jurors' "deliberations," it is imperative that secrecy 
be preserved. As the deliberations of a petit jury "shall remain private and 
secret in every case," ''^ so too should the grand juror's. The protection of the 
juror's subjective freedom of expression in deliberation must be preserved. De- 
libers tions, however, are but a part of the grand jury process. Just as there is 
no protective secrecy for the jurors hearing evidence on guilt or innocence at 
trial, so too it is unnecessary for a grand jury to proceed in secrecy when they 
hear the evidence on the issue of probable cause. 

It is noteworthy that the cloak of secrecy '^ has been somewhat removed by a 
number of recent Supreme Court decisions. For the most part these cases have 
determined under what conditions a defendant may gain access to the transcript 
of grand jury testimony after the indictment. In Pittshurgli Plate Glass Com- 
pany V. United f^tates,'^'' the Court recf)gnized a limited right of the defendant 
to review grand jury testimony where he could establish a "particularized 
need" for disclosure to impeach a witness, to refresli his recollection or to test 
his» credibility.®^ However, the Court rejected the petitioner's claim under the 
Jencks Act "* that where a prosecutor calls a witness who has testified before the 
grand jury, the defendant is entitled as a mntter of right to disclosure of that 
witness' grand jury testimony.™ In so doing, tlie Court relied upon the history 
of grand jury secrecy. It pointed to the need for protecting grand jurors from 
outside intrusion and grand jury witnesses from the threat of the disclosure of 
their testimony." The Court seemed oblivous to the fallacies of such ritualistic 
restatements of a legal myth. But why should the indicting grand jurors who are 
reviewing the prosecutor's evidence to determine probable cause be any more 
protected from public scrutiny than the magistrate who performs the same func- 
tion at the preliminary hearing or tlie petit jurors who perform the even more 
serious function of determining guilt or iimocence at the trial? Again, why 
must the prosecution witnesses who are needed to establish probable cause be- 
fore the grand jury Ite hidden, when these same witnesses must, of necessity, 
come forward at trial, if an indictment has been returned? 



«*Schmit V. United States, 115 F.2d .394, 397 (Gth Cir. 1940), quoting from McKinney 
V. United States, 199 F. 2.5, 31 fSth Cir. 1912) (dissenting opinion). See also Herman 
Schwabe, Inc. v. United Slioe Mach. Corp., 194 F. Siipp. 703 (D. Mass. 1958) ; United 
States V. Procter and Gamble Co., 19 F.R.D. 122. 126 (D. N..T. 1956). 

«» United States v. Virginia Erection Corp.. 335 F.2d 868. 872 (4th Cir. 1964). 

«8 United States v. Procter and Gamble Co., 356 U.S. 677 (1958) (lonsr established 
policy supports the secrecy of the grand jury proceedings In a federal court). 

«7.S60U.S. .395 (1959), 

88 /rf. at 400. 

«• 18U.S.C. S 3500 (1970). 

™ .",60 U.S. at 401. 

^ Id. at 399. 



153 

In his dissent in the Pittsburgh Plate Glass Company case,^^ Mr. Justice Bren- 
nan, while recognizing some basis for grand jury secrecy, explained that it is 
not above examination. 

Grand jury secrecy is, of course, not an end in itself. Grand jury secrecy is 
maintained to serve particular ends. But when secrecy will not serve those ends or 
when the advantages gained by secrecy are outweiglied by a countervailing in- 
terest in disclosure, secrecy may and should be lifted, for to do so in jsuch a cir- 
cumstance would further the fair administration of criminal justice.'^ 

In Dennis v. United States,''* the Court relaxed the strict rule of the majority 
in the Pittsburgh Plate Class Company case and acl^uowledged "the growing 
realization that disclosure, rather than suppression, of relevant materials ordi- 
narily promotes the proper administration of criminal justice." '^ The Court 
held that in a complicated conspiracy case where considerable time had elapsed 
between the events of the crime charged, the date of the grand jury testimony 
and the trial of the case itself, the defendant has a right to examine the grand 
jury testimony of important witnesses produced against him at the trial by the 
government.™ The Court further ruled that the defendant has the right to have 
liis counsel examine the testimony and rejected the position of the United States 
Court of Appeals for the Tenth Circuit and the government that the trial judge 
should review the transcript in camera to determine whether there might be 
anything I'elevant which should be turned over to the defense for eventual im- 
peachment purposes."^ All federal cases subsequent to Dennis have applied this 
expanded rule of disclosure, liut nevertheless limited their holdings to specific 
instances where a defendant was found to be entitled to examine portions of 
the transcript."* Significantly, these cases provide no encouragement for the pres- 
ence of counsel at the grand jury, but rather, having assumed that grand juries 
will retain their secrecy, deal with the separate issue of how much of what trans- 
pired before the grand jury may be disclosed after the indictment or at trial. 

To move from these cases to a judicial recognition of the right of counsel at 
the indicting grand jury is a great leap indeed. But the Supreme Court's deci- 
sions in Coleman v. Alabama appears to be a compelling springboard. 

DISCOVERY 

A discernible pattern emerges from the Pittsburgh Plate Glass — Dennis line of 
cases, a trend toward admitting that secrecy is not the revered sine qua non that 
it had once been. Evidence of this appears from the fact that in Dennis even the 
government conceded that the importance of preserving secrecy is minimal and 
acknowledged the persuasiveness of the arguments advanced in favor of disclo- 
sure.'^ Consequently, it is likely that the underlying basis for the retention of 
grand jury secrecy is the government's unwillingness to disclose its case to the 
defendant in advance of trial. 

Until recently the right of discovery by the defendant in a criminal case was 
practically nonexistent. Thus, as has been stated : "disclosures were limited to 
such documents and objects as were obtained from, or which belonged to, the 
defendant, or which were obtained from others by seizure or by process, upon a 
showing by the defendant that the items were material to the preparation of 
the defense and that the request was reasonable. Not even a written confession 
or transcript or statement made by the defendant himself was available." *" 

To compensate for the unavailability of pretrial disclosure, defense counsel 
would frequently approach the prosecutor and seek to obtain discovery infor- 



ms Id. at 401 (dissenting opinion) . 

•ra Id. at 403 (dissenting opinion). 

■?<8S4 U.S. 855 (1966). 

■75 Id. at 870. 

T» Id. at 872. 

~ In Dennis, the Court stated : "In our adversary system, it is enough for judges to 
judge. The determination of what may be useful to the defense can properly and 
effectively be made only by an advocate." Id. at 87.3. 

™ See, e.g., Nolan v. United States. 395 F.2d 283 (5th Cir. 1968) (granting of applica- 
tion to view grand jury minutes is within discretion of the trial judge based on a 
showing of particularized need) ; Allen v. United States, 390 F.2d 476 (D.C. Cir. 1968) 
(threshold requirement to show need should not be defined as "particularized need" — 
which is a term that might prevent useful discovery) ; Cargill v. United States, .381 
P\2d 849 (10th Cir. 1967), cert, denied, 389 U.S. 855 (1968) (request for grand jury 
minutes and assertion "that such disclosure would serve the ends of justice or aid in the 
preparation for trial" is too general and broad to come within Dennis rule). 

■?» Dennis v. United States, 384 U.S. 855, 872 (1966). 

8" ABA Standards. Discovery and Procedure Before Trial, §1.2, at 34. (Approved 
Draft, 1970). 



154 

mally. If the prosecutor for any reason did not wish to cooperate, the attempts 
proved unavailing. Pretrial preparation was thus reduced to mere guesswork, 
for while many prosecutors acceded to the defense counsel's request, many others 
did not.^ This has been evidenced by the concerted efforts of some prosecutors to 
resist attempts to formalize discovery proceedings.^^ Resistance is usually 
couched in the time-worn and unfounded scare argument that liberalization of 
discovery would endanger the lives and safety of witnesses,*^ or would enable 
the defendant to fabricate a defense.** The idea that discovery will either en- 
danger witnesses, or lead to perjury has been all but abandoned."^ There has 
been a growing recognition "that the dangers envisioned from broad discovery can 
reasonably be anticipated in only a small minority of cases." *° Concomitantly, 
there has been a noticeable increase in the information in the possession of the 
government wliich has been made available to the accused. This liberalization 
is best manifested by the substantial change in the attitudes of prosecutors, 
courts, and legislatures, many of whom have apparently come to subscribe to 
the ABA Standards regarding the scope of discovery. They provide : 

in order to provide adequate information for informed pleas, expedite 
trials, minimize surprise, afford opportunity for effective cross-examination, 
and meet the requirements of due process, discovery prior to trial should be 
as full and free as possible consistent with protection of persons, effective 
law enforcement, the adversary system, and national security.*^ 
The most noteworthy expansion of the defendant's discovery rights is found in 
the federal system under new Rule 16 of the Federal Rules of Criminal Proce- 
dure.^ Enacted in 1966 by the Judicial Conference of the United States, the 
rules which are products "of a decade of trenclient and sustained criticism by 
judges, practitioners, and legal scholars, with respect to the sparse discovery 
heretofore available to criminal defendants, . . . vastly expand the scope of 
pretrial discovery." ^* 



^1 For examples of the hostility expressed by some prosecutors towards expanded 
criminal discovery see T. Flannery, A Prosecutor's Case Against Liberal Discovery, 33 
F.R.D. 47 (1964) (government, not the defendant, Is at a disadvantage in criminal cases 
in the District of Columbia) ; Discovery in Criminal Cases — A Panel Discussion Before 
the Judicial Conference of the Second Judicial Circuit, 44 F.R.D. 481 (1968) (statement 
by Stephen E. Kaufman) (liberalized discovery may lead to tailored testimony, sub- 
ordination, perjury, falsification, and fabrication of documents). 

82 See Discovery in Criminal Cases — A Panel Discussion Before the Judicial Conference 
of the Second Circuit, supra note 81 at 483-89. 

S3 Id. at 485. 

8* This has been articulated by one court as follows : "In Criminal proceeding long 
experience has taught the courts that often discovery will lead not to honest fact-finding 
but on the contrary to perjury and the suppression of evidence. Thus the criminal 
who is aware of the case against him will often procure perjured testimony in order 
to set up a false defense." State v. Tune, 13 N.J. 203, 210-11, 98 A.2d 881, 884 (1953). 

*= Brennan, The Criminal Prosecution: Sporting Event or Quest for Truth, 1963 Wash. 
U. L.Q. 279, 290. 

8" ABA Standards, Discovery and Procedure Before Trial, Commentary on § 1.2, at 37 
(Approved Draft, 1970). 

^-^ Id. % 1.2, at 11-12. 

88 Fed. R. Crim. P. 16 provides in part : 

(a) Defendant's Statements ; Reports of Examinations and Tests ; Defendant's Grand 
Jury Testimony. Upon motion of a defendant the court may order the attorney for the 
government to permit the defendant to Inspect and copy or photograph any" relevant 
(1) written or recorded statements or confessions made by the defendant, or copies 
thereofj within the possession, custody or control of the government, the existence of 
which IS known, or by the exercise of due diligence may become known, to the attorney 
for the government, (2) results or reports of physical or mental examinations, and of 
scientific tests or experiments made In connection with the particular case, or copies 
thereof, within the possession, custody or control of the government, the existence of 
which is known, or by the exercise of due diligence may become known, to the attorney 
for the government, and (3) recorded testimony of the defendant before a grand jury. 

(b) Other Books, Papers, Documents, Tangible Objects or Places. Upon motion of a 
defendant the court may order the attorney for the government to permit the defendant 
to inspect and copy or photograph books, papers, documents, tangible objects, buildings 
or places, or copies or portions thereof, which are within the possession, custody or control 
of the government, upon a showing of materiality to the preparation of his defense and 
that the request Is reasonable. Except as provided in subdivision (a)(2), this rule does 
not authorize the discovery or inspection of reports, memoranda, or other internal gov- 
ernment documents made by government agents In connection with the investigation or 
prosecution of the case, or of statements made by government witnesses or prospective 
government witnesses (other than the defendant) to agents of the government except 
as provided In 18 U.S.C., § 3500. 

89Rezneck, The New Rules of Criminal Procedure, 54 Geo. L.J. 1276 (1966) (discus- 
sion of widened scope of discovery for both the prosecutor and accused under the 
Feb. 28, 1966 amendments to the Federal Rules). 



155 

In many state jurisdictions the availability of discovery is following a similar 
pattern. Several states have adopted rules which parallel those found in the 
Federal Rules of Criminal Procedure.''" Perhaps the most liberal is the California 
rule*^ which provides that, following a motion to produce or inspect, discovery 
is to be granted if denial of the information would deprive the defendant of a 
fair trial. This order will also be issued if the information is material to the 
question of guilt or innocence or is needed to refresh the recollection of the 
accused or to prepare a defense."' Interpretation of these rules has led the Cali- 
fornia courts to hold that a defendant has an absolute right to pretrial discovery 
and that denial thereof would justify a reversal."^ Other states have adopted 
rules moving in the direction of those promulgated by California.** Significantly, 
the relaxation of restrictions to discovery has been well received by prosecutors 
because it has greatly encouraged plea negotiations between the accused and the 
government."' 

To date the ABA's proposed standards for criminal discovery provide the 
most liberal standards seriously suggested ; ^ they do more to alleviate the 
existing imbalance than does other any code. Interestingly, the ABA was 
prompted not so much by ideological convictions as by pragmatic concern : 

The need for change in procedures appeared manifest in order to lend 

for finality to criminal dispositions, to speed up and simplify the process 

and to make more economic use of resources.®^ 

From all appearances this trend in discovery is irreversible, and it can safely 

be predicted that very shortly, in both state and federal jiirisdictions, criminal 

defendants v\'ill enjoy full discovery rights. This should thus remove the last 

obstacle to opening up the inquisitorial indicting grand jury to the participation 

of the accused and his counsel. The reasoning of the Supreme Court in Coleman 

ought to be employed in achieving that result. 

CONCLUSION 

After Miranda, ^^ Wade ^ and Coleman,^^^ it would indeed be difficult for a prose- 
cutor to argue that the indicting grand jury's determination of probable cause 
is not a critical stage of criminal prosecution. The underlying reasoning be- 
hind recent Supreme Court interpretations of an accused's sixth amendment 
rights compels the conclusion that an accused has a right to participate during 



^8ee Ariz. R. Crim. P. 195 (1956); Cal. Penal Codes S§ 869, 938.1 (1970); Del. 
Super. Ct. Rules— Criminal 16 (1971); Fla. Stat. Ann. §925.05 (Supp. 1971); Idaho 
Code § R19-15.30 (Supp. 1971); 111. Ann. Stat. §114-10 (Smith-Hurd 1970); Md. Rule 
of Proc. 728 (1971) ; Mo. R. Crim. P. 25.195 (1970) ; Pa. R. Crim. P. 310 (Supp. 1971) ; 
R.I. Gen. Laws Ann. § 12-17-16 (Supp. 1972) ; Tenn. Code Ann. § 40-2441 (Supp. 1971) ; 
Vt. Stat. Ann. §§ 6721, 6727 (Supp. 1971). 

91 Cal. Penal Code §§ 869, 938.1 (1970) and numerous cases expanding the right to 
discovery. See State v. Riser. 47 Cal. 2d 566, 305 P.2d 1 (1956) and the cases collected 
in Jones v. Superior Court, 58 Cal. 2d 56. 58, 372 P.2d 919, 920, 22 Cal. Rptr. 879, 880 
(1962). 

82 See Traynor, supra note 26, at 243-^4. 

93 Id. at 244. 

8* See Pa. R. Crim. P. 310 (Supp. 1971); R.I. Gen. Laws Ann. §12-17-16 (Supp. 
1972) ; Vt. Stat. §§ 6721, 6727 (Supp. 1971). 

85 Vermont's experience with formal liberalization of discovery for criminal defendants 
is documented in Langrock, Vermont's Experiment in Criminal Discovery, 53 A.B.A.J. 
732 (1967). Five years after the state supreme court held that the new discovery statute, 
Vt. Stat. Ann. tit. 12, §1262 (1961), "granted a right of unlimited discovery to a re- 
spondent in a criminal case," Vermont v. Mahoney, 122 Vt. 456, 176 A.2d 747 (1961), 
the author surveyed the reactions of all prosecutors, judges and leading defense attor- 
neys in the state. The survey disclosed that : 

Not a single prosecutor, judge or defense attorney Indicated that the likelihood 
(of trial) increased. The great majority stated that depositions decrease the like- 
lihood of trial. 

. . . There appears to be little doubt that the side effect of these statutes (increase 
of the open file policy) has also resulted in the reduction of the likelihood of trial 
in many cases. 
Id. at 734-35. 

Preliminary reports from the United States District Court for the Southern District 
of California also indicate that the use of the liberal A.B.A. criminal discovery standards 
on an experimental basis has Increased the number of guilty pleas "without sacrificing 
the interests of the government or the defendant." ABA Standards, Discovery and Pro- 
cedure Before Trial 9 (Approved Drait, 1970). 

8* See supra note 86. 

87 Id. at 2. 

88 Miranda v. Arizona, 384 U.S. 436 (1966) (right to counsel at custodial Interroga 
tion ) . 

88 United States v. Wade, 388 U.S. 218 (1967) (right to counsel at line-up). 
loo Coleman v. Alabama, 399 U.S. 1 (1969). 



156 

the grand jury's determination of probable cause and that he has a right to have 
the assistance of counsel with him in the grand jury room. 

Tlie implementation of these changes will, of course, drastically reduce the 
dominating influence of the prosecutor over the grand jury. But this is as it 
should be, since for too long indicting grand juries have been discredited as being 
mere rubber stamps of the district attorney.'" Those rights guaranteed at the 
discretionary preliminary hearing must in no way be abridged at the consti- 
tutionally mandated indictment proceeding. In order that the grand jury effec- 
tively perform the vital function of indei)endently determining probable cause, 
it is esential that an accused standing before it be afforded the procedural safe- 
guards inherent in our American system of criminal justice. 



[From the Congressional Record — Tuesday, May 4, 1976] 
Grand Jury Reform 

Mr. ABOUREZK. Mr. President, on April 8 Senators McGovern, Gravel, and 

1 introduced S. 3274, the first omnibus grand jury reform measure ever presented 
to this body. We introduced this bill because the grand jury, an institution that 
the founders of this country honored as a bulwark of liberty, has deteriorated 
into a ix)werful weapon which overzealous prosecutors can turn against our 
liberty. 

One of the more incredible instances of this perversion of the grand jury process 
has been the case of Ellen Grusse and Terri Turgeon, two Connecticut feminists 
who were forced to spend most of 1975 behind bars because they dared to exercise 
their constitutional rights in the grand jury chamber. The ordeal these two 
women went through raises fundamental questions about the Federal grand jury's 
role in our criminal justice system. 

These questions, I am happy to note, have been discussed thoroughly by author 
Richard Harris is a three part series in the New Yorker magazine. Mr. Harris" 
series, entitled "Annals of Law : Taking the Fifth," appeared in the April 5, 12 
and 19 issues of the New Yorker. It is a fascinating — and chilling — examination 
of how the modern grand jui-y can be manipulated to short-circuit the Bill of 
Rights. 

Mr. Harris' piece deserves a broad readership, and I am pleased to insert the 
first portion of it in the Record today. Parts II and III will appear over the next 

2 days. 

I ask unanimous consent that part I of Mr. Harris' New Yorker article be 
printed in the Record. 

There being no objection, the article was ordered to be printed in the Record, 
as follows : 

Taking the Fifth 

(By Richard Harris) 

The informer — the Judas figure — has been an odious creature in the popular 
mind throughout history. Even so, governments have always used his services, 
and one measure of freedom in any society is the extent to which the informer 
flourishes. In a tyranny, the informer contributes a basic necessity to the 
tyrant's survival— the people's fear of him — by demonstrating that any deviant 
political expression or behavior may be reported to the state, and then punished. 
In a democracy, on the other hand, the sovereignty of the people is supposed 
to encourage diversity of thought and allow open dissent and outright opposition 
to the public policies of those who are elected to run things temporarily. But even 
the most democratically conceived government comes to behave as if its own sur- 
vival, rather than the people's welfare, is the paramount good. This happens not 
because democracy inevitably degenerates into tyranny through repressive leader- 
ship at the top but because the government's ordinary day-to-day operations de- 
pend on entrenched "public servants" — the bureaucracy — who are always most 
concerned about protecting and expanding their own power. In time, bureaucrats 
transform government into a kind of private institution that exists for their sake, 
and this makes them deeply committed to preserving the system — their system — 
as it is. The deeper their commitment, the more alarmed they are likely to be by 

i*^ C/. supra note 60. 



157 

anything that seems to threaten the system ; and the more alarmed they become, 
the more likely they are to resort to extreme measures to meet the threat. One ex- 
treme measure that is being increasingly resorted to by government in the United 
States today is the official use of informers from the bottom to the top of our 
society. 

On the local level, most police departments of any size in this country novsr 
have "intelligence units," which use electronic surveillance and undercover 
agents, or informers, to spy on citizens who are suspected of unlawful activity 
(and, all too frequently, on citizens who are not engaged in anything illegal but 
are up to something that might subject them to political or economic blackmail ) . 
On the national level, recent revelations about the federal government's spying 
on its citizens on an immense scale — by such bureaucratic institutions as the 
Federal Bureau of Investigation, the Central Intelligence Agency, the Army, the 
Secret Service, the National Security Agency, the Internal Revenue Service, the 
Postal Service, the Drug Enforcement Administration, and the Customs Service — 
raise the question whether this undemocratic and often unlawful practice does 
not imperil the Republic more than did the perilous episode known as Watergate. 
While informers are of little use in controlling the kind of crime that Americans 
are most worried about — violent street crime — informers are the chief means of 
dealing with the kind of crime that the government is most worried about — 
group crime. The given group may be organized for the purpose of financial gain 
through crime, in the pattern of the Mafia, or it may be organized for political 
purposes, such as those proclaimed by the Communist Party, the Socialist Work- 
ers Party, the Black Panthers, the Symbionese Liberation Amiy or any of the 
various groups that loosely make up the New Left. It has often been said that 
half of the American Communist Party's ten thousand or so members are F.B.I. 
informers. That outfit is fairly easy to infiltrate, because it is a rigid bureaucratic 
structure of the sort that the F.B.I., itself a rigid bureaucratic structure, is 
familiar with. It has also often been said that the F.B.I, has failed to keep tabs on 
the activities of the New Left because the Bureau cannot comprehend that move- 
ment's character. The New Left is anything but bureaucratic, for the groups 
that comprise it are generally rather formless and inidisciplined. and their mem- 
bers drift in and out of its many factions and schisms. Nor do most of these 
collections of radicals have clearly formulated policies and programs, being more 
likely to rely on inflammatory rhetoric than on direct action as an outlet for their 
social discontent. Then, too, members of the New Left often live and dress and 
speak in ways that the upstanding informer would find repugnantly inimitable. 
Probably the clearest example of the bureaucratic inability to undei*stand these 
rebels and revolutionaries is to be found in the government's grossly dispropor- 
tionate reaction to the threat that they actually pose, given the size of the 
United States and the conservative character of its people. Those who tremble 
at the spectre of revolution here often cite the relatively few people who seized 
power in Russia during the First World War, but such a nervous comparison 
ignores the fact that Russian society had collapsed from internal corruption 
when it was taken over. Today, it would be argued, the principal danger from the 
far left in this country is that it has provided the far right with an excuse to 
crush it, in a manner that might be generally acceptable if the government goes 
on scaring the vpits out of everybody about a handful of impotent left-wing 
radicals. And although the right wing is also diffuse and weak, there is one power- 
ful group that could become its unifying ally at any time — the nation's thousands 
of police departments, which are becoming more and more paramilitary, well 
organized, interconnected, heavily armed, and political-minded. To an alarming 
extent, the only control over them is the control they maintain over themselves, 
and our personal freedom is largely at their sufferance. Yet the national govern- 
ment has ignored this peril altogether, and has concentrated its immense firepower 
on the few radical left-wing outfits still in business, like the "army" of Symbionese 
Liberators, who apparently never numbered more than a dozen people. 

While the S.L.A.'s kidnapping of Patricia Hearst was surely a sensational 
event, her supposed conversion to active terrorism made her, legally speaking, 
merely another accused outlaw. But the publicity surrounding the case, the 
inflamed political statements issued by her and her confederates, and their em- 
barrassing success in eluding thousands of pursuers apparently drove the F.B.I. 
to frenzied lengths to capture them. During the search for the Hearst woman, it 
was reported that the Bureau had questioned over twenty-seven thousand people 
about her in the San Francisco area alone. At the time, the Bureau, for all its 

7&-905— 76 11 



158 

efforts, hadn't found her, because it hadn't found anyone who would inform on 
her. (When it finally captured her, its success was due to an informer.) 

Having failed to turn up any dependable informers in the Hearst case in its 
early stages, the F.B.I, desperately resorted to a relatively new law-enforcement 
technique — the use of compliant federal grand juries to help the Bureau do the 
job that it couldn't do on its own. Although under law grand juries are supposed 
to determine only whether crimes have been committed and to indict those who 
seem to have committed them, and are not supposed to serve as investigative tools 
for prosecutors or law-enforcement agencies, nowadays grand juries are fre- 
quently, and improperly, used to amass evidence against people who have al- 
ready been indicted, to obtain leads on fugitives, or even to find missing persons 
like Jimmy Hofta. The F.B.I, merely persuades a cooperative United States At- 
torney to instruct the federal grand jury he in effect runs to subpoena relatives, 
friends, and acquaintances of the person being sought, and then the prosecutor 
forces these witnesses, under threat of imprisonment for contempt of court, to 
divulge whatever they may know about the fugitive — or, for that matter, about 
anything under the sun that the prosecutor (or the F.B.I.) feels like asking, 
however irrelevant and personal. In short, if the government cannot find in- 
formers it creates them. 

On September 23, 1970, three white men and two white women held up a 
branch of the State Street Bank & Trust Company, a Boston bank, and escaped 
with twenty-six thousand dollars in cash. As they were making their getaway, 
a policeman tried to stop them, and one of the bandits cut him do^Ti with a 
burst from a machine gun. The policeman died, leaving a widow and nine chil- 
dren, and the greatest manhunt in New England history got under way. The 
search was led by the F.B.I., which had jurisdiction over the crime, since the 
bank was insured by the federal government, and by that night one of the wanted 
men had been captured. He turned out to be an ex-convict, recently paroled from 
a Massachusetts prison, and he quickly informed on his four partners. The 
other men were also ex-convicts, and all three had been studying at Brandeis and 
Northeastern Universities, in Massachusetts, after completing a college-pre- 
paratory course in the same prison. The women subsequently indicted for the 
crime were both twenty-one years old, from respectable middle-class families, 
and one was a senior at Brandeis, while the other had graduated there the pre- 
vious June. According to the informer's story, the five bandits had formed a 
radical movement of their own called the Revolutionary Action Force to protest 
the American involvement in Vietnam and Cambodia, and had held up the bank 
to finance their movement, which, the informer told the F.B.I., was designed "to 
break down the military structure of the country." (One of the other men, who 
later described himself as commander-in-chief of the Revolutionary Action 
Force — East, said that they had held up the bank because the United States gov- 
ernment had ignored their ofiicial declaration of war against it.) 

The two remaining male fugitives were captured within a few days, but there 
was no sign of the two young women — Susan Edith Saxe and Katherine Ann 
Power, who soon became known simply as Saxe and Power — and they quickly 
made the F.B.I.'s "most wanted" list. Posters bearing their pictures and physical 
descriptions were circulated through F.B.I. oflSces, police stations, and post 
ofiices across the country, but for more than four years the authorities were 
unable to find a trace of them. Then, around the beginning of January, 1975, a 
young man in Lexington, Kentucky, happened to see one of the "wanted" posters. 
and thought that the fugitives closely resembled two women he had known as 
Lena Paley (Saxe) and May Kelly (Power), who had lived the previous sum- 
mer and fall in a lesbian community on the fringes of the University of Kentucky 
campus, in Lexington. He mentioned his suspicion to a woman who lived in the 
community, and she notified the F.B.I, field ofl3ce in Cincinnati. The fugitives' 
identity was quickly verified. 

If the F.B.I, had difficulty understanding the New Left, it had far greater 
difficulty understanding a related development known as women's liberation or 
the women's movement, and could understand notliing at all about an outgrowth 
of that movement — the increasing number of women wlio had become, or ad- 
mitted being, lesbians. In the Saxe-Power case, the Bureau's inability to cope 
with this particular pair of radical adversaries was illustrated at the top by its 
rear-tion to the news about the presence of Saxe and Power some months earlier 
in Lexington. The Bureau did not quietly send a few able women agents to the 
lesbian community in Lexington to see if they could unobstrusively pick up a 



159 

lead on tlie fugitives. Instead, it dispatched droves of male agents into the area, 
and thereby notified Saxe and Power that the government had picked up their 
trail and virtually suggested to them that they would do well to stop hanging 
around with lesbians while the F.B.I, wasted its time investigating lesbians. 
And, at the bottom, the F.B.I.'s attitude was illustrated by an agent in the field 
who interviewed a waitress in a Lexington restaurant that was frequented by 
lesbians ; when she told them that although she was not a lesbian she had once 
had a drink with one ot the fugitives, the agent said, "If I went out for a drink 
with a homosexual man who had no interest in women, I wouldn't know what to 
talk about.'" 

Saxe and Power were soon reported to have lived in several lesbian com- 
munities in the East, and the F.B.I, apparently ooncluded from this fact that 
such communities were havens for criminals of all sorts — especially left-wing 
political criminals. Homosexual acts are crimes in most jurisdictions iu this 
country, even if the men and women who are homosexual are not often pros- 
ecuted for it, and their way of life is sufficiently despised by the heterosexual 
public to make official persecution of them generally acceptable. In short, the 
Bureau was free to harass homosexuals as ruthlessly as it could a nest of drug 
traffickers or Reds. And harass them it did. F.B.I, ageuts began questioning 
scores of people in the gay community in Lexington, many of whom were sus- 
ceptible to pressure because they had hidden their private lives from their 
families and employers. Those who refused to talk discovered that F.B.I, agents 
went to their families, divulged their quarries' sexual habits, and forced the 
reluctant witnesses to talk — either because of the implicit threat that their 
employers would be the next to learn about them or because they were simply 
ervTshed by such revelations of their secret lives and caved in. Most of these 
members of the gay community had known Saxe and Power as Paley and Kelly, 
and some of them told the F.B.I, where the women had appai-ently gone after 
leaving Lexington— to Hartford, among other places. 

Before long, though word went around the gay community that no one was 
legally obliged to answer questions put by F.B.I, men or any other government 
officials and, in fact, that it could be extremely dangerous to talk to them at all. 
A little-known federal statute. Title 18, Section 1001 for the Federal Criminal 
Code, makes it a federal crime, punishable by up to five years in prison and a 
ten-thousand-dollar fine, for a citizen to lie to (uiy government agency. In legal 
terms, of course, what is a lie and what is not is up to a jury to decide. One 
may believe that one is telling the truth when being questioned, only to later 
recall events somewhat differently : if one then tells the revised version of those 
events before a grand jury or a court, one can be prosecuted for having lied 
in the first place. Even as seemingly small an untruth as telling a government 
official that one doesn't know any thing about what is being inquired into when 
one does know something about it is a ci-iminal act. And while the F.B.I, ordi- 
narily warns criminal suspects of their constitutional rights once they are 
taken into custody — mainly the rigiit not to speak and the right to have a lawyer 
present — agents do not warn non'=u«nects of any rights they have or of the 
danger of violating Section 1001 when they are (juestioned about someone 
else who is a criminal suspect. In other words, most f)f those who are questioned 
by the F.B.I, or by other government offic:',al<^ are not given tlip ordinary forms 
of due process of law, and some lawyers would argue that the onlv sensibly 
self-protective course for anyone, guilty or innocent of wrong-doing, is to refuse 
to speak to «???/ government nsr^nt unless a lawyer is present — at least, until 
Congress takes Section 1001 off the books. In any event, when inhabitnnts of 
the Lexington community iparned of their right to remain silent, more and more 
of them refused to say anything to the F.B.I. 

In midmorning on .January 24. 1075. two F.B.I, agents appeared at a silver- 
ware-manufacturing plant in Menden, Connecticut, and asked to see the execu- 
tive who worked there, ]\Trs. Alice Grusse. They were shown to her office, 
identified themselves and asked -inhere they could find her daughter Ellen. Mrs. 
Crusse was alarmed, and asked what fbey wanted to see her for. The older of 
the agents, a rather grpndfathprly sort of man. \\hr< r-ondu'^tod the interview, 
assured her that as far as they knew her daughter hadn't done anything wrong 
li]it that she might be able to tell them something about two women fugitives 
wh'> v.-ere wantf d for banlc r'^!;')prv .thI murder. 

?-''r'!. Crntise was frightened by this news. She bad upver, to hfr knowledge, 
•-■epn an F.B.T. man before. Also, she could not believe that her daughter, who 



160 

had been a quiet, generally obedient, though sometimes stubborn, child an<f 
seemed a quiet, orderly woman, could conceivably had had anything to do with 
bank robbers and murderers. Nervously, Mrs. Grusse a'Sked the agents to wait, 
and telephoned Ellen at her apartment in New Haven, where she had moved 
from Hartford a month earlier. Mrs. Grusse's voice was shaking as she told 
Ellen that two F.B.I, men were in her office and wanted to know where 
she lived, sa tJiat they could speak to her about some women fugitives. As it 
happened, her daughter — a slender woman of twenty-eight with curly, light- 
brown hair, a thin, rather childlike face, and an intense manner — ^had heard 
about the F.B.I. 's search for Saxe and Power, and had read in the press that 
a number of people in Lexington had as.serted their right to refuse to talk to 
the F.B.I. After a moment's hesitation, she told her mother that she didn't want 
to speak to the agents. Mrs. Grusse began to protest, saying that she had to talk 
to them, but Ellen quickly cut her short with the assurance that she didn't have 
to, and wouldn't, talk to them. Mrs. Grusse then asked if she should tell them 
where Ellen lived, and her daughter, after another pause, decided that it was 
Iier responsibility, not her mother's to handle the matter, and said yes. 

When Ellen Grusse hung up the telephone, she quickly described the call to 
the person she lived with — Marie Theresa Turgeon, a quietly pleasant, thirty- 
one-year-old woman with short dark hair, known to her friends as Terrl. Both 
of them recalled at the same moment that a few days earlier they had overheard 
a woman at the New Haven Women's Liberation Center asking about where 
she could get some legal advice on how to deal with a landlord who insisted that 
she get rid of her cat. The person in charge of the center's referral service had 
replied that a young woman named Diane Polan handled many legal problems 
^or women associated with the center. Now Turgeon telephoned her, explained 
what had happened in Meriden, and asked what she should do to avoid talking 
to the F.B.I, agents. Polan turned out to be legal assistant to a lawyer named 
Michael Avery, and she transferred the call to him. Avery informed Turgeon 
that she could not be compelled to talk to them, and said that if she wanted to 
discuss the situation further she could come to his office. (Avery, though only 
thirty years old, had already had a good bit of experience with the F.B.I, 
because since graduating from the Yale Law School he had represented such 
clients as the Black Panthers, the Communist Party of Connecticut, and various 
other radicals in the course of his criminal-law practice.) The two women ex- 
pected the F.B.I, men to drive directly over from Meriden, some twenty miles 
away, and wanted to be prepared for them, so they left for Avery's office at once. 
He was tied up, though, and it was a couple of hours before they got in to see 
him. "His advice was simply that we insist on having our lawyer present during 
any interview with the F.B.I.," Grusse said recently. "He didn't see the situation 
as being any problem, because in his experience whenever F.B.I, men hear some- 
one say 'lawyer' they just go away." 

Grusse and Turgeon got back home at a little before three o'clock that after- 
noon. Five minutes later, there was a knock at the door, and Turgeon went to 
answer it. Two men were waiting, and one of them — the elderly man who had 
spoken to Mrs. Grusse at her office — asked if she was Ellen Grusse. Turgeon 
introduced herself, and called Grusse. When she appeared, the older man de- 
manded, "Where have you been? We drove all the way here from Meriden and 
had to wait three hours for you." 

Assuming that F.B.I, agents probably spent much of their time waiting for 
people, Grusse ignored that point and said, "As a matter of fact, I want to 
talk to you about that. I went to see a lawyer, and his advice is that I not talk 
to you unless he is present." According to Grusse, the agents were clearly taken 
aback. "The older one literally gasped when I said 'lawyer,' " she said later. 
"He started in talking about bank robbers and murderers, and said I wasn't in 
any trouble, so why did I want to see a lawyer? I just handed him Avery's card 
and told him to set up an interview. He wanted to use my phone for that, but I 
said no, because I figured he was just trying to get into the apartment, and 
I wasn't going to allow that unless he had a warrant. Finally. I asked Terri to 
call Avery, but he wasn't at his office. Then the agent behaved as Avery had 
told us he would. First he tried the good-citizen approach : I wasn't suspected 
of any crime, so why wouldn't I, as a good citizen, help find the.^e bank robbers 
and murderers? When I still refused to talk to him, he began threatening me, 
saying that I could get in a lot of trouble for harboring fugitives. Before that, 
he had said that I wasn't in any trouble, but now it seemed that I was, or at 
least could be, then it seemed that he was trying to trap me into incriminating 



161 

myself. So I said, 'I prefer to get my legal advice from a lawyer, not the F.B.I.' 
After that, they left." 

The ageuts did not call Avery. Instead, tihey reported Grusse's refusal to 
cooperate with them to the agent in charge of the search for Saxe and Power 
in Connecticut, and he presented the matter to an Assistant United States 
Attorney, William Dow III, in New Haven, who presented it, in turn, before 
a federal grand jury sitting there. On .January 27th, three days after the two 
agents attempted to question Grusse, the grand jury issued subpoenas for both 
her and Turgeon, stating, ''You are hereby commanded to appear in the United 
Slates District Court for the District of Connecticut at P.O. Bldg. 141 Church 
Street — Rm. 208 in the City of New Haven on the 28th of January 1975 at 
10 :00 o'clock a.m. to testify before the Grand Jury." "WTien a U.S. marshal 
arrived at the Grusse- Turgeon apartment on the afternoon of the twenty- 
seventh to serve the subpoenas, Grusse was out, working at a temporary job she 
had recently got, so he could sei-ve only the subpoena for Turgeon. She telephoned 
Grusse and then Avery. 

He was surprised by the news, and unsettled by the legal problems it presented, 
because lie was unfamiliar with grand-jury procedures and had only a few hours 
to prepare some kind of plea to the District Court to quash or at least delay the 
subpoenas' order to gain time in which to prepare a legal defense for his clients. 
Avery got on the telephone at once to the National Lawyers Guild, in New York, 
a left-wing group he belonged to, which had prepared extensive research docu- 
ments on the governmenfs tactics in using grand juries to pursue suspects whom 
the F.B.I, couldn't find on its own. Late that afternoon, Grusse and Turgeon 
went to Avery's office for another conference, and during it Grusse thought about 
whether she should try to avoid being served the subpoena by fleeing. She soon 
gave up the idea. "I was convinced that the only reason they subpoenaed Terri 
was because she lived with me," Grusse said. "When the F.B.I came to talk to 
me. they didnt even know who she was. I decided that I couldn't let her go. 
through it alone. I had to support her. Besides, I knew that I would have to 
face the thing sooner or later." At six-thirty the next morning, she was awakened: 
by a loud pounding on the door of her apartment. She went to answer, and the- 
same marshal asked if she was Ellen Grusse. She yawned and said that she was,, 
and he handed her the subpoena commanding her to appear before the federal 
grand jury three and a half hours later, 

Ellen Grusse was born in Meriden, Connecticut, in June. 1946, and grew up 
there and in Southuigton. Connecticut. There were six children in the Grusse 
family, and although both parents worked — the father as a salesman and the 
mother as a private secretary — the family was often rather poorly off financially. 
In 1964, Ellen enrolled at the University of Connecticut at Storrs, but after a 
couple of years there she quit and moved to San Francisco, where she lived for 
three and a half years. "It was the time of the hippies and the flower children 
and the youth rebellion at Berkeley," she has said. "But I was very apathetic 
and never got involved in any of that. I wasn't interested in civil rights or the 
Vietnam war or the kids' fight against authority. I was very square and worked 
for outfits like U.S. Steel and an import-export firm, and I remained untouched 
by all the upheaval going on out on the West Coast at the time." In 1969, she 
came back East and settled in Hartford, where she got a job as a clerk with the 
Travelers Insurance Company. After a few months, she was promoted to tlie 
position of budget analyst, a fairly high post that paid a decent salary and gave 
ber a good bit of responsibility. But she was dissatisfied with her life, and decided 
■to go back to college, at night, to study psychology. After two years of work and 
study, she concluded that she should do one or the other and do it properly, so 
she arranged to work part time and to go to college full time. In December, i972, 
she graduated with a degree in psychology. 

"During my last year in college. I began to get interested in the women's 
movement," she said. "It was a big thing in college then. All the male professors 
were trying to be nonsexist, and the talk about women was incessant. Then, after 
I left college and moved back to Hartford. I met some women who called them- 
selves feminists. I was curious about what that meant, so I joined .several 
feminist groups." In the fall of 1973, Grusse went to work for a farmers' milk 
cooperative, and before long she became a computer programmer. Her boss, a 
young man wbom she got along with comfortably, was killed in an automobile 
accident, and his replacement was a much older man, "He was very stern and 
disagreeable and a gross sexist," Grusse recalled "He made terrible personal 
remarks to me, so I quit, I went on unemployment for a few months and worked 



162 

•at part-time jobs, when I couJd find them. But I spent most of my time studying 
the women's njovement, trying to find out what it was all about and where I 
iiiight fit in. Up to then, I had never fit in anyplace." 

Before long, Grusse became deeply absorbed by the movement. "It was some- 
thinii that I could identify with very strongly, in a way that I hadn't been able 
to witli the civil-rights movement or the anti-war movement," she explaned. 
"Those were basically political, and I'd never been interested in politics. I 
always got D in political science in school. But feminism was personal for me. 
When women talked about sexism. I could certainly identify with them, because 
I had been pushed around all my life — not always by men but by the human tug- 
of-war our social system creates. Ever since I was a teenager, I felt different. I 
Vasn't interested in dating or clothes or makeup. I felt there was something 
"the matter with me. But when I got involved in the movement, I met other women 
who had felt the same way once but no longer did, and I began to feel that maybe 
there wasn't anything wrong with me after all. I fit into the women's group very 
easily and naturally, and that was really good for me. I guess the biggest impact 
feminism has had on me began during a course I took in college called 'Women 
in Society.' The teacher was a woman and a Marxist. Her views — the economic 
and political reasons behind what had happened to women over the centuries — 
had never occurred to me. She presented an analysis that really made me think 
hard. My position had been that we should fight for equal rights for women 
within the system. But then she opened this door to a wider view. I didn't go 
through that door, though, because at the time I couldn't accept her analysis. 
Then, after I graduated, there was a iNIarxist-feminist rap at Storrs, and I met 
some women in Hartford who were going, so I went along. The result was that I 
got involved in that approach for about a year, mostly from just studying and 
thinking about it on my own. During that time. I met a lot of women with 
widely differin.fr opinions about what feminism means. 

At one end were those who feel that it means equal rights and equal pay for 
women — that is, equality with men. At the opposite end were the women who call 
themselves lesbian separatists and talk about building a lesbian nation. In 
between these extremes were women who see the basic structure of society as the 
prolilem and argue that society will allow some women to i>econ)p equal with men 
but only at the cost of treading on other women to get that equality. To their way 
of thinking, the whole system has to be torn up and completely changed. Anyway, 
scattered between the equal-pay, equal-rights feminists and the lesbian sepa- 
ratists were Marxist feminists. Socialist feminists, lesbian feminists, and even 
feminist feminists. Some were for reform, some were for revolution. For myself, 
I fear even the word 'revolution.' It suggests violence, and any kind of violence 
freaks me right out." 

Grusse finally settled for a Socialist-feminist group in Hartford, and as she 
attended its consciousness-raising sessions she found many of her lifelong assump- 
tions al:)0Ut herself gradually changing. "At first, T talked about my background, 
and T insisted that I hadn't been hurt by it," slie said. "I had been given a decent 
education, and had built the start of a decent career. There had been no pressure 
from my family to get married. Overall, I didn't see myself as being oppressed, 
■and I believed I had a worthwhile future. But as we talked in the group, I began 
to see that oppression had been there all along, and was still there. I saw it in my 
personal relation sliips with men, and then I hesan to see it everywhere in our 
institTitions — in the so-called power structure. While I was in the women's group 
in Hartford, we mostly just sat around and talked. We wanted to act, not just to 
affect our own lives but to reach outside ourselves and bring about social chansce. 
But we didn't know where to start. I had deep personal fears about confronting 
anything or anybody. During the late sixties and early seventies, I was to the 
right of most of my friends, who were generally liberal. My up-b]1nging had been 
very conservative, and I agreed with the i)eople who said things like 'Sure, 
fiocialism may be all right, but how about the individual?' 'I'd rather have an 
imperfect capitalist society with some freedom than an imperfect Socialist society 
without freedom.' When I met women in the movement who took politics very 
seriously and who sincerely wanted to change society, I saw that it was a very 
risky business. It meant that I would have to reject my family and all that I had 
been taught to believe in." 

Grusse put off making any decision on the choice before her, and tried to 
translate her feminist beliefs into action by talking to the women she worked 
•with, most of whom, she became couAinepd, were treated badly by the men they 
worked for, and all of whom seemed to her to be manipulated and underpaid by 



163 

their male employers. In time, though, Grusse realized that she, too, was abusing 
these women. "I used to think of men as being more perfect than women," she said. 
"All positives and privileges were identified with men in my mind. So I thought 
I had to depend on men to have identity. I got involved with a man who had an 
important job at one place where I worked, and I became very powerful there 
because of my association with him. When I suddenly realLzed what I was doing, 
I hated myself. So I left the man and the job. Using that man to get power, and 
then abusing the women who worked with and under me to show my power, was 
the worst kind of betrayal of feminism, because its most vital part is the bond 
between women. We really are all sisters." 

In the fall of 1974, after Grusse quit that job, there was an anti-abortion, or 
"pro-life," convention in Hartford, and she and two other women in her group 
felt that they couldn't let it go by without opposing it in some public manner. 
Finally, they decided to hold a pro-abortion couuterdemonstration at the con- 
vention. "That was really a terrifying pi'ospect for me." Grusse recalled. ''Mak- 
ing a public statement was frightening. Even doing nothing more than carrying a 
placard around was too much for me. But we organized a group of fifteen or 
twenty people, mostly women from our group and a couple of men, who came and 
carried placards and handed out leaflets at the convention hotel. Tlie anti- 
abortion people came up to us and started to argue. They were very angry and 
abusive, and we tried to avoid a confrontation that would lead to violence. In 
the end, it was just a verbal confrontation. But I didn't participate in it. I was 
too scared to say anything. Finally, the anti-abortion people got the hotel man- 
agement to call the police, who came and made us leave because we didn't have a 
permit. It was a Sunday, so we went over to St. Joseph's Cathedral and handed 
pro-abortion leaflets to the people coming out. I was brought up as a Catholic, 
and that act scared me, too. When it was all over, I realized that my efforts had 
been futile, and I knew that I had to plug in to something more lasting. But I 
still didn't know what or how. I didn't have any thought of doing anything 
political — the pro-abortion demonstration was the extent of my political activity. 
When the government came after me that day, I vvas still being tugged between 
where I was coming from and where I was going. As soon as I saw those F.B.I, 
men, I knew I had to make a commitment." 

Terri Turgeon was bom in June, 1943, in Lewiston, Maine where her father 
worked in a textile mill until the business moved to the South after the Second 
World War. Then he became a welder and took his family — his wife and five 
children — to Plainville, Connecticut, and after a few years there on to Southing- 
ton, Connecticut. When Terri finished high school, she wont to work as a clerk in 
the local Grant's department store and stayed there for two and a half years. 
From time to time, a travelling photographer who took baby pictures turned up 
at Grant's and she decided that she would like such a job. She finally got one, 
and spent a couple of years traveling around New England taking baby pictures 
in places like Grant's. 

By the end of 1967. she was tired of moving around so much, and decided to 
settle down in Hartford, where she found work as a clerk at the Aetna Life In- 
surance Company. She stayed there for seven years, and ended up as a senior 
underwriter, one of the few women to attain such a position in that company. 
"By being in the right place at the right time and not being offensive to anyone, 
I finally got promoted to a job that had almost always been held by men," Turgeon 
.said not long ago. "I could do the work, and did it very well — as well as any 
of the men there. I worked in a department with eleven men and thirty-eight 
other women who were all secretaries and clerks. The man in charge of the de- 
partment was linbelievable. He kept making statements to the other wi^men about 
my being in this high position and having privileges and responsibilities in order 
to suggest to the other women what they could do if they worked hard. This 
approach was used throughout the company then to make it look as if there 
were opportunities for women when there weren't. I had to put pressure on those 
women to make them work, and I knew full well that they couldn't go on 
to higher jobs in the company no matter how hard they worked. So I was 
forced to act like a man — except that I had to do a lot more work than the men 
to keep my job." 

In 1974, Turgeon began to get interested in the women's movement. "I hap- 
pened to meet some women who described themselves as feminists and explained 
to me what that meant to them." she said. "I really wanted to get involved in 
the movement. It would give me some dignity, I thought. These women were 
finally a disappointment to me personally, but I learned a lot from them. Ellen 



164 

and I had met a couple of times in women's groups, and when she held the pro- 
abortion demonstration I joined in. I'd had strong feelings about abortion for 
a long time — mostly about back-alley butchers — but I'd never done anything 
about it. In fact, I'd never done anything about anything. The demonstration 
was my first political act. And I was scared. I've always been very afraid of 
authority. If I got a speeding ticket, I'd thank the cop for giving it to me. Any- 
way, I told my mother about how I wanted to get involved in these things, and 
she was worried I'd get sent to jail for it. I thought there was a possibility of 
my going to jail, like in the anti-war and civil-riglits protests but only for over- 
night or a day at the most. Still, I was scared. When I went along ■with Ellen 
to St. Joseph's Cathedral was when I was most afraid. I was brought up as a 
Catholic, and whenever my family drove past a Catholic church in our car my 
mother would always tell us to bow our heads." 

By the fall of 19'74, Turgeon had become increasingly unhappy about her job 
and dissatisfied with her life in general, and she decided to study the women's 
movement to see if it might be for her the emotional and social haven that it was 
for some other women. "I wanted to know what women had been through, and 
to really study the movement in and out, so it seemed that the best way to start 
was by getting out of the job where I was the token wornan, the untrue example," 
she said. "I quit, and since then I've learned a lot about feminism and about 
myself. Feminism has given me a new sense of my dignity as an individual. It 
has let me accept myself as a person, and now I know that it's O.K. to be who 
I am. It has put me in touch with my personal strengths, and allows me to call 
them strengths for the first time. It provides a framework in which I can say 
'I am a woman' without feeling there is somethuig basically wrong with me. It's 
allowed me to express some weaknesses and not be completely ashamed of them, 
as I would have been before. It's helped me know that I can turn to someone 
else and expect understanding. It's allowed me to trust others, and to make my- 
self vulnerable and not suffer for it." 

After meeting in the fall of 1974, Turgeon and Grusse continued to see each 
other. They soon found the kind of compani(mship that neither of them had 
knoAvn before, and decided to live together. Hartford had come to seem dull to 
them, the women's movement there was weak and the city reminded them of the 
unhappy period before they had found each other. They looked around for a more 
congenial place to live and settled on New Haven, partly because Yale gave that 
city a feeling of greater vitality and freedom but largely because of the New 
Haven "women's community," which consisted of about a hundred militant 
feminists. It was not a community in a geographical sense, since its members were 
scattered through town but they had a common bond — women's liberation, which 
is the most fundamental and even revolutionary, movement going on in the 
United States today. 

In the view of the New Haven community's members (and in the view of 
those in similar communities around the country), the F.B.I, was using the 
Saxe-Power search not merely to find two fugitives from justice but to investigate 
this new radical movement. "At some point during the F.B.I.'s search for Saxe 
and Power, the Bureau found somebody who talked about the radical femini.st 
'network,' as the F.B.I, calls it," Avery has said. "Anyway, when the men at the 
top of the F.B.I, learned more about the movement^ — just how radical and deter- 
mined these women are— they must have said. 'Jesus, we didn't know this was 
going on !' Then they began using the Saxe-Power case to learn more. While they 
claim that this isn't a political case at all, that's obviously nonsense. There are 
a lot of bank robbers and murderers loose, but the F.B.I, doesn't go to these 
extraordinary lengths to catch them. Of course, the government's idea of who 
is a threat to society has been weird all along. Take its attempts to break up 
the Socialist Workers Party over the past twenty years. A glance at that party's 
history shows that, as decent and progressive as it has been, it was always 
totally ineffectual politically. But the F.B.I, spent tens of thousands of man-hours 
keeping it under surveillance, getting its members fired from their jobs, rifling 
its offices, opening and reading its members' mail. While the government has 
never understood the New I^eft, it has no comprehension at all of things like 
consciousness-raising — basically, an attempt to change relationships between 
people — -which grew out of the New Left by way of feminism. The government 
seems to view any sizable group of people who don't want to live the way the 
ordinary government official thinks people should like as conspirators and revo- 
lutionaries. Anyway, when the F.B.I, learned that a couple of fugitives had 
hidden out in lesbian communities it went after the lesbians under the pretext 



165 

to looking for the fugitives. Naturally, F.B.I, men couldn't bear anyone who was 
that different. And when they saw that a lot of people with very different ideas 
and life styles were collected together in these feminist communities, they con- 
cluded, as they always have, that there must be a conspiracy to bring down 
the government. Actually, the women's movement is truly revolutionary, in a 
way that none of the movements of the nineteen-sixties were, because in time 
this movement is bound to change our political system and our society radically. 
Even so, there is nothing remotely illegal about feminism, so the government 
has no right to snoop around in it. But the government was badly frightened by 
all the social turmoil of the past decade, and is now determined to smash people 
who look dangerous before they can do any harm. That's why we have to oppose 
the government at every step of the way. If we don't it will smash all of us by 
destroying the freedom of the individual to be an individual. That's the con- 
spiracy this country faces today." 

During the Presidency of Richard Nixon, the Administration saw, or pretended 
to see, conspirators everywhere. To impose a tyrannical conformity on the 
nation, the Administration tried to destroy its political opponents by charging 
them with crimes, and conspiracy to commit crimes, against the state, and it 
prosecuted scores of people who had done little more than raise their voices in 
protest against the government's illicit use of its power. While the government 
lost almost every case that it took to court, it doubtless intimidated thousands 
of people who feared the same treatment if they spoke out. That result was as 
useful to the Administration as convictions and long prison sentences would 
have been, for it was conformity — subservience, in the end — that Nixon was after, 
so that he could do as he pleased with the nation. Although Nixon and his top 
confederates were run out of office, most of the hundreds of ofl5cials who carried 
out their orders — particularly, agents of the F.B.I., members of United States 
Attorney's offices around the country, and lawyers in the Department of Justice — 
remain at their posts. For instance, Guy Goodwin, who headed the special- 
litigation section of the Internal Security Division of the Justice Department 
under Nixon and directed the prosecutions of the Harrisburg Seven, the Gaines- 
ville Eight, the Camden Twenty-eight, and numerous other political cases, is 
still at work in the Department. And most of the U.S. Attorneys who tried such 
cases are also still in office. The methods used during the late sixties and early 
seventies to silence the opposition and the methods used in the searches for 
Patricia Hearst or Susan Saxe and Katherine Power are almost identical. The 
government claims that in its investigation of the more militant parts of the 
women's movement it has been solely concerned about a different kind of con- 
spiracy — ^a conspiracy to conceal the whereabouts of two women charged with 
bank robbery and murder. Government spokesmen also contend that the women's 
movement has used the F.B.I.'s investigation to create a smoke screen to conceal 
its own divisions and shortcomings, as well as to get publicity and converts. 
And, finally, the government has stated that whatever it has done has been 
entirely legal, and that it has merely used, and will go on using, all the lawful 
means available to it in order to bring such fugitives to justice. If the only way 
of doing that is by questioning people about their personal lives, the govern- 
ment says, then it will question them, under the established legal principle that 
the state has a right to every person's evidence. 

The primary question in the case — whether Turgeon and Grusse knew anything 
about Saxe and Power that might have helped the government in its search for 
them — can be answered only by the four women, perhaps their lawyers, and pos- 
sibly some close friends. To the government, it has seemed that Grusse and 
Turgeon must have known something that could have been useful to the authori- 
ties. Otherwise, it has been said, the two women would undoubtedly have talked 
freely and demonstrated that they know nothing of any significance. This con- 
clusion ignores a number of possibilities. It may seem unlikely that Grusse and 
Turgeon had not met Saxe and Power (at least as Paley and Kelly) or known 
others who knew them ; if they knew nothing, the two women could simply have 
answered no to every question asl^ed them before a grand jury and gone on their 
way. But the kind of knowledge they may have had could go far to explain their 
silence. 

For instance, they may have unwittingly committed some kind of offense that 
they only later learned was a crime — say, that they had known someone who had 
put up two strange women for a night without knowing they were fugitives, that 
Grusse and Turgeon had subsequently learned who the strangers were and what 



166 

they were charged with and had not informed the police about the incident, as 
required by law. Or they may not have known the fugitives at all but simply 
knew someone else who knew them, who had nothing of value of reveal, and who 
would be irreparably damaged in some way by being dragged into the case; 
in that event, the only way for the two women to avoid going to prison, even 
though they were wholly innocent, would have been to betray someone else who 
was also innocent. Since grand-jury proceedings are not supposed to be made 
public — except that witnesses are free to report what was asked them and what 
they answered — if Grusse and Turgeou were to testify about anything, however 
unimportant, it might appear to outsiders that they had given the government in- 
formation that ultimately led to the fugitives' capture. In other words, the only 
way for Grusse and Turgeon to prove that they hadn't become informers would be 
to go to prison to show that they had remained silent. Further, if they testified 
in seccret before the grand jury about anything of the slightest import, no 
matter how innocent they were personally of any wrongdoing, they could later be 
compelled, under another grant of immunity, to testify in public at a trial of 
Saxe, Power, or anyone who had been culpably involved with them. Given the 
intense loyalty in the women's movement, any act of this kind would surely have 
closed all doors to the sanctuary that Grusse and Turgeon had found at last. 
Or they may have known the fugutives only under their aliases, may have known 
nothing about their past or present whereabouts, and may have felt that they 
had to resist official intrusion into their private lives, since it could produce 
nothing of use to the government and migh_t seem like a betrayal of two friends 
who, as far as Grusse and Turgeon knew at the time, were simply a couple of 
innocent women. Finally, of course, the two women may have known the fugi- 
tives by their true identity, may have known what they were accused of, and 
may have helped hide them. In that case, they would have been guilty of com- 
mitting serious crimes, and could scarcely be expected to lie informers against 
themselves. One of the most anicent principles of Anglo-Saxon law is "Nemo 
tenetur prodcre scipsum." or "No man is bound to betray himself," — a principle 
that is embodied in the Fifth Amendment to the Constitution, which states, among 
other things, that no one "shall be compelled in any criminal case to be a witness 
against himself." 

For their own part, Turgeon and Grusse would say only that they had done 
nothing wrong. Apparently, the government believed that this claim was false — 
at the outset, anyway — for Dow, the Assistant U.S. Attorney in charge of the 
case, told Avery around the time the women were subpoenaed that he felt obliged, 
"in all fairness," to warn him that his clients were "targets" of the grand jury : 
in other words, they were likely to be prosecuted, although he would not say for 
what crime. Avery passed this news on to the women, and explained to them 
that the only way they could legally refuse to testify would be by pleading their 
Fifth Amendment right not to speak on the ground that whatever they said 
might incriminate them. (Assertion of that right seems to most laymen, to all too 
many lawyers, and even to some judges to be tantamount to an admission of 
criminal guilt of some kind, though there are often many reasons an innocent 
person might wish to remain silent. ) But even a Fifth Amendment plea would not 
secure their right of silence for long. Avery went on, because the Department 
of Justice could ask the court to grant them immunity against any future pros- 
ecution based on their testimony. 

Once a grant of immunity was offered them and the court ordered them to 
answer all questions asked by the prosecutor in the presence of the grand jury, 
he explained, their refusal to answer would amount to contempt of court. More- 
over, it was up to the government to decide whether to prosecute for civil or 
criminal contempt. And under the law civil contempt may be more harshly pun- 
ished than criminal contempt, for any criminal-contempt cases where the govern- 
ment asks for a sentence of more than six months defendants have a right to 
trial by jury, whereas in civil-contempt cases recalcitrant witnesses can be 
gent off to prison immediately, with no more than a judge's order, and can be 
kept locked up until either they agree to talk or the term of the grand jury expires. 
In the present case, the grand-jury term was to expire on April 1st — slightly 
more than two months away. Moreover, if the women refused to cooperate with 
the government and were found in contempt and imprisoned, once they were 
released they could lie again subpoenaed tn appear before a newly impanelled 
grand jury, and if they again refused to talk they could be sent back to nr'son 
for the life of the new grand jury — ordinarily eighteen months. The civil-con- 
tempt provision under current law is so unclear that conceivably the courts 



167 

could rule that recalcitrant witnesses must spend the rest of their lives in prison 
without ever having been chai-ged, tried, or convicted of a crime. But Avery's 
interpretation of the law had convinced him that his clients couldn't be impri- 
soned for more than eighteen months altogether no matter how many grand juries 
they were granted immunity and refused to testify, would subpoena them again 
Dow had warned him he meant to have them cited for contempt and jailed if 
they were granted immunity and refused to testify, would subpoena them again 
to appear before the succeeding grand jury, and would send them back to jail once 
more. 

Grusse and Turgeou decided to take their chances. "We have an absolute moral 
belief that the investigation the government is engaged in will violate our basic 
constitutional and human rights," they stated in a press release that they put 
out shortly afterward to explain their reasons for refusing to testify. "We believe 
that the right to privacy and confidentiality in human relationships goes beyond 
those traditionally recognized confidences such as attorney-client, spouse-to- 
spouse, doctor-patient, etc. We believe that every person has the right to keep her 
affairs private without interventions by government agents. . . . Although we fear 
the complete loss of freedom and dignity that [imprisonment] holds for us, we 
feel strongly that it is imperative to insist on our fundamental rights and to halt 
the chain of invasions that is perpetuated by coopei'ation with government abuse 
of power." As absolute as their moral belief was and as just as their cause may 
have seemed to them, they didn't have a scrap of law on their side. 

Avery and Polan worked all afternoon and evening and far into the night 
preparing three motions on their clients' behalf. The first asked the presiding 
judge to quash the subpoenas. The second asked the judge to delay the witnesses' 
appearance before the grand jury in order to give them time to prepare a legal 
position on the issue. And the third asked the judge to instruct the grand jury 
that it "is not subservient to the United States Attorney but has its own independ- 
ent responsibility for calling witnesses and issuing indictments ; that witnesses 
have an absolute right to assert the Fifth Amendment prior to any grant of im- 
munity to compel testimony, and the grand jurors are to dravv' no inference from 
the exercise of Fifth Amendment rights ; that witnesses have the right to leave 
the room to consult with their attorneys, and the grand jurors are to draw no in- 
ference from such actions: [and] that the grand jury can decline to question a 
recalcitrant witness, and thereby not compel her to choose between violation of 
her conscience by testifying or sentence to jail." 

Avery completed the motions just before Grusse and Turgeon arrived at nine 
o'clock on the morning of January 2Sth at his office — a small, plainly furnished 
suite of rooms that he shared with two partners in an old building a few blocks 
from the federal court. They walked with Avery to the post office — where the Dis- 
trict Court, the U.S. Attorney's office, and the grand jury room were situated, on 
the second floor. He asked the women to wait in the anteroom of the U.S. At- 
torney's office while he had a talk with Dow to see if he had changed his mind 
abou*" demanding their testimony. As Avery la^er stated in court, when he en- 
tered Dow's office he found him with David Miller, the F.B.I, agent in charge of 
the Saxe-Power investigation in Connecticut. Dow immediately told Avery that 
he had been wro?ig the day before when he said that Grusse and Turgeon were 
targets of the grand-jury investigation, and added, "I have had a further con- 
versation with the F.E.I. agent, and all (he) really wanted to do is ta'k to these 
w'^.men, and if they will talk to Mr. Miller — and you can even be present — that 
will be the end of the matter." Avery replied that his clients refused to talk to 
any government official abotit their personal lives, and rejected the offer. 

District Court .Tudge .Ton O. Xewman (who had served for five years as U.S. 
Attorney in Hartford before being appointed to the federal bench by President 
Nixon in 1972) agreed to hear Avery's motions and oral arguments from both 
sides on the issues raised. During the hearing. .Tudge Newman contemptuously 
dismissed Avery's arguments, formally denied his motions, and ordered the wit- 
nesses to be ready to testify before the grand jury at 2 p.m. It was then nearly 
twelve-thirty, and Avery pointed out that he had a trial before Judge Newman 
slarting pt two o'clock, and could not be both in court and outr-ide the grand-.inry 
room to advise his clients at the same time. The Judge brushed aside that argu- 
ment, too. and ordered the trial to commence as scheduled and Grusse and Tur- 
geon to be in the U.S. Attorney's office at two o'clock. 

The only local lawyer Avery could think of to take his place outside the grand- 
jurv room was a young man by the name of David R'^if^en, who was also a graduate 
of Yale Law School and had offices in Avery's building. As it turned out, Rosen 



168 

was off on business in Bridgeport, but when Avery finally tracked him down by 
telephone Rosen said he would drive back to New Haven immediately. He ar- 
rived at Avery's office at one-forty-five, which gave Avery only fifteen minutes in 
which to brief him on the case during the walk to the post office. "That is what 
we rail 'due process of law,' " Avery said later. At two o'clock, Grusse, Turgeon, 
and Rosen were waiting outside the grand-jury room, in a marble-flowered hall- 
way around the corner from the courtroom of the federal District Court. 

Grusse was summoned before the grand jury first, and she entered the cham- 
ber — a large room with a T-shaped table — to find Dow seated at the head of the T 
and the grand jurors, twenty-three, as required by federal law, seated to his right 
and left and down both sides of the leg of the T, as well as in chairs along two 
walls of the room. Grusse was directed to the witness chair, at the foot of the T, 
next to a court stenotypist. "The atmosphere was very intimidating," Grusse said 
afterward. "The room was crowded and stuffy, and when I sat down and saw the 
stenotypist beside me ready to take down my every word and all those grand 
jurors staring at me I was scared — very scared. I had be'en able to build up some 
confidence and strength before I went in there, but the whole thing was so terri- 
fying that I lost most of my nerve right away." To regain control of herself, 
Grusse began concenti-ating on Rosen's advice. He had- warned the two women 
that if they answered any questions besides what their names were, they might 
thereby waive their Fifth Amendment right and have to answer all questions 
asked them. He had suggested that they not refuse to answer each question on 
Fifth Amendment grounds as soon as it was asked but that they write down each 
question, appear to hesitate over whether or not they should answer it, and then 
ask if they might go outside to confer with tlieir lawyer. By this means, he ex- 
plained, they would have a chance to learn what Dow's purpose and the scope of 
the grand jury's inquiry were. If they answered all the questions by immediately 
"taking the Fifth," Rosen warned them, Dow would probably stop after the second 
or third question and excuse them. 

Grusse's voice shook when she gave her name, and then Dow asked his first 
question — her address. Grusse wrote down tlie question and asked if she could 
consult her lawyer l)efore answering. Dow nodded, almost imperceptibly, to the 
foreman of the grand jury, who gave the permission, and Grusse rose and walked 
outside to where Rosen and Turgeon were waiting. She handed Rosen the piece of 
paper she had written the question on ; he glanced at it and handed her another 
piece of paper, on which he had written the answer. She looked at it distractedly 
and said, "God, it's terrible in there — terrible." Turgeon put an arm around 
Grusse's shoulder and murmured a few words of encouragement to her. 

Returning to the gi-and-jury room, Gru.sse sat down and read the answer. Rosen 
bad prepared : "I decline to answer the question. I have been advised by my law- 
yer that if I answer tliis question I will have waived my right to refuse to answer 
ither questions. I am basing my refusal to answer on ray right not to give evidence 
'Which might tend to incriminate myself, which right is secured to me by the Fifth 
Amendment to the Constitution of the United States." There w^as a long silence, 
during which Dow and most of the grand jurors stared at her. She tried to return 
their looks firmly, but her courage failed her. and she looked down at the ta])le. 
The silence — especially the silence of the stenotype machine, above which Grusse 
could see the court reporter's fi.ngers poised — was nearly unendurable, and slie 
gulped in relief when Dow finally went on to his next question : whether she knew 
Fusan Edith Saxe, l)y name or alias. Again she went outside, and came back to 
give the same answer. 

She was then asked the same question about Kafherine Ann Power, and went 
throusrh the same procedure. Dow asked her to identify photographs of the fugi- 
tives, which she declined to do. Then he asked whether she had ever met various 
women at a certain address in Hartford — women whom he identified only by their 
first names — and she again took the Fifth. Finally. Dow had a brief whispered 
conversation with the foreman, who nodded and then dismissed the witness. Tur- 
geon was asked fewer questions, and was released after spending a dozen minutes 
in and out of the hearing room. 

In the end. Rosen and Avery concluded that the questions asked the two women 
were based on nothing more than suspicion — especially since Dow cited only the 
first names of women the witn.sses may have been associated wi^^h — and that the 
grand jury was being improperly used as an investigative body. Even so. bad 
either witness answered any of the questions incorrectly she ronld have been 
prosecuted for perjury. And had she answered in the affirmative the key question 
put to her— whether she knew Saxe and Power — the next nnestion undoubtedlv 
would hay^ been whether she knew that they were wanted for bank robbery and 



169 

murder; in answering that, she might have implicated herself and admitted 
that she had committed misprision of felony in not notifying the police. Of course, 
many ordinary citizens are probably unaware of the law on misprision or of 
various other obscure laws that can be used against them when they are. as 
far as they know, innocent of any crime. But since grand juries are not obliged 
to inform witnesses what the inquiry under way consists of and whether or not 
the witness is a suspect and subject to indictment, even the most giiiltless person 
who is called before a grand jury may run afoul of the law by failing to claim 
the Fifth Amendment right to remain silent. The legal principle stating that 
ignorance of the law is no excuse may be essential to the support of our criuiinal- 
law system, for without it anyone could plead that he hadn't known a given act 
was legally a crime and get off. But ignorance of the law clearly is an excuse in 
many circumstances, because no one can know the millions of laws on the books 
in this country, and if one is denied the right to have a lawyer present, then one 
is intentionally being kept ignorant of the law and afterward is subject to its 
penalties. 

Afterward, Avery and Rosen (who remained in the case as co-counsel from 
this point on) warned Grusse and Turgeon that Dow would probably ask the 
Department of Justice to request immunity against prosecution for the two 
women in exchange for their testimony and would recall them before the grand 
jury. Under the so-called use-immunity law — enacted by Congress during the 
Nixon Administration years and upheld soon afterward by the Burger Court — 
once prospective witnesses are given immunity they can't be prosecuted for any- 
thing they say under oath, except for perjury if they are subsequently shown 
to have lied, but they can still be prosecuted for the crimes they are questioned 
about, as long as the prosecution is wholly based on evidence obtained independ- 
ently of their testimony. One flaw in the new use-immunity law, Avery explained, 
is that an unscrupulous prosecutor can easily make it appear that his evidence 
was uncovered independently of a witness's testimony. And a far more pernicious 
flaw exists when two witnesses are involved, as in the case at hand : while 
Grusse's testimony could not be used to incriminate Grusse and Turgeon's testi- 
mony could not be used to incriminate Turgeon, Grusse's testimony could l)e used 
to incriminate Turgeon and Turgeon's testimony could be used to incriminate 
Grusse — that is, if either had done anything incriminating to begin with. In 
other words, the lawyers explained, if the government granted the witnesses use 
immunity, their ordeal had only begun. 

Late that afternoon, Turgeon and Grusse returned to their apartment in a state 
of exhaustion, bewilderment, and fear. "Everything was up in the air," Turgeon 
said later. "We had no idea what would happen or when it would happen. We 
didn't know whether the threats of immunity and contempt and jail were real 
or not. We didn't know anything, and had even thought we might be arrested that 
very day when we refused to talk. And that night, after our appearance before 
the grand jury, there was real terror for us. We thought maybe they'd come and 
drag us out of bed and throw us in jail. We were terrified. We called the lawyers, 
and they assured us that the government couldn't do anything like that, and 
promised us that they would protect our rights at each step of the way. But we 
didn't know what to believe. We couldn't see that we had any rights, and the 
government seemed so vicious and relentless that we thought it could do any- 
thing. That was the real horror — not knowing, trying to live hour by hour, day 
by day, and constantly fearing what would finally come." 

The two women got little sleep that night, Imt by the next morning they felt 
somewhat more relaxed. They rose early, and Grusse went to peek through the 
curtains to see if anyone was outside guarding the place or keeping it under 
surveillance. There was no sign of anyone. They had breakfast, and they began 
discussing a suggestion that Avery had made the day before — that they create 
publicity about their case in order to deter the government from behaving as 
capriciously as it might if no one was aware of the case, and to gain public support 
and perhaps some financial help. "We were very worried about what it would 
do to our personal lives if we went public," Grusse said. "We are both very private 
people. For myself, just having my name known out there really frightens me. 
But we wanted people to understand what was happening to us and what the 
issues were — the people in the women's community here first and then people 
throughout the country. It was a hard decision to make. Finally, we decided we 
had to sacrifice ourselves in order to save ourselves and maybe help some others.'' 

Once the two women decided to make tlieir case known to the general public, 
they agreed to a proposal made by some of their supporters in the women's com- 
munity — that a Grand Jury Defense Committee be set up to generate the pub- 



170 

licity they sought, to get people to attend their court appearances as a means of 
discouraging the kind of highhanded oflScial behavior that often characterizes 
unpublished court proceedings, to educate local citi:iens about their rights, and 
to i-aise funds for the defense. In line with this overall strategy, Grusse and Tur- 
geon put out their press release, which recounted the story of the F.B.I.'s search 
for Saxe and Power, presented the basic reasons for not talking to the F.B.I, 
about personal matters, accused the government of illegally invading their 
privacy and improperly using the grand jury as an investigative tool, and con- 
cluded : 

What makes us most angry is that we have been forced into a position of play- 
ing the Man's games, the rules of which deny us our ba.sic rights, dignity, and 
responsibility and control over our own lives. In reality, it is not very different 
from the everyday life of every woman living with the fear of rape, brutalization 
l)y men, detining herself through her "man," etc. We feel that giving information 
to the F.B.I, gives in to the power that they hold over us, a power that perpetu- 
ates women's position and the position of all oppressed peoples. 

A couple of days later. Grusse and Turgeon distributed the release among mem- 
bers of the New Haven community and the press. "Before long, we were appalled 
by how public we had become," Grusse said later. "It had never occurred to us 
Vi'hen we decided to go public that it would become known we were lesbians. That 
clearly had nothing to do with the case, and we felt tliat it v,'as the worst imagin- 
able invasion of our privacy. But within a matter of days everyone knew about 
us. Our lives were spread out in the papers, over radio, on television — every- 
where." 

At the same time that Grusse and Turgeon began trying to exert pressure on 
the government to leave them alone, the government began trying to exert more 
pressure on them to cooperate with it. Two days after the women appeared be- 
fore the grand jury, an F.B.I, man turned up at the home of Turgeon's parents to 
question them about their daughter Terri. The elder Turgeons weren't at home, but 
one of their two other daughters. Madeleine, was, and once the agent learned that 
she was there alone he began questioning her inten'^iively about h^r sister Terri. 
?iradelpine ^^as flustered and alarmed, and as she later recounted in an affidavit. 
''The F.B.I, agent did not say what he was looking for. except that he wanted to 
find two women about whom my sister might have information. . . . He asked 
me if I was close to my sister and if we confided in each other about our personal 
and private lives. He later told me that my sister was now living with another 
v,'oman, named Ellen Grusse, arid he said he knew a grent deal about their per- 
sonal and private lives together, implying that mv sister was a lesbian. After he 
i-evealed this detail of my sister's personal life, he said that his visit to me would 
not have been necessary if my sister had cooperated with him. He also encour- 
aged me to put pressure on my sister to cooperate with his investigation, and said 
to me, "It would be good for someone to get her to cooperate with us.' " When 
the agent left, saying that be would come back to talk to her parents, the woman 
was so upset by what he had told her that she decided she had better tell her par- 
ents about Terri rather than have him spring the news on them unexpectedly. 
The Turgeons were hurt by the story about their daughter's life and stunned by 
her supposed involvement with criminals. As it happened, the F.B.T. man never 
ve^^uvned to question the Turgeons, and the suspense of waiting for him increa.sed 
their torment. Mr. Turgeon, in fact, was in such a state of anguish that he could 
not bear to speak to Terri about the ca.«:e. Her sister telephoned her and Iteeged 
her to stay out of trouble anrl to do whatever the a:overnmpnt wnnted. Terri 
promised to come over to see them in a few days to explain what had lianp'Mvnl 
and why she was doing what she was. Then, she asked that the family stand by 
her. "I need help," she said, "I need help very badly." 

A few days later, the same F.B.T. man apiienred at the nfl'ice where Turgeon's 
other sister. ,Tudv. worked in a suburb of Hartford. He asked the srirl about her 
sister's private life, friends, acquaintances, and habits. "My coworkers werp 
present during the course of this thirtv-minute interview." she stated in an af- 
fidavit. "At several times durinsr the interview, thp F.B.I, asrent snid in a loud 
•voice. 'T wouldn't have to bother you if your sister wasn't so uncooperative.' 
Aft^r T answered on^ particular questi'^m. the asrent indicafpd thnt he did not 
Tiplieve me. thus questioning my truthfulnf^s^ in the presence of my co-workprs." 
F.B.T. nsreuts also questioned two unclps of Turgeon's in Lewiston. Mainp. and a 
cousin in Baltimore. And four acents turned no .iust before midnisrht at the 
'NT'^'-tb Carolina home of a man and woman who were livimr torcther and whom 
Grussf and Turgeon had visited some months earlier on a holiday trip to the 



171 

South. The four agents — who were apparently under the impression that Grusse 
was Saxe, although there was no resemblance between the two women — split 
up into two-man teams and questioned the man and woman separately, simulta- 
neously, and intensively for nearly an hour. "They were terrified," Grusse 
reported later. "It was the midnight knock on the door." 

Before long, Turgeon's family rallied to her support, and stood by her through- 
out wliat was to be a long and increasingly harrowing ordeal. "My father didn't 
understand what was happening at first,'' Turgeon said. "But when our lawyer 
wasn't allowed into the grand-jury room to protect us, Dad thought that was 
unfair. After all, in America you're always supposed to have the right to a lawyer. 
Then my father met some of my friends, some of whom are professional people 
and very impressive, and he learned that long hair and l)eards and strange clothes 
don't matter. And the government's continuing persecution of me finally outraged 
him, and now he's radicalized by this case, just the way that I and many of my 
friends have been." 

Grusse's family, on the other hand, were unable to understand or sympathize 
with her plight. "My parents didn't see the larger political picture or the basic 
issues involved, and they just wanted to protect me." she said. "They kept saying 
to me. "Talk to the grand jury and stay out of jail.' That was a strong and con- 
stant pressure on me. It caused a temporary break in my relations with them. 
They tried to understand — they really wanted to help me — but they simply 
couldn't grasp it all. They think these things don't happen to good, honest 
Ijeople. And the fact that I am a lesbian was too much for them. It put them 
in a position where it was emotionally difiicult for them to support me. Their 
view was that the United States government always acts in the best interests of 
the people. That is a view I don't share. For them, the law and the Constitution 
are there to protect us, Terri and me, and we are abusing both — not the other 
way around, as we believe. Anyway, the women's community here is also my 
family now. Its members have supported us strongly most of the way. At first, 
a few of them said to me that maybe this case — the hunt for two fugitives wanted 
for bank robbery and murder — wasn't the issue to take a stand on against the 
government. After all. they said, those are very serious crimes. I agree with 
that. But I answered that unfortunately I hadn't had any choice in the matter, 
that the government had handed me the issue. Since I hadn't done anything 
wrong, I had to stand up now, or I would never be able to stand up to anything or 
anybody in the future. Then they understood." 

A few of Grusse and Turgeon's friends were so frightened by the F.B.I, and 
the publicity surrounding the case that they avoided the two women. "Some of 
them are terrified by the whole thing." Grusse said. "Tliey're frightened by the 
stigma of being publicly known as lesbians, the way we are now, so they live 
very privately, even secrefly, to hide their lives from their families and em- 
ployers. And now they're afraid of the political stigma, too. It used to be that 
lesbians were thought of as merely being perverted, but now they're seen as 
bank robbers and murderers or, at best, as friends and aliettors of bank rohl^ers 
and murderers. We believe that this is the government's basic motive — to in- 
timidate women in the movement, to create fear among us. to split us up, and 
finally to destroy the women's movement. The best way to do that is by making 
the innocent seem guilty." 

On February .5, 1975, the Department of .Justice formally granted the U.S. 
Attoi-ney's office in Connecticut permission to apply to the court for an order 
giving Grusse and Turgeon immunity. The letter from the Department con- 
veying official permission to seek the grant was received and filed in the U.S. 
Attorney's office in New Haven on February 10th, and at six-thirty on the morning 
of the twelfth the U.S. marshal reappeared at the apartment shared by Grusse 
and Turgeon and served them with a new set of subpoenas, which ordered them to 
appear before the grand jury at ten o'clock the following morning. When they 
telejihoned Avery, he told them that Jud.<re Xewman would undoubtedly grant 
the immunity requested before they were questioned by the grand jury the 
next day. and added, "They are going to send you to jail." Then we went to have 
a talk with Dow. in the slim hope that h^ might persiaade him to drop the 
ease. Avery told him that as a matter of public policy the government, with its 
immen'je power, should yield to the minute power of the individual when the 
opposition was so passionate and principled, as it clearly was in this case. Avery 
had littlp hope that this argument would prevail, though, and said privately. "T 
f'on't think the government will do that. It won't back off until its losses exceed its 
gains. The people who run the government should f-y to relieve democratic ten- 



172 

sions when they can in order to preserve the system. But they don't see things 
that way, even though it's in their own self-interest. If the government is ever 
toppled, it will be its own oflOicials who bring it down." Dow refused to listen to any 
suggestion that he alter his course. "A policeman was killed, and left nine kids," 
he said. 

Grusse and Turgeon dreaded even the thought of going to prison, and kept 
hoping that the government would finally see that they were innocent and deter- 
mined to remain silent. "Justice needn't be tempered with mercy — it should sim- 
ply be fair," Grusse said. "If the government believes we are guilty of some- 
thing, th«n it should charge us, take us to trial, and give us a chance to defend 
ourselva«i. That would be justice." And Turgeon added, "I don't think we've done 
anything wrong. We haven't committed any crime. Our stand is solely a matter 
of priii' iple with us. We are two innocent women, and yet we have the whole 
United States government against us." 

Taking the Fifth — II 

(By Richard Harris) 

Late in 1637, an English Puritan by the name of John Lilburne was arrested 
for importing seditious books from Holland into England. From the government's 
viewpoint, the arrest was to prove a calamitous mistake, for Ldlburne, who was 
then a twenty-three-year-old clothier's apprentice with little formal education, 
turned out to be one of the most effective revolutionaries in English history. A 
volatile, contentious, unyielding, self-righteous, and abrasive man, of whom a 
contemporary said, "If John Lilburne were the last man in the world, John would 
fight with Lilburne and Lilburne with John," he was also, as he described him- 
self, "an honest, truebred freeborn Englishman that never in his life loved a 
tyrant nor feared an oppressor." By the time he died, twenty years later, Lil- 
burne had brought the British government to its knees. 

After his arrest, Lilburne was turned over to the Attorney General, who as- 
signed an aide to question him. The aide told Lilburne what he was charged 
with and informed him that a confederate had sworn to an affidavit against him. 
Lilburne replied that he had indeed visited Holland and that he had talked to 
some people and looked at some books there, but he claimed that he was inno- 
cent of the charge against him, and refused to say more about the affair. "I see 
you go about by this examination to ensnare me, for seeing [that] the things for 
which I am imprisoned cannot be proved against me, you will get other matter 
out of my examination," he said. The aide finally gave up and passed Lilburne on 
to the Attorney General, who had no more luck and sent him back to jail. After 
a couple of weeks, Lilburne was taken before the Court of Star Chamber — an 
inquisitorial body that functioned as the sovereign's personal tribunal for trying 
matters of state. A clerk handed him a Bible and told him to answer by it. 

"To what?" Lilburne asked. 

"That you shall make true answer to all things that are asked of you," the 
clerk said. 

"Must I so, sir? But before I swear, I will know to what I must swear." 

"As soon as you have sworn, you shall, but not before." 

Lilburne refused to take the oath, was sent back to prison, and a few weeks 
later was again brought before the Star Chamber, this time for trial, together 
with an alleged accomplice, an elderly bookseller named John Wharton. The 
Attorney General charged them with refusal to take the required oath, and then 
read the affidavit against them. Declaring that the charge was "a most false 
lie and untrue," Lilburne once more refused to take the oath, as did Wharton, and 
the two were returned to their cells. A week later, they were brought back for 
trial before the same court, and repeated their refusal to take the oath, which, 
Lilburne told his judges was "both against the law of God and the law of the 
land." This time, the Star Chamber found them guilty of contempt, and sen- 
tenced them to fines of five hundred pounds each, punishment in the pillory, and 
imprisonment until they took the oath and testified as ordered ; Lilburne was addi- 
tionally sentenced to be whipped through the streets on the way from Fleet prison 
to the pillory, a distance of two miles. 

Tied to the back of a cart and stripped to the waist, Lilburne was lashed every 
few steps by an executioner wielding a three-thonged whip, and at the end the 
prisoner's shoulders "were swelled almost as big as a penny loaf," a contemix)- 
rary reported, and the "wales on his back . . . were bigger than tobacco pipes." 
The streets along Lilburne's route were lined with spectators, who moaned at 



173 

his agony and shouted words of encouragement. Once in the pillory, Lilburne 
dumbfounded everyone by proceeding, despite his pain, to deliver a stirring half- 
hour oration to the crowd, which was spellbound by the account of his ordeal, 
including his trial, which, he told them, was "absolutely against the law of God, 
for that law requires no man to accuse himself." 

The oath that Lilburne refused to take was known as the oath ex officio, which 
had an ancient lineage reaching back to the thirteenth-century oath de vcritate 
dicenda — swearing to si>eak the truth in answer to all questions. This device, an 
ijivention of the Catholic Church in 1215, had quickly become one of the most 
feared instruments of the Inquisition's attempts to stamp out heresy, and was 
subsequently used by a long series of British clerics and British monarehs to 
suppress religious and political unorthodoxy. Suspects wlio were given the oath 
were not told the evidence of their misdeeds, the identity of their accusers, or 
the charges against them. If they refused to take the oath, they were considered 
guilty of the offenses being investigated ; if they took the oath and lied, they were 
guilty of perjury, and swearing falsely was not only a grave sin against God 
but was taken as evidence of guilt in the offenses at issue ; and, of course, if 
they told the truth they might condemn themselves. 

In short, the oath had one purpose : to trap witnesses into betraying themselves 
and others. Official reliance on the oath — and the physical and mental torture 
often inflicted on those who resisted it — became so widespread and abusive in 
England that bitter opposition to it rose among members of Parliament and of 
the common-law bar, who saw the overweening power of royal and ecclesiastical 
courts as a threat to both the common law and all free Englishmen. Protests were 
mounted, petitions were signed, and early in the fourteenth century Parliament 
outlawed the oath. Both Crown and Church ignored the prohibition. 

Throughout the remainder of that century, opponents of the inquisitorial sys- 
tem fought for its replacement by the common law's accusatorial system, through 
which the state had to prove an accused person's guilt without his assistance and 
under prescribed rules. To this end, they repeatedly invoked Magna Carta, then 
over a century old, and contended that its command to the sovereign to obey "the 
law of the land" guaranteed everyone accused of any crime the right to a formal 
accusation and to a trial by jury under common-law procedures. There was no 
justification whatever for the claim, but the myth that Magna Carta spoke for 
the freedom of all men of the realm and not, as it clearly had, solely for the rights 
of the barons who forced King John to sign the document at Runnymede was to 
survive and ultimately to be widely accepted as fact. And, of course, history ha.? 
repeatedly demonstrated that myth is a far more powerful influence in human 
affairs than truth. 

During the sixteenth century, resistance to use of the oath in the Court of Star 
Chamber and its ecclesiastical equivalent, the Court of High Commission, 
mounted. Sir Thomas More, who as Lord Chancellor had compelled many heretics 
to take the oath ex officio and had sent them to their deaths for what they re- 
vealed, refused to take the oath himself and reveal why he opposed Henry VIII's 
claim to be head of the Church of England. More argued that he was being forced 
to condemn either his soul (if he lied) or his body (if he told the truth) ; the 
dilemma was resolved when the King had him beheaded and the Church made 
him a saint. A few years later, Mary Tudor devoted most of her five years on 
the throne to wiping out all traces of Protestantism by killing Protestants. 

Not long after her death, John Foxe wrote "The Book of Martyrs," which re- 
counted the history of Christian martyrdom since the eleventh century, including 
the fate of Bloody Mary's victims. He described how innocent people in her reign 
were ordered to answer on oath all questions about their beliefs and associations, 
were tortured if they resisted, were forced to accuse themselves and their friends 
and relatives of crimes that often had not been committed, and then were burned 
ahve at the stake. "The Book of Martyrs" went through many revised and ex- 
panded editions, and it became a sort of primer of the theory that there was an 
inherent personal right to freedom of religious conscience, and that there were 
also inviolable legal rights such as the guarantee of a formal accusation and a 
fair trial, and the right to refuse, as Lilburne was to refuse some eighty years 
later, to incriminate oneself. For over a century, "The Book of Martyrs" was, 
after the Bible, the most popular book in the English-speaking world. 

Around the time that Foxe's book was first published. Chief Justice James Dyer 
ruled for a unanimous Court of Common Pleas that a witness who refused to take 
the oath ex officio was justified by the maximum "Nemo tenetur prodere scipsum," 
or "No man is bound to betray himself." This appears to have been the first com- 

78-905—76 12 



174 

mon-law use of the principle that was to be embodied more than two centuries 
later in the Fifth Amendment to the United States Constitution: "No person 
shall be . . . compelled in any criminal ease to be a witness against himself." 
According to Professor Leonard W. Levy's splendid book "Origins of the Fifth 
Amendment" (the basic work on the subject, winner of the Pulitzer Prize for 
history in 1969, and the source for this historical resume), Chief Justice Dyer's 
ruling was apparently aimed at Queen Elizabeth, to discourage her from follow- 
ing Mary Tudor's oppressive example. As it turned out, Elizabeth's aims were 
somewhat different from her predecessor's, for under Good Queen Bess's rule 
subjects were persecuted for political rather than religious heresy when they 
persisted in clinging to religious beliefs that denied supremacy of the state in 
matters both mundane and religious. "Politics, rather than religion, had become 
the basis of government policy," Professor Levy explained, and added that while 
the distinction may have seemed slight to those who were executed, it contributed 
a small advance to the English legal system, for although they underwent in- 
quisitorial examinations at the hands of the State Chaml)er or the High Com- 
mission, at least they were later tried under the common law's accusatorial sys- 
tem. More and more Catholics and Protestants responded to the Queen's deter- 
mination to bnng their God to his knees before the throne ^^"ith the plea "Nemo 
tenetur prodere scipsum," which by now was probably believed to be a firm 
principle of Magna Carta, too. They still went to their gory deaths — not at the 
stake biit at the gibbet, where they were hanged, cut down while alive, and dis- 
embowelled — and yet their claims that all subjects possessed a natural right 
against compulsory self-incrimination slowly began taking hold in the minds of 
lawyers and judges. Originally, resistance to forced self-betrayal had developed 
as an outgrowth of religious conscience, but as the use of the oath ex officio be- 
came secular so did the resistance to it. and gradually a belief emerged that to 
force a man to inform on himself not only violated the natural law of self-preser- 
vation Itut destroyed his dignity and self-respect and undermined justice itself. 
However, official acceptance of this view was still many years away. 

Li'burne's bravery while being vdiipped through tlie streets and his dramatic 
speech while locked in the pillory made him famous throughout London over- 
night. In retaliation, the Star Chamber judges ordered that he be "laid alone 
with irons on his hands and legs . . . where the Itasest and meanest sort" of 
prisoners were kept, and that he be denied all books, writing materials, and 
visitors. His wardens went further by chaining him to the bare floor, without the 
usual pallet, and giving him no food for ten days. Suffering from his beating and 
a higher fever that followed it. LiUiurne would probably have died if liis ferow- 
prisoners hadn't slipped food to him through cracks in the floor. He recovered 
from liis illness, and after four months in solitary confinenient he was transferred 
to a more hospitable part of the prison, where he was confined for the next two 
and hnlf years. During this period, he secretly wrote and smuggled out of prison 
nine pamphlets attacking the Star Chamber and demanding the natural rights 
due every Englishman. With the appearance of each pamphlet, which the au- 
thorities were unable to suppress. Lilburne's popularity soared anew. 

Charles I was on the throne, and liis inept policies were bringing England 
closer to civil war by the day. Desperately in need of money to raise an army 
nnd defend himself, he called Parliament into session in 1640 — the first time he 
had allowed it to sit in eleven years — 'but when its raemlvers refused to appro- 
priate funds until he agreed to their demands for reform, he dissolved the session, 
known as the Short Parliament, after three weeks. A little later, a Scottish force 
defeated a royalist army and occupied the north of Englnnd. and then a London 
mob of two thousand people broke into and sacked the hated Court of High Com- 
mission. A few days afterward, Charles cnlled Parliamfn<- into session again — 
in the Long Parliament, which was to sit. with intermissions, for twenty years — 
as bis only hope of getting money to save his crown. The Long Parliament was 
domin;^ted by Puritans, one of whom was Oliver Cromwell, a newly elected mem- 
ber from Cambridge, whose maiden speech was a plea for the release of .John 
Li'bnrne. A few days later, popular support forced the King to free Lilburne. 
who immediately began demanding an end to the Courts of Star Chamber and 
High Commission and al^olition of the oath ex officio. Petitions in support of his 
.stand pouretl into the Hoiise of Commons from around the country, and the fol- 
lowing summer Parliament enacted a bill outlawing the two courts and the oath, 
which the King reluctantly signed on July 5. 1641. After four centuries of torment 
and blood.shed, the inquisitorial power of church and state seemed at an end. 



175 

111 1<142, the outbreak of civil war — fouglit to determine whether England 
would be ruled by Parliament or the Crown — brought Lilbiirue into the Parlia- 
mentary army as a captain. He was fiercely devoted to the popular cause, and 
was as fearless a soldier as he had heen a pamphleteer. During battle, he was 
captured and sentenced to death for treason, but when Parliament sent word that 
it would execute a batch of royalist prisoners if he was harmed. Lilburne was 
freed. He returned to London, where immense crowds greeted him, a contem- 
porary reported, "with public joy, as a champion that had defied the King." Lil- 
burne turned down Parliament's offer of a high post, saying of himself that he 
would "'rather fight for eightpeiice a day, till he saw the liberties and peace of 
England settled, than set him down in a rich place for his own advantage." 

Returning to the front, he soon became a lieutenant-colonel and a confidant of 
Cromwell's. In time, though, Lilburne grew alarmed by the anti-libertarian spirit 
That was overtaking the Puritan movement, which was becoming as tyranically 
repressive as any British monarch. Presbyterians controlled Parliament, and 
they began demanding that their faith replace the Anglican Church as the official 
state religion and that various other forms of Puritanism, which contained 
scores of factions and schisms, be suppressed. 

These new demands for orthodoxy were too much for Lilburne, and after Parlia- 
ment awarded itself the power to censor all publications in England, he quit the 
army and went li.nrlc to pamphleteering. He was soon in trouble again — this time 
for attacking religious persecution in general and censorship in particular — and 
after one of his paiuphlets appeared he was summoned before the House of Com- 
mons Committee on Investigation, which found the tract ''scurrilous, libellous, 
and seditious." According- to Professor Levy. Lilburne was let off because of his 
great popularity and his service to the Parliamentary cause, but he refused to 
remain silent, and was soon arrested and dragged back before the committee for 
libelling the Si>eaker of the House. 

Determined to challenge the right of Parliament to inquire into his opinions 
or to force him to acruse himself, Lilburne refused to testify, and demanded that 
the legislature obey the rules of common-law courts. The committee rejected his 
demand, and when Lilburne persisted in refusing to testify and claimed "a right 
to all the privileges that do belong to a free man as [to] the greatest man in 
England," he was sent back to prison. Taking up his pen again, Lilburne wrote 
a furious tract accusing the committee of trying "criminal causes betwixt man 
and man concerning life, liberty, estate" without observing the ordinary rules of 
justice. The committee summoned him again, and again he refused to testify and 
was sent back to his cell. But the Parliamentary army considered Lilburne one 
of its own, and its mutinous mutterings about his treatment finally prompted 
Cromvell to persuade Parliament to let Lilburne go after he had served four 
months in jail. 

The following year, Lilburne was arrested and taken before the House of 
Lords for criticizing one of its members in another pamphlet, and he refused 
to testify before that august body. Pie was thrown back in jail and then ordered 
<"n reappear before the Lords to be tried for his pamphlet. Lilburne refused to 
go. and had to be dragged there. Once before the assemblage, he not only refused 
to kneel but stopped up his ears so that lie couldn't hear the charges against him. 
He was found guilty, fined two thousand pounds (more than most Englishmen 
could earn in a lifetime), disqualified for life from holding any public office, and 
imprisoned indefinitely in the Tower of London. "By its injudicious treatment 
of the most popular man in England," a historian of that period observed. 
"Parliament was arraying against itself a force which only awaited an oppor- 
tunity to sweep it away." By the following spring, Cromwell's army was said 
to be "one Lilburne throughout," and its soldiers regardrd his writings not as 
commentaries on tlie law but as the law itself. Under pressure from the army. 
Parliament, released Lilburne in in4S, and he immediately set about attacking 
Cromwell himself. After enduring the attacks for several months, Cromwell dis- 
patched a force of two hundred armed men, who surrounded Lilburne's house, 
arrested him, and dragged him and three friends before the Council of State. 

The prosecutor asked him whether he had written the defamatory pamphlet 
against Cromwell. Lilburne, retorting that he was amazed after all that had 
happened that such a question could even he asked, declined to answer. He and 
his friends were taken out of the room, and Cromwell pounded on the table and 
shouted at his colleagues, "I tell you, sirs, you have no other way to deal with 
these men but to break them in pieces. ... If you do not break them, they will 



176 

break you !" Committed to the Tower on suspicion of liigh treason, Lilburne wrote- 
and smuggled out one fiery pamphlet after another, and soon petitions with 
tens of thousands of signatures supporting him poured into Parliament, and 
the army threatened to revolt. In Cromwell's view, "the kingdom could never be 
settled so long as Lilburne was alive," and in the fall of 1649 he was charged with 
high treason and put on trial for his life. 

The trial took place in London before an Extraordinary Commission of Oyer 
and Terminer, made up of eight common-law judges, four sergeants-at-law, the 
recorder of the city, twenty six special judges (including some city aldermen 
and members of Parliament), and the Lord Mayor. The trial was held in the 
great Guildhall, the streets around it were lined with troops to prevent demon- 
strations against the government, and Lilburne was kept under constant guard 
to prevent his rescue by the angry crowds that gathered throughout the city to 
protest what was being done to the man they knew as "Freeborn John." 

Although Lilburne had no legal training, he soon demonstrated to the court 
his forensic abilities. "His great achievement at the trial was holding at bay the 
judges and . . . his prosecutor while he expounded to them and to his fellow citi- 
zens in the jury box and in the audience the fundamentals of fair criminal proce- 
dure from the time of arrest through trial," Professor Levy wrote. "He placed 
the right against self-incrimination in the context of what he called 'fair play,' 
'fair trial,' 'the due process of the law,' and 'the good old laws of England.' " 
Lilburne railed on endlessly over the smallest points of law and legal proce- 
dure. He insisted on having a copy of the indictment and a lawyer to represent 
him (rights that were still half a century in the future), and when he was 
refused both he said, "Then order me to be knocked on the head immediately 
in the place where I stand, without any further trial, for I must needs be 
destroyed if you deny me all the means of my preservation." When the presiding- 
judge begged him to be silent and promised, "Hear me one word, and you shall 
have two," Lilburne retorted that since he was on trial for his life he must be 
free to speak, and if they would neither let him speak nor allow a lawyer to 
speak for him they might as well murder him and get it over with. "O Lord !" he 
cried, "was there ever such a pack of unjust and unrighteous judges in the 
world ?" The chief judge sternly told him that no one had ever been tried by "so 
many grave judges of the law," whereupon Lilburne denounced the proceedings 
for being extraordinary, and asserted that he would rather have been tried by one 
judge in an ordinary court of law. 

The chief judge replied, "If you had not had this great presence of the court, 
you would have outtalked them, but you cannot do so here." Lilburne raised 
himself up indignantly and said, "Truly, sir, I am not daunted at the multitude 
of my judges, neither at the glittering of your scarlet robes, nor the majesty of 
your presence and harsh, austere deportment towards me. I bless my good God 
for it, who gives me courage and boldness." He defiantly refused to answer 
any questions about his authorship of the pamphlet at issue, on the ground that 
under the good old laws of England he could not be compelled to accuse him- 
self. Then he triumphantly pointed out to the jury that his indictment was based' 
partly on a pamphlet that had been published while he was in the Tower — that 
is, after his arrest — while the law making such statements as those in the 
pamphlet treasonous had been passed during his imprisonment, making it an 
illegal ex-post-facto use of the law. 

When Lilburne finally rested for the defense, the audience broke out in loud 
shouts of "Amen ! Amen !" and, a report on the event noted, these were followed 
by "an extraordinary great hum," which so alarmed the judges and the military 
commander in charge that three more companies of soldiers were dispatched to 
guard the hall. The chief judge then delivered a hanging charge, in which he 
accused Lilburne of fomenting a plot the likes of which "never , . . was seen in 
the world before." The jury was out for an hour and returned to find Lilburne- 
not guilty. "The whole multitude of people in the hall, for joy of the prisoner's 
acquittal, gave such a loud and unanimous shout, as is believed was never heard 
in Guildhall, which lasted for about half an hour without intermission," the 
report said. When word of the verdict spread throughout the city, there were 
wild public celebrations and "the people caused that night abundance of bon- 
fires to be made all up and down the streets." 

In 1651, Lilburne wrote another pamphlet attacking an influential member of 
Parliament, was summoned before the bar of Commons, convicted without formal 
accusation or trial, and by means of a biU of attainder was fined seven thousand 
pounds, banished from England for life, and sentenced to death if he returned. 



177 

Helpless this time, he fled to Holland. But a year and a half later, when Cromwell 
dissolved the Rump Parliament that had convicted him, Lilburne assumed that 
there would be a freer mood at home, and returned to England. He was clapped 
into Newgate prison and again put on trial for his life. 

There were countless demonstrations on his behalf, and petitions circulated 
around the country came back to London with thousands upon thousands of sig- 
natures demanding his release and pardon. The furore led a contemporary to 
:remark, "It is not to be imagined how much esteem he hath got, only for vindi- 
cating the laws and liberties against the usurpations of this time." This response 
in turn, led Cromwell to clamp a virtual state of martial law on London. At the 
trial, held in the Old Bailey, Lilburne argued that the Rump Parliament had 
been illegally constituted, so the bill of attainder it had enacted must be illegal, 
too. 

Then Lilburne solemnly warned the jurors that if he died on Monday, on Tues- 
day Parliament could pass sentence on every one of them, on their families, on 
all the people in London, and eventually on everyone in England. The jury found 
him not guilty. "Joy and acclamation" were said to have resounded for "an 
English mile," except among members of the Cromwellian party, whose leader 
was "infinitely enraged." At his direction. Parliament ordered the jurors examined 
on their verdict before the Council of State, but once there the jurors refused to 
speak, on the ground of conscience. 

When all else failed. Cromwell had Lilburne secretly moved at night from New- 
gate to the Tower, rejected all writs of habeas corpus, and put the prisoner 
under such strict guard that he managed to write and smuggle out only one more 
pamphlet — his last. The government's refusal to free him after he had been 
found innocent by a jury of his peers provoked plots against the government and 
attempts on Cromwell's life. To remove the rebellious symbol from the center 
of unrest, Cromwell ordered Lilburne taken from the Tower and transported to 
a fortress on the island of .Jersey. The following year, when the tumult over his 
case had subsided, he was moved to a house in Dover, where he was imprisoned 
until he died, two years later, at the age of forty-three. 

"Lilburne had made the difference," wrote Professor Levy. "From his time on, 
the right against self-incrimination was an established, respected rule of the 
common law, or, more broadly, of English law generally." Of far greater im- 
portance, though, the fight that Lilburne had led sparked into a conflagration 
the movement that would ultimately overthrow tyranny — the people's growing 
belief that each of them possessed a personal right to be free under just laws 
that had to be obeyed by the highest as well as the lowest person in the realm. 
The concept of the individual as a being whose self-respect and dignity and 
privacy were inviolable had been born. Accoi'ding to the historian Margaret 
Atwood Judson, this movement was "the first great outburst of democratic 
thought in history, with John Lilburne . . . leading the way." 

One of the basic causes of the American Revolution was England's failure to 
give colonists here the common-law rights that it professed to assure them. Al- 
though the common law was extremely reactionary in many ways — it severely 
restricted freedom of expression, for example, and its courts were used to punish 
criticisms of church and state long after the Courts of High Commission and 
Star Chamber were abolished — still the American colonists looked upon that legal 
s.vstem as a shield against official abuse of their basic rights. The slow, divei-se, 
and imcertain growth of the legal protection of those rights under American 
colonial law is unclear, for, Samuel Eliot Morison has written, "legal develop- 
ment is probably the least known aspect of American colonial history." Records 
are fragmentary, and much of the evidence that was recorded is more confusing 
than enlightening. 

By the late eighteenth century, however, the specific rights that were to be 
embodied in the Bill of Rights existed, in one form or another, in colonial laws. 
After the Declaration of Independence was issued, eight states adopted constitu- 
tions that included prohibitions against compulsory self-incrimination. When 
Representative James Madison, the "fatlier of the Constitution," submitted a bill 
of rights to the First Congress, in 1789. his proposed guarantee against forced 
testimony stated "No person shall be . . . compelled to be a witness against him- 
self." As far as written records show, Madison said nothing to explain this pro- 
posal, either then or later. In order to avoid conflict with a statute setting up the 
federal court system, a colleague in the House suggested that the proposal be 
changed to read, "No person shall be . . . compelled in any criminal case to be a 
witness against himself," and the alteration was adopted unanimously and, as far 



178 

as the record shows, without further debate in either house. In 1791, the amend- 
ment was approved, along with the rest of the Bill of Rights, and appended to 
the body of the Constitution. 

AVith this monumental event. Levy — then Earl "Warren Pi-ofessor of Constitu- 
tional History at Brandeis University — concluded liis account of the Fifth 
Amendment's origins : 

"With good reason the Bill of Rights showed a preoccupation with the subject 
of criminal justice. The Framers understood that without fair and regularized 
procedures to protect the criminally accused, there could be no liberty. They knew 
that from time immemorial, the tyrant's first step was to use the criminal law to 
crush his opposition. Vicious and ad hoc procedures had always been used to 
victimize nonconformists and minorities of differing' religious, racial, or political 
persuasion. The Fifth Amendment was part and parcel of the procedures that 
were so crucial, in the minds of the Framers, to the survival of the most treas- 
ured rights. One's home could not be his "castle," his property be his own. his 
right to express his opinions or to worship his God be secure, if he could be 
searched, arrested, tried, or imprisoned in some arbitrary or ignorable man- 
ner. . . . The Framers of the Bill if Rights saw their injunction, that no man 
should be a witness against iiimself in a criminal case, as a central feature of the 
accusatory system of criminal justice. While deeply conmiitted to perpetuating a 
systcin tliat minimized the possibilities of convicting the innocent, they were not 
less concerned about the humanity that the fundamental law should show even 
to the offender. Above all, the Fiftli Amendment reflected their judgment that in 
a free society, based on respect for the individual, tiie determination of guilt or 
innocence by just procedures, in which tlie accused made no unwilling contribu- 
tion to his conviction, was more important than punishing the guilty." 

In 1803, Chief Justice John Marshall delivered ilie Supreme Court's opinion 
in the case of Marbury v. ^Madison, wliicli made the Court the ultimate arbiter of 
what the Constitution means by giving the Court the authority to overrule acts 
of Congress and the executive branch that violate the nation's fundamental law. 
Alon-;- the way in that case. Marshall ruled for the Court that a witness did not 
have to answer a question if he felt that his reply might incriminate him. Four 
years later, Marshall was riding the circuit as justices then did, and pj-esided 
over the trial of Aaron Burr for treason, in the Circuit Coiu-t for tlie District of 
Virginia. When a witness refused to answer a question on the ground of possible 
self-incrimination (or "crimination," in the usage of the time), the Chief Justice 
said, "If the question be of such a description that an answer to it may or may 
not criminate the witness ... it must rest with himself, who alone can tell what 
it would be, to answer the question or not. If, in such a case, lie say upon his oath 
that his answer would criminate himself, the court Cim demand no other testi- 
mony of tlie fact. . . . While that [fact] remair,s concealed within his own bosom, 
he is; safe ; but draw it from thence, and he is exposed to a prosecution. The rule 
which declares that no man is compellable to accuse himself would most obviously 
be infringed by compelling a witness to disclose a fact of tliis description. What 
testimony may be possessed, or is attainable, against any individual, the court 
can never know." 

For half a century. Chief Justice Marshall's words were taken as the highest 
judicial support for a witness's absolute right to remain silent. But in ISoT Con- 
gress — in an inquiry into charges that some of its members had extorted money 
from special interests in exchange for favorable legislation — abrogated this right 
by passing an "immunity" statute that protected any witness who was com- 
pelled to testify "before either house of Congress or any committee of either 
house" from prosecution for "any fact or act touching which he shall have testi- 
fied." The law uncovered more corruption and provided less opportunity for doing 
anything about it than anyone had anticipated, because members of Congress 
and those who had bribed them appeared before the investigating committee, 
confessed to innumerable crimes of all kinds that they had committed, and were 
automatically relieved under the new law of any liability for them. Recoiling at 
these "immunity baths." Congress repealed the law and replaced it in 1862 with a 
narrower "use immunity" oi.atutc. which provided not full immunity froi.i profcG- 
cution for certain crimes revealed in compelled testimony before congressional 
committees but only immunity from use of the specific evidence thus extracted. 

Criminal proceedings could still be brought against witnesses who testified 
against themselves, as long as the prosecution based its case on other evidence. 
Then, in 1868, Congress expanded this law to cover federal judicial proceedings 
in specific categories of criminal cases, and when the Interstate Commerce Com- 



179 

mission was set up, in 1S87, Congress gave it tlie same power to compel testimony 
from witnesses who were grauied use immunity. If witnesses refused to testify 
after being given immunity, tliey could be fined and imprisoned until they talked. 

In November, 1890, a federal grand jury in Illinois that was looking into pos- 
sible violations of the Interstate Commerce Act of 1887 summoned a grain dealer 
by the name of Charles Counselman and asked him about his dealings with several 
railroads that were suspected of giving illegally low freight rates to favored 
customers. Counselman, who had been granted immunity, asserted his Fifth 
Amendment right and refused to answer several questions ; the grand jury re- 
ported his refusal to the presiding judge ; he ordered Counselman to answer the 
questions ; Counselman again refused ; and the judge found him in contempt of 
court, fined him five hundred dollars plus the cost of the porceedings. and sent 
him to jail until he decided to talk. He decided, instead, to appeal the order. It vvas 
upheld by the Court of Appeals, so he took the case to the Supreme Court. Justice 
Samuel Blatchford, in a unanimous opinion of that Court, declared that the Fifth 
Amendment "privilege is limited to criminal matters, but it is as broad as the 
mischief against which it seeks to guard," and that "the liberal construction 
which must be placed upon constitutional provisions for the protection of per- 
sonal rights" obliged the Court to find the use-immunity law unconstitutional, 
since it didn't protect witnesses from the later use of their testimony by way of 
its leads to other evidence, so prosecute them. "We are clearly of opinion that 
no statute which leaves the party or witness subject to prosecution after he 
answers the criminating question put to him can have the effect of supplanting 
the privilege conferred by the Constitution of the United States," the Court con- 
cluded, for the statute did not give witnesses "complete protection from all the 
perils against which the constitutional prohibition was designed to guard," That 
made it less than "a full substitute" for the amendment, and for such a law to 
be an adequate substitute it would have to provide "absolute immunity against 
future prosecution for the offense to which the question relates." 

The notion that there could be a "substitute" for constitutional mandates was a 
curious one, since the primary purpose of the Framers in formulating a written 
constitution in the first place was to put its mandates beyond the reach of the 
national legislature. The only way in which the fundamental law of the nation 
could constitutionally be changed was by way of amendment, and the Framers 
had given Congress a limited role, which was shared with the people at large, in 
the amending process. Now, though, the Supreme Court's conclusion that the 
Fifth Amendment could be supplanted by a federal law effectively gave Congress 
the power to amend the Constitution on its own initiative and without public 
approval. Finally, since the Constitution flatly states, "No person shall be . . . 
compelled in any criminal case to be a witness against himself" — not that a per- 
son can be compelled to be a witness against himself as long as he isn't prosecuted 
for what he says — the Supreme Court failed to place even a literal, much less a 
liberal, construction on "constitutional provisions for the protection of personal 
rights." Kather than giving absolute protection to those rights, the Court actually 
limited them in the case of the Fifth Amendment by handing the state the power 
to compel what the Constitution said could not be compelled. 

Congress wasted no time in rushing through the door that the Court had 
opened. Sixteen days after the decision in Counselman was handed down, a bill 
was introduced in Congress guaranteeing that after immunity was granted to 
witnesses before the Interstate Commerce Commission "no person shall be prose- 
cuted or subjected to any penalty or forfeiture for or on account of any trans- 
action, matter, or thing concerning which he may testify." The bill — providing a 
form of absolute immunity that v^as to become known as transactional immu- 
nity—was soon enacted, and was judicially tested when the auditor of the 
Allegheny Valley Railway, a man named Brown, refused to answer questions put 
to him by a federal grand jury about low freight rates to good customers. 
Granted the new form of immunity. Brown plended the Fifth Amendment and 
remained silent, and the presiding judge found him in contempt of court, fined 
him five dollars, and sent him to jail until he agreed to testify. The Court of 
Appeals upheld this ruling, and the case — Brown v. Walker — went to the Supreme 
Court. 

By a five-to-four vote, in 1896, the Court upheld the new immunity law. 
Justice Henry B. Brown delivered the majority's opinion, which was wholly 
based on the conclusion in Counselman that if absolute immunity was granted 
a prospective witness his P^fth Amendment right was fully protected. According 
to Justice Brown, that right could be looked at in one of two ways : it could be 



180 

interpreted literally, as "authorizing the witness to refuse to disclose any fact 
which might tend to incriminate, disgrace, or expose him to unfavorable com- 
ments," or it could be reviewed as an attempt "to secure the witness against a 
criminal prosecution." 

The Court concluded that "the clause should be construed, as it was doubtless 
•designed, to effect a practical and beneficent purpose — not necessarily to protect 
witnesses against every possible detriment which might happen to them from 
their testimony, nor to unduly impede, hinder, or obstruct the administration of 
criminal justice." 

There was no historical justification whatever for the conclusion that this was 
the purpose for which the Fifth Amendment was "doubtless designed." Indeed, 
since the "practical and beneficent purpose" that Justice Brown mentioned en- 
tirely served the interests of the state rather than those of the individual citizen, 
that alone betrayed the intent of the Framers — to protect the individual against 
the state. To get around this point, Brown took refuge in an ancient judicial 
sanctuary — the tradition that courts should not overturn congressional acts 
unless they are flagrantly at odds with fundamental law. This tradition is based 
<iu the theory that since the members of Congress are democratically chosen and 
directly represent the citizenry, their decisions should not be overruled arbi- 
trarily by the courts, which are essentially undemocratic in that their members 
are appointed rather than elected. In our system, the theory is absurd — even a 
<'owardly abdication of judicial responsibility — for the Framers specifically 
designed our federal judicial system to serve as an undemocratic check on the 
democratic excesses that so often seize legislators. In any event, Justice Brown 
conceded that the colonists had so feared the inequities of the inquisitorial sys- 
tem of justice that they, "with one accord, made a denial of the right to question 
an accused person a part of their fundamental law." But then he went on to find 
ample justification for compelling one who was not formally accused of a crime — 
wlio was, in fact, given immunity against any such accusation- — to tell of others' 
•crimes. That power, he claimed, was "within the control of the legislature." 
And to contend, as the defendant had, that "he would incur i)ersonal odium and 
disgrace from answering these questions seems too much like an abuse of lan- 
gnn.ufe to be worthy of serious consideration," the Justice said. Above all, though, 
the Court majority relied on the needs of government to justify transactional 
immunity on constitutional grounds. "Every good citizen is bound to aid in the 
•enforcement of the law, and has no right to permit himself, under the pretext of 
shielding his own good name, to be made the tool of others who are desirous of 
seeking shelter behind his privilege," Justice Brown declared, and thereby ac- 
cused the defendant in the case of a crime that no one had charged him with — 
conspiracy to conceal a crime. (Although the Fifth Amendment says only that no 
one shall be compelled to testify against himself, testifying against others may 
involve admitting that one did not report a crime, and not reporting a crime is, 
of course, a crime. ) 

The Court majority's reliance on the principle of good citizenship was utterly 
untenable, for the duties of citizens are nowhere mentioned in the Constitution. 
The authors of the Fifth Amendment did not speak of good citizens or bad 
citizens, they merely said that no citizen could be forced to accuse himself. And, 
of course, the Bill of Rights was written not to help the government enforce its 
laws but to restrain it fiom abusing any citizen through unjust laws and unfair 
enforcement of them. But to the majority of the Court the needs of government 
were paramount, and since. Justice Brown stated, "enforcement of the Interstate 
Commerce law or other analogous acts . . . would become impossible" without 
compelled testimony, testimony must l>e comi>elled. In short, the Supreme Court 
declared that if legislative acts could not he enforced without violating the 
Constitution, then the Constitution would have to be violated to uphold those acts. 

The four justices in the minority dissented vigorously, and at points bitterly, 
from the majority opinion. Justice George Shiras, Jr., for instance, pointed out 
thnt the immunity law specifically provided that a witness who was forced to 
testify was not given immunity from the crime of perjury when he testified, 
whereas if he were allowed to assert his constitutional right to remnin silent he 
could not incur a charge of perjury for what he had not said. Beyond that, Shiras 
went on, "a moment's thought will show that a perfectly innocent person may 
expose himself to accusation, and even condemnation, by being compelled to dis- 
•closf^ facts and circumstancps known only to himself, but which, when once 
disclosed, he may be entirely unable to explnin as consistent with innocence." 
Another dissenter in the case was .Tustice Stephen .T. Field, who used the defense 
counsel's arguments verbatim in describing the rule against compulsory self- 



181 

incrimination as the "result of the long struggle between the opposing forces of 
the spirit of individual liberty on the one band and the collective power of the- 
state on the other." That power is absolutely limited under our form of govern- 
ment, he added, for "the proud sense of personal independence which is the basis 
of the most valued qualities of a free citizen is sustained and cultivated by the 
consciousness that there are limits which even the state cannot pass in tearing 
open the secrets of his bosom." Above all, Field argued in a long and passionate 
section of his dissenting opinion, there could be no assurance tliat the authors 
of the Fifth Amendment bad not intended it to protect a witness against self- 
infamy as well as against self-incrimination. "Both the safeguard of the Consti- 
tution and the common-law rule spring alike from that sentiment of personal 
self-respect, liberty, independence, and dignity which has inhabited the breasts 
of English-speaking peoples for centuries, and to save which they have always 
been ready to sacrifice many governmental facilities and conveniences." the 
Justice said. "In scarcely anything has that sentiment been more manifest than' 
in the abhorrence felt at the legal compulsion upon witnesses to make con- 
cessions which must cover the witness with lasting shame and leave him degraded 
both in his own eyes and those of others." 

Legal scholarship of the time — especially on the Supreme Court — was so inade- 
quate and slipshod that apparently Justice Field was unaware of an ancient 
sanction against compulsory self-infamy that strongly supported his argument. 
As far back as 1528, William Tyndale's "The Obedience of a Christian Man" had 
condemned the legal practice of forcing a man "to shame himself." By the late 
seventeenth century, this principle was embedded in English law. and in a notable 
case in 1679 a .iudge ruled that a witness could not be asked about his misdeeds 
even after being assured that he would not be prosecuted, because "neither his 
life nor name must suffer, and therefore such questions must not be asked 
him." And in 1696 Lord Chief Justice George Treby said, "Men have been asked 
whether they have been convicted and pardoned for felony, or whether they 
have been whipped for petty larceny ; but they have not been obliged to answer. 
for though their answer in the affirmative will not make them criminal or subiect 
them to a punishment, yet they are matters of infamy : and if it be an in^'in.Mii* 
thing, that is enough to preserve a man from being bound to answer." Sir William 
Blackstone's "Commentaries on the Laws of England." which was published in 
the mid-eighteenth century and was considered the leading text on the law by 
the Framers. stated that "no man is to be examined to prove his own infamy." 

Two years before the Supreme Court upheld the immunity act in Brown v. 
Walker, a lower federal-court judge named Peter Grosscup had rejected the- 
statute as unconstitutional. In his opinion, delivered in 1894. he addressed him- 
__^elf to the issue of self-infamy, among other matters, as making up an integral 
part of the Framers' design when they drew up the Fifth Amendment : 

"Did they originate such privilege simply to safeguard themselves against the 
law-inflicted penalties and forfeitures? Did the.v take no thought of the pains 
of practical outlawry? The stated penalties and forfeitures of the law might be- 
set aside, but was there no pain in disfavor and odium among neighI)ors, in 
excommunication from church or societies that mifht he governed by the pre- 
vailing views, in the private liabilities that the law might authorize, or in the- 
unfathomable disgrace, not susceptible of formulation in language, which a 
known violation of law brings upon the offender? They, too. if the immunity 
was only against the law-inflicted pains and j>enalties, the government coiikV 
probe the secrets of every conversation, or society, by extending compulsory 
pardon to one of its participants, and thus turn him into an involuntary in- 
former. Did the Framers contemplate that this privilege of silence was ex- 
changeable always, at the will of the government, for a remission of the partic- 
ipant's own penalties, upon a condition of disclosure, that would bring those 
to whom he had plighted his faith and loyalty within the grasp of the prose- 
cutor? I cannot think so. . . . 

"The oppression of crowns and principalities is unquestionably over, but tbe- 
more frightful oppression of selfish, ruthless, and merciless majorities ma.v 
yet constitute one of the chapters of future history. In my opinion, the privilege- 
of silence against a criminal accusation, guaranteed by the Fifth Amendment, 
was meant to extend to all the consequences of disclosure." 

Both the Supreme Court's narrow endorsement of transa'^tional immunit^y and 
its rejection of the theor:^' that the Fifth Amendment prohibited the government 
from forcing one to disgrace oneself were ultimately to abet the tyranny of the- 
majority that Judge Grosscup foresaw. As a result of anti-Communist hysteria. 
which had spread throughout America from the time of the Bolshevik Revolution' 



182 

in 1917 until it burst out into a national nightmare of repression in the late 
nineteen-forties and early nineteen-fifties, Congress, which had created most of 
the hysteria in the first place, responded to it by enacting some of the most 
repressive laws ever to be placed on this nation's books. 

Armed with these laws, congressional committees and federal grand juries 
summoned their victims, who were forced to admit their radical political beliefs 
and associations and to inform on their friends or go to prison. In one of the 
most famous of these cases, which reached the Supreme Court in the mid-fifties — 
UUman v. United States — the Court upheld a transactioual-immunity statute 
that Congress had passed to implement one of the more far-reaching anti-radical 
laws. Since the statute provided absolute immunity. Justice Felix Frankfurter 
said for the seven-man majority, it was consonant with the decision in Brown v. 
Walker, which had "consistently and without question been treated as definitive 
by this court." Of the two dissenters. Justice Hugo L. Black opposed the decision 
on the ground that if the Constitution said, "No person shall be . . . compelled 
in any criminal case to be a witness against himself," that was what the Con- 
stitution meant. The other dissenter. Justice William O. Douglas, called upon 
the Court to overturn the five-man majority opinion in Brown and to raise the 
four-man minority opinion there to the status of constitutional doctrine by ruling 
"that the right of silence created by the Fifth Amendment is beyond the reach 
of Congress." 

Above all, Douglas shared the concern expressed sixty-odd years earlier by 
Judge Grosscup and Justice Field about self-infamy, and he appealed to the 
Court to stand up for "conscience and human dignity and freedom of expression" 
by giving a person's reputation and his sense of independence and self-respect the 
full protection accorded it before the Supreme Court went to work on the Con- 
stitution. "The critical point is that the Constitution places the right of silence 
heyond the reach of government," he repeated. "The Fifth Amendment stands 
between the citizen and his government." But the Court's majority refused 
to listen. 

After Brown v. Walker, the most important case concerning compulsory self- 
incrimination to be decided by the Supreme Court was Twining v. State of New 
Jersey, in 1908. In a state ciiminal trial, a judge had noted in his charge to the 
jury that the defendants had declined to take the stand in their own defense, 
and they appealed this act as a violation of their Fifth Amendment rights as 
interpreted by the Fourteenth Amendment. That amendment say.s, "No State 
shall make or enforce any law which shall abridge the privileges or immunities 
of citizens of the United States : nor shall any State deprive any person of life, 
liberty, or property, without due process of law ; nor deny to any person within 
its jurisdiction the equal protection of the laws." 

The Fourteenth Amendment was adopted in 1868, and many legal scholars and 
judges believed that its purpose was to make the entire Bill of Rights binding 
on the states. But. in 1S7.S, five years after the amendment was adopted, the 
Supreme Court decided that it guaranteed citizens of the states only those rights 
the states said they iiossessed— that is, the Fourteenth Amendment was meaning- 
less. Four members of the Court led by Justice Field, bitterly contested the 1873 
decision, for if the Fourteenth Amendment did no more than the majority held, 
he said, "it was a vain and idle enactment, which accomplished nothing, and most 
unnecessarily excited Congress and the people on its passage." 

In Twining v. New Jersey, the defendants reopened the argument by contend- 
ing that the Fifth Amendment right against compulsory self-incrimination had 
been "incorporated" through the "privileges or immunities" clause of the Four- 
teenth Amendment to cover state criminal proceedings. But the Court rejected 
this view, and cited its 1878 decision as binding. 

To buttress this conclusion. -Justice William H. Moody, speakin" for the Court 
in Twinins. pointed out that the rights and privileges of national citizenship so 
far recognized by the Suprpme Court were "the right to pass freely from state to 
state, the right to petition Congress for a redress of grievances, the right to votp 
for national officers, the right to enter the public lands, th-^ riirht to be protected 
against violence while in the lawful custody of a United States marshal, 
and the right to inform the United States au^^horities of violation of its laws." 
The rii«-hts enumerated in the Bill of Rights, among them freedom of religion, 
speech, press, and assembiv : the right to be secure .'^9:i,inst unreasonab'e searches 
and seizures, against indictment for felonv pycep*" by grand ?\vy. against double 
jeonardy and agfiinst involuntn^-y self-im^riminntion : the ri<^ht to a speedy and 
public trial by an imiiartial jury, to a public accusation describing its nature and 



1S3 

cause, to be confronted by one's accusers, to have the power to summon witnesses, 
on one's behalf, and to have a hiwyer ; and the right not to be subjected to ex- 
cessive bail or lines or to cruel and unusual punishment — -all these fundamental 
I'ights were the privileges and immunities of citizens only when they came up 
against the authority of the federal government. 

Not one of these rights, the Court declared, was guaranteed to citizens against 
the authority of individual states unless specifically provided for under the laws 
of those states. In fact, the states could suspend or abolish any of the riglits they 
had guaranteed their citizens, and no power, including that of the national gov- 
ernment, could stop them. Accordingly, Justice Moody asserted, the right against 
compuisory self-incrimination was not a privilege or immunity of a citizen in a 
state criminal proceeding. 

Going on to the defendants' further claim that compulsory self-incrimination 
also denied them due process of law, as guaranteed by both the Fifth and Four- 
teenth Amendments, Justice Moody stated that to constitute due process any 
legal i lincii!';' had io be shown to be :in intih.sic pa.'t of "the law of the land," 
as that phrase was meant by the authors of Magna Carta. He then asked rhetor- 
ically whether the prohibition against compulsory self-incrimination was "a 
fundamental principle of liberty and justice which inheres in the very idea of 
free government and is the inalienable right of a citizen of such a governuient." 
He answered that it was not, because a search through English and American 
history prior to the Revolution revealed "nothing to show that it was then thought 
to be oiher than a just and useful principle of law." 

In England, he went on. the "privilege was not dreamed of for hundreds of 
years after Magna Carta (1215), and could not have been implied in the 'law of 
the land' there secured." 

The test Moody proposed was faulty. For one thing, many of the principles that 
had been considered fundamental at the time the American Constitution was 
adopted had not been dreamed of for hundreds of years after Magna Carta. In- 
deed, if the founding of the United States was nothing more than a repetition of 
that document's principles, then six centuries had passed with no political prog- 
ress to be shown for them. For instance, when King John signed the Great 
Charter ever, jury ti lals in criminal cases were unknown in England. In addirion, 
Magna Carta contained almost no fundamental rights of ordinary people as we 
understand f^v.rh rights today. 

Those that were claimed so fervently — by men like Lilburne, among thousands 
of others — to be indelibly imprinted in it Avere actually i'!' losed on it by myth 
in the centuries after it was writteu. Tlie key sentence in Magna Carta that was 
later believed to contain the fundamental principles of democratic law reads, 
"No freeman shall be taken, or imprisoned, or disseised, or outlawed, or exiled, 
or any wise destroyed : nor shall we go upon him, nor .send upon him, but by the 
Timpired the battle or interpreted the reaction to the iron. 

In thirteenth-century England, "the law of the land" meant trial by battle or 
by an ordeal such as being branded with a hot iron to see whether the burn 
healed quickly, which meant one was innocent, or became infected, which meant 
one was guiUy, and "the lawful judgment of his peer.s" referred to those who 
umpired tlie battle or interpreted the reaction to the iron. 

Continuing. Justice Moody pointed out that '^here was no reference to a guar- 
antee against self-incrimination in the English Petition of Risht. submitted to 
the king in lf)28. Once again the Justice — that is. the Supreme Court — was wrong. 
As Profpssor Levy has pointed out, a crucial part of the Petition was designed 
to stop the sovereign from forcing subjects to lend money to the Crown, and 
from forcing those who declined to make such loans to take self-incriminatory 
oaths before a special royal commission. Moody also claimed that compu'sory 
self-incrimination "was then a matter of common occurrence in all the covirts 
of the realm." 

While that was true. INIoody ignored the fact that beginning a few years later 
and for morf than two centuries afterward compulsory self-incrimination under 
oath was not permitted in common-law courts in England: in fact, dnrii?' this 
period defendants were not even allowed to testify under oath, either for or 
against themselves, in such courts of the realm until only ten years before Moody 
delivered the Supreme Court's opinion in Twining. Moody claimed that the Eng- 
li.sh Rill of Rights of IfiSO was "likewise silent, though the practice of question- 
ing the prisoner nt his trial had not then ceased." 

>, ctually. by that time the rule againf9t allowing prisoners to be questioned 
under oath was already established. Moreover, the English Bill of Rights was 



184 

largely a fraud for it contained little to assure rights to the common man — aside 
from sanctions against excessive bail and fines and cruel and unusual punish- 
ment — but was mainly designed to protect the government's rights. One demon- 
stration of this purpose emerged when Thomas Paine attacked that Bill of Rights 
in "The Rights of Man" by saying, "The act, called the Bill of Rights . . . what 
is it but a bargain, which the parts of the government made with each other to 
divide powers, profits, and privileges?" As if to prove his point, the British 
govenunent charged Paine with treason, and he was convicted of committing, 
among otiier crimes, seditious libel against the Bill of Rights. 

Justice Moody then moved on to America, and asserted that only four of the 
original thirteen states had asked that the Constitution be amended by adding a 
bill of rights that included the right against involuntary self-incrimination. He 
did say that six of the thirteen states had such a right written into their own 
constitutions, but he did not mention that every state having a separate bill of 
rights prohibited compulsory self-incrimination. He also ignored the broadest and 
most pertinent document of freedom up to that time, the Virginia Declaration of 
Rights, written by George Mason, whicli had greatly influenced all the state con- 
stitutions and the national Constitution ; it, too, contained a sanction against 
forced self-incrimination. 

And, finally, .Justice Moody ignored the Supreme Court's own finding in Brown 
V. Walker that the American colonists "with one accord, made a denial of the 
right to question an accused person a part of their fundamental law." In conclu- 
sion. Justice Moody dismis.sed the prohibition against involuntary self-incrimina- 
tion as being in any way fundamental by saving that "it is nowhere observed 
among our own people in the search for truth outside the administration of the- 
law" — in other words, the rule has no counterpart in ordinaiT society. 

This claim, which has repeatedly been made by such eminent jurists of today a.s 
Waltex V. Schaefer, of the Illinois Supreme Court, and Henry J. Friendly, of the 
Court of Appeals for the Second Circuit, misses a couple of basic points. For one. 
"the search for truth" has nothing to do witli the Fifth Amendment, which was 
obviously written with the express purpose of allowing ijeople to conceal the truth. 
For another, the world outside the law is not like the worid inside the law — most 
notably in the respect that in civil society one cannot be imprisoned for one's 
transgres.sions. Indeed, if the mles of civil society were the standard on which 
our criminal law were based, then no one would be forced to talk about others 
or go to prison, because scarcely anyone is regarded with moa-e scorn in the 
ordinary world than the Judas figure — from the childish tattletale to the adult 
informer. 

By the beginning of the eighteenth century, criminal-court judges in England 
generally concluded that compelled confessions were untrustworthy, and this 
realization became another reason for not allowing an accused person or a wit- 
ness to be tortured. But in America the use of torture went on illegally for many 
years — ^and, in fact, still goes on. As it turned out. the Supreme Court was to- 
have as much difficulty in facing this problem as it has had in facing the problem 
of coerced confessions in general. 

In the mid-nineteen-thirties. three black men were arrested in Mississippi on a 
charge of murdering a white man. Five days after tlie crime, they were indicted, 
arraigned, given court-appointed counsel, and then were taken to trial the follow- 
ing morning. The trial lasted less than two days, and at its conclusion the three 
were found guilty and sentenced to death. Aside from their confessions, there 
was no evidence against them, and during the trial their story of how they had 
come to confess was laid before the jury. The stoi-y told how a deputy sheriff 
had led a mob to one of the defendants, hanged him by a rope from a tree outride 
the dead man's house for a time, let him down long enough to hear him pi'oclaim 
his innocence, hauled him up again, let him down, heard him repeat his claim, 
then tied him to a tree trunk and whipped him until the mob tired of it and 
released him. without persuading him to confess. 

A couple of days later, the deputy and a collengue went to the man's house and' 
took him to jail — by way of nearby Alabama, where they stopped and beat him 
some more. They vowed to go on beatins- him until he r-onfessed. and finally he did. 
whereupon they took him to jail. The deputy then picked up two other black men 
who had been implicated by the first suspect, took them to jail, made them strip 
and lie down over chairs, and whipped tbem with the buckle end of a leather belt 
until their backs were cut to pieces. In time, they confessed, too. During the trial, 
they displayed the fresh wounds on their backs to the jurors, and the defendant 
who had been hanged showed them the rope marks on his neck. The deputy sheriff 



185 

a-eadily admitted while on tlie stand that he had beaten one of the men, but, he 
said, "not too much for a Negro." The judges of the Missis.sippi Supreme Court 
read the trial record and upheld the convictions and death sentences. 

Brown v. Mississippi, unlike thousands of similar cases across the country, 
ended up in the United States Supreme Court. In the argiiments there, counsel 
for the State of Mississippi contended that Twining controlled the issue and 
that, accordingly, the federal rule against involuntary self-incrimination didn't 
apply to a state case. In February, li>o6, the Court annouucetl its decision, which 
upheld the state's contention on this point. "The question of the right of the state 
to withdraw the privilege against self-incrimination is not here involved," an- 
nounced Chief Justice Charles Evans Hughes for the Court. What was involved, 
though, he went on. was that "torture to extort a confession" was so "revolting 
to the sense of justice" that it constituted a denial of due process, which was a 
right that the state could not withdraw. On this ground, the Court reversed the 
convictions. 

State courts apparently couldn't believe that the Supreme Court had been 
serious in finding such practices illegal, and they continued to uphold convic- 
tions based on third-degree confessions. After all, there were states' rights, and 
none of them was more jealously guarded tlian the right to assert the police 
power at will. And. as Sir James Fitzjames Stephen, a prominent Victorian 
jurist, ob.served, "It is far pleasanter to sit comfortably in the shade rubbing 
red pepper into a poor devil's eyes than to go about in the sun hunting up evi- 
dence." To give tlie law some semblance of integrity, state courts went through 
-what has been called "the swearing contest," in which policemen swore that de- 
fendants hadn't been beaten, defendants swore that they had, and judges and 
juries invariably took the word of the policemen. Time after time when such cases 
reached the Supreme Court, it repeated its insistence on due process and reversed 
the LX)nvictions. But. again, this had little effect on the states, whose law- 
enforcement officers seemed unmoved by such reversals. 

In 1M3, the Sui)reme Court rule<l, in McXabb v. United States, that in federal 
criminal cases any protracted detention of a suspect violated a federal statute 
ordering that .suspect.'* be pronii)tly taken before magistrates, and that con- 
fessions obtained during prolonged detention were inadmissible. This rule, the 
Court explained, was meant to check "resort to those reprehensible practices 
known as the third degree." Of course, the rule was binding only on federal 
courts, but it was expected that their behavior would serve as an example to 
the states. 

However, judges on lower federal courts also apparently couldn't believe that 
the justices had l)een serious, and began ruling that before a defendant could 

^claim coercion under the McNabb rule he had to demonstrate that there was a 
causal relationship between the length of time he had been detained and his 
confession. To deal with this circumvention, the Supreme Court ordered in 1957, 
by way of ^Mallory v. United States, that any unnecessary delay in taking a 
fetleral prisoner before a magistrate made a confession automatically inadmis- 
sible in court. Still, the prevailing abuse of the right against involuntary self- 
incrimination was the continuing u.se of the third degree in state cases, and the 
McNabb-Mallory rule didn't touch those at all. 

Stymied by the intransigence of state officials, the Court went off in several 
different directions to stem these atrociously unjust practices. One of the chief 
means by which police often got evidence against suspects was by searching them 
without a warrant and using the evidence forcibly uncovered against them. Of 

- course, this violated the Fourth Amendment's stricture against "unreasonable 
searches and seizures" and ignored the requirement that the police must have 
"probable cause" to believe a crime has been committed before they may seize 

. evidence or arrest a person. 

Moreover, this kind of practice also violated the Fifth Amendment, since it in- 
directly compelled a person to betray himself by giving up evidence of his cul- 
pability through force. Finally, in 1961, the Court decided, in Mapp v. Ohio, that 
the Fourth Amendment was binding on the states. In effect, this meant that state 
violations of the amendment could i)e taken into federal court. That ruling made 
the Amendment's most effective and intrinsic element — the exclusionary rule, 
which prohibits unreasonably seized evidence from being submitted in court — 

. also binding on the states. In 1963. the Court also made the Sixth Amendment 
right to counsel landing on the states through Gideon v. Wainwright, and a year 
later expanded tliis ruling, in Escobedo v. Illinois, by holding that the right to 

: have a lawyer commenced as soon as a suspect was taken to a police station. 



186 

Like the Court's ruling on the Fourth Ameudmeut, the one on the Sixth 
Amendment had a salutary effect on the right against compelled testimony, 
since the first piece of advice that any lawyer will give to a client who is sus- 
pected or accused of a criuie is to say notliing at ail to the police. But law- 
enforcement officers who were temporarily dismayed hy this limitation on them 
soon got around it — by tortuiing suspects before taking them to the station 
house. To prevent this recourse, the Court took the giant step of applying the 
Fifth Amendment to the states, by way of Malloy v. Hogan, in 1964. 

Then, two years later, the Court expanded its protection by ordering, in 
Miranda v. Arizona, that every suspect in a criminal case must be warned of his 
constitutional rights from the moment he become^ a susi)ect — including the right 
to have a lawyer present at any stage of the proceedings against him, the right 
to remain silent, and the right to be warned that whatever he says may be used 
against him. In time, this order created a new form of the old swearing contest, 
in which policemen swore in court that they had given the Miranda warning, 
defendants swore that they hadn't, and judges and juries invariably believed the 
policemen. Even so, the Miranda decision made a compelling point: If the highest 
court in the land could not prevent injustice, at leas.t it would not condone it. 
Speaking for the five-man majority in Miranda, Chief Justice Earl Warren said 
that "the privilege against self-incrimination — the essential mainstay of our 
adversary system — is founded on a complex of values." 

He went on to explain, "All these policies point to one overriding thought : the 
constitutional foundation underlying the privilege is the respect a government — 
state or federal — must accord to the dignity and integrity of its citizens. To main- 
tain a fair state-individual balance, to require the government to shoulder the 
entire load [in proving a pei'son's guilt], to respect the inviolability of the human 
personality, our accusatory system of criminal justice demands that the govern- 
ment seeking to punish an individual produce the evidence against him by its own 
independent labors, rather than by the cruel, simple expedient of compelling it 
from his own mouth." 

On the same day that the Court applied the Fifth Amendment to state criminal 
cases, it also handed down its decision in Murphy et al v. Waterfront Commission 
of New York Harbor, which resolved a jurisdictional conflict that had previously 
existed among the states and between the states and the federal government in 
regard to grants of immunity. Before Murphy, when one state granted a witness 
immunity another state or the federal government could then prosecute him on 
the basis of his testimony, since no state could grant immunity from prosecution 
by another state or by the federal government. 

In Murphy, the Court ruled that when a person wasi forced to testify in one 
jurisdiction his testimony could not be used to prosecute him in another jurisdic- 
tion. However, to interfere as little as possible with the federal system, the 
decision allowed an exception to the absolute-immunity standard laid down in 
Counselman and upheld in Brown, Ullmann, and other Supreme Court decisions : 
it permitted use immunity to be employed in a dual-sovereignty situation when 
only one jurisdiction has any sort of immunity provision. Although the Court 
thereby made use immunity constitutional in narrowly circumscribed cases, the 
overall effect of the Murphy decision was to broaden the coverage and scope of 
the Fifth Amendment privilege by making it far more difficult to prosecute a 
person for what he testified to in avij jurisdiction. 

That the Court meant to hold to the strict Counselman-Brovpn requirement of 
transactional immunity in all other circumstances was demonstrated a year after 
IMurphy, when the Court struck down a congressionally authorized use-immunity 
statute. In that case. Albertson v. Subversive Activities Control Board, the Court 
unanimously found the statute unconstitutional, again cited the Counselman- 
Brown rule requiring a!»solute immunity in exchange for compelled testimony, 
and declared that any immunity statute must be measured by this standard. 

In sum, almo.st everything done by the Warren Court to interpret and apply 
the Fifth Arnendment to the whole range of criminal law in America did little 
moi'e than assure everyone of the rights that most people believed they had 
possessed all along. Even so, the indignant outcry from police, prosecutors, 
judges, politicians, the press, and laymen against the Court was so immediate 
and so cJamorcus that one might have thought the Bill of Rights had been 
scrn pried altogether rather than at last restored in one small pai't of the purpose 
that its author.-- had meant it to serve. 

"The natural progress of things is for liberty to yield and government to gain 
gi'ound," Jefferson wrote, and sohie years later he added, "Timid men . . . 



187 

prefer the calm of despotism to the boisterous sea of liberty." The rise in crime 
in the United. States over the past dozen years has driven a lot of timid i>eople 
to seek the calm of despotism by giving up their liberty to government on every 
level in the name of law and order. To the ignorant citizen and to the stupid 
judge, the Fifth Amendment right seems like a refuge for the guilty. On occasion, 
the Supreme Court has tried to correct this attitude. In 1956, for instance, the 
Court said in an opinion ou a Fiftli Amendment case, "At the outset we must 
condemn the practice of imputing a sinister meaning to the exercise of a per- 
son's constitutional right under the Fifth Amendment." But the following year 
President Eisenliower told a press conference, "I must say I probably share the 
common reaction : If a man has to go to the Fifth Amendment, there must be 
something he doesn't want to tell." The President's failure to see that such a man 
might have good and innocent reasons — and the right — not to tell something led 
Justice Hugo L. Black to observe a little later, "The value of these constitutional 
privileges is largely destroyed if i)eople can be penalized for relying on them." 

Few aspects of American law have distinguished the right wing from the left 
wing as clearly as their attitudes toward the Fifth Amendment. On the right, it 
has long been attacked as a refuge for the guilty, who, it is said, should be com- 
pelled to admit their crimes and be strictly punished for them. And on the left, 
it has long been defended as the essential bulwark against an inquisitorial govern- 
ment — in Jefferson's view, all governments — which may condemn and punish the 
innocent along with the guilty. 

The leading spokesman for the right-wing viewpoint is Chief Justice Warren R 
Burger. Long before he was appointed to the Supreme Court by President Nixon, 
Burger publicly attacked the Fifth Amendment sanction at every opportunity. As 
a judge on the Court of Appeals for the District of Columbia Circuit, he often 
criticized his liberal colleagues there for applying the sanction too strictly in 
their rulings. And at a law symposiiun that Burger attended the year before he 
became Chief Justice, he questioned the validity of such fundamental principles 
of our legal system as the presumption of innocence, trial by jury, and tlie right 
against compulsory self-incrimination. 

On the last point, Burger said at the law symposium, "Certainly you have 
heard — ^and judges have said — that one should not convict a man out of his own 
mouth. The fact is that we establish re-sponsibility and liability and we convict 
in all the areas of civil litigation out of the mouth of the defendant." To some 
legal scholars, it seemed astonishing that a man who made no distinction be- 
tween the civil law and the criminal law — who failed to note, for instance, that 
their penalties are a loss of money on the one hand and a loss of freedom and 
perhaps life on the other — could have become Chief Justice of the United States. 

Soon after the Nixon Administration took office. Attorney General .John N. 
Mitchell ordered a secret study made of the feasibility of altering the Fifth 
Amendment, either by drafting a law that would weaken its stricture against 
compelled testimony or by abolishing its privilege altogether through a constitu- 
tional amendment. Apparently, the second course seemed too long and too un- 
certain, so the Department of Justice concentrated on the first approach. 

A couple of years earlier. Congress had set up the National Commission on 
Reform of the Federal Criminiil Laws, and it was still at work on its assignment 
when Nixon and Mitchell took over. Along the way in its deliberations, the 
Commission adopted a rec-ommeadation made by a consultant : that transactional 
immunity be replaced by use immunity across the board. In effect, the proposal 
endorsed a broader form of use immunity thnn the laws of the eighteen-sixties, 
which the Supreme Court first rejected in 1S92 and again and again in later 
yearf:?. 

The use-immunity proposal stated that anyone who was compelled to testify 
could not he prosecuted directly on tbe basis of that testinicny or indirectly '>n the 
basis of leads from it to other evidence, but that one could be prosecute.! after 
being compelled to testify as long as the evidence used against one was obtained 
independently of, and was untainted by, the coerced testimony. Early in 1970. 
tlie use-immunity proposal was drafted in a separate bill, which was introduced 
in the House by three representatives who had served on the Commission and 
were also members of the House subcomznittee having jurisdiction over f uch 
legislation. 

A single day was allotted for a he;iring on the proposal to rewrite the Fifth 
Amendment. Of the six witnesses whn tPstified on the subject, only one. a spokes- 
man for the American CivH Lil)prties I'nir^n, opposed use immunity. 

The Nixon Admiiiisiration's '.u-inc'iial legs^l defense for hacl-ing the innovation 
was that the Supreme Court's decision in Murpliy v. Waterfront Commission — 



188 

that is, the narrow technical exception allowing use immunity in circumscribed 
cases — had made use immunity in general wholly constitutional. The witness 
from the A.C.L.U. and various critics who were not heard by the subcommittee 
Complained that such a law would have many drawbacks. 

Once a prosecutor could force a prospective defendant to testify about his 
crimes, for instance, the immense advantages that the government already had in 
manpower, money, and oflBcial intimidation would become gigantic, for then the 
prosecuter could immediately confine his search and concentrate all his resources 
on one person — the person who was granted use immunity and forced to testify 
against himself. And once the main target was sighted, a less than scrupulous 
prosecutor could easily fabricate a claim that the evidence used in court against 
tlie witness had been uncovered independently of the testimony elicited under 
compulsion. 

Even if a prosecutor was scrupulously fair, anyone among the many employees 
in large United States Attorneys" offices or in even larger metropolitan district 
attorneys' offices might inadvertently follow up a lead that came originally from 
a witness' testimony, and someone else might unwittingly offer it in court as 
untainted evidence. Of course, prosecutors are often exceedingly ambitious, and 
the best way for them to get ahead is by building a record of crimebusting — even 
if that means, as it all too frequently does, using illegally acquired tips from wire- 
taps or bugs, covertly broadening court-imposed limits on search warrants in 
order to pick up unauthorized material evidence, or ignoring third-degree 
methods used by police to extort confessions. 

Since the Bill of Rights was written to control such prosecutors, critics of the 
Tise-immunity bill pointed out, it was folly to encourage such men to legally force 
a man to talk and then to illegally use his words against him — the course that 
would almost certainly be taken by the incompetent, lazy, or vicious prosecutor. 
Moi-eover, when two or more suspects were involved in a case, use immunity could 
be employed to force each of them to testify against the other, which, in effect, 
would amount to their testifying against themselves, since the testimony of one 
could be used as independent evidence against the other. 

Finally, federal immunity laws of the past had applied only to specific crimes 
that were difficult or impossible to solve without the help of a confession from 
someone who was involved. But the use-immunity proposal being considered by 
the House subcommittee provided that it would replace all transactional-immun- 
ity statutes and would be applicable to all crimes covered by the federal code 
four years after enactment by Congress. 

The House subcommittee, which was controlled by a strong liberal majority, 
approved the use-immunity bill with only one vote being cast against it — by 
William Fitts Ryan, Democrat of New York, who said that it would destroy the 
Fifth Amendment. Afterward, the parent Judiciary Committee, which was also 
controlled by liberals, approved the measure with little discussion and sent it 
to the floor of the House as part of the Organized Crime Control Act of 1970. 
That act, which was perhaps the most undemocratic and repressive piece of 
legislation to be seriously considered by Congress in a generation, passed with 
little debate and almost no opposition ; when the final vote was tallied up, only 
twenty-six members of the House had voted against it. In the Senate, only one 
member — Lee Metcalf, Democrat of Montana — voted against the measure. It was 
an election year Nixon had made crime a basic issue of his Presidency, and, as 
fully expected on all sides, Congress was not of a mind to sacrifice itself on the 
altar of democracy. 

In the legal community, though, it was widely believed that the use-immunit.v 
law was so flagrantly unconstitutional that not even a Supreme Court headed 
by Chief Justice Burger could uphold it. But few Court-watchers anticipated that 
Nixon would soon have four appointees on the Court. Their effect was rapidly 
made clear in at least one resx)ect. "In no area of criminal justice was the Nixon 
Court's new departure so swift and veering as in cases arising under the Fifth 
Amendment's self-incrimination clause," wrote Professor Levy — now Mellon Pro- 
fessor at the Claremont Colleges, in California — in his recent book "Against the 
Law : The Nixon Court and Criminal Justice." 

He went on, "The Court decided fourteen such cases during just the first two 
years of Burger's incumbency. ... In all but one of the fourteen cases the right 
claimed under the Fifth Amendment lost." Of the thirteen assaults on the Amend- 
ment that succeeded, the most destructive was the decision in the case of Harris v. 
New York, which was handed down in 1971. The opinion of the Court was deliv- 
ered by Chief Justice Burger, wliose target was the Miranda ruling that a sus- 



189 

pect must be warned of the right to remain silent, of the right to have a lawyer, 
and of the right to be told that anything one says may be used against one in 
court. Although the INIiranda rule made any statements obtained in violation of 
it inadmissible as evidence, Burger undercut this guarantee by announcing for 
the majority of the Court in Harris that self-incriminating statements taken in 
vidlalion of Miranda can be used during a trial to test a defendant's truthfulness 
if he takes the stand. 

That is, once a suspect says something self-incriminating to the police before 
he is warned of his rights, his words cannot be used against him at (the 'time of 
his trial as evidence of his guilt but can be used against him "to impeach his 
credibility." Of course, the immediate, practical, and overvvhelmiug result of 
the new rule was to prevent any person who had made such an iucriminaiting 
statement, no matter iiow trivial, from speaking in his own defense at his trial, 
for no defense lawyer could allow a client to swallow the judicial fiction that 
jurors would ignore self -incriminating remarks when it came time for them to 
dei-ide about overall guilt or innocence. 

In effect, then, the Court wiped out under such circum.stances an accused 
person's fundamental right to defend himself. And, iierhaps v,-orse, the decision 
indirectly encouraged policemen and prosecutors to ignore the Miranda rule long 
enoug'h to obtain some kind of incriminating statement, even one that they knew 
w^as misleading, in order to prevent suspects from later defending themselves in 
court. "The opinion in Harris taught that government may commit crimes in 
order to secure the conviction of criminals," Profes.sor Levy observed, and added, 
"It taught the odious doctrine that in the administration of the criminal law, 
the end justifies the means and the Constitution can be circumvented." 

A few months after Congress passed the u.--e-immunity law, several young 
men in California were subiioenaed by a federal grand jury investigating draft 
evasion in that area, and were asked questions about a dehiist who was suspected 
of having provided them with unnecessary dental work to miake them ineligible 
for military service. They refused to testify, were granted the newly enacted form 
of federal iise immunity, again refused to testify, and were imprisoned for 
contempt of court. 

The case — Kastigar et al v. United States — went to the Supreme Court, which 
handed down its decision in the .spring of 1972. To the amazement of most con- 
stitutional 'scholars, the Court upheld the law without qualiticatioii by a vote of 
five to two, with two jusitices not piarticipating. The same scholars were amazed 
l)y the majority opinion's lack of craftsmanship, logic, and 'awareness of legal 
history. The opinion, written by Justice Lewis Powell, so misinterpreted the 
Courf's own precedents. Professor Levy said, that it "left them twisted like 
pi-etzels." 

Powell's basic 'argument was that transactional immunity W'as actually too 
broad — broader in fact, than the Fifth Amendment right itself — and that use 
immunity was precisely "cnextensive" with that right and thus a proper sub- 
stitute for it. Since this view was flatly at odds with alm'ost everything the €'ourt 
h'ad fsaid on the subjecit over 'a period of eighty years. Powell was oljliged to 
reject the entire line of Court rulings during that time withoult expres.'^ly siaying 
so by overruling them. To this end. he began w-ith tlie Connselman decision, the 
first of the line, and simply declared — erroneously — that it had upheld use 
immunity; its statement that only transactional immunity could replace the 
privilege itself, he said, was merely dictum and "cannot le considered binding 
authority." 

To be sure, the Connselman opinion on this point could be describefl as dictum 
Ca statement that is less than intrinsic to the order of the Court in a given ca.se, 
and is meant to serve morp as a future guide than as a present command), but it 
was-n't dictum after the Court made it the central point, four years later, in Brown 
V. Walker, and in a long series of decisions that subsequently reaffirmed the doc- 
trine of absrvlnte immunity. The finly exception in th^t series was the ]Munihy 
<1pcision's acceptance of use immimity in certain kinds of dual-sovereignty 
cases, and Powell squeezed throuarh this Innpholp. evpu wh'le denying thit he 
wa'^J doing it, to justify the Court's ruling that use immunity is fully constitu- 
tional in all dses. 

"With the decision in Kastigar, the long struggle to .stop government, ^roni 
forcing its way into the innermost privacy of people's thoughts, nssociati'^^s, 
and consr-iences Ifirgelv came <"o an end. The riglit wing's finnl victory in this 
ccnte«t betvreen the state and the individual was doub'y remarkable in that <-he 
sta*"e itself had long felt restrs^ined ))v tradition anrninst using any forai of i'n- 
mr.nity frivolously. The traditional reluctance of Congress, the courts, and the 

78-905 — ?() :13 



190 

executive branch to wield such a potent weapon carelessly grew out of several 
factors — among them the fear that corrupt prosecutors would give "immunity 
baths" to those guilty of serious crimes ; the belief that grants of immunity 
constitute giave invasions of citizens' privacy and should be resorted to only when 
all other law enforcement methods have failed ; and finally, the knowledge that 
compulsory immunity turns people into informers, a despised breed throughout 
American history. 

The danger of ignoring these factors soon became clear. After the Court's 
decision in Kastigar, state legislatures enacted similar laws replacing trans- 
actional immunity, and local prosecutors began summoning thousands of wit- 
nesses before grand juries. There is no record of the number of people who have 
been compelled in state cases to testify against themselves and others or who have 
been ^subsequently prosecuted f(u- what they revealed. Nor are the federal records 
complete. But one comparison is enough to reveal the extent of the new law's use : 
up to the mid-nineteen-sixties, the Department of Justice had granted immunity 
only a few dozen times ; in the eighteen-month period following the Kastigar 
I'uling, the Department was called upon to grant immunity to more than five 
thousand witnesses. 

Hundreds of these grants were made in political cases prosecuted by the Nixon 
Administration, which devised the law chiefiy for that purpose. Although the 
Administration's ostensible social justification for use immunity was that it was 
essential to the fight against organized crime, use immimity, or any other form 
of immunity, is largely valueless in such cases. The Mafia's omertd code, which 
can be roughly translated as "death to informers," makes a few months in 
jail for contempt of court a comparative slap on the wrist. In fact, a mobster's 
insistence on silence in order to receive such a sentence is the best way for him to 
prove his loyalty, and is doubtless a means to promotion within a grateful mob 
hierarchy. In addition to organized racketeering, the kinds of crimes that have 
been said to be controllable only by way of enforced immunity laws are bribery, 
extortion, gambling, consumer fraud, bootlegging, and commercial larceny — 
all but the last of which are most often committed by organized criminals, too. 

For those crimes that aren't, probably the most effective and certainly the 
fairest kind of immunity would be voluntary immunity, which a prospective 
witness who wants to talk could accept as protection from prosecution : those 
who don't want to talk often lie anyway when they are forced to, and while 
they are sometimes convicted of perjury, that doesn't generate the information 
that immunity is supposed to produce. 

In any event, before 1970 federal immunit.v statutes were specifically designed 
to be used only in those cases where little else would work. Now, with use 
ijnmunity having replaced all federal immunity laAvs and covering all federal 
crimes, the government can, in Judge Grosscup's words, "probe the secrets of 
every conversation." Today, any person can be summoned before a grand jury, a 
court, or a legislative committee and forced to answer all questions that may be 
asked. The opportunities for political oppression that this opening provides are 
practically unlimited. Of course, political freedom was the primary goal of men 
like John Lilburne and the Framers of the Constitution, and political freedom 
was one of the basic reasons behind the adoption of the Fifth Amendment. But an 
even more fundamental goal of the amendment, like the rest of the Bill of Rights, 
was to preserve and nourish that fragile, necessary, and wondrous quality that 
gives meaning and purpose to human life — individuality. 

Taking the Fifth — III 
(By Richard Harris) 

'"Let me assure you that as long as the F.B.T. ha^ a legal mnndate to protect t'^e 
American people from terrorism we will use all the legal weapins at our command 
to accomplish this task." Clarence Kelley, Director of the Federal Bureau of 
Investigation, told the Veterans of Foreign "Wars at a convention in the early 
spring of 1975. Sulisequent revelations about the F.B.I.'s widespread use of 
illegal surveillance, its practices of burglarizing suspect's homes and oflSces and 
of opening and reading citizens' private mail, and its harassment of people who 
were not accused of any misdeed other than holding unpopular political views 
have made it clear that the F.B.I, has not always been faithful to the rule of law. 

On the basis of the Bureau's own recent admissions of its lawless beliavior, it 
appf^ars that the arena in which it has been most culpably active is the political 
arena. It also appears that politics is the subject F.B.I, men know least about. 



191 

Tbit is hardly siiryrising, lor the Bureau's job is supposed to be law eiuorce- 
me-it aud law-euforcemeut officers traditionally have a rather narrow, and otteii 
cynical view of society in -eneral. Their task is to tind criminals. It has been 
said that a good cop sees everybody as a potential criminal, and Kelley, who is 
reportedly a very good cop, must keep tabs on every potential threat to siociety 
he Ji'^es if he is to be faithful to his duty as he conceives it. 

The difficulty lies in the fact that the Bureau has been allowed by every Ad- 
ministration in the past several decades to determine, almost entirely on Us owus 
who and what are threats to society. Given the Bureau's long-standing beliei; 
in the dire peril posed by left-wing conspiracies— a specialty of J. Edgar 
Hoovers— it is also not surprising tiiat F.B.I, men are inclined to view anyi'.ody 
whose politics don't square with the average liotarian's as a threat to the sur- 
vival of thy Republic. Since the executive and legislative branches have rarely 
stood in the F.B.I.'s way, only the judiciary remains as a check on the Bureau's 
abuses of its self-delegated authority. But the courts have done little to stop it 
from bending and breaking the law, because the courts cannot act fully until 
the agents who have broken the law are prosecuted. 

So far, despite reports about many hundreds of illegal acts committed by 
F.B.I, agents, not one of them has been tried for any of these crimes. In the end, 
this multiitle failure of all three branches of the go^■erument has given the 
Bureau not merely an implicit right but implicit encouragemeut to go on snoop- 
ing into the private affairs of anyone whose political views, expressions, or asso- 
ciates seem unorthodox to F.B.I, men. 

Hoover repeatedly tried to persuade Congress to give the F.B.I, the power to 
issue subpoenas, but Congress, which gave him just about everything else he asked 
for, turned him down on this score. Such power, it was felt in Congress, was too 
great to hand over to a national police agency ; even the Bureau's bureaucratic 
parent, the Department of Justice, was denied subpoena power, because it was 
held that no executive department should possess what was essentially a judicial 
function. But when the Nixon Administration took over, Attorney General John 
N. Mitchell soon came up with a simple way of helping Hoover over this barri- 
cade — by instructing the .Justice Department's ninety-three United States Attor- 
ney's offices around the country, most of which were headed by Nixon appointee-^ 
to cooperate with the F.B.I. 

The specific way iu which they cooperated was by directing the federal grand 
juries under their control to subpoena those who refused to talk to the F.B.I. — 
as anyone has the right to do — aud to force them to divulge whatever the Bu- 
reau's men wanted to know or face prison for contempt of court. Then, less than 
two years after the Administration took office, it persuaded a compliant Demo- 
cratic and largely liberal Congress to enact a new law providing for what is 
called "use immunity." Under the laws previously on the books, no one could 
be compelled to testify before a grand jury, a court, or a legislative body unless 
given total imnumity against prosecution for the act or transaction tesfified about. 
Only total immunity, the Supreme Court had held since 1892, could be a r.rope-^' 
sul)sti'tute for the Fifth Amendment stricture "No person shall be . . . compelled in 
any criminal case to be a witness against himself."' Under the use-immunity law. 
however, people who were compelled to te.stify could later be prosecuted as long 
as the government did not base its case against them, direc'tly or indirectly, on 
their own testimony. The new law was so obviously open to abuse by un- 
scrupulous prosecutors — who could easily conceal tracks leading from compelled 
testimony to "independent" evidence, and could the)i concentrate their immense* 
prosecutorial resources on targets v,hom they knew to be guilty — that most l"g;TJ 
scholars assumed the Supreme Court would find use immunity flagrantly un- 
constitutional on the ground that it wiped out tlie Fifth Amendment. But no 
one anticipated at the time that President Nixon would end up with four ai'poiii- 
tees on the Court, including Chief Justice Warren E. Burger, who had f requeutl.'.- 
and publicly questioned the inviolability of the Fifth Amendment right against in- 
voluntary self-incriminstion. A year and a half after the use-immunity law was 
enacted, the Burger Court upheld it. 

The Internal Security Division of the Justice Department, which b.ad been vir- 
tually moribund until Mitchell gave it the job of locating "enemies" of the Ad- 
ministration and helping the F.B.I, gather evidence against them by way of grand- 
jury investigations, began relying on the new law in thousands of cases. In fact. 
over the eighteen-month period following the Court's apjtroval of this law. the 
Department of Justice received requests for grants of immunity for more than 
five thousand witnesses. In many of these cases, the Administration employed the 



192 

grand-jury technique and the use-immunity law to devastatingly repressive ends. 
Scores of people who were accused of no crime except refusing to testify about 
some political conspiracy concocted by the Nixon Administration went to jail. 

With the end of the Nixon Administration, it was generally assumed that the 
repressive practices it had employed were at an end. But the use-immunity law is 
still on the books and is more widely employed than ever, since many states have 
copied the federal model ; many of the officials in the Justice Department and the 
F.B.I, and U.S. Attorney's offices who abetted the Nixon Administration's at- 
tempts to destroy its political opposition are still in office ; and grand juries are 
still being used, in effect, as instruments of government by inquisition. The Ford 
Administration may be unaware on the highest level that these practices are con- 
tinuing, for today they seem to be used not to serve the political purposes of a par- 
ticular Administration but to control the enemies of society as agencies like the 
F.B.I, define them. 

Of all the abuses that are still going on, perhaps the most serious one is the 
abuse of the grand-jury system to help the F.B.I, do the jobs that it has failed 
to do on its own. When the F.B.I, couldn't find Patricia Hearst, for instance, it 
fell back on the old Mitchell tactic by getting U.S. Attorneys to subpoena various 
people who might have known something of her whereabouts (including her 
mother, who was compelled to tell what she knew, even though that could have 
endangered the life of her daughter). And when the F.B.I, couldn't find any trace 
of Jimmy HofCa, it got a federal grand jury in Michigan to call scores of people 
on the off-chance that they might know something that the F.B.I, could use. 

"Historically, [the grand jury] has been regarded as a primary security for 
the innocent against hasty, malicious, and oppressive prosecution," the Supreme 
Court declared a few years ago. Although this view has been shared by lawmen, 
lawyers, and judges alike for more than eight centuries, it is a myth. From the 
time that the earliest form of the grand jury was established in England, in 1164, 
until the system was abolished there, in 1948, there were only two significant 
occasions when "the people's panel," as it was called in ancient days, stood up for 
the people against the English government. 

In the American Colonies, grand juries were widely admired, but only because 
they invariably absolved those who opposed the British (for instance, a number 
of colonists who burned British property, some of whom sat on the grand jury 
that considered their offense) and indicted those who sympathized with the 
British (including four innocent Tory civilians who were charged with murder 
after the Boston Massacre). By the time the Constitution was adopted, the myth 
of the grand jury as one of the individual's mightiest shields against tyranny was 
so embedded in the public mind that the grand-jury system was officially estab- 
lished under the Constitution by way of the Fif tli Amendment, which states : 

"No person shall be held to answer for a capital, or otherwise infamous crime, 
unless on a presentment or indictment of a Grand Jury, except in cases arising 
in the land or naval forces, or in the Militia, when in actual service in time of 
War or public danger; nor shall any person be subject for the same offence to be 
twice put in jeopardy of life or limb : nor shall l)e compelled in any criminal case 
to be a witness against himself, nor be deprived of life, liberty, or property with- 
out due process of law ; nor shall property be taken for public use, without just 
compensation." 

After adoption of the Bill of Rights, in 1791, the grand-jury system was much 
honored rhetorically and endlessly abused in practice. In the late nineteenth and 
early twentieth centuries, state grand juries occasionally asserted themselves to 
root out corrupt political machines. But on the federal level grand juries have 
almost always been rubber stamps in criminal prosecutions and in political per- 
secutions. 

During periods of national strife or popular hysteria, even the most liberal 
Administrations have allowed or encouraged grand juries to be used in the most 
nakedly oppressive ways— the Lincoln Administration to silence critics of the 
Union cause, the Wilson Administration to illegally imprison and deport several 
hundred innocent radicals to Russia after the Bolshevik Revolution, the Franklin 
Eoo-;ev('lt Administration to harass Nazi sympathizers, and the Truman Admin- 
istration to permit the anti-liberal vendetta waged by Representative Richard M. 
Nixon and Senator Joseph R. McCarthy. In the end, the Supreme Court's view 
of the grand jury as "a primary security for tlie innocent" is wholly unrealistic. 
A more accurate view was recently expressed by federal District Court Judge 
William Campliell, who said of the grand jury in general. "Today, it is lint a 
convenient tool for the prosecut(»r. . . . Any experienced prosecutor will admit that 
he can indict anybody at any time for almost anything." 



193 

At a little after nine o'clock on tlie morning of February 13, 1975, Ellen Grusse 
and Terri Tnrgeon appeared before Judge Jon O. Newman of the federal District 
Court in New Haven, Connecticut, to be officially notified that the court had 
granted each of them use immunity, and that they were now obliged to answer all 
questions asked by a federal grand jury, which they had been subpoenaed to 
appear before at ten o'clock that morning. The two women had been subix)euaed 
by the same grand jury a couple of weeks earlier, after they had refused to talk 
to F.B.I, agents about two fugitives whom the Bureau had been looking for, 
with almost no success, for four and a half years. The fugitives were two young 
radicals named Susan Edith Saxe and Katherine Ann Power, who had been 
charged, together with three male confederates, with participating in a bank 
robbery in Massachusetts in September, 1070, during which a policeman had 
been killed ; according to the authorities, the five had robbed the bank of twenty- 
six thousand dollars to finance an anti-war, anti-government terrorist campaign. 

After the robbery, the three men had quickly been captured, and had been 
tried, convicted, and imprisoned. But the women had disappeared. At some 
stage in their flight, they had purportedly hidden out in several lesbian and 
heterosexual feminist communities, in one of which, the F.B.I, apparently believed, 
they had met and become friendly with Grusse and Turgeon. Grusse and 
Tnrgeon had refused to testify before the grand jury, and whether or not they 
had actually met the fugitives, whether they had known the fugitives as Saxe 
and Power or by the aliases they were said to have used, and whether or not 
Grusse and Turgeon had known that the fugitives were being sought for bank 
robbery and murder was, and still is, unclear to everyone outside the case. 

Obviously, though, the F.B.I, officials in charge of the case and the govern- 
ment prosecutor who was directing the inquiry of the New Haven grand jury- 
believed that the two women knew something that might help the government 
catch Saxe and Power. The prosecutor, Assistant U.S. Attorney William Dow 
III, vehemently denied that catcliing fugitives was the government's purjiose 
in subpoenaing the women or in granting them use immunity, and insisted that 
the grand jury was looking into the question of v.hetlier any federal crimes 
had been committed by Saxe and Power if they had lived for a time in Connecticut, 
as reported, or by others who might have known thera and helped them hide out 
there or escape to another state. If the fugitives had even entered Connecticut, 
that made them guilty of interstate flight to escape prosecution, a federal crime, 
and if others had knomngly assisted them, that made them guilty of harboring 
fugitives and of failing to notify the police of a known felony, which is mis- 
prision of felony, another federal crime under the circumstances. 

Dow's denial that his purpose was to obtain information on the whereabouts of 
the two fugitives was essential for the government, because harboring fugitives 
and misprision were the only kinds of criminal acts in the case at hand that the 
New Haven grand jury had jurisdiction over, since imder the law it could not 
investigate ci-imes committed in other jurisdictions than its own. which was 
limited to the federal judicial district encompassing Connecticut. Also, it could 
not legally investigate crimes simply to help the government capture or build 
a case against someone who had already been indicted, and Saxe and Power had 
been indicted by both state and federal grand juries in Massachusetts back in the 
fall of 1970. In a motion to quash the subpoenas, the lavv-yer rep'resenting 
TTirgeon and Grusse in court that February morning charged that the grand 
jury had two improper purposes: to help the F.B.I, find the fugitives and to help 
the Department of Justice prepare for its prosecution of them when they were 
caught. Judge Newman, who had been U.S. Attorney in Hartford for five years 
before going on the bench in New Haven, dismissed the arguments on these 
points and denied the motion. 

As the two women left the courtroom, their lawyer, a yonng man by the name 
of Michael Avery, told them that their situation looked nearly hopeless. He had 
warned them earlier that if they were granted immunity and still refused to 
testify, they would probably be found in contempt of court and imprisoned until 
they talked or the term of the current grand jury ran out, as provided under the 
use-immunit.v statute. Federal grand juries normally sit for eighteen months, and 
the one in New Haven had only a little over six weeks remaining in its term. 
However, Avei'y had told his clients. Dow had vowed to have the women sub- 
poenaed again before a new grand juiy when they got out of prison ; if they 
refused to answer his questions once more, they could be sent back to prison for 
the full terra of the second grand jury, and the procedure could be repeated 
itntil they had served the statutory maximum imprisonment under the use-im- 



194 

mnnity law. That part of tlie law is unclear, but Avery lelieved that under it 
his clients couldn't he imprisoned for more tlian eighteen rnontlis aIto£;<'th?r. 

"I had never been so frightened in my life," Grusse said later. "We had brougl;t 
our suitcases, because we thought we'd be taken off to prison that very day. I 
was sure I was going to prison, and the mere thought of it terrified me almost 
1)eyond control." Turgeon was equally frightened. "I was near hysteria," she said 
latei'. 

Despite the consequences facing them, the two women were determined to 
remain silent, for they believed that the only way they could preserve their per- 
sonal integrity — the essence of their humanity and individuality, as they saw it — 
was by refusing to talk to anyone connected with the government about their 
private lives. In their public statements at the time, they said that they were 
basing their refusal to cooperate with the government on the right to "confidenti- 
ality in human relationships." While this suggested that they had indeed had 
some contact with the fugitives or at least with someone who bad known them, 
Grusse and Turgeon contended that such confidentiality, where it existed, was 
as inviolable as the confidences exchanged between patient and doctor, penitent 
and priest, or spouse and spouse. 

Unfortunately for their legal defense, this concept of confidentiality was not 
protected by law. The two women also stated that they were innocent of any 
criminal acts and possessed an inalienable right to be left alone. The govern- 
ment disagreed on all counts, and demanded its right — to be told what they knew 
about suspected crimes. There could be no doubt that the government had that 
right, legally speaking. Now that the Fifth Amendment right against involuntary 
self-incrimination, which had been originally designed to protect the individual's 
integrity, had been eliminated by the use-immunity law, tlie government possessed 
the kind of power it had never had before — the power to decide what the sise 
of any individual's integrity would be. 

Wlien Avery was retained by Grusse and Turgeon, a couple of weeks earlier, 
he had known little about grand-jury procedures. "I had never done any grand- 
.iury work before, so I had to do a crash study program," he said. "The first thing 
I learned was that the whole system is amazingly unjust. To begin with, it is 
based on the judicial fiction that grand-jury proceedings are not entirely criminal 
in nature until indictments are returned. The reason for this fiction appears to 
be that if the proceedings were criminal they would have to be governed by the 
ordinary due-process-of-law rules that govern trials — things like the right to con- 
front one's accusers, to cross-examine witnesses, to summon witnesses on one's 
own behalf — and that vrould turn grand-jury hearings into miniature trials. 

In other words, some people would have to be tried twice — once hy a grand 
juiy when it questions prospective defendants and once by a petit jury when it 
tries them. That would take a lot of time, and the courts seem far more interested 
in imi)roving efiiciency in our grossly inefficient legal system then they are in the 
quality of justice. Anyway, it's absurd to claim that grand-jury proceedings are 
not criminal proceedings, since witnesses may be indicted for crimes that the 
grand jury is investigating, and since they can be imprisoned if they refuse to 
talk after being granted immunity. While someone who has never been tried or 
convicted of any crime can spend as much as eighteen months in prison for civil 
contempt, someone who faces a criminal-contempt charge that could lead to im- 
prisonment for six months or more has a right to a jury trial and can never be 
im])risoned again for the same contempt because of the double-jeopardy clause 
in the Fifth Amendment. So under our grand-jury system those who have been 
found guilty can be treated more fairly and leniently than those who are innocent 
under the law." 

The denial of due process that troubled Avery the most that morning as he 
and his clients left Judge Newman's courtroom was that grand-jury witnesses 
are not allowed to have lawyers present when they are interrogated. Usually 
they are permitted to have lawyers waiting outside the grand-jury room and are 
permitted to go out and consult with them before answering questions. But that, 
too, has drawbacks. "The only justification for not giving grand-jury witnesses 
the Sixth Amendment right to have a lawyer at their side is that tlie lawyer may 
advise them in a way th.at the prosecutor doesn't want them to be advised," 
Avery has explained. "But the basis for the right to counsel is precisely to allow 
the individual to have that kind of advice when confronted by all the immense 
powers of government." 

Moreover, he went on, the awkward and time-consuming practice of allowing 
witnesses to leave the grand-jury room to consult with their lawyers makes what 



195 

should be a right to counsel seem to grand jurors to be a privilege, and if that 
privilege is requested very often they are bound to become annoyed and perhaps 
prejudiced against the witness. And, of course, a frightened and ignorant witness 
may not even assert the privilege when asked a seemingly innocent question 
that is actually a legal trap. Among the other drawbacks of the system, Avery 
said, is that since a grand jury is under no obligation to tell witnesses what 
the subject of the inquiry is, they often don't know whether they are suspects, 
whether they have committed some crime that they were unaware of and now 
may inadvertently confess to, or whether they are being questioned about the 
activities of others. Under these uncertain circumstances, a witness who answers 
anything asked by a grand jury may be taking a grave risk. 

Ordinarily, prosecutors don't tell witnesses whether or not they are "targets" 
of the grand jury's investigation, that whatever they say may be used against 
them, that they can remain silent unless they are given immunity, or that they 
may be prosecuted for perjury if they testify and lie. In addition, if one answers 
any question asked by a prosecutor (or, rarely, a grand juror) before a grand 
jury — ^apart from one's name — one may automatically waive the right to refuse 
to answer any other question. (Called "opening the door" by la\^'7ers, this kind 
of waiver was established by only one federal-court case, and has not been 
fully tested judicially.) Witnesses who go before grand juries without consult- 
ing a lawyer, as many do, are unlikely to be aware of this rule — or snare — and 
may end up being forced to testify against themselves without having even the 
slender advantage of being given use immunity beforehand. 

Grand jurors are themselves rarely aware that the elementary principles of 
fair play — or "fundamental fairness," which the Supreme Court requires of 
all government practice in criminal cases — are suspended during their hearings, 
because when new grand juries are convened judges rarely tell the members any- 
thing about their supposed "historic function," or much of anything beyond their 
duty to indict those who seem guilty. Accordingly, grand jurors are usually the 
uninformed assistants of the prosecutor rather than members of a people's panel, 
and he can manipulate them more or less as he pleases. 

An unscrupulous prosecutor, for instance, can easily make a witness who tries 
to assert his exceedingly limited rights look guilty merely for asserting them. 
If a prosecutor asks a witness a seemingly innocuous leadoff question such as 
"What newspapers do you read?" or "What did you have for breakfast this 
morning?" and the witness refuses to answer on the ground that his response 
may tend to incriminate him — meaning, of course, that if he waives his right 
to silence by answering that harmless question he will have to answer a lot of 
possibly incriminating ones — the grand jurors are apt to conclude that the 
witness is simply obstructing justice. Also, prosecutors can easily browbeat 
witnesses by embarrassing them. Shortly after Turgeon and Grusse had been 
questioned by the New Haven grand jury the first time, a federal grand jury 
in Lexington, Kentucky, which was looking into reports that Saxe and Power 
had hidden out in a lesbian community there, allowed the U.S. Attorney in 
charge to ask several women who were subpoenaed and put under oath, "What 
is your sexual preference?" For refusing to answer this question, among others, 
the women were found in contempt and sent to prison. And, as Avery had warned 
his clients, once they were both given immunity each of them could be forced 
to testify against the other, and thereby provide the government with "inde- 
pendent" evidence — if such existed— against both of them. 

Assistant U.S. Attorney Dow impressed Turgeon and Grusse as being anything 
but vindictive or ruthless in their case. When they first appeared before the 
grand jury, he went out of his way to warn them of various matters that he was 
under no obligation to reveal— that they were not targets of the grand jury's 
investigation, that they could still be prosecuted if they revealed any crimes 
they had committed, that they had the right to plead the Fifth Amendment 
and remain silent unless they were granted immunity, and that they could be 
prosecuted for perjury if they testified and lied. 

Of course, he must have known that Avery had already told his clients about 
these matters. Even so, the women regarded Dow with sympathy and even 
fondness. "He's a decent man — very personable and affable," Grusse said. "I 
think he really believes that what he's doing is right. But what he believes is 
right is that he should do everything in his power to catch a couple of people who 
are accused of bank robbery and murder. And to do that he will close his eyes to 
the real problems in this case — the political and legal issues involved and the 
personal rights being sacrificed. Our individual rights, our sense of our own 
integrity, our duty to ourselves mean nothing to him. All he can talk about is that 



196 

dead policeman who left nine kids. I'm sorry about that, too, but I had nothing 
to do with it, and I have nothing to say now that Dow has any right to know." 

Both she and Tnrgeon felt that although Dow was fair to them, he might as 
well have been unfair, since his purpose was to force them to betray themselves 
or go to prison. In Turgeon's view, Dow was also a victim of the F.B.I.'s frantic 
search for Saxe and Power. "I don't think he set out to do this to us," she 
explained. "In fact, I don't think the F.B.I, set out to do it, either. I think the 
Bureau was really embarrassed at not being able to catch two little women for 
all that time. The whole thing just got out of hand for the F.B.I, and in the end 
for Dow, too. Because we stood up to the system, they came to see us not as a 
couple of helpless individuals but as two tough radicals, maybe even criminals, 
who were nearly as bad as Saxe and Power. When the search for them began, the 
F.B.I, had no idea of how broad and deep the women's movement was. I don't 
mean the women's-libbers, the bra-burners, and the equal-pay advocates. I mean 
the serious revolutionaries who believe that society has to be turned upside down 
before there can be any true equality for women and any real justice. I think this 
discovery really scared the F.B.I., and then it saw the Saxe-Power investigation 
as a cover for finding out more about this radical 'network,' as they call it. So all 
we are — and maybe all Dow is — are tools in this investigation of the women's 
movement." 

After Judge Newman gave Grusse and Turgeou immunity on February 13th, the 
two women, together with Avery and Diane Polan, his legal assistant who did 
most of the research for the case, left the courtroom — on the second floor of the 
New Haven post-oflBce building — and headed down the broad, marble-floored 
corridor toward the grand-jury room around the corner. When they got there. 
Avery held Grusse and Turgeon in a huddle with his arms around their shoulders 
and whispered some last-minute instructions to them. He had little encouragement 
to offer, because he had been convinced by his study of the grand-jury system that 
his clients' chances of remaining both silent and free were slight. ''I knew 
that I was legally helpless," he said afterward. "It was the most frustrating and 
discouraging experience I'd had so far in practicing law. It's terrible for a lawyer 
to have to stand there and not be able to do anything for a client — really nothing 
at all except go through the motions nad hope that the other side will make a 
mistake. A lawyer shouldn't get too emotionally involved with clients, because it 
destroys his objectivity and effectiveness, but I couldn't help being involved with 
these women. I really sympathized with them." 

Dow summoned Turgeon before the grand jury first, put her under oath, and 
asked if she understood that the grant of immunity supplanted her Fifth Amend- 
ment right to remain silent, and that if she testified and lied she might be 
prosecuted for perjury. Turgeon nodded, and Dow put his first question to her: 
Had she appeared before this same grand jury on January 2Sth':' At first, Turgeon 
assumed that this was one of those seemingly inoffensive questions designed to 
trap her into waiving her right to silence, but then she realized that the grant of 
use immunity had deprived her of that right. 

Following the plan she and Grusse had drawn up with Avery, she wrote down 
the question, then asked if she could consult her lawyer. The foreman of the 
grand jury gave her permission— after a glance at Dow, who nodded, almost 
imperceptibly — and Turgeon left the room and returned in a few minutes carrying 
a slip of paper on which Avery had written her answer, which she read to the 
grand jury : "Upon the advice of counsel, I respectfully refuse to answer the 
question on the grounds that it and these proceedings violate my rights under 
the First, Third, Fourth, Fifth, Sixth, Eighth, Ninth, and Fourteenth Amendments 
to the United States Constitution, and under the United States Code, and for the 
reason that I believe I have been the object of illegal electronic and personal 
surveillance by the government, and for the reason that this proceeding and this 
question constitute an abuse of the grand-jury process." 

It was a constitutional mouthful, but it was largely irrelevant, since courts- 
have generally treated grand-jury proceedings as being exempt from the ordinary 
constitutional protections. Still, the statement contained the two legal issues that 
were to end up being at the heart of the case : whether or not there had been 
illegal eavesdropping, and whether or not there had been abuse of the grand jury. 
The first point was a nevr one, and Avery raised it both because he and his asso- 
ciates in the case believes there was a strong possibility that the government 
had illegally kept them or their clients under surveillance and because the Su- 
preme Court had ruled in 1972, by way of Gelbard v. United States, that when 
the government is asked by grand-jury witnesses about its use of illegal sur- 



197 

veillance as a basis foi- tlie questions asked tliem, the failure to deny the use of 
such eavesdropping relieves the witness of all O'bligation to testify. (This ruling, 
which was opposed by all four of Nixon's appointees to the Court, was base<l not 
on constitutional grounds but on statutory grounds — that is. on the intent of 
Congress as expressed in a 1968 act governing electronic surveillance. ) 

Dow then asked Turgeon if she knew Saxe and Power ; she again requested 
peiinission to see her lawyer, went outside, came back into the room, and gave 
the same response. Dow went on to describe the crimes that Saxe and Power had 
been charged with, and said, "It is believed that either or both Power and Saxe 
lived for a period of time in Connecticvit, and that you knew them, and that yoii 
may have information as to other people who knew them who might have assisted 
or aided them while they were in this state, and [who] might otherwise be guilty 
of some criminal involvement with them. That is the purpose of this grand-jury 
inquiry. I'd like to know when you last saw either [of them], where that was, 
when that was, who they were with." After going through the same routine, 
Tui-geon gave the same answer. This time, Dow warned her that she faced cou- 
tempt-of-court charges, and then asked several more questions that were slight 
variations of the main question, all of which Turgeon responded to with the 
same answer. Finally ; she was dismissed. 

Dow asked Grusse somewhat different questions about Saxe, Power, and any- 
one who might have known them in Connecticut. Grusse gave the same answers 
as Turgeon had, but then added a long statement at the end : "Furthermore, 
I firmly believe that I have been called before the grand jury because I have 
chosen to exercise my right not to speak with the F.B.I. My decision not to speak 
to them is based on the moral belief that the investigation the government is 
engaged in will violate my basic constitutional and human rights. ... I believe 
that every person has the right to keep her affairs private without intervention 
by government agents. I am also aware that the government, acting through the 
F.B.I, and grand juries, has used inquiries such as this to harass and gather 
information on political persons in recent years, and I do not care to be a party 
to that process. It's also true that there is no basis for investigating any criminal 
activity in the state of Connecticut, and that the grand-jury system and you. the 
jurors, are being used as tools of the F.B.I, to further their investigation. This 
is not a legitimate iise of the grand jury, and I respectfully request that you 
excuse me on those grounds." 

Dow asked Grusse if she intended to refuse to answer all questions. Before he 
could finish, though, the foreman unexpectedly broke in and said, "Could I ask 
one question?" Looking surprised, Dow nodded, whereupon the foreman turned 
to Grusse. "Do you understand the description of the reason that .vou are being 
called here, that Attorney Dow just stated?" he asked her. "Do you understand 
that the purpose of this grand jury is to investigate a crime that was committed 
in Boston in 1970. and your possible knowledge of any of — of any of the facts 
concerning the whereabouts of the people, the perpetrators of the crime? Do you 
understand that is the reason why you are being asked to be here?" 

Of course, the foreman's questions, or statement, about the grand jury's pur- 
pose was not only at odds with Dow's statement about that puipose, it was a 
clear admission that the grand jui-y was improperly seeking to help the govern- 
ment catch a couple of fugitives — unless the foreman had no understanding of 
what had been going on during tlie grand jury's investigation of the Saxe-Power 
case. 

Dow hastily interrupted to say, "Let me amplify that to a degree, if I could, 
Mr. Foreman, to indicate that the scope of the inqviiry goes beyond the crime 
itself that was committed in Boston, but activities of the individuals believed to 
have committed those crimes in the state of Connecticut, such as involving — 
such as possible assistance to those suspects by other individuals in the state. Is 
that your understanding?'' 

Although Dow's flapping syntax put the question beyond understanding, the 
foreman replied. "That's right." 

Apparently, Dow had meant to say that the grand jury's inquiry included 
crimes committed in Connecticut, which put the witnesses under the jurisdiction 
of the grand jury. But his "amplification" did not diminish the significance of 
the foreman's statement, which had unmistakably made clear that in his view the 
purpose of the grand jury was to get information about a crime committed in 
another jurisdiction and about two people who had already been indicted for 
that crime — a doubly improper purpose. Of course, the foreman could have got 
this impression from only one source — Dow, who had decided what evidence was 



198 

to be presented to the grand jnry. And yet no one who had dealt with Dow in 
the case from the witnesses' side doubted his decency, sincerity, or devotion to 
duty. "Dow spent several years worliing the other side of the street as a public 
defender in Washington, D.C.." one of the lawyers in the case said shortly after 
Grusse and Turgeon were granted use immunity. "He's an honorable fellow, and 
he doesn't like to think of himself as an oppressor. That's why he keeps talking 
about the nine kids that policeman left. He's trying to convince himself that 
he"s behaving properly so he can uphold his lil)pral credentials. At the start of 
this case, we thought he would push it a little to sati.sfy his superiors and then 
would realize that he was doing something wrong and would drop it. But he 
didn't. He's pushed it all the way. His rationalisation is that this is a local 
investigation of law-breaking in this district, but it's clearly not that. Whatever 
Dow's ov>'n goal is, the Feds are obviously intent not on just finding Saxe and 
Power but on uncovering nationwide radical connections in the women's move- 
ment." 

Dow's reliance on the legal but fundamentally unfair instruments of official 
inquisition — use immunity and the unbridled power of the grand .iury — to achieve 
the laudable goal of bringing to justice two people accused of vicious crimes 
reminded an observer of Justice Louis Brandeis's famous warning : "Experience 
should teach us to be most on our guard to protect liberty when the government's 
purposes are beneficent. Men l)orn to freedom are naturally alert to repel invasion 
of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in 
insidious encroachment by men of zeal, well-meaning biit without understanding." 

After Grusse and Turgeon refused to testify, Dow filed a motion with the 
court asking that they be ordered to answer the grand jury's questions, and 
Judge Xewman set a hearing on the motion for the next morning. At the hearing. 
Dow put on the stand the court reporter assigned to the grand jury, and he read 
his stenographic notes of the questions asked by Dow, the witnesses' refusals to 
answer, the foreman's statement about the grand jury's purpose, and Dow's 
attempt to "amplify" it. When Avery got his turn, he bore down on the fore- 
man's remarks to prove that the grand jury was being improperly used by the 
government. It was clearly the prosecutor's intention, Avery said, to turn over to 
the F.B.I, any evidence presented to the grand jury about Saxe and Power, which 
would violate the strict secrecy imposed by law on grand- jury proceedings as 
far as any member of the jury or any official of the government was concerned. 

Judge Newman regarded both arguments with indifference, and at the end of 
the healing he said, "Essentially, when all is said and done, it seems to me as 
if the witnesses are really asserting what they conceive to be a constitutionally 
protected right of privacy. It's understandable they may have a personal prefer- 
ence not to assist a grand jury [in] uncovering evidence of the commission of 
federal crimes, but their preference must give way to the legitimate power of 
the grand jury to have their testimony. . . . There is no showing before me 
whatsoever of any harassing or unnecessarily personalized inquiry. The situa- 
tion might be different if in a very extraordinary case intimate personal details 
were being probled for no apparent legitimate pun^ose. That's not this case at 
all." Newman then instructed Dow to write down the que.stions he had asked the 
two witnesses, and said that he would order the women to go back before the 
grand jury later that day and answer them or face contempt of court. At two 
o'clock that afternoon, Grusse and Turgeon appeared before the grand jury and 
refused to answer the questions on the same grounds. Afterward, Dow filed a 
motion asking the court to find them in contempt, and Judge Newman set Febru- 
ary ISth. four days later, for a hearing on that motion. 

Early on the morning of the eighteenth, Avery and David Rosen — another 
young New Haven lawyer who worked with him on the case — filed a forty-two- 
page brief setting down all the legal issues that they had not had time to present 
to the court formally. They also filed a motion claiming "unlawful electronic 
surveillance" and demanding that the government deny there had been taps on 
any of the telephones used by the principals, their lawyers, and a few associates 
who had been involved in the case. To support this motion, Avery and Rosen 
filed seven affidavits indicating why they thought there had been wiretapping 
of certain telephones by the government. 

In reply, Dow the same day filed a half-page affidavit swearing that he had 
checked all the names listed on the affidavits, and adding, "I hereby state that 
thei*e has been no electronic surveillance or interception of wire or oral communi- 
cations of those individuals named." Just before the February 18 hearing, Avery 
subpoenaed an F.E.I, agent working on the Saxe-Power case in Connecticut, but at 



199 

the hearing Dow opposed the subpoena, and Judge Newman asked Avery to ex- 
phiin his reasons for wanting the agent to testify. Avery replied tiiat lie merely 
wanted to ask him why he had requested that Dow summon Grusse and Turgeou 
before the grand jury in the first place, and to find out whether the F.B.I, already 
had the information that it was seelcing from the tvi'o women. 

In otiier words, Avery hoped to show that the F.B.I, was more interested in 
harassing the witnesses than in getting their testimony. Moreover, Avery went on, 
he wanted to call Dow to the stand, to ask him whether he intended to pass on to 
the F.B.I, whatever might be learned from Grusse and Turgeon, despite the rule 
imposing secrecy on everyone involved in grand-jury hearings except the witnesses 
Judge Newman denied both requests. "I am satisfied that the representations 
concerriing the inquiry of the grand jury as to possible violations of federal law 
in the District of Connecticut are sufficient to justify the grand jury asking the 
particular questions that were put to these witnesses," he said. Then he an- 
nounced that he would deliver his finding on the contempt motion the follovring 
day. 

In court the next da.v, Judge Newman informed Avery that the government had 
just submitted to him a sealed affidavit containing the evidence it possessed to 
demonstrate its reasons for asking Turgeon and Grusse the questions posed to 
them by Dow before the grand jury — reasons that included some evidence against 
Grusse and Turgeon themselves. (Although the judge in such a case can examine 
a sealed afSdavit, neither the witnesses nor their lawyers are permitted to see it.) 
The government, Newman added, had promised the court that if it sought to in- 
dict the two witnesses for any crimes, the evidence it now had would be presented 
before a grand jury other than the one they had so far refused to testify before. 

Then, ruling that Dow's denial of illegal surveillance was sufficient and that 
there was no reason to believe that the grand jury was being improperly used or 
that the witnesses were being harassed by the F.B.I., the Judge found Grusse and 
Turgeou in contempt of court. He ordered them "remanded to the custody of the 
United States marshal luitil such time as the.v elect to purge their contempt by 
testifying, but in no event for longer than the expiration of the term of the grand 
jury on April 1, 1975." Finally, he delayed execution of his order for five days, to 
allow the women time to appeal. 

"Our feeling of helplessness is just incredible," Turgeon said afterward. "In 
a case of this sort, it's rea'ly hard to feel at ail like a person. We can't express our- 
selves in any way. Everything that is said in court has to he said by our lawyers. 
They've been wonderful, but when the values we hold dear are translated into 
legal language they lose all personal meaning. They become so abstract that every- 
one forgets there are people involved — except those people. The frustration is 
4iwful, because the truth is lost in all the legalisms. The basic truth is that we have 
the riffht to silence. The issues of grand-jury abuse, wiretapping, harassment by 
the F.B.I, are beside the point. But the truth doesn't matter. What matters is 
power, and all the power is on the other side." 

On February 20th, the day after Judge Newman's decision, Avery and Eoseu 
filed a notice of intent to appeal it and another motion for a stay in carrying out 
the contempt citation xmtil the appeal was ruled on. Then Dow filed a motion 
asking the Court of Appeals to deny any delay, on the ground that the contempt 
law prohibited this if an "appeal is frivolous or taken for the purposes of delay" — 
both of which, Dow contended, applied to the case at hand ; moreover, he said, 
since the law requires the Court of Appeals to rule on such an appeal in not more 
than thirty days, if that court took its full allotment of time there would be only 
eleven more days until the term of the grand jury ran out, which "would render 
the adjudication of contempt meaningless." On February 21st, the Court of Ap- 
peals rejected Dow's arguments, and on the twenty-fifth the court gave the two 
•nomen two days to prepare their appeals for oral argument before a panel of three 
judges. 

Since Avery was occupied with other cases in New Haven, ha decided to call in 
a specialist in appellate and constitutional law — a young woman named Kristin 
Booth Glen, whom he had known for years. Glen had got her early legal training 
in the law offices of Leonard Boudin, one of the most accomplished legal practi- 
tioners on the political left, and then she taught at New York University Law 
School and worked with the National Lawyers Guild, in New York, until she went 
into private practice. 

The Guild, which was set up fort.v years ago, and played a major role in de- 
fending victims of congressional witch hunts against the left in the early nine- 
teea-fifties, had responded to the Nixon Administration's misuse of the grand jury 



200 

system to persecute the President's political oppouents by setting up a group to 
study tlie legal ins and outs of that system. By the time tlie Grus.se-Turgeon case 
came along, the standard legal work on the subject was a thick Guild handbook, 
which was used by lawyers on both sides in such cases. Armed with the handbook 
and assisted by consultants at the Guild, Glen set up a legal command center in a 
friend's office in New York, and for two days and most of two nights — the extraor- 
dinaTily short time allotted by the Court of Appeals — she worked on the crucial 
issue of electronic surveillance for her part of the appellate brief. Back in New 
Haven, Avery, Kosen, Folan, and a battery of students from Yale Law School 
worked on their part of the appeal — abuse of the grand-jury system. '"It was an 
around-the-clock job," Polan said later. "We had to drop everything else at the 
office to work on the brief." 

In the end, the brief ran to forty-seven pages, and ranged over a wide variety 
of complicated technical matters. Overall, though, it concentrated on Avery's 
two major points : that the government's denial of surveillance had been inade- 
quate and that there had been flagrantly improper use of the grand-jury process. 
On the first issue, Glen pointed out that the government's "search" of its sur- 
veillance records had consisted of a few telephone conversations between Dow 
and the F.B.I, agent in charge of the Saxe-Power case in Connecticut, who had 
reported that his surveillance records showed no sign of any surveillance's 
having been conducted on Grusse, Turgeon, or any of the lawyers and legal 
assistants in the case. 

Apparently, Dow had not asked the agent to check any records in the offices 
of the F.B.I, or other government agencies in Washington that commonly engage 
in electronic surveillance. Citing a 1974 decision of the same court she was 
appealing to — the Court of Appeals for the Second Circuit — Glen asserted that 
its own ruling then had required a government prosecutor who was challenged 
on the issue of illegal surveillance to show by affidavit each of the agencies that 
was checked and its specific written denials that any conversations of anyone 
using any of the telephones involved had been overheard. (Government wire- 
tapping and bugging, both legal and illegal, have become so widespread that 
the Second Circuit often requires what is called an "eight-agency check" — of 
the F.B.I., the Secret Service, the Internal Revenue Service, the Customs 
Service, the Drug Enforcement Administration, the Postal Service, the Criminal 
Division of the Jiistice Department, and the Bureau of Alcohol, Tobacco, and 
Firearms. Actually, though, at least twenty-six Federal agencies conduct surveil- 
lance of private citizens. ) 

On the issue of improper use of the grand jury, Avery quoted the foreman's 
statement about the New Haven grand jury's purpose, which, he said, constituted 
"a prima-facie case of abuse of the grand-jury function." Quoting the Second 
Circuit's opinion in an eleven-year-old case on this issue, he reminded the court 
that it had said there, "It is improper to utilize a grand jury for the sole or 
dominating purpose of preparing an already pending indictment for trial." 
Once there was such evidence of abuse as the foreman's admission, Avery argued. 
Judge Newman had erred in depriving Grusse and Turgeon of their right to due 
process of law in. the contempt hearings by refusing to let them call witnes?-es 
on their behalf — that is, the F.B.I, agent and Dow — to ask why they had been 
subpoenaed in the first place. Further, he said, the District Court had jurisdic- 
tion over the grand jury, and Newman had also erred by failing to halt the 
governm.ent's use of a grand jury in one federal district to investigate crimes 
committed in another district, as well as by failing to prohibit the government 
from violating grand-jury secrecy by passing on information obtained in secret 
proceedings to agencies like the Department of Justice. 

In reply, Dow submitted a twenty-seven page brief, in which he declared his 
affidavit denying the use of electronic surveillance was sufficient under the 
rules laid down in that circuit. "[The witnesses'] claim that the grand jui-y 
is preparing an already indicted case for trial, even if true, does not constitute 
an abuse of the grand jury," he went on. "A^liile it is often argued that a grand 
jury cannot continue to hear evidence in a ease in which it has already returned 
an indictment, the cases most often cited to support that proposition do not do 
so." He then analyzed the cases most often cited, and concluded that as long as 
a grand iury's investigation of indicted suspects was not its "sole or dominant 
purpose," the courts could not interfere with the process. Nor, he said, could he 
find a "court decision which wonld prohiliit a grand jury from investigating the 
whereabouts of fugitives for the sole purpose of achieving their apprehension." 



201 

And. finally, he contended that it was wholly proper for him to pass grand-jury 
evidence on to an agency like the F.B.I. 

The issues were clearly drawn, and the Court of Appeals chose to ignore them 
altogether. At the end of the oral arguments, on the afternoon of February 27th, 
the three judges recessed for ten minutes and then reconvened to read their 
two-to-one decision upholding the government— a decision that had obviously 
been prepared before the oral arguments. In the formal opinion that was filed 
later, Judge William Timbers, formerly chief judge of tne District Court in 
Connecticut and a Nixon appointee, spoke for himself and Judge J. Edward 
Lumbard, a former U.S. Attorney. 

The opinion was based on three points. First, Timbers said, there was "the 
strong public policy reflected in the statute" enacting contempt-of-court penalties 
for refusing to testify after being granted vise immunity and in the "congressional 
•concern over disruption of smooth and efficient operation of the grand-jury 
system." Of course, •"the strong public policy" was the Nixon policy of desti-oying 
his "enemie-s" by way of use immunity and the power of the grand jury. Federal 
courts traditionally examine what is known as the "intent" of Congress in 
inten^reting its legislation, and Judge Timbers took the overwhelming con- 
gressional support for the bill that the contempt and use-immunity provisions 
were part of — the Organized Crime Control Act of 1970 — as evidence of Congresses 
firm intent. 

As it happened, though, neither use immunity nor any other part of that act 
received more than cursory attention b.v Congress, whose members knew that 
they risked defeat at the polls if they voted in .an election year against anything 
called the Organized Crime Control Act when the public's fear of crime, which 
the Administration Imd largely created and had then relied on when it pro- 
posed the legislation, was at such a feverish height. Actually, many of the mem- 
bers who voted for the bill — only twent.v-six representatives and one senator 
voted against it — trusted that the courts would undo the effects of their cowardice 
by overturning many jmrts of the law. which was the most malevolently repres- 
sive piece of legislation to be approved by Congress in a generation. 

In short their intent was simply to stay in office. By endorsing Congress' 
timidity and carelessness. Judge Timbers failed to recognize the clear intent 
of the Framers of the Constitution in establishing an independent, nonelected 
federal judiciary — to serve as a check on demagogic excesses committed by the 
popularly elected legislature. And his argument about Congress' concern for 
the efficiency of the grand-jury system betrayed an ignorance of American his- 
tory, for no one had ever conceived of any of the safeguards set forth in the Bill 
of Rights as an attempt to make our law-enforcement system more efficient. 

Timbers' .second point was that his court had already dealt with the issues 
raised in the Grusse-Turgeon case the year before through In re Persico. In 
that case, a grand-jury witness had refused to answer a question based on elec- 
tronic surveillance that had been approved by a court l)efore it was undertaken 
and had demanded a hearing, which was denied, on whether the admitted wire- 
tapping violated the law. In Persico, the Second Circuit had ruled that in 
denying Persico's request for a hearing the District Court h.ul acted propeiiy, in 
line with "the traditional notion that the functioning of the grand-jury system 
should not be impeded or interrupted." Now Timbers cited Persico and said that 
"the present case is an even more compelling one for adhering to the strong 
public policy of this circuit of not permitting disruption of grand-jury proceedings 
absent compelling reasons." He added. "We find no .such compelling reasons 
here." Glen had argued in her appeal that Persico was "entirely inapposite" — a 
point firmly upheld by the dissenting judge in the Grusse-Turgeon case, James 
Oakes, another Nixon appointee, who has tuxmed out to be one of the most 
liberal judges of the federal bench today — because there had been no evaluation 
of allegedly illegal wiretapping by a "neutral and detached magistrate" in the 
case at bar, whereas in Persico the wiretapping had been approved beforehand 
by a judge. 

Finally, Timbers found Judge Newman's decision that Grusse and Turgeon 
were in contempt and must go to prison "a striking example of the balancing by 
a conscientious and comprehending disti'ict judge of the interests of the appellants 
as witnesses befoi'e the grand jury, on the one hand, and. on the other of the 
public interest." .Tudge Newman's decision he added was "unassailable.'* There 
is probably no judicial device that is more assailable than the so-called lialancing 
test in which tb.e interests of the state and the interests on the individual are 



202 

weigbecl against each otlier. First used by the Supreme Court during the anti- 
Communist hysteria of the early nineteeu-fifties to avoid facing the basic issue 
of whether speech was to be free in this country, the test is invariably resorted 
to by the most pro-state judges to justify whatever the governmeut v.ishes to do. 
A striking example of judicial cowardice, the test might well be used in Russia 
or China today, for essentially it provides an opportunity to put a mask of fair- 
ness on tyranny. When a judge places all of society ou one pan of tiie scales of 
justice and one person on the other pan there cannot be much doubt about the 
outcome. In fact, the only time that the test works in favor of the individual is 
when there is nothing at all to put on the government's pan. 

It takes four justices of the Supreme Court to grant certiorari — that is. to agre" 
to review a case — and ordinarily it takes the Court several months to get around 
to deciding whether a petition for certiorari should be granted, and then several 
more months may pass before the Court reviews and decides a case. But when a 
citizen stands in danger of suffering irreparable injury by the state, the justice 
assigned to the judicial circuit involved can grant a stay of any prosecution or 
imprisonment until the full Court has had a chance to consider a petition for 
certiorari. To give Grusse and Turgeon an opportunity to take advantage of this 
rule, the Court of Appeals allowed them six more days to appeal to the justice 
responsible for the Second Circuit, Thurgood Marshall, and Glen prepared an 
emergency appeal, which Polan filed at his chambers on March 4th. Glen's brief 
asking for a temporary stay was much the same as the appeal she had written 
except that now she pointed out the different rulings by different circuit courts on 
the issue of what was an "adequate" denial of illegal surveillance by the govern- 
ment in such cases, and asked the Supreme Court to resolve the question once and 
for all. Then she came up with a balancing test of her own on behalf of her clients. 
"Because their loss of liberty can never be justly compensated, petitioners will be 
irreparably and irrevocably injured if the stay is not extended while their serious 
constitutional claims are being litigated," she said. "If on the other hand, the stay 
is extended to avoid certain irreparable injury to the petitioners, the government 
will not suffer unduly." And if the government was serious in contending that its 
purpose in demanding testimony from the two witnesses was to uncover crimes 
conmiitted in Connecticut rather than to capture two fugitives, Glen pointed out in 
conclusion, there was no great hurry, for "the only injury which can be justly 
claimed by the government is inconvenience." Justice Marshall rejected tlie ap- 
plication on the following day without comment. 

At four o'clock on the afternoon of March 5th, Turgeon and Grusse turned 
themselves in to the U.S. marshal at his office down the hall from the grand-jury 
room in the New Haven post office. A matron searched the women for weapons. 
and then the marshal handculfed each of them and chained them together at their 
waists. He apologized for the manacles, explaining that they were required by 
federal rules. "It's unbelievably stupid," Avery said later. "If they wanted to 
escape, they wouldn't have turned themselves in at all. They would have taken 
off when Justice Marshall turned down their application that morning. It's just 
another official attempt to humiliate and degrade people who stand up to the 
system." 

When the prisoners were led OTit of the marshal's office, they saw heavily armed 
policemen in riot gear stationed along the corridor, and in the parking lot lie- 
hind the post office there were several police cars and more riot police. "Obvi- 
ously, they had come to view us as hardened, dangerous criminals," Grusse said, 
"And we were merely two women who had vovs'cd not to discuss their personal 
lives with anyone." 

On the way out of the building, the group pas«:ed Dow, and Grusse lifted her 
manacled arms to him and said, "Thanks a lot. Willie." 

Dow looked stunned, / didn't do it," he said, It's not mij fault." 

The Connecticut Correctional Institution at Xiantie, about fifty miles east of 
Xew Haven on the Connecticut coast, is a state pi'ison for women that houses a 
few federal prisoners under contract with the U.S. Bureau of Prisons. During the 
ride to Niantic, the prisoners sat in the back of the marshal's cai*. a green sedan, 
while he drove and the matron sat beside him. "I was absolutely terrified," 
Turgeon recalled afterward. "All I knew about prison life was those old movies 
and the stories about Attica — bars and cells and sadistic guards and vicious 
criminals. There was nothing, absolutely nothing, in my past experience to pre- 
pare me for what lay ahead, and I was paralyzed by fear." Grusse was. too. "T 
knew that most of the other inmates would be lilaok and poor." she said. "Tljaf 
really frightened me. because I had my own stereotyi^ed idea of what sucli women 



203 

would be like — tougli and contemptuous and ready to hurt anyone they didn't 
like. I feared that they would resent me because I'm white and educated — in 
short, privileged. And I was frightened most of all by what they might do to us 
^\ hen they found out that we were lesbians." 

Their fears on all of these scores proved baseless. The prison turned out to be 
an "open facility." There was no fence around its spacious grounds, the '"cell- 
blocks" consisted of five cottages, each housing twenty to thirty inmates, and 
the "cells" were private rooms for each inmate ; the guards were generally lie- 
cent; and the other inmates, most of whom were black women convicted of pros- 
titution or narcotics-related violations, were friendly. "They helped us learn the 
roi>es and settle into the place," Grusse said. '"And while they were curious about 
our being gay, they gave us no trouble about that. In fact, they gave us no 
trouble at all. They even supported our refusing to talk, because somebody's 
talking was why most of them were in prison. ' 

Turgeon and Grusse were assigned to tutor inmates in basic mathematics during 
mornings and to work in the prison librarj' during afternoons. "Although prison 
life wasn't anywhere near as bad as I had expected, it was terrible," Turgeon 
said. "Worst of all, they treat you like a bad child who has to be controlled or 
lieli>ed all the time. You're considered to be incapable of making a decision on 
yoiu- own, and if you question anything, they tell you that you just don't under- 
stand the reasons behind it. Usually there isn't any reason — just bureaucratic 
rules that exist for their own sake. And, craziest of all, they never tell you what 
the rules are until you break one. They kept telling us to act like adults, but 
every time someone did— by taking responsibility of one kind or another, which 
is what adulthood means — they would say, 'You're causing problems.' The sim- 
plicity of their idea of 'correction' is unbelievable. When we arrived, they even 
taught us how to take showers. They said, 'You turn on this faucet for hot water, 
this faucet for cold water, and then adjust them until you get the temperature 
you want for your shower.' I thought we'd been taken to a madhouse. And when 
you get angry, they simply give you tranquilizers to control it. 

"The whole system is aimed at control, but to no purpose. And the boredom is 
stupefying. Each cottage has a television and a stereo set, which are always on 
full blast. The inmates are mostly young, and they shout and talk a lot. You can 
go to your room for privacy, but you can never get away from the incessant noise, 
except at night, and then you're sleeping. You can take a walk, but only if a 
guard goes along. There's a pretty little lake on the prison grounds, and I longed 
to go sit by it alone. They wouldn't allow that. A guard had to go with me. In 
the end, I felt much the same at Niantic as I had in the courtroom — helpless. It's 
as if society's true purpose is to destroy every shred of individuality in anyone 
who stands up to it. And it was just that — my individuality — that had brought 
me there and that I was trying so hard to preserve." 

On March 27th, after the women had been in prison for three weeks, Susan Paxe 
was captured while walking along a .street in Philadelphia. Five days later, 
the term of the New Haven federal grand jury ran out, and that afternoon 
Grusse and Turgeon were released from prison. The mars.hal drove up from New 
Haven to deliver their release pai^ers. hut then, as the two women stepped out 
of the prison administration building into freedom, he handed each of them a 
subpoena to appear before a newly convened federal grand jury in New Haven 
on May 6th, five weeks away. 

A Grand Jury Defense Committee, which had been set up in New Haven to 
]iublicize and create opposition to the government's pursuit of Grusse and Tur- 
geon, kept public interest focussed on their case, and when they returned to New 
Haven they found that they had become celebrities among memliers of the wom- 
en's community there. Once word of the new subpoenas and tl^e threat of sixteen 
or seventeen months more in prison if the two again refused to testify got around, 
their fame spread more and more widely. The publicity made the two women 
uneasy, because they valued their privacy more than ever now, and they feared 
the damage that such publicity might do to them personally, "I had to look at 
myself very closely to make sure that what I was doing was for good reasons 
and wasn't an ego trip or the result of a desire to liecome a celeltrity," Turgeon 
said. "I'd never been one to analyze my.self, but this time I had to. 

When I thought about it, I realized that the stand I M-as taking had nothing to 
do with my ego. because being a celebrity of any kind was the last thing I 
wanted. I just wanted, and want, to be left alone to live in peace in my own 
way. I decided then that I had to do what I was doing because it was right. 
"When I realized tliat I would not willingly do anything that I considered wrong, 



204 

J knew that I was sincei'e in my decision to remain silent. Since I didn't think 
that anything I had done was wrong, how could I help the government prove that 
what I had done was wrong? If the government disagrees with something I've 
done, then it's up to the government to prove that something against me. But the 
government wants me to prove I was wrong. That is simply and fundamentally 
unjust." 

To Grusse, the effects of being a celebrity were also distasteful. "Some people 
seem to see us simply as two women who refuse to talk, so we're not individuals 
at all," she explained, "Some others see us as superstrong celebrities. But that's 
not the way we see ourselves at any time. When we are invited to speak to 
women's groups in other cities, there are those who act as if we have perfectly 
formed views, clear politics, absolute strength. In other words, people try to make 
us into leaders. We aren't leaders, and we don't want to be. We're not allowed 
to lie what we are — often confused and very frightened women. Also, a few 
people now seem to feel that they have a right to ask the kinds of personal ques- 
tions that I never would have allowed anyone to ask me before. I guess that's 
because we're no longer private individuals. 

We're public figures, and people feel we belong more to them than to our- 
selves. The effect has two sides. On the one, I'm more willing to exi^ress myst If 
ia terms of what's happened to me, because I feel that it's urgent to let people 
know that this kind of thing can happen to them. This has opened up my private 
space to others. But, on the other side, my experience has made me less willing 
to talk about myself, because all this limelight has destroyed my privacy, and 
I constantly try to pull back out of the publicity in order to be myself. Besides 
all this, people continually come up and ask me for advice. I find that frighten- 
ing, because I'm not really a different person than I was before anyone asked 
me for advice. They seem to think that because I'm sure of tny course I can 
help them. All this has made it very hard for me to be me — just an ordinary 
person, which is what I am and what I want to be." 

At nine o'clock on the morning of May 6th, an hour before Turgeon and Grusse 
were scheduled to appear before the grand jury, their lawyers submitted three 
motions to Judge Newman. The first asked him to quash the subpoenas, on the 
ground that the government was improperly using the grand jury. The second 
asked that he issue "protective orders" instructing the government to submit to 
the court all the evidence it had against the two women up to that day. (As it 
happened, Dow submitted to the court that same morning another sealed affi- 
davit containing the government's evidence up to that point.) 

The purpose behind Avery's request was to make sure that the evidence the 
government had at that time would be separated from the evidence it might ob- 
tain if the women testified before the grand juiT^, so that if they were subse- 
quently tried the defense would have a better chance of making sure that the 
prosecution was not using any evidence based on their coerced testimony, which 
would violate the use-immunity law's stipulation that trial evidence must be 
independent of such testimony. The protective orders that Avery asked for would 
al.-!0 prohibit the government from seeking indictments against the witnesses by 
the same grand jury that they were shortly to appear before : would forbid the 
prosecutor to pass on any information he got from the witnesses to other govern- 
ment agencies, luile.ss the government dpmonstrated that it was essential for tl]e 
grand jury's deliberations, and then gave the witnesses a chance to oppose any 
transfer of such information ; and would assure the witnesses of the right to 
have a ti'anscript of their testimony. 

Avery's third motion asked Judge Newman to compel the government to disclose 
any surveillance. Avery contended the govennnent slionld l»e compelled to conduct 
a complete search of its records on a total of forty-four telephones, and to .submit 
to the court detailed affidavits from those who conducted searches of records in 
various governmental agencies showing whether or not tliere had )»een any 
surveillance in the Grusse-Turgeon case. Avery attached to this motion several 
affidavits sworn to by Ids clients, himself. Polen. Rosen, Clen. -ind various other 
lawyers directly and indirectly working on the case wlio c'a;n)e(l that their 
telephones had been acting strangely. The most nersunsive of the affidavits was 
the one signed by Glen, who reported that the office hi New York tliat slie used 
while preparing tlie Grusse-Turgeim appeal Inid been leased bv a lawyer who was 
subsequently notified by a jnd,i!,e of the New York County Supreme rmirt, in a 
sei'.arate case, that he liad been the snbj'^ct of a nationa^-secuj-ity wiretap by 
the federal government. "This diJH'losure obvi(msly raises a very sul'staiitial 
likelihood that calls with regard to these witTiesses and my representation of 



205 

them were overheard," Glen stated iu her affidavit. Judge Newman deiiiod the 
luotiou to quash the subpoenas, aud reserved decision on the other motions. 

Shortly after ten o'clock that morning, Gru.sse and Turgeou went before the 
new grand jury. Each was asked the same list of nineteen questions — most of 
which pertained to what they might have known about others Vv'ho might have 
known Saxe and Power in Connecticut — aud each answered by refusing to testify, 
on the grounds they had cited before the previous grand jury. Prepared for this, 
the government asked the court for an order granting use immunity and com- 
pelling the witnesses to testify, and Judge Newman complied. The next day, 
May 7th, they went back before tlie grand jury aud again refused to testify. 
G'russe added a uew statement at the end of her final refusal: "This matter has 
been brought before the grand jury for the sole, dominant purpose of apprcliend- 
ing Katherine Power, an alleged fugitive, and of gathering evidence to use against 
Miss Power, and against Susan Saxe in the trials of indictments which have 
already been issued. My subpoena is also part of a coordinated campaign by t!ie 
F.B.T. to punish people who legally refuse to talk with them by exposing such 
people to threat of contempt of court, and to harass and intimidate people, par- 
ticularly women's groups, so they will cooperate with the F.B.I, and abandon 
their legal rights to privacy. 

"I decline to answer the questions for the further reason that the Assistant 
United States Attorney has publicly stated lie will breach the secrecy of your 
proceedings here and will transmit any evidence which I give [you] to the F.B.I. 
to assist in the capture of an alleged fugitive, although this is in clear violatiim 
of the law. I decline to answer for the reason that the immunity which has 
been granted to me ... is not adequate to protect my Fifth Amendment rights. 
I also ask members of the grand jury to take control of your own proceedings and 
to refuse to be a party to the abuse of your historic function tliat the government 
is insisting on here. I also ask you to order the Assistant United States Attorney 
to dismiss my subpoena and put an end to this violation of my rights. And if 
you feel that these proceedings are legitimate, I would appreciate hearing the 
reasons for your position. Would anyone care to answer?" 

'*A\'e don't have to respond to your questions." the foreman said. "It's our 
duty to ask you questions. Do you refuse to talk — so you took the Fifth to protect 
your riglits?" 

"Yes," Grusse answered. 

"It is our job here as an investigating group to ask questions, not to answer 
your questions." 

"O.K.," Grusse said wearily, and with that she was dismissed. 

Afterward, Avery said. "The troul)le with grand-jury cases like this one — and 
there are more aud more of them now — is that no one besides the witnesses 
takes the historic function of the grand jury serionsl.v. Jurors don't take their 
own function seriously because usually they don't know that it exists in the 
way it's supposed to. They aren't even aware that they have both rights and 
the duty to assert them to protect the individual against the power of the state. 
Pro.secutors don't take the grand-jury function seriously because to do so would 
impede their attempts to get indicfnu'iits and to use grand juries as investigative 
tools to help them prepare for trials or to catch suspects, as in this case. 

"And judges don't take grand juries seriously because they almost never 
instruct newly convened grand juries about their rights. So there is no way to 
get to those twenty-three i.eople and say, 'Look, you have these definite rights. 
and you can assert them to save the innocent and strike a blow for freedom.' 
What the government fails to see iu all this is that it is needles.sly creating 
its own enemies by the methods it uses. I know that every case like this one, 
in which the government treats its citizens so unjustly, deepens my radical 
feelings. But think what it has done to these two women and their friends. 
These women weren't even political liefore. biit they are now — deeply political 
and defiant — and their friends are. too. So in attempting to control radicals- 
tlie government has mindlessly created hundreds more of them." 

Judge Newman set May 12th for a hearing on v.hy Grusse and Turgeou sliould 
not be found in contempt of court. But he also ordered the government to 
respond specifically to the charges of illegal wiretapping by .Tune Brd, which 
effectively postponed at least until that day any final ruling on the contempt 
question. At the hearing on May 12th, Avery once again tried to put an F.B.I. 
man — the agent in charge of the Saxe-Power case in Connecticut — on the stand 
in order to prove that the Bureau and the U.S. Attorney's office were using the 
grand jury to find Power and to prepare a case against her and Saxe. But .Tudge 
Newman refused to let him pursue this line of questioning, and said of the 

7S-905 — 76 U 



20G 

government, "They have filed their affidavit under seal indicating the basis on 
whicli they have reason to investigate crimes occurring in tlie District of Con- 
necticut, and it's a very detailed affidavit. . . . The Court of Appeals affirmed 
this case the last time without even seeing that much [of] a detailed affidavit. 
so if they thought the case was right the last time, it's hard to see how it's any 
less right this time, when there is far more detail in support of the govern- 
ment's claim." Avery said that he would like to look at the affidavit, but New- 
man refused, saying, "This is not just a nice privacy device to keep the prosecutor 
happy. . . . That affidavit mentioned several people's names who are potential 
suspects of a federal crime. 

I have no idea if they are guilty or innocent, but until they are properly 
indicted their names are not going to see the liglit of day, unless a higiier court 
orders me to do it. So the rule of secrecy is not just for the benefit of the F.B.I, 
or the grand jury and U.S. Attorney. It's for the lienefit, primarily, of those 
suspected of crime, but as to whom there may be no indictment and no prosecu- 
tion, and we are just not going to get into names and places and dates that 
identify those people unless an indictment results. That's why that line of 
inquiry is just not going to be opened up." 

While the .Judge's explanation reflected the liistoric reasons for grand-jury 
secrecy, it was fundamentally misleading, and his decision was fundamentally 
unfair to the witnesses. Of course, "that line of inquiry"- — whether or not the 
government was misusing the grand-jury system — was crucial to Avery's case, 
and it could have been opened up and closed without getting into any names and 
places and dates. All Judge Newman would have had to do was to allow Avery 
to ask the F.B.T. agent a simple yes-or-no question : Did you ask Dow to subpoena 
Grusse and Turgeon in order to help the government catch and prepare a case 
against Saxe and Power? The answer would have settled the issue once and for 
all, and would not have jeopardized the grand jury's secrecy. 

Avery went on to point out that when there are two potential defendants 
whose compelled testimony can be used as "independent" evidence against each 
other, use immunity does not protect their Fifth Amendment right against in- 
voluntary self-incrimination. This argument lay at the heart of the use-immunity 
issue. Under tlie old form of transactional, or total, inimunity, a witness who 
was forced to testify could not be prosecuted later on for anything to do with 
the transaction or act he or she was questioned about. Now, though, under use 
immunity two witnesses who wei-e involved in the same transaction could be 
forced to testify against each other, thereby providing incriminating evidence 
that was independent of their own admissions of criminal activity and laying 
each other open to prosecution. Judge Newman was not interested in the 
argument. 

Glen again handled the issue of illegal surveillance, and pointed out that the 
FBI's indexing system, according to a recent account in the Times, was faulty, 
and argued that a far more complete search of the Bureau's records would be 
necessary. Judge Newman wasn't interested in this point, either, and said that 
any ruling on the surveillance issue would have to wait until the government 
submitted its affidavits denying or affirming impropriety on June 3rd. "It's my 
honest belief that most of the claims that have been made are ... a smoke screen," 
he said. 

On the morning of the third, the National Council of Cluirches. which repre- 
sents thirty-one religious denominations having a total membership of more than 
forty million people, filed an amicus curiae memorandum with the District Court 
in New Haven appealing for leniency in punishing Grusse and Turgeon if they 
were found in contempt of court. The Council said, in part: 

"This court has the physical power to say, "You will be put in jail and kept 
there until you talk." In such a situation, the greater the witness's moral com- 
mitment to silence, to confidentiality in human relations, the greater the possi- 
Ivility of perpetual incarceration. And because of the principal nature of the 
witnesses' refusal, the major purpose for imposing a jail term — that of coercing 
the witnesses into testifying — would appear irrelevant. Only retribution re- 
mains, and we contend that the community does not demand or require retribu- 
tion in this case. 

"From the point of view of the National Council of Churches — and the commu- 
nity at large — the prospect of protracted imprisonment for civil contempt is 
horrifying. It is resoundingly offensive to the generally accepted sense of fair- 
ness of our .society that a person who has committed no criminal act. has not been 
convicted by a jury of her peers nor even charged with any crime, can because of 



207 

u moral commitment ha placed iu jail and returned to jail by means of successive 
grand juries." 

The support of the Council was considered by the principals in the case to be 
vital, for ft was the culmination of all the efforts by Grusse and Turgeon, their 
friends, and, most of all, the Grand Jury Defense Committee to turn the spot- 
light on the affair as a means of discouraging the Judge from disposing of it hast- 
ily or capriciously. "It worked, too— at least to a degree," one of the lawyers in 
the case said that morning, after the amicus was filed and made public. "At the 
start, all the contempt here was on the court's part. Newman dismissed every- 
thing we said with utter contempt, and treated us like lepers. But as support in 
the community and publicity in the media increased, he got more and more judi- 
cious, and increasingly took pains to seem fair, even if he wasn't at some 
points. 

"Now, Avith the huge support from the 'straight' community, lie's got to be more 
careful than ever," In this lawyer's opinion, the stand taken by the Council 
prompted Judge Newman to make an unprecedented, and wholly unexpected, 
move to resolve the problem of grand-jury abuse — by summoning the grand jur- 
ors into the courtroom at tlie hearing that morning and formally asking them 
what they considered their purpose to be in the present inquiry. At a quarter past 
eleven, the grand jxirors filed into the courtroom ; nineteen of the twenty-three 
members were present, and they were roughly divided between the sexes and 
ranged in age from the early twenties to the late sixties. Once they were seated 
iu and around the petit-jury box, Judge Newman explained that he had brought 
them into court so that he could describe to them the law governing their 
procedure. 

While one purpose of any grand jury was to indict the guilty, he went on, 
another and eipially important purpose was to protect the innocent. Pointing out 
that it was not permissible for a grand jury in one jurisdiction to ask witnesses 
(luestions about crimes committed in another jurisdiction, or to help the prose- 
cutor prepare a case against someone who liad already been indicted, or to get 
information that might lead to the capture of fugitives. Judge Newman asked 
the grand jurors to disregard whatever they thought their proper or desired pur- 
liose was supposed to be and to express only their personal opinion of what their 
actual purpose was iu asking the two women the nineteen questions they had 
refused to answer. Then he gave them the list of the questions and posed the basic 
issue to be resolved : "Does the grand jui'y seek answers to these questions from 
lliese witnesses for the pui'pose of investigating possible violation of federal law 
I hat may have occurred in the District of Coiniecticut?" He asked nothing aliout 
\\hether this was their dominant purpose or whether they were trying to help 
the F.B.I, capture Power and prepare a case against her and Saxe, 

Copies of the nineteen questions and the Judge's "interrogatory" were given to 
the grand jurors, but as they rose to leave Avery (piickly got up and asked if he 
could approach the bench before they went out, Newman impatiently consented, 
the jurors sat down again, and Avery and the other lawyers in the case went to 
the side of the bench away from the jury box to confer with Newman out of the 
juror's lieariug, Avery asked the Judge not to permit Dow to accompany the jur- 
(ii-s, l)ut Newman curtly dismissed the request, saying Avery knew full well that 
the prosecutor was always with "his" grand jury. At that, Avery said that if 
Dow was allowed to be with the grand jurors during their deliberations, then a 
lawyer from the witnesses' side should lie allowed to be present, too, but New- 
man rejected this retpiest as well. He didn't tell the grand jurors that they had 
rhe right to decide who would be present when they talked over their purpose in 
the case, that they could even fire the prosecutor and demand that a new one he 
appointed, or that they could refuse to take any orders from the court — in short, 
that they could use their broad powers as they deemed fit. In any event, they 
left the courtroom at eleven-thirty, and a recess v.as ordered until they returned. 

'VMien Newinan left the bench, Grusse stared at the wall behind and above it 
\Ahere the word "Justice" was carved in relief on the oak paneling. Then she 
shook her head .slowly and said, "This is the biggest farce I've ever seen put on. 
The Judge is covering himself on everything in case there's an appeal. First, he 
exi)lained the grand jurors' duties to them, and then he asked their opinion, 
(heir personal opinion, about what their purpose is. Of course, they're going to 
say that their purpose conforms to their duties to investigate crime in the District 
of Connecticut. What else can they say? If they have any doubt about what 
they're supposed to say, Dow is in there to help them out."' She shook lier liead 
again and fell silent. 



208 

A lawyer who followed tlio Grusse-Turgeon case but wasn't involved iu it 
directly, and who had ocea!^ioually tried cases before Judge Newman, said that 
Newman's conduct rhroughout the affair had Iteen typical of his and many other 
federal judges' approach to the law. ''Newman is a decent sort of fellow and very 
smart," he said. "He's known as a liberal, because he always gives the appearance 
of being fair, but actually he's a tough law-enforcement guy. A balancing test 
always goes on in liis mind, and the government always wins. He's not much dif- 
ferent from other federal judges, except that he's more intelligent than the most 
of them. Basically, like them, he reflects the system. He has an interest in seeing 
it operate without such gross abuse that the people will rise up and throw it out. 
That's the best way to preserve the system, of course. From Anliat I've seen of 
him in action, I'd say that he really tries to apply the law. He knows that while 
the law itself isn't against the individual, the grand jury is against the individual. 
So he can go along strictly applying the law. because he's fairly certain tliat the 
grand jury will come out for law enforcement rather than the individual every 
time. That way, he looks great, and the government gets its way. It seems pretty 
clenr that there was aJbuse of the grand-jury process and that there may have 
lieen illegal surveillance in the Grusse-Turgeon case. But Newman got around 
all that by putting a gloss of fairness on his decision to.lock up these women." 

An hour after the grand jurors went out, the foreman returned alone and 
handed the court clerk a piece of paper. The clerk gave it to Judge Newman, who 
read it and announced, to no one's surprise, that the grand jurors had unani- 
mously agreed that their purpose was to investigate federal crimes committed 
in Connecticut. That settled the issue of grand-jury abuse. Then the Judge gave 
Dow three more days in which to collect affidavits from various government 
agencies on the question of surveillance, and set June Otli for a hearing on that 
issue. He was clearly irritated hy the delay, and when he left the bench Grusse 
said to Avery, "You know, it's incredible the Avay everyone acts as if it's all right 
to tap people, even illegally. There's a federal judge, who's sore at a federal prose- 
cutor for taking so much time, and wlio says, in effect, 'Haven't you got this dirty 
Itusiness computerized by now?" " 

At ten o'clock on the morning of June 6th. Dow announced in court that the 
government had completed its search of surveillance records, and added, "That 
search was negative." Glen argued that, given the kind of radical and criminal 
clients she and Avery represented, it would be extremely unlikely that the two 
of them or people they talked to hadn't been tapped. Newman showed little in- 
terest in this argument. He had directed the government to examine its surveil- 
lance files not only in the F.B.I, office in Hartford and in the Washington offices 
of the various government agencies that commonly employ such surveillance but 
in the field offices of the F.B.I, and the Justice Department in places wliere Saxe 
and Power were believed to have lived, such as Lexington. Kentucky, and 
Philadelphia. 

Now Glen pointed out that the government had failed to examine its records 
in these field offices as ordered by the court, and demanded that the subpoenas be 
quashed on that ground. As she sat down, the audience in the b:ick half of the 
courtroom — about: :i hundred people, most of them women in their twenties and 
thirties— burst into applause. The Judge tlireatened them with expulsion or 
"other penalty." and when the tumult subsided he denied Glen's motion. Toward 
the end of the hearing, Newman paused for a long time, and then said that the 
witnesses' claims had already been largely, if not entirely, ruled on by the Court 
of Appeals, and that nothing new and significant liad been offered to change his 
view of the issues. Tlie claims altout grand-jury abuse, he went on, were no dif- 
ferent from those made in the previous contempt case, and this time he had taken 
the additional precaution of asking the grand jurors their personal opinion of 
their investigative purpose. 

In the end, he added, the witnesses' overall attack w:is not on this grand .lury s 
procedure but on the grand-jury system itself. The President of the United States 
wasn't above that process, he continued, so clearly these two witnesses were not 
above it. (Of course. President Nixon had refused to appear before a grand jury 
while in office, and be had not been found iu contempt.) As for the claim about 
wire-tapping, Newman said that he Avas ({uile satisfied with the government's 
denials, which he found "more than ade(iuate.' Finally, he announced that he 
would issue a formal order later that day finding the two witnesses in contempt. 
Avery got uji to plead for leniency in sentencing, and suggested that the court 
might impose "sometbinsi- less than confinement" or might at least limit any 
confinement to a specific period. I'ointiug out that the women had already spent 



209 

twenty-eight days in prison, and that tlieir lives had l)eeu "held in abeyance" 
since they were first subpoenaed more than four months before, he asked the 
Judge to consider "the constant strain, the constant demands, the travail" they 
had endured. Their refusal to testify, he went on, had been based from the start 
on principle, and because of that principle they would continue to refuse to tes- 
tify, whatever "coercive penalty" was meted out to them, so any coercion would 
actually amount to punishment, which was a violation of the law in civil-contempt 
cases. 

Finally, Avery cited the broad public support for the women, including that of 
the National Coimcil of Churches. Judge Newman broke in to say that the case 
wasn't "a popularity contest," and that he wouldn't be influenced in any manner 
by publicity. At that, Grusse and Turgeon smiled at each other. Then Rosen got 
up and said, "No one should be compelled to choose between peri.shing or betray- 
ing a friend." The women had not been charged with any ci-ime, he continued, but 
were being punished for refusing to betray their belief iu the right to privacy. 
When Glen took her turn, she asked the Judge to allow a representative of the 
National Council of Churches to speak on behalf of the two women. Newman 
refused, saying that he had read the Council's amicus curiae memorandum and 
would leave it at that. "These witnesses are women." Glen said angrily. "They're 
here because they are women. . . . Letting me address you as a woman merely 
because I'm a lawyer and not letting women who represent this community, this 
state, this country address you is an outrage !" She stalked off to her seat, and 
Newman calmly turned to Grusse and Turgeon and asked if they had anything 
to say, 

Turgeon went to the bench to speak for both of them. "We have refused to 
answer these questions on the basis of pi-inciple," she told the Judge. "Imprison- 
ment is not coercion but punishment. We haven't done anything wrong, and I 
think we should either be charged and tried or let go." Finally, Dow got up and 
said tliat a robbery had l^een committed in Massachusetts in 1970 and that a 
policeman who had nine children had been killed. It wasn't true, he added, that 
the government was using the investigation of that crime and the search for those 
who were accused of committing it to find out more about the women's movement. 

•hulge Newman gave Grusse and Turgeon four days to settle their affairs, and 
ordered tliem to be taken into custody by the U.S. marshal at noon on Tuesday, 
June 10th, and to be imprisoned until they volunteered to testify or until the 
grand .jury term ran out — iu sixteen months' time. 

The audience immediately began chanting. "Silence is our right, is our right, is 
(lur )-ight! With our sisters we will tight!'' The marshal, who had been standing 
at the door, moved toward them bellowing. "Silence!" They obeyed, except for a 
couple of men who cried out, "Fascist ! Fascist !'' Finally, they fell silent, too. 
Judge Newman threatened anyone who disrupted the proceedings again with con- 
tempt-of-court sentences, and then he ad.iourned the proceedings and left the 
bench. 

Turgeon turned toward Grusse and shrugged helplesS'ly. With a wan smile. 
(Jrusse nodded. Neither of them spoke until a dozen or so women and a couple of 
men from among the spectators came up and embraced each of them in turn. A 
young women with long brovrn liair and gold-rimmed glasses kissed each of them, 
then burst into tears and hurried out. Glen watched the group in silence. "God, I 
bate courtroom practice," she said. "It's so brutal." 

Given the Court of Appeals' rejection of their appeal l)ack in February, Grusse 
and Turgeon decided that another appeal would be a waste of everyone's time. 
The time spent on the case by the three lav^yers had brought them little financial 
return — modest government pay for Rosen and Glen, who had been appointed by 
the coui't to represent the women as indigents, plus a relatively small contribiition 
to the defense collected by the Grand Jury Defense Committee. The lawyers split 
the total, which came to about a tenth of what their fees would ordinarily have 
been. Despite their financial sacrifice, they were prepared to continiie the legal 
battle, but in the end thev agreed with their clients that an appeal would be 
futile. 

That evening, Turgeon and Grusse left New Haven to spend the weekend at a 
women's retreat being held at a near'oy camp in the woods. "That was what we 
iiecflod most of all," Grusse said tlie following Monday. "We saw all our friends, 
but nobody talked about the case. We discussed nomen's problems, not ours, and 
that was just right. They know that there are real things at stake here— our 
personal integrity, our individuality, our independence, our sense of being our- 
selves — and they gave us both love and space. I've learned a lot from them. And 



210 

I've k'ariied a lot more from our exiierience. It laa« cimfirmed for uic wliut the 
radicals have been saying about our society all along. Still, I"d hesitate to call 
myself a revolutionary. That word means violence to me, and I hate and fear 
violence of any kind. All I know for certain now is that I don't feel responsible 
or accountable to the United States government, because it's not responsible or ac- 
countable to me. I don't know what the future will bring — I might finally be 
forced into becoming a revolutionary, just as I was forced into this resistance — 
I'lit for now all I want to do is fight injustice.'' 

Turgeon listened to her and nodded slowly. "One of the big surprises in all this 
lor me was I found I could stand up for a principle,'' she said. "That brought out 
traits in me that I didn't know were there, both strengths and weaknesses. It 
showed me how much I need other people, like our friends and supporters on the 
retreat. I really need them. Without the people who stood by us. I never would 
have made it. Then I learned how far 1 will go for something 1 believe in and 
how stubborn I can be. I've also been surprised by how political this has made 
me. Before I got involved in this case, I wasn't interested in politics at all. But 
jiow I see that all politics are personal, because they affect each of us every min- 
ute of our lives. I've always been afraid of any kind of authority, and I'm no less 
intimidated by it now, but at least I know where I stand and that I can stick 
there if I have to for my own sake. From now on, I won't talk to anybody about 
anybody. "What goes on between two people helonys to those people." 

'I'nrgeon paused thoughtfully for a few nionients. then went on. "Of course, 
all this has had a bad side, too. I realize thai my future is pi-obably going to in- 
clude some kind of government agent. The goverimient knows who I am now, and 
it will probably keep an eye on me and come by and try to question me fi-om 
time to time just to keep me in line. And whatever I get involved in in the future, 
I will always wonder in the back of my mind whether maybe the person I'm deal- 
ing with is an undercover agent. That's pretty frighteiiing. And the threat of being 
w atched hangs over my friends, simply because they are my friends. So in a way 
I feel less free, and people close to nie feel less fi'ee. Someone even said to me the 
other day that I'm not free at all, that I'm being used by others for their own 
political ends. The idea that this is all some soi't of power game really denies who 
1 am — an individual acting on her own. Who I am is why I had to do what I've 
done. If I hadn't, I could never have been myself again." 

After a week of cold, overcast, and rainy weather, June lOtli turned out to be a 
perfect day. with a clear Carilibean sky and the temperature iji the low seventies. 
At eleven o'clock that mornijig, Gi'usse and Turgeon attended a rall.v on their be- 
lialf held on the New Haven Green — a spacious, well-tended park opposite the post 
office. About a hundred people, again mostly young women, were there, and they 
milled about in small groups, talking and laughing together. Avery was on hand, 
and he watched his clients as they stood chatting animatedly with a group of 
friends. He looked off at the fresh spring green of the ])ark and shook his head. 
■•It's terrible for a lawyer the day a client is taken away," he said. "But to go 
to prison on an incredibly beautiful day like this is too much — too much." 

A minute later, the group formed into ranks of six, with its members placing 
their arms around each otliers' shoulders or waists, and L'egan walking at a 
leLsurely pace toward a First World War monument — a flagpole atop a niarble- 
aud-bronze base — a few hundred yards away, near tlie center of the Green. As 
they marched, the.v sang, "Some of our sisters are subpoenaed.//^(c?Zrt cfoo, hell 
clao. cidn, ciao./ Their silence makes us speak out: We want our revolution 
now." 

The group stopjied at the monument, where several television and new.spaper 
rejiorters were waiting, and Turgeon read a brief statement. "It is not out of 
respect for the courts, or for the unjust treatment we have received in those 
coiu'ts. but out of respect for oursehes and the people who liave supported us 
that we are here," she said, and then repeated the charges about the govern- 
ment's persecution and its political motives. 

Aftei'ward, 'the group sang several women's-liberation songs, some of lis mem- 
bers came up to say goodbye to the two women, and then tlie gathering formed 
into ranks again and headed off toward the post office. In the corridor on the 
second floor, the marshal looked out the window as the file moved toward and 
across Church Street. "I wish it had rained "' he said to a deputy nnirslial. 
"Rain always keeps down llie crowds." At that moment, the crowd leached the 
front door of the post oflice, and suddenly began chanting, "Silence is our right, is 
our right, is our right !" A coufde of niinuti's later, the po.st-othce elevator stopped 
at the second floor, the door slowly slid back, and Grusse, Turge(m, I'olan. Avery, 
and Rosen stepped out. 



211 

"Are you roady to sm-reudei-, Mr. Avc-ry?" the marshal asked. Avery nodded, 
and the two women stei)i)ed forward. The mar.shal took np a position at one 
side oi' tliem, the deputy took the otlier flank, and the group walked rapidly 
down file hallway to tlie marslial's office. Tliis time, there was no special police 
.:;uar(l on hand, but Turgeon and (irusse were again searched for weapons, hand- 
cuffed, chained together at the waist, and driven under guard to t]ie Connecticut 
Correctional Institution at Niantic. 

On September 26th, Avery filed a motion and a supporting brief with tlie Dis- 
trict Court recpiesting a "revocation of order of confinement." Despite the court's 
decision that his clients' ai'guments "in defense of their silence are either legally 
insufficient or irrelevant,'' Avery wrote, "they have remained committed to the 
moral and eiliical principles, and to their constitutional rights as they undei*- 
stand them, whicli underlie their decision not to respond to tlie questions of the 
government before the grand .iury. They will contiiuie to refuse to answer tlie 
questions of the government before the grand .jury." 

Accordingly, lie concluded, ■"continued incarceration of tlu' witnesses would be 
punitive ratlier than coercive." Seven weeks later, .Tudge Newman rejected the 
request. Si)eaking in general of witnesses who are found in contempt — "con- 
teninors," in legalese — he said, "If a contemnor's own insistence that he will not 
answer could be used to hasten his release, the coercive purpose of the civil- 
contempt remedy woidd be turned upside down. The conteninor woidd secure his 
release as soon as he demonsvrated the continuing contumacious nature of his 
conduct." And in response to Avery's contention that the grand-jury investiga- 
tion of the case had not continued and was not •"serious," Newman said, "Those 
who have thwarted its progress cannot realistically complain of its lack of 
success." 

It seemed clear to the lawyers for Turgeon and Grusse that .Judge Newman had 
no intention of releasing them before the grand jury's term expired, on Septem- 
ber 10, 197(i. In an attempt to make life somewhat easier for them in prison, 
Avery wrote the Judge a personal letter on their behalf. As it happened, they 
h.ad l»een transferred in late summer to the Niantic prison's "honor cottage," 
wliich was reserved for prisoners who had been, Turgeon said later, "real, real 
good."' The policy at the prison was to allow ordinary inmates a forty-eight-hour 
weekend furlougii every sixty days, whereas residents of the honor cottage were 
allowed such furloughs, jdus six extra hours, every thirty days. 

(h-usse and Turgeoji had applied for a furlough soon after moving into the 
honor cottage, but so far had not been granted one — that it had to be approved 
liy the District Court, since they were not, like the other inmates, "sentenced" 
prisoners but could obtain their release anytime they decided to cooperate with 
I lie government. Now' Avery asked .Judge Newman to allow the two women a 
furlough for Christmas, and said, "Whether or Jiot they are released for brief 
periods of time [for] holiday or otlier furloughs is hardly likely to affect their 
decision not to testify. 

Indeed, it seems to me that a brief visit outside the institution with family 
and friends, if it has any effect, might make long-term incarceration even more 
painful than it already is. In any event, it certainly will not make the lengthy 
confinement these women now face any less coercive." And. he added, "It would 
seem not only ironic hut unfair if Ms. Grusse and Ms. Turgeon. who are the only 
women at Niantic who have not been convicted of nny criminal offense, have less 
privileges than other prisoners." 

A couple of weeks later, before Newman had replied. Uosen learned that Dow 
was disturbed about the Grusse-Turgeon case, and wanted to find some way of 
settling it other than by keeping" the two women in prison indefinitely. Rosen 
immediately went to see Dow, who told him that he had formerly been convinced 
that such middle-class women as Turgeon and Grusse wouldn't be able to endure 
prison llf(>, and sooner or later would agree to testify. Now, he said, he was con- 
\ inced that they would never talk. While he thought their decision was foolish, 
he had come to accept it, but he was upset by the adverse publicity the govern- 
ment might get if it let them out of prison now. Rosen knew that there had been 
a lot of pressure on Dow — much of it generated by the Grand Jury Defense Com- 
mittee — to release the women, so he quickly pointed out that the grand-jury in- 
vestigation liad obviously come to a standstill and couldn't proceed witliout the 
wftmen's testimony, which would never be forthcoming. Dow heard him out, 
nodded, and, after a few minutes' thought, said that he would drop the case. 

On December ISth. Dow wrote Judge Newman a letter outlining the facts in 
tilt' case and concluding, "Although the grand jury's investigation remains in- 



212 

complete, the subpoenas for Grusse and Tui-geou's testimony are \Yithflrawn at 
this time and need no longer be enforced by adjudication of contempt. It should 
be noted, however, that the investigation may develop further information which 
may cause the witnesses to be subpoenaed again." The Judge had no choice but to 
order the two released from prison. His order was tiled with the court at twelve 
minutes after ten o'clock on the morning of Deceml)er 19th, Grusse and Turgeon 
were informed at ten-thirty, and they left Niantic — for good, they hoped — at a 
little after one-thirty that afternoon. They had served a total of seven months and 
one week. 

The first move the two women intended to make, after enjoying the holiday 
festivities, was to do whatever they could to help a woman named Jill Raymond, 
who had been sent to jail for contempt of court, together with four other women 
and a man, in Lexington, Kentucky, for refusing to talk to a fedex-al grand jury 
there about Saxe and Power shortly after Grusse and Turgeon had defied the 
District Court in New Haven back in eai'ly February. The six in Lexington re- 
mained silent for several weeks, but finally the intolerable conditions in the local 
jail where they were locked iip persuaded all but Jill Raymond to cooperate with 
the authorities. 

When Turgeon and Grusse got out of Niantic, Raymond was still in jail — and, 
in fact, is there today, after serving more than a year for her silence. In early 
January of this year, Grusse and Turgeon telephoned a friend of Raymond's in 
Lexington and said they wanted to visit her in jail, and perhaps attend some 
rallies in her support. The friend gave them detailed instructions on which high- 
way routes to take, and on January 7th the two set out, in Turgeon's Volkswagen, 
for the trip to Lexington. "We were followed all the way," Grusse said afterward. 
"At each state line, a different car, always with two men in it. would pick us up 
and keep us under surveillance. They were very obvious about it at times. One car 
followed us for a long while and then it passed us very slowly, while the pas- 
senger carefully looked at both our rear and front license plates, and then he 
picked up a telephone and talked to someone. So we're not free even now." 

In the view of one of the lawyers in the case, the authorities' continuing harass- 
ment of these women was further evidence that they were "just pawns in a great 
chess game being played by the government." He added, "They were never ac- 
cused of any crime, yet they were treated worse than if they had been convicted 
felons. And, from beginning to end, their fate lay in the hands of Willie Dow. 
He tried to be a good man and to act justly, but he failed. In effect, he tried them, 
he sentenced them, and he let them out." In other words, ours is a government of 
men, not laws. 

[Contents of this reprint originally appeared in a three-part series in The 
New Yorker Magazine.] 

[Excerpts from the Lawless State: The Crimes of the U.S. Intelligence Asencies. hy 
Morton IT. Halperin, Jerry J. Berman, Robert L. Borosajre and Christine M. Marwiek. 
© Center for Nationnl Security Studies, 1976. All rights reserved.] 

Chapter 9 — The Grand JtnaiES 

The federal grand jury, a body of twenty-three citizens who decide whether 
there is suflScient evidence to hold another citizen for trial, seems an unlikely 
weapon for the executive branch to use against dissent. Yet its purported investi- 
gatory powers, its protected secrecy, its appearance of independence, and its 
legality have made the grand jury one of the most powerful instruments for 
intelligence gathering and political disrupticm in use today. 

A sitting grand jury has enormous legal powers. A federal prosecutor can 
subpoena anyone to appear before a grand jury anywhere without explanation. 
Subpoenas can be issued for any records, correspondence, documents, finger- 
prints, hair samples, handwriting exemplars, or other items of interest.^ There 
is no limit to the number of witnesses who can be called, and no restrictions on 
the nature or number of questions that can he put to them. There are no rules 
about the kinds of evidence that can be used — rumors, hearsay, results of illegal 
searches or warrantless wiretaps, irrelevant or prejudicial information — all 
inadmissible in open court." The government may u.se informants without expos- 
ing their identity, for their cover is protected by the grand jury's secrecy. In 
theory, some of these powers are subject to review by the courts, but in practice. 



1 U.f^. V. Dionesio, 410 U.S. 1 (1973). 

2Heasay: Contello v. U.S., 350 U.S. 359 (1955). Illeffal searches: U.S. v. Calniidra, 04 
S.Ct. G13 (1974). Warrantless wiretap: U.S. v. GeUiard, 408 U.S. 41 (1972). 



213 

the courts rubber stamp the prosecutor's whim. The witness enters the chamber 
alone, losing the right to remain silent and having no right to have a lawyer 
present — rights the witness would have even in a police interrogation. No witness 
need be informed of the purpose of the investigation, or even if he or she is its 
target ; no witne.'is has a right even to be warned tliat whatever he or she .says 
could be used to bring charges against him or her.^ A grant of partial immunity 
is often used to coerce testimony from a witness who invokes Fifth Amendment 
protection : a witness can he jailed without trial for contempt of court for up to 
eighteen months for continuing to assert that right after immunity is granted. 
Upon release, the same witness may be called before a new grand .iury, asked 
the same questions and jailed again for an additional eighteen months. Wit- 
nesses have no right to a transcript of even their own testimony : in fact, the 
prosecutor controls what, if anything, is recorded.* 

Historically, the grand jury was to be a "people's panel" that would protect 
suspects against overreaching prosecutors and unwarranted prosecutions. The 
grand jury's primary function was to determine whether an indictment should 
be brought against the accused : it sat in judgment on the evidence presented by 
a prosecutor and acted as a check on his discretion. The eminent British legal 
theorist John Somers once wrote, "Grand juries are our only security, inasmuch 
as our lives cannot be drawn into jeopardy by all the malicious crafts of the Devil 
unless such a number of our honest countrymen shall be satisfied with the truth 
of the accusation." ^ Thus the framers of the American Constitution included a 
grand jury indicment as a right guaranteed by the Fifth Amendment. 

In addition to its charging function, the grand jury has been accruing an inde- 
pendent investigatory role. It constitutes, as the Supreme Court has said, "a 
grand inquest, the scope . . . [not limited narrowly] ... by questions of propriety 
or forecasts of the probable results of the investigation." * Its investigatory func- 
tion was designed to insure that criminal activities that the police might be re- 
luctant to investigate — the misconduct of the rich or powerful — could be pursued 
by citizens meeting together. The Supreme Court has thus consistently refused to 
limit the grand jury's authority and powers, "because the task is to inquire into 
the existence of possible criminal conduct, ... its investigative powers are neces- 
sarily broad." ' 

It was the Justice Department of the Nixon administration that first turned 
the powers of this people's tribunal against political dissent and transformed 
the grand jury into an intelligence agency. Its motivation was similar to that 
which led the FBI to begin COINTELPRO. HUAC congressional investigations 
were no longer useful instruments to discredit political dissenters. The search for 
a weapon led the FBI to COINTELPRO and the Justice Department to the grand 
jury. The Nixon Justice Department recognized what had been true for decades : 
in operation, the grand jury was not so much a proud and independent people's 
panel as a pliant instriunent of the prosecutor. As federal district court judge 
William Campbell concluded. "Today, [the grand jury] is but a convenient tool 
for the prosecutor. . . . Any experienced pro.secutor will admit that he can indict 
anybody at anytime for almost anything." * Indeed, if one jury panel refuses to 
indict, a prosecutor may present the same evidence to another and another, until 
one agrees to return an indictment. 

In 1969 and 1970. the Nixon Justice Department assembled the other elements 
necessary for a political grand jury network. Robert Mardian was named head of 
a revitalized Internal Security Division dSD) in the Justice Department, which 
had been inactive since the McCarthy era. Its staff was increased from seven to 
sixty lawyers, and Mardian appointed Guy Goodwin, a forty-four-year-old prose- 
cutor, to serve as head of a special litigation section within the ISD. Goodwin 
would sen-e as the field marshal, organizing a network of grand juries through- 
out the nation to locate "enemies" and gather evidence against them using grand 
jury investigations. 

"The last pieces were supplied by the Organized Crime Control Act of 1970, the 
Nixon administration's draconian police legislation. The act expanded the powers 



3 r/.."?. V. ifandujano. 44 U.S.L.W. 4629 CMay 19. 1976). 

* Spp eenerallv ^femornndum on the Orand Jury, prepared by the Office of Policy and 
Planninc U.S. Departnipnt- of Jnstlce, for the Hoii?e .Tudiciary Committee. Subcommittee 
on Immicratlon. Citizenship and International Law. June 0. 1976 pp. 59-68. 

8 ".\ Kind of Immnnlty That Leads to Jail : The New Grand Jury", by Paul Cowan. 
Xcir York Times majrazlne, April 29, 1973. (Hereafter cited as Cowan article.) 

9 Blair v. U.S., 2.50 U.S. 273, 282 (1919). 

• Branzhnrq v. }Jnv€f<. 4ns U.S. 6f'5 RRSJ (1972). 

8 "Annals of Law : Taking the Fifth," by Richard Harris. Vevi Yorker, April 19, 1976. 

78-905 0—7(3 15 



214 

of federal grand juries, empowering the Justice Department to convene special 
investigative grand juries for eighteen months (with an extension of an addi- 
tional eighteen months if desired) and by creating a more limited form of im- 
munity for witnesses, called "use immunity." " Under "forced immunity," which 
was first developed in 1954, if a witness refuses to testify, claiming his or her 
Fifth Amendment right against self-incrimination, a prosecutor can force im- 
munity upon the witness, and thus "waive" any Fifth Amendment right to silence. 
Before 1970, only "transactional immunity" was available and limited to specified 
offenses, generally those associated with organized crime. ("Transactional im- 
munity" meant that a witness could not be prosecuted for anything related to the 
transactions about which he was forced to testify. ) The new use immunity was not 
limited to specific crimes and provided protection only from evidence gained 
from the testimony ; if "independent sources" provided other evidence against 
the witness, a prosecution could still be brought for the same transaction. A 
recalcitrant witness could now be given immunity and jailed for contempt if he 
or she refused to testify. If he or she chose to testify, he or she might yet be 
prosecuted with "independent sources of evidence." 

The Nixon administration argued that the u.se-immunity provision of the 1970 
Organized Crime Control Act was needed to aid grand jury Investigations of orga- 
nized crime, but forced immunity has proved to be of little use in such cases. 
Informers in crime syndicates are killed : thus subpoenaed gangsters are often 
grateful for the opportunity to prove their loyalty by spending several months in 
jail for contempt. Use immunity is occasionally useful when forced upon periph- 
eral movement people to gather intelligence, but its true value is as a weapon to 
put uncooperative witnesses in jail and to frighten others who are politically 
involved. 

Using forced immunity to punish witnesses who refuse to cooperate is a fairly 
recent prosecutorial tool, and was first developed in an attempt to break up an 
organized crime syndicate. In 1965, two relatively unknown assistant U.S. attor- 
neys in Chicago. Sam Betar and David Schippers subpoenaed Sam Giancana, 
later famed as the Mafia contact in the CIA's assassination plots against Castro. 
Giancana was granted forced immunity and jailed for contempt of court when 
he refused to testify. Betar said, "Giancana went to prison. And jailing him cre- 
ated a state of chaos and fear in the minds of associates. At first they had 
thought we were just trying to grab some headlines with the grand jury. But 
once the lesser lights learned that we'd found a way to put the head of the whole 
show in jail, they didn't know how to cope." " Later Betar said, "I don't want to 
brag l>ut I know we laid the groundwork for the way immunity provisions have 
been used in the past few years." " 

By 1970, all the pieces were in place; all that was required was a Justice 
Department willing to abuse its prosecutorial responsibility. The Nixon adminis- 
tration supplied that ingredient. From 1970 to 1973, the ISD conducted over 100 
Guy Goodwin-supervised grand juries in eighty-four cities of thirty-six states, 
calling some 1,000 to 2,000 witnesses by subpoena, returning some 400 indict- 
ments." The indictments were often merely pro forma, to cover the real investiga- 
tive purposes of the grand juries. The normal conviction rate on grand jury indict- 
ments is 65 percent ; less than 15 percent of the 400 ISD indictments were convic- 
tions or pleas to lesser charges.'' Targets included the Back Panther party, Viet- 
nam Veterans against the War, Daniel EUsberg, the Los Angeles antidraft move- 
ment, the Catholic Left, Mayday, the Puerto Rican independence movement, the 
American Indian movement, the Movimiento Chicano, the women's movement, 
Irish unification supporters, labor unions, radical lawyers, and legal workers. Sen- 
ator Edward Kennedy, reviewing the campaign in 1973, summarized the 
situation : 

"The use of 'political' grand juries by the present administration is unprece- 
dented. In a sense, of course, the practice is a throwback to the worst excesses of 
the legislative investigating committees of the 1950's. In this respect, the Internal 
Security Division of the Justice Department represents the Second Coming of 



See Kenerally Kastigar v. U.S., 406 U.S. 44 (1972). 

^0 Cowan article. 

^^ Cowan article. 

12 Cowan article. ^ , . __, , , 

" Normal conviction rate : "The Orpranizefl Crime Control Act or Its Critics : Which 
Threatens Civil Liberties?" McClellan, 46 Notre Dame Lawyer. 55 60 (1970). cited in 
The Grand Jiinf hy Lerov Clark (»w Yorl< : Qiiarlranele 1975). n. .50. ISD conviction 
rate : "Who Is Guy Goodwin and Why Are They Saying Those Terrible Things About 
Him?" by Lacey Fosburgh, Juris Doctor, January 1973. 



215 

Joe McCarthy and the House Unamerican Activities Committee. But the abuses 
of power of the Department's overzealous prosecutors do not even know the 
bounds of a Joe McCarthy, because their insidious contemporary activities are 
carried out in the darlv and secret corners of the grand jury, free from public 
scrutiny. . . ." ^* 

The political grand juries used the pretense of investigating crimes to collect 
massive amounts of information on radicals throughout the country. One of the 
first major Guy Goodwin panels was convened in Tucson, Arizona, in October 
1970. Goodwin subpoenaed five young activists from Venice, California, to testify 
about an alleged purchase of dynamite, after an indictment had already been 
returned against the man who allegedly bought the dynamite. The grand jury 
was used to develop in-depth information about radical activities in southern 
California. Goodwin asked questions such as : "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 and whom you visited during 
the time of your travels after you left your apartment in Ann Arbor, Michigan, in 
May of 1970." ^^ The five witnesses at first refused to testify and spent five months 
in jail for contempt of court. As they left the jail, Goodwin subpoenaed them 
again before a new grand jury. At that point, three faltered and testified. 

Since their purpose is to collect information, political grand jury investigations 
are characterized by the sweeping questions asked regarding memberships in 
political organizations, names of other members, and the activities of the groups. 
Guy Goodwin has become famous for asking such questions as : 

Seattle — May, 1972 : "Tell the grand jury every place you have lived for the last 
two years prior to this date, advising the grand jury the period of time you lived 
at each location, with whom, if anyone, you resided, and what occupation or em- 
ployment you had during each i)eriod." 

Tucson — November, 1970 : "I would like to ask at this time if you have ever 
been a member of any of the following organizations, and if so, to tell the grand 
jury during what period of time you belonged to any of these organizations, with 
whom you associated in connection with your membership in any of these organi- 
zations, what activities you engaged in and what meetings you attended, giving 
the grand jury the dates and conversations which occurred : The Save Our 
Soldiers Association, Ihe Coalition, the Los Angeles Reserve Association, the 
Peace and Freedom Party, the Humanistic and Educational Needs of the Aca- 
demic Community Organization?" 

Detroit — June. 1971 : "I would like to know if you were in Ann Arbor in the 
early part of February, 1971, and if you met any people in Ann Arbor who lived 
in Washington, or who you later found out lived in Washington ; and if so, who 
were they, where did you meet, and what conversations were had?" ^^ 

Goodwin subpoenaed Leslie Bacon from Washington, D.C., to testify before a 
Seattle grand jury as a material witness in the bombing of the nation's Capitol. 
Goodwin questioned her primarily about upcoming Mayday activities and her 
political activities in the previous two to three years. Ms. Bacon was later in- 
dicted on perjury and conspiracy in New York, but all charges were dropped by 
the government. Recently an FBI official, who had direct knowledge of the in- 
vestigation, admitted, "We didn't know a damn thing. Leslie Bacon was the only 
thing we had and that was just a fishing expedition. She was called before a 
grand jury in Seattle because we thought we were more likely to get an indict- 
ment out there." ^' 

Grand juries have also been used effectively to disrupt legitimate iwlitical 
activities, a sort of quasi-judicial COINTELPRO. For example, in 1972. the Viet- 
nam Veterans against the War ( VVAW) planned a series of demonstrations at the 
Democratic and Republican political conventions, scheduled to be held in Miami 
in July and August. Three days before the Democratic convention opened, Guy 
Goodwin issued a first batch of twenty-three subpoenas to members of the 
VVAW. almost all either national, regional, state, or chapter organizers through- 
out the South. They were called to a grand jury in Tallahassee, 500 miles from 
Miami, on the very day their demonstration was scheduled to take place in Miami. 



1* The testimonv of Senator Edward M. Kennedy, Hearings on the Fort Worth Five and 
Grand Jurv Abuse bf:";>re the House Judiciary Subcommittee No. 1, March 13, 1973. 

1^ riark. The G-rand jury, if. 47-48. 

18 Grand Jury "Horror" Stories, compiled by Barry Winograd. March 15, 1973 ; Seattle, 
p. 6: Tucson, p. 4: Pet-oit p. 6. Available from Coalition to End Grand Jury Abuse, 
lO.'^ 2nd St.. N.E.. Washmcrton. D.C. 20002. 

1' "Arrest in Capitol Bombing Called 'Fishing Expedition,' " by Timothy S. Robinson, 
Washington Post, Oct. 17, 1975. 



216 

Many were held a week, asked a few desultory questions and released. Five were 
jailed for up to forty days until their contempt citations were reversed. Eight 
veterans were ultimately indicted for conspiracy to engage in violence at the 
Republican convention in August. All defendants were acquitted by the trial jury 
on all counts. But VVAW's acti\ities were totally disrupted, the organization 
severely weakened, and falsely branded as terrorist. On July 13, the Democratic 
convention passed a resolution condemning "this blatantly political abuse of the 
grand jury to intimidate and discredit a group whose opposition to the war has 
been particularly moving and effective." " 

A recent Fifth Circuit Court decision in a related case said the VAW grand jury 
proceedings were "part of an overall governmental tactic directed against dis- 
favored persons and groups ... to chill their expressions and associations." " 

The use of the grand jury for political purposes, perfected during the Nixon 
administration, is described by Moore's Federal Practice: 

"[W]hen technical and theoretical distinctions are put aside, the true nature of 
the grand jury emerges — i.e., it is 'ba.sically ... a law enforcement agency.' No- 
where is this characterization more apt than in considering the use of grand jury 
proceedings by the Nixon Administration. In Nixon's war against the press, the 
intellectual community and the peace mo\ement generally, the federal grand 
jury has become the battleground." •" 

The grand jury continues as a major battleground. Although the use of political 
grand juries temporarily ceased during the Watergate investigation, there has 
been a resurgence of grand jury abuse under Attorney General Edward Levi. 

When the Watergate scandal broke, disclosing illegalities committed by the 
highest officials of the Justice Department (Mitchell, Kleindienst, and Mardian), 
the Internal Security Division was disbanded and subsumed into the Criminal 
Division of the Justice Department. However, spokesmen for the Justice Depart- 
ment assert that the shift indicates no change in policy, and the new head of the 
ISD, Kevin Maroney, has confirmed that the ISD will continue to investigate 
"politically motivated crimes" and to use grand juries as it has in the past.^ Guy 
Goodwin remains an employee of the Criminal Division of the Justice Depart- 
ment. 

The same pattern of abuse of grand juries as intelligence-gathering operations 
with COINTELPRO objectives has reemerged with the FBI giving more decisive 
direction. FBI agents increasingly threaten with grand jury subpoenas citizens 
who refuse to ans^\er their questions. Subpoenas bear the signature of a U.S. 
attorney, but agents have filled in blank subpoenas when people would not talk 
freely, and in one known case, have subpoenaed a witness to appear before a non- 
existent grand jury." Ralph Guy, a U.S. attorney in Detroit, has admitted that 
FBI agents are often sent out to question witnesses with grand jury subpoenas in 
their pockets.*^ Congress has repeatedly refused to delegate subpoena power to 
the FBI, feeling that no executive agency should possess what was essentially a 
judicial power. 

In 1975, FBI agents descended upon the women's community in Lexington, 
Kentucky, and New Haven, Connecticut, allegedly pursuing a tip about Susan 
Saxe and Katharine Powers, wanted for a bank robbery in Boston. Hundreds of 
people were interviewed and asked detailed personal questions. Six refused to 
talk to the FBI in Lexington and were promptly subpoenaed before a grand jury 
purportedly investigating the "harboring of fugitives." FBI agents visited the 
families of some of the witnesses, urging them to pressure their children to co- 
operate with the bureau. In one case an eighty-four-year-old grandmother was 
visited by agents and told that her granddaughter was a lesbian. Six people were 
jailed for contempt after refusing to testify in Lexington. Five ultimately testi- 
fied. The investigation was never pursued further, although one witness, Jill Ray- 
mond, spent fourteen months in the county jail. The exact pattern was repeated in 
New Haven where Ellen Grusse and Terry Turgeon refused to testify and spent 
a month in prison. Both were then subpoenaed upon release and spent an addi- 
tional six months in prison until the prosecutor withdrew their subpoenas. No 



^ Frank J. Donner and Richard I. Lavine, "Kangaroo Grand Juries," The Nation, 
Nov. 19. 1973. 

1" U.S. V. Briggs, 514 F. 2nd 794, 805-806 (5th Circuit 1975). 

20 8 Moore's Federal Practice 6.02[1] [b]. 

21 Cowan article. 

- In re Grand Jury Investicration. Des Moines, Iowa, in the matter of Martha Copleman, 
U.S. District Court, Southern District of Iowa, M-1-59. 

23 "The FBI Connection," Orand Jury Report, published by Coalition to End Grand 
Jury Abuse (Winter 1976), p. 5. 



217 

indictments were handed down in either community ; none of the women was 
charged or tried for any offense, except refusing to cooperate in the dragnet. For 
the witnesses the choices were all unpalatable. To cooperate was to assist the 
government's surveillance of the women's movement and protected political ac- 
tivity ; to refuse was to face contempt-of -court citations and jail. In either case, 
the grand jury created suspicion and divisions among friends ; it invaded individ- 
uals' privacy and disrupted their political activities. 

In New York City and Puerto Rico, people identifiable in some way with the 
Puerto Rican independence movement, the Puerto Rican Socialist party or the 
Puerto Rican Nationalist party, have been subpoenaed to grand jury investiga- 
tions under the guise of "bombing and explosives" investigations. In New York 
City, the FBI questioned the Puerto Rican community extensively, threaten- 
ing to subpoena those who wouldn't answer questions about political activities 
and associates dating back many years. The court accepted the government's 
proposition that merely being associated in the Puerto Rican Socialist party 
was sufficient basis to justify a subpoena. Citizens attending court hearings 
were photographed and became objects of later FBI interrogations. Two wit- 
nesses, Lureida Torres of New York City and Edgar Maury Santiago in Puerto 
Rico, have already been jailed. The grand jury subpoena, receiving almost auto- 
matic judicial approval, served to brand Puerto Rican activists and organiza- 
tions with a terrorist label without a shred of evidence, just as grand jury sub- 
poenas had earlier stigmatized members of VVAW as violent in 1972. 

To date, no restraints have been imposed upon the use of grand juries as a 
weapon against political dissent. In 1975, a second wave of "'political" grand 
juries began, starting with the Lexington and New Haven probes mentioned 
above. Other political grand juries have recently been convened against labor 
unions in Washington, D.C., and Florida, the American Indian movement at 
Wounded Knee, South Dakota, Oklahoma, and Iowa, and the Chicano move- 
ment in Colorado. There have been ^rand jury proceedings in the Symbionese 
Liberation Army/Patty Hearst case in Pennsylvania and in California, and in 
the filming of a movie made on Weather Underground in Los Angeles. In addi- 
tion, radical defense lawyers and legal workers are now being subpoenaed in 
political cases across the country and asked for their records and/or informa- 
tion about their clients.'* 

Shirley Hufstedler, a judge on the Ninth Circuit Court of Appeals, observed 
recently : 

"Today, courts across this country are faced ■v\'ith an increasing flow of cases 
arising out of grand jury proceedings concerned with the possible punishment 
of political dissidents. 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." ^" 

The "cruel twist" continues as yet unchecked. 

* * * * if t * 

[Chapter 12 — Designing Effective Reforms] 

4: 4: ^ * * * * 

The Grand Juries. — The Justice Department has taken the grand jury, original- 
ly included in the Bill of Rights as a safeguard against harassing prosecution, and 
transmuted it into a technically legal intelligence arm of the government. Leg- 
islation should be passed to reestablish and safeguard the role that the framers 
intended for it. A number of bills for reforming grand jury abuse have been pro- 
posed ; the most comprehensive take the following measui'es : 

Witnesses should have a right to counsel in the grand jury room, a right 
against compelled self-incrimination, a right to be notified whether they are 
a potential defendant, and a right to know what the subject of the investigation 
is. 

Witnesses should be given at least seven days' notice that they must appear, and 
should be notified of their newly established rights before the grand jury. 

The witness should have a right to ask for a change of venue. "Use immunity" 
should be abolished, only "transactional immunity" should be permitted, and 
then only on a voluntary basis. 



2* "Grand Juries : A History of Repression," Quash, oublished by Grand Jury Project, 
853 Broadway, New York City 10003, January 1976, pp. 13, 15. 

25 Barry Wlnograd and Martin Tassler, "The Political Question," Trial, January/ 
February 1973, p. 16. 



218 

The rules of evidence should be the same as in courts : no more use of hearsay, 
the fruits of illegal searches and warrantless wiretaps, or irrelevant and prej- 
udicial evidence. 

Contempt sentences for refusing to testify should be limited to six months ; 
double jeopardy should be ended by making this six-month limit apply to all testi- 
mony on the same subject before later grand juries. 

Indictments should be handed down only if the evidence on which they are 
based is legally sufficient, competent, and admissible in court, and if the 
government has presented all the exculpatory evidence in its possession. 

Finally, a statute to reform grand jury proceedings should require that jurorss 
be instructed of their rights, powers, and functions — that they are not a rubber 
.«;tamp for the prosecutor but an independent body historically intended to safe- 
guard people from government harassment. 



219 



[Grand Jury omnibus reform bills introduced in the House of Representatives] 



ojth congress 

1st Session 



H. R. 1277 



IX THE HOUSE OE EEPEESEXTATIVES 

January 1-t, 1975 

]Mr. EiLBEKG introduced tlie following bill; which was referred to the Com- 
mittee on the Judiciary 



A BILL 

To csta])lish certain rules with respect to the appearance of ^\[t- 
nesses before grand juries, to provide for independent in- 
quiries by grand juries, and for other purposes. 

1 Be it enacted hy the Senate and House of Tiepresenta- 

2 tives of the United States of America in Congress assembled, 

3 That this Act may be cited as the "Grand Jury Eeform Act 

4 of 1975". 

5 RECALCITRANT WITNESSES 

6 Sec. 2. (a) Subsection (a) of section 1826 of title 28, 

7 of the Enited States Code (relating to recalcitrant witnesses) 

8 is amended by striking out "eighteen" and inserting in lieu 

9 thereof "six" and by adding the following new sentence at 
10 the end thereof: "No person confined under this section for 

I 



220 



1 refusal to testify or provide other information coiu'criiing any 

2 transaction or event may be again confined under this section 

3 for a subsequent refusal to testify or provide other infoi'ma- 

4 tion concerning the same transaction or event." 

5 (1)) The first sentence of subsection (b) of such section 

6 182G is amended to read as follows : 

7 '"(b) -^i\y pci''ion confined pursuant to sul)section (a) 

8 of this section shall ])e admitted to bail pending the determi- 

9 nation of an a])peal taken by him from the order for his con- 

10 finement unless it affirmatively appears that the ai)pea] is 

11 frivolous or taken for delay." 

12 (c) Section 25 lo of title 18, United States Code (re- 

13 fating to prohibition of use as evidence of intercepted wii-e 
1-i or oral communications), is amended bv addino- at the end 
!•> thereof the following new sentence: "Any violation of this 
l^j chapter shall be a defense in an}- action brought against a 

17 witness under section 1826 of title 28 of the United States 

18 Code (relating to recalcitrant witnesses) if the interrogation 
1^ (or other request for information) is based on or (dij'ccth' 

20 or indirectly) derived from such violation.". 

21 (d) The amendment made by subsection (a) sliall applv 

22 only to witnesses ordered to testify or provide other informa- 

23 tion after the date of enactment of this Act. 



221 



o 



1 UXAUTIIORTZED DISCLOSURE OF GRAND JURY 

2 INFORMATION 

3 Sec. 3. (a) C'hnptcr 73 of title 18, United States Code 

4 (relating to ol»>traetion of justice), is amended I)}- adding- at 

5 the end thereof the following new section : 

6 "§ 1512. Violations of grand jury secrecy 

7 " (a) Wiioever discloses any matter occurring before any 

8 grand jury impaneled before a court of the United States 

9 shall be fined not more than $500 or imprisoned not more 

10 than six months or both. 

11 " (li) Subsection (a) shall not apply to — 

12 "(1) disclosure by any person of any matter to 

13 an attorney for the Government for use in the perform- 

14 ance of his duties; 

15 " (-) disclosure of any matter b}- a juror, attorney, 

16 interpreter, stenographer, operator of a recording device, 

17 or any typist who transcribes recorded testimony when 

18 so directed by the court preliminary to or in connec- 

19 tion with a judicial proceeding or wlien pennitted by 

20 the court at the request of the defendant upon a show- 

21 ing that grounds may exist for a motion to dismiss the 



222 



4 

1 indictment because of matters occurring before the grand 

2 jury; 

3 "(3) disclosm-e by a witness before sucb grand jury 

4 or by his attorney of any matter concerning which the 

5 witness has testified, or produced other information, 

6 before the grand jury; or 

7 "(4) disclosure by any person other than a person 

8 present at the grand jury proceeding. 

9 "(c) Nothing contained in this section shall be con- 

10 strued to afifect the power of the court to punish any person 

11 for contempt." 

12 (b) The table of sections for such chapter 73 is amended 

13 by adding at the end thereof the following new item : 

"1512. Violation of grand jury secrecy.". 

14 NOTICE OF CEETAIN RIGHTS AND DUTIES; INDEPENDENT 

15 INQUIRY ; AND CERTAIN EIGHTS OF WITNESSES 

16 Sec. 4. (a) Chapter 215 of title 18, United States Code 

17 (relating to grand juries) , is amended by adding at the end 

18 thereof the following new sections : 

19 "§ 3329. Notice of certain rights and duties 

20 "Upon impanelment of every grand jury before a dis- 

21 trict court, the court shall give adequate and reasonable 

22 notice to the grand jury of: 

23 ? "(1) its duty to inquire into offenses against the 



223 



5 

1 criminal laws of the United States alleged to have l)een 

2 committed within that district: 

3 " (2) its rights, atithority, and powers with respect 

4 to an independent inquiry under section 3330; 

5 "(3) its right to call and interrogate witnesses; 

6 " (4) its right to request the production of docu- 

7 ments or other evidence; and 

8 "(5) such other duties and rights as the court deems 

9 advisable. 

10 "§3330. Independent grand jury inquiry 

11 " (a) (1) Any grand jury impaneled Ijcfore any district 

12 court (including a special grand jury summoned under sec- 

13 tion 3331) may, after giving notice to the court, incpiire 

14 up(ni its own initiative into offenses against the criminal 
li3 laws of the United States alleged to have Ix'cn committed 

16 within that district, 

17 " (2) The grand jury shall serve for a term of eighteen 

18 months after giving notice to the court under paragraph 

19 (1) unless an order for its discharge is entered earlier by 

20 the court upon a determination of the grand jury by a ma- 

21 jority vote that its business has been completed. If, at the 

22 end of such term or any extension thereof, the district court 

23 determines the business of the grand jury has not been 

24 completed, the court may enter an order extending such 



224 



6 

1 tt'rm for an additional period of :-ix iiiontlis. Xo grand jury 

2 term so extended sliall exceed lliirly-six months from the 

3 date on which notice to the court was given under })ara- 

4 giaph (1). 

5 "(•'*) If i^ district court within any judicial circuit fails 
Q to extend the term of a grand jury engaged upon an iu(U'- 

7 pendent inquiry under this section or enters an order for 

8 the discharge of such grand jury hetore such grand jury 

9 determines that it has completed its business, the grand jury, 

10 upon an afhrative vote of a majority of its meml)ers, may 

11 '^PPly to the chief judge of the circuit foi' an order for 

12 the continuance of the term of the grand jury. U^ion the 

13 making of such an ap[)lieation by the giaiul jury, the term 

14 thereof shall continue until the entry upon such ap[dication by 

15 the chief judge of the circuit of. an ap[»ropriate order. Xo 
IG grand jury term so exlended shall exceed lhir(\--six months. 

17 "CO (0 I pon the re(|uest of any grand jur\- impaiu-led 

18 before any district coiu't ([»ursuant to the affirmative vote of 

19 a majorit}^ of its mendjcis), the court shall appoint a special 
2Q attorney, in lieu of the attorney for the (iovernment, to assist 

21 the jury in the conduct of any independent inquiry referred 

22 to in subsection (a) . 

23 " (-) 'I'he s])ecia] attorney ai)pointed uiuler this section 

24 niay a])point and fix the compensation (if such assistants, 
>^^ investigators, and other peisoimel as he deems necessary. 



225 



7 

1 The special attoniey and his appointees shall be appointed 

2 without regard to the provisions of title 5 governing appoint- 

3 ments in the competitive service, and may be paid without 

4 regard to the provisions of chapter 51 and subchapter III 

5 of chapter 53 of such title relating to classification and 

6 General Schedule pay rates, except that neither the special 

7 attornev nor any appointee may receive pay at a rate in ex- 

8 cess of $100 for each day during which he is engaged in the 

9 performance of his duties under this section. The special 

10 attorney shall he reimbursed for actual expeneses incurred l)y 

11 him and his appointees in the perf(u-mance of duties pur- 
1^ suant to this section. 

13 "(3) Xotwithstaiiding sections 51(5. 51-'^, and 519 of 

^^ title 2'^ or any other provision of law, a special attorney 

-^^ appointed under this sccti(»n sliall cany out the functions of 

^^ an attorney for the government and shall have the exclu'^ive 

17 

authority to — 

18 "(A) assist in the conduct of independent grand 

^^ jury investigations under this section, 

20 u ^-p\ prepare and sign any indictment returned 

^^ by a grand jury pm-snant to such inquiry, and 

22 a^(-(^ conduct all other phases of any criminal 

-^ prosecution arising out of such intpiiry (including the 

2^ argument of i\])])viiU in tlic r.nited States T'ourts of 
A])peals and the T/niled States Supreme Court). 



25 



226 



8 

1 " (4) A special attorney appointed under this section is 

2 authorized to obtain from any department or agency of the 

3 United -States any files, records, documents, or other ma- 

4 terials which he deems necessary or appropriate in the 

5 carrying out of his functions under this section. 

6 "§ 3330A. Certain rights of grand jury witnesses 

7 " (a) In the case of any proceeding before a grand jury 

8 impaneled before a district court, except v.diere the court 

9 finds special need (upon a showing by the attorney for the 

10 government) , no subpcna may require any witness to testify 

11 or produce other information at such proceeding at an}' time 

12 before the expiration of the one-week period beginning on 

13 the date of service of the subpena. 

^^ "(b) Upon the service of any subpena re(][uiring any 

15 witness to testify or produce other information at any pro- 

IG ceeding before a grand jury impaneled before a district court, 

17 the witness shall be given adequate and reasonable notice of: 

^° " ( 1 ) his right to counsel as provided in subsec- 

19 tion (c) of this section; 

^^ "(-) his ]-ight against self-incrimination; 

■^1 "(3) the sul)jert matter of the grand jury inves- 

22 tigation; 

23 "(4) whetlior he is a potential defendant at the 

24 time of siicli service; and 

'"^ " (T)) any other rights and pri\i]eges wliicli the 

26 court deems necessar}'- or appropriate. 



227 



9 

1 "(c) Every witness called to testify or produce other 

2 information before a grand jury impaneled before a district 

3 court shall be entitled to the advice of an attorney who may 
•1 be present and provide such advice while testimony or other 
5 information is lieing elicited from the witness by who may 
G not perform any other function at the proceeding before the 

7 grand jury. Such attorney shall be appointed as provided in 

8 section 3006A in the case of any person financially unable 

9 to olitain adequate representation. 

10 "(d) (1) Any subpena requiring a person to appear at 

11 any proceeding before, or ancillary to. any grand jury ira- 

12 i)auclcd before a disti-ict court shall 1)e quashed and such 

13 person >hall not be required to so appear if the court finds 
1-1 after hearing, that his appearance would impose a sul)stantial 

15 and unnecessary hardship on such person or his family l)e- 

16 cause of the location of the proceeding. 

17 '' (-) If i^ motion to quash a subpena is made under this 

18 sul)section before the day on which the person sul)pcnaed 

19 has been ordered to appear, the appearance of such person 

20 shall be stayed until the court has ruled on such moticiu. 

21 " (3) The district court ^^'lli(■h issued a sul)pena to any 

22 person, or the district court for the district in which tlie per- 

23 son I'csides or is served, shall liave jurisdiction in licar. and 

24 take appropriate action \\'\\]\ res[»eet to. any motion to (juasli 
2-") such sulqx'ua under this siiltscM-tion. 



228 

10 

■j^ "(e) (1) The enumeration in tliis section of any riu'lits 

2 and privileges of grand jury witnesses shall not affect any 

g other rights and privileges to which such witnesses may he 

^ entitled under any law or rule of law. 

K "(-) Notwithstanding section ;]771. no rule contained 

Q in the Federal Rules of Criminal Procedure shall apply to 

Y the extent that siudi rule is inconsistent with the provisions 

g of this section. 

g "§ 3330B. Recording of grand jury proceedings 

-^Q "A record shall be kept of all testimony before a grand 

2]^ jury impaneled l)cfore any district court, and under such 

22 conditions as the court deems reasonable any witness who 

23 has testified l)efore such grand jury (or his attorney if 

14 such witness approves) may examine and copy the record 

15 of his own testimony. If a witness is proceeding in forma 

16 pamperis, he sliall l)e furulsjied, upon rc([iu'st, a transcript 

17 of his testimony before the grand jury." 

18 (1») Section 3006A(a) of title 18, United States Code 

19 (relating to a])pointment of attorneys) , is amended — 

20 (1) by striking out "or/' ))cf(»re "(4)" in the 

21 first sentence thereof: and 

22 (2) by inserting l)efore the period at the end of 

23 the iii'st sentence thereof: ", or (T)) who is a witness 

24 before a grand jury imi)ane]e(l Ix'fore llie dislriet com I", 



229 



11 

1 (c) The tabic of sections for such chapter 215 is 

2 aiucuded bv addiiiy; at the end thereof the followino- new 
'^ items: 

"3o:>9. Notice of certain rights and duties. 
'•.');')oO. Independent orand juiT inquiry. 
";5;].''>(lA. Certain ri;;litsof grand jun' witnesses. 

4 "Ij.jOB. Kecordino- of grand jur}- proceedings.". 

5 (d) Section 524 of chapter ;U of title 28, United 

6 States Code (relating to appropriations for administrative 
T expenses) , is amended ])y adding at the end thereof the 

8 following new sentence: "Such appropriations shall also be 

9 available for paj'ment of the compensation and other ex- 

10 pcnses of the special attornc}' appointed under section 3320 

11 of title IS to assist a grand jury in the conduct of an inde- 

12 pendent investigation." 

13 (i') The Administrator of General Services shall furnish 
If oflices, e(piipment, supplies, and ser\ ices to a special attorney 
15 a|)pointed under section 3330 of title IS. Fnited States Code, 
1^ in the same manner as such items are furnished to agencies 
IT and departments of the United States. 

18 WITNESS IMMUNITY 

19 Skc. 5. (a) Section 0002 of lirlc 18, United States 

20 Code (relating to immunity generally) , is amended 1»y strik- 

21 iiig out all after the semicolon in such section and inserting 

22 ill lieu thei'cof the following: "l>ut the witness shall not 



78-905 O - 77 - 16 



230 



12 

1 be prosecuted or subject to any penalty or forfeiture for or 

2 on account of an}' transaction, matter, or thing- concerning 

3 ^^'bich he is compelled under the order to testify or 

4 produce evidence, except that he shall not be exempt from 

5 prosecution and punishment for perjury committed in so 
G testifying, for giving a false statement, or for otherwise fail- 

7 ing to comply with the order. IS'o order issued under this 

8 part shall require any witness to testify or provide other 

9 information at any time prior to the day one week after the 

10 day on which such order was communicated to the witness. 

11 Ujwn comnumication to the witness of any order issued 

12 under this part, the person presiding over the incpiiry shall 

13 give the witness reasonable and adequate notice of the 
I'i nature and scope of the innnunity from criminal proscen- 
ia tion provided by this section." 

16 (b) Subsection (b) of section 0003 of such title (relat- 

1'^ ing to court and grand jury proceedings) is amended to read 

^S as follows: 

19 "(b) A United States district court may, with the 

20 approval of tlie Attorney General, the Deputy Attorney 

21 General, or any designated Assistant Attorney General, issue 

22 an order under subsection (a) of this section when the 

23 T'uited States attorney establishes to the satisfaction of the 
2-1 court that — 



231 

13 

2 " ( 1 ) the testlmoii}" or other information from 

2 such individual may be necessary to the public in- 

3 terest; and 

4 "{2) such individual has refused or is likely to 

5 refuse to testify or provide other information on the 
Q basis of his privilege against self-incrimination. Xo ap- 

7 proval shall be required under this subsection in the 

8 case of a request for an order made by a special attorney 

9 appointed under section 33'30.". 

^Q (c) Subsection (c) of section 6005 of such title is 

11 hereb)?^ repealed. 

12 (d) The amendments made by subsections (a), (b), 

13 and (c) of this section shall take effect on the sixtieth day 
I'i following the date of the enactment of this Act. No amend- 

15 ment or repeal of any provision of law made by this section 

16 shall afifect any immunity, or the scope of an}' immunity, to 

17 which any individual is entitled under such provision by 

18 reason of any testimony or other information given before 

19 such day. 



232 



94TII CONGRESS 
1st Session 



H. R. 6006 



IN TITl^] HOUSE OF UErEESENTATIVES 

Ai'iar. IT), 1975 

Mr. Kastenmkieu (for liimsolf and Mr. Railsiuck) introduced the following 
l)ill ; Avliicli was inferred to the Committee on the Judiciary 



A BILL 

To ostiil)li,sli certain rules witli respect to tlie appearance of 
witnesses before Federal grand juries in order better to 
protect the rights and liberties of such witnesses, to provide 
for independent inquiries by grand juries, and for other 
purposes. 

1 Be il enacted h'/ the Senate and House of Bepresenta- 

2 tives of the United States of America in Congress assembled, 

3 That this Act, with the following table of contents, may be 

4 cited as the "Grand Jury Reform Act of 1975". 

TABLE OF CONTENTS 

Sec. 2. Tnanunit}- of witnesses. 

Sec. ?). Recalcitrant witnesses. 

Sec. 4. Certain grand jury rights and duties. 

Sec. 5. Certain rights of grand jury witnesses. 

Sec. C}. Venue of grand jury in<iuiry. 

Sec. 7. Reciuirements for indictment. 

Sec. S. Reports concerning grand jury investigations. 

Sec. 0. Confoi-miug amendments. 



233 



1 IMMUNITY OF WITNESSES 

2 Sec. 2. (a) Section 6002 of title 18, United States Code 

3 (relating to immunity generally) , is amended by striking 

4 out the period at the end thereof and inserting in lieu thereof 

5 tlie following: '', and such witness shall not he prosecuted or 

6 subjected to any penalty or forfciUire on ncconnt of an}^ trans- 

7 action, matter, or thing concerning which he is compelled, 

8 under such order, to testify or produce other information.". 

9 (b) Section noon (a) of such title (relating to court and 

10 grand jury proceedings) is amended l»y inserting after 

11 "ITnited States attorney for such district" the following: "or 

12 of a grand jiuy impaneled befoi'e such district court". 

13 (c) Section 000:1(1)) of such title is amended by strik- 

14 ing out "the Deputy Attornc}^ General, or any designated 

15 Assistant Attorney General," iiiid ]»y adding the following 

16 new sentence at the end thereof: "The authority of the At- 

17 torney General to approve a request under this subsection 

18 shall not he delegated to any other person.". 

19 (d) Section 0003 of such title is amended l)y adding at 

20 the end thereof the following new subsection: 

21 "(c) A grand jury impaneled before a United States 

22 district court may, with the approval of the Attorney Gen- 

23 eral, request an order under su])section (a) of this section for 

24 the compelling of testimiuiy oi' other information in any pi'o- 



234 



3 

2 ceeding before such grand jury when twelve or more mem- 

2 hers determme that — 

3 "(1) the testimony or other information from such 

4 individual may be necessary to the pu1)lic interest; and 

5 " (2) such individual has refused or is likely to refuse 
Q to testify or provide other inf(»rmation on the basis of his 

7 privilege against self-incrimination. 

8 The authority of the Attorney General to approve a request 

9 under this subsection may not be delegated to an}^ other 

10 person.". 

11 KECALCITRANT WITNESSES 

12 Sec. 3. Section 182(3 of title 28, United States Code, 

13 (relating to recalcitrant witnesses), is amended to read as 

14 follows : 

15 "§ 1826. Recalcitrant witnesses 

IG "(a) (1) Whenever a witness in any proceeding (other 

37 than a grand jury proceeding) l)efore or ancillary to any 

18 court of the United States refuses without just cause shown 

19 to comply with an order of the court to testify or provide 

20 other information, including any book, ])aper, document, rec- 

21 ord, recordings, or other material, the court, upon such re- 

22 fusal, or when such refusal is duly brought to its attention, 

23 may, after a hearing and upon finding that the refusal is 

24 witliout just cause, order such witness to l)e confined. Any 



235 



4 

1 such confinement shall be at a suitable Federal correctional 

2 institution unless the witness voluntarily waives the right to 

3 have his confinement at such an institution. Such confine- 

4 ment shall continue until such time as the witness is willing 

5 to give such testimony or provide such inff>rmation lint shall 

6 not exceed the shorter of — 

7 "(A) the life of the proceeding before which such 

8 refusal to comply with the coui't order occurred, or 
d "(B) six months. 

10 " (2) Whenever a witness in anv proceeding Ijefore any 

11 grand jury impaneled before a district court refuses without 

12 just cause shown to comply with an order of tbe court to 

13 testify or provide other information, including any book, 

14 paper, document, recoi'd, recording, or other material, tbe 
1.5 grand jur}', upon affirmative vote of twelve or more members, 

16 Jiiay apply to the court for an order directing tbe witness to 

17 comply. Upon su€h applicaition, the court may, after a hear- 

18 ing and upon finding that such refusal is without just cause, 

19 order such witness to ])e confined. Any such confinement 

20 sball be at a suitable Federal correctional institution unless 
21 , the witness voluntarily waives tbe I'igbt to bave his confine- 

22 ment at su(;h institution. »Such confinement shall continue 

23 until such time as the witness is willing to give such testi- 

24 mony or provide such information but sb.ill not exceed the 

25 shorter of — 



236 



5 

1 " (A) the term of the grand jury (hichuliiig' cxten- 

2 siuiis) before which such refusal to comply occurred, or 

3 "(B) six months. 

4 "(o) Xo hearing shall be held under this subsection 

5 witb(jut ten days' notice to tlie ^^■itness, except that in the case 
G of a witness subpenaed for a trial, a shorter notice, but not 

7 less than live days, may be ordered l)y the court upon a 

8 showing of special need. 

9 ''(b) A^o person who has been confined under this sec- 

10 tion for refusal to testify or provide otlier information con- 

11 cerning any transaction or event may be again confined under 

12 this section for a subsecpient refusal to testify or provide 

13 other information concernhig the same transacfion or event. 

14 "(c) An}' person confined pLU'suant to subsection (a) of 

15 this section shall be admitted to bail or released in accord 

16 with the Federal Hules of Criminal Procedure pending tlie 
l''^ determination of an appeal taken by him from the order of his 

18 confinement unless the appeal is frivolous or taken for delay. 

19 An}^ appeal from an order of confinement under this section 

20 shall be disposed of as soon as practicable pursuant to an 

21 expedited schedule ordered by the appellate court upon 

22 application by a party. 

23 " (d) In any proceeding conducted under this section, for 

24 the confinement of a witness for refusal to testify or provide 

25 otlx'r information such witness shall be entitled to representa- 



237 



6 

1 tion by counsel and in the case of any person financially 

2 unable to obtain adequate representation, such counsel shall 

3 be appointed as provided in section 300GA of title 18. 

4 " (e) A refusal to answer a question or provide oilier 

5 information before a court or grand jury of the United 
Q States shall not be punishable under this section if the ([ues- 

7 tion asked or the request for other information violates any 

8 right or privilege of the witness or is (directh' or indirectly) 

9 based on or derived from any violation of any right 'or 

10 privilege of the witness.''. 

11 CEBTAIN GRAND JURY RIGHTS AND DUTIES 

12 Sec. 4. Chapter 215 of title 18, United States Code 

13 (relating to grand juries), is amended h}^ striking out sec- 

14 tion 3322 and all that follows down through section 3328 

15 and inserting m lieu thereof the following new sections: 

16 "§ 3322, Notice to grand jury of its rights and duties 

17 "Upon impanelment of a grand jur}^ before a United 

18 States district court, the court shall give adequate and rea- 

19 sonable notice to the grand jury of — 

20 '' ( 1 ) i^s (^^^ty to inquire into ofifenses against tbe 

21 criminal laws of the United States alleged to have l)een 

22 committed within that district ; 

23 " (2) its rights, authority, and powers with respect 

24 to an independent inquiry under section 3323 ; 

25 " (3) its right to call and interrogate witnesses; 



238 



7 

1 " (4) its right to request the production of docu- 

2 ments or other evidence ; 

3 "(^) the subject matter of the investigation; 

4 "(()) the criiiihial statute or statutes involved, if 

5 these are known at the time the grand jury is impaneled; 

6 "(7) the requirement that a subpena summoning a 

7 witness to appear and testify or to produce books, papers, 

8 documents, or other objects before the grand jury may be 

9 issued only upon an aflirmative vote of twelve or more 

10 members of the grand jury; 

11 " (8) the authority of the grand jury to ask the 

12 court to grant innnunit}' to a witness only upon an 

13 affirmative vote of twelve or more memljers of the grand 

14 jur>^; 

15 '^ {^) the authorit}' of the grand jury to apply to 

16 the court for an order directing a witness to show cause 

17 why he should not be held in contempt, imder section 
18- 1826 of title 28, only upon an affirmative vote of twelve 

19 or more members of the grand juiy ; 

20 "(1*^) the necessity of sufficient evidence to fonn 

21 the basis of any indictment as provided under section 

22 3361(1); 

23 " (11) the duty of the grand jury, by an affirmative 

24 vote- of twelvv or more mjembers, to determine, based on 



239 



8 

1 the evidence presented before it, whether or not there 

2 are sufficient grounds for issuing indictments; and 

3 "(12) such other duties and rights as the court 

4 deems advisable. 

5 The court's failure to instruct the grand jury as directed in 

6 this section shall be just cause for a witness' refusal to testify 

7 or provide other information Ijcfore such grand jury. Any 

8 person indicted Ijy a grand jury that has not been instructed 

9 in accordance with these provisions shall be entitled to a 

10 dismissal of any indictment of such grand jurv and of any 

11 indictment issued by any other grand jury if such other 

12 indictment is based on the same transaction or event. 

13 "§3323. Independent grand jury inquiry 

14 " (a) Any grand jurj- impaneled before any district 

15 court (including a special grand jury summoned under sec- 

16 tions 3331) may, after giving notice to the court, inquire 

17 upon its own initiative into offenses against the criminal laws 

18 of the United States alleged to have been connnitted within 

19 that district by any officer or agent of the United States or 

20 of any State or local government or ])y any person ^^•ho, at 

21 the time of the alleged commission of the oilensc, was an 

22 officer or agent of the United States or of any State or local 

23 government. 

24 "(b) The grand jury shall serve for a term of twelve 

25 months after giving notice to the court under paragraph ( 1 ) 



240 



9 

1 unless an order for its discharge Is entered earlier by the coui't 

2 upon a determhiation of the grand jury by an affirmative 

3 vote of twelve or more members that its business has l)een 

4 completed. If, at the end of such term or any extension there- 

5 of, the district court determines the business of the grand 

6 jury has not been completed, the court may enter an order 

7 extending such tenn for an additional period of six months. 

8 No grand jury term so extended shall exceed twenty-four 

9 months from the date on which notice to the court was given 

10 under subsection (a). 

11 " (c) If a district court witliin any judicial circuit fails. 

12 to extend the term of a grand jury engaged upon an inde- 

13 pendent infjiiir}^ under this section (u- enters an order for the 

14 discharge of such grand jury before such grand jury deter- 

15 mines that it has completed its business, the grand jury, upon 
l(j an affirmative vote of twelve or more members, may apply 

17 to the chief judge of the circuit for an order for the con- 

18 tinuancc of the term of the grand jury. The term of siK.'h 

19 grand jury shall not be terminated before the entry by the 

20 chief judge of the circuit of an appropriate order with respect 

21 to such application. No grand jury term extended under this 

22 paragraph shall exceed twenty-four months.". 

23 CERTAIN EIGHTS OF GUAND JURY WITNESSES 

24 Sec. 5. Chapter 215 of lillc IS. United States Code 

25 (relating to grand juries), as amended ))y section 4 of this 

H.R. 6006 2 



241 



10 

1 Act, is further amended by adding at the end thereof tlie 

2 following new section: 

3 "§3324. Certain rights of grand jury witnesses 

4 "(a) A su))pena siimmonhig a witness to appear and 

5 testif}^ before or provide other information to a grand jurv 

6 impaneled before a district court shall be issued only upon an 

7 afhrmalive vote of twelve or more members of the grand 

8 jury, and shall (except with the consent of the witness 

9 subpenaed) not be returnable on less than seven days' notice. 

10 "(b) xVny subpena summoning a witness to appear 

11 before such a grand jur}^ shall advise the witness of — • 

12 " (1 ) his right to counsel jirovided under subsection 
i:5 (c) ; 

11 "(^) his right against self-incrimination; 

15 "(•') whether his own conduct is under investiga- 

16 tion by the grand jury ; 

IT "(4) the subject matter of the grand jury investi- 

18 gation ; 

19 "(5) the substantive criminal statute or statutes, 

20 violation of which is under consideration by the grand 

21 jury; 

22 "(6) any other rights and privileges which the 

23 court deems necessary and a])propriate. 

24 Any witness who is not advised of his rights pursuant to 

25 this subsection shall nf)t be prosecuted or subjected to any 



242 



11 

1 penalty or forfeiture for or on account of any transaction, 

2 matter, or thing concerning which he testifies or produces 

3 other information, nor shall any such testimony or informa- 

4 tion be used as evidence in any cruninal proceeding against 

5 him in any court. 

6 "(c) Every witness subpenaed to appear and testify 

7 before a grand jury impaneled before a district court or to 

8 produce books, papers, docmnents, or other objects before 

9 such grand jury shall be entitled to representation by counsel, 

10 mcluding representation during such time as the witness is 

11 questioned in the grand jury room. Such counsel shall be 

12 appointed as provided in section 3006A in the case of any 

13 person financially unal)le to obtain adequate representation. 

14 "(d) (1) A complete and accurate stenographic record 

15 of all grand jury proceedings shall be kept, except that the 
l(i grand jury's secret deliberations shall not be recorded. Such 

17 record shall include the court's notice to the grand juiy of 

18 its rights and duties including but not limited to those set 

19 forth in section 3329 of this title; all introductory comments, 

20 directives, and other utterances made by attorneys for the 

21 Government to the grand jury, witnesses and counsel for 

22 witnesses; all testimony; and all interchanges between the 

23 grand jury and attorneys and those between attorneys for 

24 the Government and counsel for witnesses. OonsuU.ntions 

25 between witnesses and their counsel shall not be recorded. 



243 



12 

1 '* (2) Any witness who testifies before a grand jury, or 

2 his attorney with such witness' written approval, shall, upon 

3 request, be entitled to examine and copy a transcript of the 

4 record for the period of such witness' own appearance before 

5 the grand jury, and if a witness is proceeding in fonna 
(j pauperis, he shall be furnished, upon request, a copy of such 

7 transcript. Such transcript of such proceedings shall be 

8 available for inspection and copying not later than forty-eight 

9 hours following conclusion of such testimon}'. 

10 " (e) Any person summoned to testify or provide other 

11 information before a grand jury impaneled before a district 

12 court shall be entitled, pi'ior to testifying or providing 

13 other information, to examine and copy any statement in the 
11 possession of the United States which he has made and which 

15 relates to the subject matter under inquiry by the grand 

16 jury. Such examination and copying may be made by the 
n attorney for such person if such person gives his written ap- 

18 proval. As used in this subsection, the term 'statement' has 

19 the meaning provided by section 3500 (e) . 

20 " (f) No person required to testify or provide other in- 

21 formation before any grand jury impaneled before a district 

22 court shall be confined for his failure to so testify or provide 

23 such information if the court which subpenaed such person 

24 or which has jurisdiction under subsection (g) of this 

25 section finds that — 



244 



13 

1 '■ (1) u primary purpose or effect of requiring such 

2 person to so testify or provide information is to secure 

3 information for trial tostimony or other information re- 

4 garJing tbe activities of any pei-^o)! wlio is under indict- 

5 ment (or information or other form of formal accusation) 
G for su(']i activities by the United States, or liy a State or 

7 an}' politic^il subdivision thereof, 

8 " (2) compliance with the subpena would be un- 

9 reasonable or oppressive because — 

10 "(A) such compUance would mvolve unneces- 

11 sary apijearances by the witness, 

12 "(B) the only testimony or other information 

13 that can reasonably be expected from the witness is 

14 cumulative, unnecessary, or j)rivileged, 

15 '"(C) other similar circumstances, 

IG " ('^) '^ primary purpose of the issuance of the sub- 

17 pcna is punitive, 

18 " (4) the witness has been confined for his refusal to 

19 testify before a grand jury investigating the same trans- 

20 action or event, or 

21 "(•'>) the witness has not been advised of his rights 

22 as specified in subsection (b), 

23 No witness who claims a violation of this subsection shall be 

24 required to testily or provide other information if the court 
2r> detei'uiines that this subsection is violated. 



245 

14 

^^ " ig) Before the appearance of a witness before a grand 

2 jury, the district court issuing the subpena to such witness, 

o the district court in the district in which the subpena was 

^ served, and the district court in the district in which the 

K witness resides shall have concurrent jurisdiction over any 

Q motion made by the witness to quash a subpena or for other 

rj relief under provisions of this section. The district court 

g issuing such subpena shall have jurisdiction over any such 

Q motion made during or after the appearance of the witness 

2Q before the grand jury. If the motion is made before or 

^-j^ during the appearance of the moving party before a grand 

j2 Wy, the appearance before the grand jury shall be stayed 

j3 until the court rules on the motion. 

14 "(h) Any person may approach the court and request 

15 permission to testify in an inquiry before a grand jury, or to 

16 appear before a grand jury and request that it proceed in ac- 

17 cordance with its powers under section 3322 of this chapter. 

18 Such person shall be permitted to testify in such inquiry being 

19 conducted by, or appear before, a grand jury, unless the court 

20 finds that such testimony or appearance would serve no 

21 relevant purpose.". 

22 VENUE OF GRAND JURY INQUIRY 

23 Sec. 6. Chapter 215 of title 18, United States Code 

24 (relating to grand juries) , as amended by sections 4 and 5 of 



78-905 O - 77 - 17 



246 



15 

1 lliis Act is furtlicr amended by adding at the end thereof the 

2 foUowhig new section: -; 

3 "§ 3325. Venue of grand jury inquiry 

4 " (a) Except as otherwise provided in this section, a 

5 grand jury impaneled to conduct an incpiiry into offenses 
G against the crhninal laws of the United States may be con- 

7 rened oidy in a district in which it is believed criminal 

8 conduct may have occurred as elements of such offenses. 

9 "(b) A grand jury convened to conduct an inquiry 

10 into both crinilnal acts and conspiracies to commit criminal 

11 acts may not he convened in a district in which the only 

12 conduct alleged to have occurred is a conspiracy to commit 

13 the criminal act. 

14 "(c) For the convenience of witnesses and where the 

15 hiterests of justice so require, the district court shall, on mo- 

16 tion of a witness, transfer any grand jury proceedings or in- 

17 vestigation into nny other district where it might properly 

18 liave been convened under subsection (a) or (b). In con- 

19 sidering an application for such transfer, the court shall take 

20 into consideration all the relevant circumstances, including 

21 tlie distance of the grand jury Investigation from the places 

22 of residence of witnesses who have been subpenaed, financial 

23 ;ind othci burdens placed upon the witnesses, and the exist- 



247 



10 

1 eiice and nature of any related investigations and court pi-o- 

2 ceedings. 

3 "(d) Once a grand jury has failed to return an indict- 

4 nient based on a transaction or event, a grand juiy inquiry 

5 into the same transactions or events shall not be initiated, un- 

6 less the court finds, upon a proper showing by the attorney 

7 for the Government, that die Clovernment has discovered 

8 additional evidence relevant to such in(i[uiry.". 

9 EEQriKElMENTS FOE INDICTMENT 

10 Sec. 7. Section 3361 of title 18, United States Code, 

11 is amended to read as follows : 

12 "§3361. Requirements for indictment 

13 "The district court before which a grand jury is ini- 
1-1 paneled shall dismiss any indictment of the grand jury if 

15 it finds that— 

16 "(1) the evidence before the grand jury was in- 
1^7 sufficient to establish that such offense was committed, 

18 "(2) there was not competent and admissible evi- 

19 dence introduced before the grand jury such as provides 

20 reasonable cause to believe that the person indicted 

21 committed such offense, or 

22 "(3) the attorney for the Government has not 

23 presented to the grand jury all exculpatory evidence in 

24 his possession with respect to such person." 



248 
17 

1 REPORTS CONCERNING GRAND JURY INVESTIGATIONS 

2 Sec. 8. Section 522 of title 28, United States Code (re- 

3 la ting to reports of business and statistics) , is amended by 

4 striking out "The Attorney General" and inserting in lieu 

5 thereof "(a) The Attorney General" and by adding at the 

6 end thereof the following new subsection : 

7 "(b) The Attorney General, at the beginning of each 

8 regular session of Congress, shall report to the Congress and 

9 to the Administrative Oflfice of the United States Courts with 

10 respect to the last precedmg fiscal year on — 

11 "(1) the number of investigations undertaken in 

12 which a grand jury or a special grand jury was utilized 

13 together with a description of the nature of each investi- 

14 gation undertaken ; '-i^ 

15 " ( 2 ) the number of requests by United Sta tes 
Ifi gi-and juries to the Attorney General for approval to 

17 appl}'^ to the court for an order compelling testimony 

18 under section 2003 of title 18, and the number of such 

19 requests approved by the Attorney General ; 

^0 "(3) the number of applications to district courts 

21 for orders granting immimity under title 18 ; 

22 '* (4) the number of appUcations to district courts 

23 for orders granting immunity under title 18 that wei-e 



249 



18 

1 approved and the nature of the mvestigations for which 

2 the orders were sought; 

3 " (5) the number of instances in which witnesses 

4 in the investigations enumerated in paragraph ( 1 ) were 

5 held in contempt and confined, and the dates and lengths 

6 of such confinement; 

7 "(6) the number of arrests, indictments, no-bills, 

8 trials, and convictions resulting from testimony obtained 

9 imder orders granting immunity, the offenses for whicli 

10 the convictions were obtained, and a general assessment 

11 of the importance of the immunity ; 

12 "(7) a description of data banks and other pro- 

13 cedures by which grand jury infonnation is proc(^ssod, 

14 stored, and used by the Department of Justice; and 

15 "(8) other appropriate information concerning 

16 grand jury activity during such year. 

17 The matters contained in the report required to be made l)y 

18 this section shall be set forth according to judicial district.". 

19 CONFORMING AMENDMENTS 

20 Sec. 9. (a) The table of sections for chapter 215 of title 

21 18 (relating to grand jury) is amended by striking out the 

22 items relating to se<'tions 3322 and all that follows down 



250 

19 

1 through the item relating to section 3328 and inserting in 

2 lieu thereof the following new items : 

";>322. Notice to grand j ury of its rights and duties. 
''.'j323. Independent grand jury inquiry. 
"3324. Certain rights of grand jury witnesses. 
"3325. Venue of grand jury inquiry.". 

3 (b) The item relating to section 3361 in the tal)le of 
^ sections for chapter 217 of title 18 is amended to read as 
"^ follows : 

"3301. Requirements for indictment.". 



251 



94th congress 
1st Session 



H. R. 6207 



IX THE HOUSE OE REPKESENTATIVES 

ApraL 21, 1975 

Mr. Raxgfx (for himself and Mr. Eckhardt) introduced the following bill; 
whicli was referred to the Committee on the Judiciary 



A BILL 

To amend title 18 and title 28 of the United States Code to re- 
move the possibility of abuse from the grand jury system 
without removing the effectiveness of the grand jury as a 
tool for investigating and returning indictments, and for 
other purposes. 

1 Be it enacted by the Senate and House of Representa- 

2 lives of the United States of America in Congress assembled, 

3 That this Act may be cited as the "Federal Grand Jury Ee- 

4 form Act of 1975". 

5 EECALCITEANT WITNESSES 

G Sec. 2. Section 1826, chapter 119, title 28, United 

7 States Code, is amended to read as follows: 
S **§ 1826. Recalcitrant witnesses 

9 " (a) Whenever a witness in an}^ proceeding before or 

I 



252 



2 

1 ancillaiy to any court or grand jury of the United Stfites re- 

2 fuses without just cause shown to comply with an order of 

3 the court to testify or provide other information, hichiding 

4 any book, paper, document, record, recording, or other ma- 

5 terial, the court, upon such refusal, or when such refusal is 

6 duly brought to its attention, may, after a hearing at which 

7 such witness may be represented by counsel, order such wit- 

8 ness to be confined at a suitable Federal correctional in- 

9 stitution until such time as the witness is willing to give such 

10 testimony or provide such information. No period of such 

11 confinement shall exceed the hfe of — 

12 " ( 1 ) the court proceeding before which such refusal 

13 to comply with the court order occurred, but in no event 

14 shall such confinement exceed eighteen months, or 

15 "(2) the term of the grand jury, including exten- 

16 sions, before which such refusal to comply with the court 

17 order occurred, but in no event shall such confinement 

18 exceed six months, including any period of confinement 

19 during the term of a prior, subsequent, or other grand 

20 jury in any related proceeding. 

21 "Except upon a showuig of special need, no hearing shall 

22 be held under this subsection until a period of ten days has 

23 passed from the date on which notice of such hearing was 

24 served upon the witness. 

25 (b) No person confined pursuant to subsection (a) of 



253 



3 

1 this section shall be admitted to bail pending the determina- 

2 tion of an appeal taken by him from the order for liis con- 

3 finement unless the court finds that the appeal is frivolous or 

4 taken for delay. Any appeal from an order of confinement 

5 under this section shall be disposed of as soon as practicable, 

6 but not later than thirty days from the filing of such appeal. 

7 " (c) In any proceeding conducted under this section, 

8 counsel shall be furnished as provided in section 3006A, 

9 chapter 201, of title 18 for any person financially unable to 

10 obtain adequate representation.". 

11 GRAND JURY PROCEDURE 

12 Sec. 3. Section 3323, chapter 215, title 18, United 

13 States Code, is amended to read as follows: 

14 " (a) The attorney for the Government, or a defendant 

15 who has been held to 'answer in the district com't may 

16 challenge the array of jurors on the ground that the grand 

17 jury was not selected, drawn, or summoned in accordance 

18 with the law, or that the grand jury is not representative 

19 of a fair cross section of the community from which it was 

20 drawn, and may challenge an individual juror on the 

21 ground that the juror is not legally qualified. Challenges 

22 shall be made before the administration of the oath to 

23 the jurors or as soon as practicable thereafter and shall be 

24 tried by the court. 

25 " (b) No person summoned to testify or provide other 



254 



4 

1 information in any proceeding before or ancillary to any 

2 grand jury of the United States shall be required to testify 

3 or provide such information, or be confined pursuant to sec- 

4 tion 1826, chapter 119, title 28, United States Code, if, upon 

5 a hearing before the court which issued such summons or a 

6 court having jurisdiction under paragraph (2) of subsection 

7 (a) of this section, the court finds that — 

8 " ( 1 ) the appearance of such person before the 

9 grand jury would impose a substantial and unnecessary 

10 hardship on such person or on his family because of the 

11 venue of the grand jury ; 

12 "(2) a primary purpose in requiring such person 

13 to testify or provide other information to the grand jury 
^4 is to secure testimony or other information regarding 

15 the activities of a person who is already under indict- 

16 ment by the United States, a State, or any subdivision 

1 7 thereof for such activities ; 

18 "(3) compliance with the summons would be un- 

19 reasonable or oppressive, such as, but not limited to, 

20 circumstances (i) which involve unnecessary repetitive 

21 appearances by the witness, (ii) where the only testi- 

22 mony that can reasonably be expected from the witness 

23 is cumulative and unnecessary ; or 

24 " (4) a primary purpose in imposing or continuing 

25 confinement is punitive. 



255 

5 

1 "(c) (1) A motion made pursuant to subsection (b) 

2 of tliis section for relief from the order of any court requir- 

3 ing a person to testify or provide other information in any 

4 proceeding before or ancillary to any grand jury of the 

5 United States may be made at any time, except that no 

6 court shall entertain any additional motion from the same 

7 person regarding the same court order unless such person can 

8 first demonstrate that conditions in the case have changed 

9 sufficiently to warrant another hearing. When any legitimate 

10 motion is made prior to the day on which such person is 

11 ordered to appear in such proceedhig, the motion shall stay 

12 the appearance of such pei^son until the court having juris- 

13 diction rules on the motion. 

14 '' (2) The district court for the district in which the per- 

15 son ordered to appear in any such proceeding resides, is 

16 served the subpena, or is ordered to appear shall have juris- 

17 diotiun to entertain a motion made under subsection (b) of 

18 this section and provide appropriate relief. 

19 " (3) The court in determining the issue in a hearing on 

20 a motion made for reUef under paragraph ( 1 ) of subsection 

21 (b) of this section shall take mto consideration all the cir- 

22 cumstances of the grand jury investigation, including (a) 

23 the distance of the locale in which the grand juiy is conduct- 

24 mg the investigation from the witness' place of residence; 

25 (b) the burdens imposed on the witness; (c) the signif-. 



256 



1 icance of tlie overt acts alleged to have taken place in the 

2 jurisdiction in which the grand jury is conducting its investi- 

3 gation; (d) the existence and nature of related investiga- 

4 tions, indictments, and court proceedings, if any; (e) the 

5 practicality of obtaining the testimony or other infonnation 

6 in a place more convenient to the witness; and (f) changed 

7 circimtistances since the witness was sunmioned to testif}' or 

8 provide other information. 

9 " (d) A motion to dismiss the indictment may be based 

10 on objections to the aiTay or on the lack of legal qualifica- 

11 tion of an individual juror, if not previously determined upon 

12 challenge. An indictment shall not be dismissed on the 

13 ground that one or more members of the grand jury were 

14 not legally qualified if it appears from records that any 

15 be required to be kept that twelve or more jurors, after de- 

16 ducting the number not legally qualified, concurred in finding 

17 the indictment.". 

18 Sec. 4. Sections 3325 and 3326, chapter 215, title 18, 

19 United States Code, are amended to read as follows: 

20 "§ 3325. Persons present at proceedings 

21 "Attorney's for the Government, the witness under cx- 

22 amination, attorneys for the witness under examination, 

23 interpreters when needed and, for the purjiose of taking 

24 -the evidence, -a stenographer or operator of a recording de- 
25' "-"vice may' be present while the grand jury is in session, but 



257 



7 

1 no person other than the jurors may be present while the 

2 grand jury is dehberating or voting. Attorneys for the wit- 

3 ness under examination may advise such person as to his 

4 legal rights before the grand jury, but m no case may such 

5 attorney participate in the proceedings.". 

6 "§ 3326. Secrecy of proceeding and disclosure 

7 " (a) Disclosure of matters occurring before the grand 

8 jury, other than its deliberations and the vote of any juror, 

9 may be made to the attorneys for the Government for use 

10 in the perfonnance of their duties. Otherwise, a juror, Gov- 

11 ernment attorney, attorney for ihe witness acting in a capac- 

12 ity other than as attorney for such witness, interpreter, 

13 stenogTapher, operator of a recording device, or any typist 

14 who transcribes recorded testimony may disclose matters 

15 occurring before the grand jury only when so directed by 

16 the court preliminary to or m connection with a judicial 

17 proceeding or when pennitted by the court at the request 

18 of the defendant upon a showing that grounds may exist 

19 for a motion to dismiss the indictment because of matters 

20 occurring before the grand jury. No obligation of secrecy 

21 may be imposed upon any person except in accordance 

22 with this rule. The court may direct that an indictment shall 

23 be kept secret until the defendant is in custody or has given 

24 bail, and in that event the clerk shall seal the indictment 

25 and no person shall disclose the finding of the indictment 



258 

8 

1 except when necessary for the issuance and execution of a 

2 waiTant or summons. 

3 "(b) Notwithstanding the provisions of subsection (a), 

4 all grand jury proceedings shall be recorded, and any person 
n who testifies before a grand jury, or the attorneys for such 
Q person with such person's written approval, shall, upon re- 
rj quest, be entitled to examine and copy a ti'anscript of such 
g person's own testimony. If a person is proceeding in fonna 
9 pauperis, he shall be furnished a copy of such testimony.". 

10 Sec. 5. Chapter 215, title 18, United States Code, is 

21 further amended by adding at the end thereof the following 

12 new sections : 

13 "§3229. Appearance before the grand jury 

14 " (a) Whenever an attorney for the Government intends 

15 to seek an indictment of any person, such attorney shall so 

16 infonn the grand jur}', and also inform the grand jury of its 

17 right to subpena such person to appear if it so desires. 

18 "§ 3330. Use of subpenas 

19 "(a) An}^ indiAadual subpenaed to appear and give 

20 testimony or provide other information before a grand jur}^ 

21 shall not be required to so appear prior to seven days after 

22 service of such subpena, except that the notice required to be 

23 given b}' this section may 1)e waived l)y the court before 

24 which the grand jury is impaneled upon a showing of special 

25 need by the attorney for the Government. 



259 



9 

1 "(b) Any subpena issued for service on a named witness 

2 shall contain information sufficient to notify such witness 

3 of his right to counsel, including the appointment of counsel 

4 if the witness is proceeding in forma pauperis, and his right 

5 against self-incrimination. 

6 Sec. 6. Any rule contained in the Federal Rules of 

7 Criminal Procedure shall not apply to any proceeding before 

8 or ancillary to a grand jury of the United States to the extent 

9 that such rule is inconsistent with the provisions of sections 

10 3, 4, or 5. 

11 Sec. 7. (a) The chapter analysis of chapter 215, title 

12 18, United States Codx3, is amended by striking out 

13 "^(Rule)" in the items relating to sections 3323, 3325 

14 and 3326. 

15 (b) The chapter analysis of chapter 215, title 18, 

16 United States Code, is further amended by adding at the 

17 end thereof the following new items : 

"3329. Appearance before the grand jury. 
"3330. Use of subpenas. 

18 WITNESS IMMUNITY IN GEAND JUEY PEOCEEDINGS 

19 Sec. 8. (a) Section 6002, title 18, United States Code, 

20 is amended to read as follows : 

21 "§6002. Immunity generally 

22 " (a) Whenever a witness refuses, on the basis of his 

23 privilege against self-incrimination, to testify or provide other 

24 information in a proceeding before or ancillary to — 



260 



10 

1 " ( 1 ) a court or grand jury of the United States, 

2 "(2) an agency of the United States, or 

3 "(3) either House of Congress, a joint committee 

4 of the two Houses, or a committee or a subcommittee of 

5 either House, 

6 and the person presiding over the proceeding conamunicates 

7 to the witness an order issued under this part, the witness 

8 may not refuse to comply with the order on the 'basis of 

9 his privilege against self-incrimination; but no testimony or 

10 other information compelled under the order (or any mfor- 

11 mation directly or indirectly derived from such testimony 

12 or other information) may be used against the witness in any 

13 criminal case, except a prosecution for perjury or for giving a 

14 false statement while complying with the order, or otherwise 

15 failing to comply with the order. 

16 "(b) In any proceeding imder sections 6003-6006 of this 

17 part in which an order maj'^ be issued requiring an individual 

18 to give testimon}^ or provide other information which he re- 

19 fuses to give or provide on the basis of his privilege against 

20 self-incrimination, the district court (or the agency under sec- 

21 tion 0004) shall, prior to issuing any such order, advise such 

22 individual that he may be represented by counsel in any such 

23 proceeding and that, if he is unable to obtain adequate repre- 

24 sentation, counsel will be furnished for him as provided in 

25 section 3006A of this title. 



261 

11 

1 "(c) In any proceeding under sections 6003-6006 of 

2 this part in which the court (or the agency under section 

3 6004) finds that an individual is in danger of prosecution, or 

4 may be subjected to any penalty or forfeiture, by the govern- 

5 ment of any other country on accoimt of any transaction, mat- 

6 ter, or thing concerning which he may be ordered to testify 

7 or provide other information pursuant to an order under this 

8 part, such individual shall not be ordered to testify or provide 

9 such information unless the court also finds tliat such indi- 

10 vidual has been provided adequate safeguards to minimize 

11 such danger." 

12 Sec. 9. (a) Part V, title 18, United States Code, is 

13 amended — 

14 (1) by striking out in section 6003 (a) thereof "or 

15 a grand jury of the United States" ; and 

16 (2) by adding at the end of such part the following 

17 new sections: 

18 "§6006. Grand jury proceedings 

19 "(a) In the case of any individual who has been 

20 called to testif}^ or provide other information at any pro- 

21 ceeding before or ancillary io a grand jur}^ of the United 

22 States, the United States district court for the judicial dis- 

23 trict in which the grand jury is sitting may issue, in accord- 

24 ance with subsection (b) of this section, upon the request 

25 of the United States attorney for such district, an order 



78-905 O - 77 - 18 



262 



1 requiring such individual to give testimony or provide other 

2 information which he refuses to give or provide on the basis 

3 of his privilege against self-incrimination, such order to be- 

4 come eflfective as provided in section 6002 of this part, ex- 

5 cept that no such order shall be issued unless the court finds 

6 that— 

7 " fl ) the investigation being conducted by the 

8 grand jury is authorized by law and the application for 

9 the order is in accord with existing guidelines or other 

10 practice of the Department of Justice ; 

11 "(2) the investigation relates to an offense for 

12 which an immunity order may be sought under this 

13 section ; 

14 "(3) the testimony or other information sought to 

15 be obtained is within the scope of the investigation and 

16 is relevant thereto; 

17 "(4) the testimony or other information sought 

18 to be obtained is relevant to the subject matter of the 

19 immunity order ; 

20 "(5) a grant of inmiunity under this part would 

21 be adequate for the purposes of the investigation; and 

22 "(6) a summary of the evidence relating to the 

23 witness has been certified and submitted to the court. 

24 " (b) A United States attorney may, with the approval 

25 of the Attorney General, the Deputy Attorney General, or 



263 



13 

1 any designated Assistant Attorney General, apply for an 

2 order under subsection (a) of this section when in his 

3 judgment — 

4 ■ " ( 1 ) the testimony or other information from such 

5 individual may be necessary (A) to an investigation 

6 of a specific case involving an offense enmnerated in 

7 subsection (1) of section 2516 of title 18, United States 

8 Code, and (B) to the pubhc interest; and 

9 "(2) such individual has refused to testify or pro- 

10 vide other information on the basis of his privilege 

11 against self-incrimination. 

12 "(c) Notwithstanding the provisions of section (a) of 

13 section 6002 of this title, no witness compelled under this 

14 section to testify or provide other information in an investiga- 

15 tion of an offense not enumerated in subsection (1) of sec- 

16 tion 2516 of title 18, United States Code, shall be prosecuted 

17 or subjected to any penalty or forfeiture for or on account 

18 of any transaction, matter, or thing concerning which he is 

19 compelled to testify or provide mformation, nor shall testi- 

20 mony or information so compelled be used as evidence in any 

21 criminal case against him, except a prosecution for perjury 

22 or for giving a false statement committed while complying 

23 wdth such order, or otherwise failing to comply w^ith such 

24 order. 

25 "(d) Any individual required to give testimony or pro- 



264 



14 

1 vide other information pursuant to an order issued under 

2 subsection (a) may not be indicted lor any offense by the 

3 grand jury before which such individual testifies pursuant 

4 to such order. 

5 "§ 6007. Reports concerning grand jury investigations 

6 "In January of each year the Attorney General or an 

7 Assistant Attorney General specially designated by the At- 

8 torney General shall report to tlie Congress and to the Ad- 

9 ministrative Office of the United States Courts — 

10 ''(1) the number of mvestigations undertaken dur- 

11 ing tlie preceding year in which a grand jury or a special 

12 grand jury was utiUzed together v^ith a description of 

13 the nature of each investigation undertaken; 

14 "(2) the number of requests by United States at- 

15 torneys to the Department of Justice for approval to 

16 make application to the court for an order compelling 

17 testimony under section 6006 of this part, and the 

18 number of such requests approved by the Department 

19 of Justice; 

20 "(3) the number of applications to district courts 

21 for orders granting immunity under this title ; 

22 " (4) the number of applications to district courts 

23 for orders granting immunity under this title that were 

24 approved and the nature of the investigations for which 

25 the orders were sought; 

2G "(5) the number of instances in which witnesses 



265 



15 

1 in such investigations were held in contempt and con- 

2 fined, and the dates and lengths of such confinement; 

3 " (6) the numher of arrests, indictments, trials, and 

4 convictions resulting from testimony obtained under 

5 orders granting immunity, the offenses for which the 

6 convictions were obtained, and a general assessment of 

7 the importance of the inomunity ; 

8 "(7) the number of instances in which witnesses 

9 granted immunity imder this title were subsequently 

10 indicted for offenses relating to the subject matter of 

11 their testimony before the grand jury; 

12 "(8) a description of data banks and other pro- 

13 cedures by which grand jury information is processed, 

14 stored, and used by the Department of Justice; and 

15 " (9) other appropriate indicia and information con- 

16 cerning grand jury activity during such year. 

17 The matters contained in the report required to be made by 

18 this section shall be set forth according to judicial diistrict.". 

19 (b) The analysis at the beginning of part V, title 18, 

20 United States Code, is amended — 

21 (1) by striking out ''and grand jury" in the item 

22 relating to section 6003 ; and 

23 (2) by adding at the end of such part analysis the 

24 following new items : 

"G006. Grand jury proceedings. 

"G007. Eeport concerning grand jury investigations.". 



266 



16 

1 EFFECTIVE DATE; SAVINGS PEO VISION 

2 Sec. 10. The provisions of this Act shall take effect on 

3 the date of enactment of this Act. No amendment to any 

4 provision of law made hy any provision of this Act shall 

5 affect any immunity to which any mdividual is entitled under 

6 such provision by reason of any testimony of other infor- 

7 mation given before such day. 



267 



94th congress 

2d Session 



H. R. 1 1 660 



IN THE HOUSE OF REPRESENTATIVES 

February 3, 1976 

Mr. CoNYERS introduced the following bill ; whicli was referred to the Com- 
mittee on the Judiciary 



A BILL 

To establish certain rules with respect to the appearance of wit- 
nesses before grand juries in order better to protect the con- 
stitutional rights and liberties of such witnesses under the 
fourth, fifth, and sixth amendinents to the Constitution, to 
provide for independent inquiries by grand juries, and for 
other purposes. 

1 Be it enacted by the Senate and House of Iiepresenta- 

2 tivcs of the United States of America in Congress assembled, 

3 That this Act may be cited as the "Grand Jury Reform Act 

4 of 1976". 

5 Sec. 2. Section 1826 of title 28, United States Code, is 

6 amended to read as follows : 

7 "§ 1826. Recalcitrant witnesses. 

I 



268 



1 " (a) (1) Whenever a witness in any proceeding before 

2 any grand jury of the United States refuses without just 

3 cause shown to comply with an order of the court of the 

4 United States to testify or provide other information, includ- 

5 ing any book, paper, document, record, recording, or other 

6 material, the attorney for the Government may, only upon 

7 an affirmative vote of twelve or more members of the grand 

8 jury that such refusal was without just cause, submit an 

9 application to the court for an order directing the witness 

10 to show why the witness should not be held m contempt. 

11 After submission of such application and a hearing at which 

12 the witness may be represented by counsel, the court may, 

13 if the court finds that such refusal was without just cause, 

14 hold the witness in criminal contempt and order the witness 

15 to be confined. Such confinement shall be at a suitable Fed- 

16 eral correctional institution, unless the witness waives this 

17 right. Such confinement shall continue until such time as 

18 the witness is wiUing to give such testimony or provide such 

19 information. No period of such confinement shall exceed the 

20 term of the grand jury, including extensions, before which 

21 such refusal to comply with the court order occurred, but in 

22 no event shall such confinement exceed six months. 

23 "(2) Whenever a witness in any criminal proceeding 

24 before or ancillary to any district court of the United States 

25 refuses without just cause shown to comply with an order 



269 

3 

1 of the court to testify or provide other information, incluJ- 

2 ing any book, paper, document, record, recording, or other 

3 material, the court, upon such refusal and after a hearing at 

4 which the witness may be represented by counsel, may, if 

5 the court finds that such refusal was without just cause, hold 

6 the witness in criminal contempt and order the witness to 

7 be confined. Such confinement shall be at a suitable Federal 

8 correctional institution, unless the witness waives this right. 

9 Such confinement shall continue until such tune as the wlt- 

10 ness is willing to give such testimony or provide such infor- 

11 mation. No period of such confinement shall exceed the life 

12 of the court proceeding before which such refusal to comply 

13 with the court order occurred, but in no event shall such 

14 confinement exceed six months. 

15 "(3) No hearing shall be held under this subsection 

16 unless ten days notice is given to the witness who has refused 

17 to comply with the court order under this subsection, except 

18 that a witness subpenaed for a trial may be given a shorter 

19 notice of not less than five days if the court, upon a showing 

20 of special need, so orders. 

21 "(h) No person who has been confined under this sec- 

22 tlon for refusal to testify or provide other information con- 

23 ceraing any transaction, set of transactions, event, or events 

24 may be again confined under this section or under section 

25 401 of title 18, United States Code, for a subsequent refusal 



270 



1 to testify or provide other information concerning the same 

2 transaction, set of transactions, event, or events. 

3 ''(c) Any person confined pursuant to subsection (a) 

4 of this section shall be admitted to hail or released in accord- 

5 ance with the provisions of chapter 207 of title 18, United 
G States Code, pending the determination of an appeal taken 

7 by him from the order of his confinement, unless the appeal 

8 is patently frivolous and taken for purposes of delay. Any 

9 appeal from an order of confinement under this section shall 

10 be disposed of as soon as practicable, pursuant to an ex- 

11 pedited schedule ordered by the appellate court upon appli- 

12 cation b}^ a party. 

13 "(d) In any proceeding conducted under this section, 
ii counsel may be appointed in the same manner as provided 
^^i in section 3006 A of title 18, United States Code, for any per- 
IS son financially unable to obtain adequate assistance. 

17 " {^) A refusal to answer a question or provide other 

18 information before a grand jury of the United States shall 

19 not be punishable under this section or under section 401 

20 of title 18, United States Code, if the question asked or the 

21 re(iuest for other information is based in whole or in part 

22 upon evidence obtained by an unlawful act or in violation of 

23 the witness' Constitutional rights or of rights established or 

24 protected by any statute of the United States.". 



271 



5 

1 Sec. 3. (a) Chapter 21 of title 18, United States Code, 

2 is amended ])v adding at the end thereof the followins^ new 

3 section : 

4 "§ 403. Refusal of a witness to testify in a grand jury 

5 proceeding. 

G "1^0 person who has been imprisoned or lined ])y a court 

7 of the I'^nited States under section 401 of this title for refusal 

8 to testify or proAide other information concerning any trans- 

9 action, set of transactions, event, or events in a proceeding 

10 l»efore a grand jur}' (including a special grand jn.ry sum- 

11 moned under section 3331 of this title) impaneled before 

12 an}' district court of the United States may again be im- 

13 prisoned or fined under section 401 of this title or under 
11 section 1826 of title 28, United States Code, for a subse- 
15 quent refusal to testify or provide other information concern- 
1*^ ing the same transaction, set of transactions, event, or 
^'^ events.". 

18 (b) The table of sections for chapter 21 of title J 8, 

1^ United States Code, is amended by adding at the end thereof 

•^^^ the followino; new item: 

"403. llefusal of a Avitucss to testify in a j.>-i-anil jury proceeding.". 

21 Sec. 4. That portion of title 18, United States Code, 

22 following section 2513 and preceding section 2515 of such 

23 title is amended to read as follows : 



272 



6 

1 "§ 2514. Immunity of witnesses. 

2 " (a) In any proceeding before a grand jury impaneled 

3 before a district court of the United States, the attorney 

4 for the Government may submit an appHcation to the court 

5 for an order that a witness shall testify or produce books, 
G papers, or other evidence subject to the provisions of this 
7 section only if — 

S '' ( 1 ) there is an affirmative finding by twelve or 

9 more of the members of the grand jury that such testi- 

10 mony or the production of books, papers, or other 

11 evidence by the witness is necessary to the public 

12 interest ; 

13 "(2) the witness gives his written consent to such 

14 application; and 

15 "(3) tlie Attorney General approves such apphca- 

16 tion. 

17 "(b) Whenever in the judgment of a United States 

18 attorney, the testimony of any witness, or the production of 

19 books, papers, or other evidence by any witness, in any case 

20 or proceeding before an}' court of the United States, is neces- 

21 sary to the public interest, such United States attorney, with 

22 the written consent of the witness, and upon the approval of 

23 the Attorney General, shall make application to the court for 

24 an order granting the witness immunity so that the witness 



273 



7 

shall testify or produce evidence subject to the provisions of 
n this section. 

"(c) Pursuant to subsections (a) and (b) of this sec- 
, tion, upon the court's order granting immunity, such witness 

shall not be excused from testifying or from producing 

D 

books, papers, or other evidence on the ground that the 

„ testimonj^ or evidence required of him may tend to incrimi- 

o natc him or subject him to a penalty or forfeiture, and no 

q such witness shall l)e prosecuted or sul)jected to any penalty 

-.Q or forfeiture on account of any transaction, matter, or thing 

Y^ concerning which he is compelled, after having claimed his 

12 privilege against self-incrimination, to testify or produce evi- 

;^3 dence; nor shall testimony so compelled be used as evidence 

14 in any criminal proceeding (except in a proceeding de- 

15 scribed in the next sentence) against him in any court. No 

16 witness shall be exempt under this section from prosecution 

17 for perjury or contempt committed while giving testimony 

18 or producing evidence under compulsion as provided in this 

19 section.". 

20 Sec. 5. (a) Chapter 215 of title 18, United States Code, 

21 is amended by adding at the end thereof the following new 

22 sections : 

23 "§3328. Notice to grand jury of its rights and duties. 

24 "Upon impanelment of each grand jury before a district 



274 



8 

1 court of the United States, the court shall give adequate 

2 and reasonable written notice to the grand jury of, and shall 

3 assure that the grand jury reasonably understands the nature 

4 of— 

5 ''(1) its duty to inquire into offenses against the 

6 criminal laws of the United States alleged to have been 

7 committed within that district ; 

8 " (2) its rights, authority, and powers with respect 

9 to an independent inquiry under section 3330 of this 

10 title; 

11 "(3) its right to call and interrogate witnesses; 

12 " (4) its right to request the production of docu- 

13 ments or other evidence ; 

14 "(5) (A) the subject matter of the investigation, 

15 and 

16 " (B) the criminal statute or statutes involved, if 

17 these are known at tlic time the grand jury is impaneled; 

18 " (6) the requirement of section 3330A of this title 

19 that a subpcna summoning a ^^•itness to appear and 

20 testify before a grand jury or to produce books, papers, 

21 documents, or other oljjects before the grand jury may 

22 be issued only upon an afTirmative xoic of twelve or 

23 more members of the grand jury to which the subpena 

24 is returnable ; 

25 ''(7) tlie antliority of the grand jury under section 



275 



9 

-. 2514 of this title to determine by an affirmative vote of 

2 twelve or more of its members that the attorney for the 

o Government may submit an application to the court for 

4 a grant of immunity to a witness ; 

5 "(8) the authority of the grand jury to determine 
g by an affirmative vote of twelve or more of its members 
q that the attorney for the Government may submit an ap- 
g plication to the court for an order directing a witness 
9 to show cause why he should not be held in contempt 

]^0 under section 1826 of title 28, United States Code; 

2]^ "(9) the necessity of legally sufficient evidence to 

12 forni the basis of any indictment as provided under 

13 section 3330A (1) of this title; 

14 " (10) the duty of the grand jury by an affirmative 

15 vote of twelve or more members of the grand jury to 

16 determine, based on the evidence presented before it, 

17 whether or not there are sufficient grounds for issuing 

18 indictments and to determine the violations to be in- 

19 eluded in any such indictments ; and 

20 "(11) such other duties and rights as the court 

21 deems advisable. 

22 The court's failure to instruct the grand jury as directed in 

23 this section shall be just cause within the meaning of section 

24 1826 of title 28, United States Code, for a witness' refusal 

H.R. 11660 2 



276 



10 

2 to testify or provide other information before such grand 

2 jury- Any person indicted by a grand jury that has not been 

3 instructed in accordance with these provisions shall be en- 

4 titled to a dismissal of any indictment by such grand jury 

5 and of any indictment issued by any other grand jury, if 

6 such other indictment is based on the same transaction, set 

7 of transactions, event, or events. 

8 "§ 3330. Independent grand jury inquiry. 

9 "(a) (1) Any grand jury (including a special grand 

10 jury summoned under section 3331 of this title) impaneled 

11 before any district court of the United States may, upon its 

12 own initiative and after giving notice to the court, inquire 

13 into offenses against the criminal laws of the United States 

14 alleged to have been committed within that district by any 

15 officer or agent of the United States or of any State or munic- 

16 ipal government or by a person who, at the time of the al- 

17 leged commission of the offense, was an officer or agent of 

18 the United States or of any State or municipal government. 

19 Such grand jury may request the attorney for the Govern- 

20 ment to assist such grand jury in such inquiiy. 

21 "(2) The grand jury shall serve for a term of twelve 

22 months after giving notice to the court under paragraph ( 1 ) 

23 unless an order for its discharge is entered earlier by the 

24 court upon a determination of the grand jury by an affirma- 

25 tlve vote of twelve or more members that its business has 



277 



11 

1 been completed. If, at the end of such term or any extension 

2 thereof, the disti'ict court determines the business of the 

3 grand jury has not been completed, the court may enter 

4 an order extending such term for an additional period of 

5 six months. Xo grand jury term so extended shall exceed 

6 twenty-four months from the date on which notice to the 

7 court was given under paragraph ( 1 ) . 

8 "(3) If a district court within any judicial circuit fails 

9 to extend the term of a grand jury engaged upon an inde- 
-40-^endent inquiry under this section or enters an order for 

11 the discharge of such grand jury before such grand jury 

12 determines that it has completed its business, the grand jury 

13 by an affirmative vote of twelve or more members may ap- 

14 ply to the chief judge of the circuit for an order for the con- 

15 tinuance of the term of the grand jury. Upon the making 

16 of such an application by the grand jury, the term thereof 

17 shall continue until the entry by the chief judge of the circuit 

18 of an appropriate order upon such application. No grand 

19 jury term so extended shall exceed twenty-four months. 

20 "(b) (1) In the event that the attorney for the Gov- 

21 ernment refuses to assist or hinders or impedes the grand 

22 jury in the conduct of any inquiry under subsection (a), 

23 the o-rand jury may, upon the affinnative vote of twelve or 

24 more of its members, request at any point in such inquiry 

25 that the court appoint a special attorney to assist the grand 



7D-Qnt; r\ - T? _ i q 



278 



12 

1 jury in such inquiry. Such special attorney shall serve in lieu 

2 of any attorney for the Government and shall be paid at 

3 the rate of $100 per day. Such special attorney, with the 

4 approval of the court, may appoint and fix the compensation 

5 of such assistants, investigators, and other personnel as he 

6 deems necessary. The special attorney and his appointees 

7 shall be appointed without regard to the provisions of title 

8 5 of the United States Code, governing appointments in the 

9 competitive service, and may be paid without regard to the 

10 provisions of chapter 51 and subchapter III of chapter 53 of 

11 such title relating to classification and General Schedule pay 

12 rates. Any appointee under this subsection shall receive 

13 pay at a rate not to exceed $100 per day for each day during 
li which he is engaged in the performance of his duties under 

15 this section. The special attorney shall be reimbursed for 

16 actual expenses incurred by him and his appointees in the 
1'^ perfonnance of duties pursuant to this section. 

18 " (2) Notwithstanding sections 516 and 519 of title 28 

19 of the United States Code or any other provisions of law, 

20 a special attorney appointed under this section shall have the 

21 exclusive authority to assist in the conduct of an independent 

22 grand jury investigation under this section, and any indict- 

23 ment returned by a grand jury pursuant to such inquiry 

24 shall be signed ])v the special altornoy in lieu of any attorney 

25 for the Government. 



279 



13 

, "§ 3330A. Certain rights of grand jury witnesses. 

2 ' (a) A subpena summoning a witness to appear and 

o testify before a grand jury of the United States or to pro- 

A duce books, papers, documents, or other objects before such 

rr gi-and jury, shall be issued only upon an affirmative vote of 

P twelve or more members of the grand jury, and such subpena 

r- may not be returnable on less than seven days' notice, except 

g with the consent of the witness. 

Q "(b) Any subpena summoning a witness to appear 

2Q before a grand jury shall advise the witness of ( 1 ) his right 

-j^-j^ to counsel as provided in subsection (e) of this section; (2) 

-^2 his privilege against self-incrimination ; (3) whether his own 

2^3 conduct is under investigation by the grand jury; (4) the 

14 subject matter of the grand jury investigation; (5) the 

15 substantive criminal statute or statutes, violation of which 

16 is under consideration by the grand jury; and (6) any other 

17 rights and privileges which the court deems necessary and 

18 api^ropriate. 

19 "(c) Any witness who is not advised of his rights pur- 

20 suant to subsection (b) shall not be prosecuted or sub- 

21 jectcd to any penalty or forfeiture for or on account of 

22 any transaction, matter, or thing concerning which he testi- 

23 fies or any evidence he produces, nor shall any such testi- 



H.R. 11660- 



280 



14 

1 mony or evidence be used as evidence in any criminal pro- 

2 ceeding against him in any court. 

3 "(d) In any proceeding before the grand jury, if the 

4 attorney for the Government has written notice in advance 

5 of the appearance of a witness that such witness intends to 

6 exercise his privilege against self-incrimination, such wit- 

7 ness shall not be compelled to appear before the grand jury 

8 unless a grant of immunity has been obtained. 

9 "(e) Any witness subpenaed to appear and testify be- 

10 fore a grand jury or to produce books, papers, documents, or 

11 other objects before such grand jury shall be entitled to as- 

12 sistance of and representation by counsel during any time 

13 that such witness is being questioned in the presence of such 

14 grand jury; such counsel may be retained by the witness or 

15 may, for any person financially unable to obtain adequate 

16 assistance, be appointed in the same manner as if that person 

17 were ehgible for appointed counsel under section 3006A of 

18 this title. Notwithstanding any rule contained in the Fed- 

19 eral Kules of Criminal Procedure, such witness' counsel 

20 is authorized to disclose matters which occur before the 

21 grand jury while such counsel is in the grand jury room. 

22 " (f ) A grand jury impaneled to conduct an inquiry 

23 into offenses against the criminal laws of the United States 

24 may be convened only in a district in which substantive 

25 criminal conduct may have occurred as elements 



281 



15 

1 of such offenses; except that when a grand jury is to be 

2 convened to conduct an inquiry into both violations of sub- 

3 stantive criminal statutes and violations of statutes forbid- 

4 ding conspiracy to violate substantive criminal statutes, the 

5 grand jury may not be convened before a district court in 

6 a district in which the only criminal conduct alleged to have 

7 occurred is conspiracy to commit the substantive crimmal 

8 act. 

9 " (g) For the convenience of witnesses and where 

10 the interests of justice so require, a district court may, on 

11 motion of a witness, transfer any grand jury proceedings or 

12 investigation into any other district where it might properly 

13 have been convened under subsection (f ) . In considering 

14 an application for such transfer, the court shall take into 

15 consideration all the relevant circumstances, including the 
IG distance of the grand jury investigation from the places of 

17 residence of witnesses who have been subpenaed to testify 

18 before the grand jury, financial and other burdens placed 

19 upon the witnesses, and the existence and nature of related 

20 investigations and court proceedings, if any. 

21 "(b) Once a grand jury has failed to return an indict- 

22 ment based on a transaction, set of transactions, event, or 

23 events, a grand jury inquiry into the same transactions or 

24 events shall not be initiated unless the court finds, upon 

25 a proper showing by the attorney for the Government, that 



282 

16 

1 the Government has discovered additional evidence relevant 

2 to such inquiry. 

3 ''(i) (1) A complete and accurate stenographic record 

4 of all grand jury proceedings shall he kept, except that the 

5 grand jury's secret deliberations shall not be recorded. Such 

6 record shall include the court's notice to the grand jury of 

7 its rights and duties including but not limited to those set 

8 forth in section 3329 of this title; all introductory comments, 

9 directives, and other utterances made by attorneys for the 

10 Government to the grand jury, witnesses, and counsel for 

11 witnesses; all testimony; and all interchanges between the 

12 grand jury and attorneys and those between attorneys for 

13 the Government and counsel for witnesses. Consultations 

14 between witnesses and their counsel shall not be recorded. 

15 "(2) Any witness who testifies before a grand jury, 

16 or his attorney with such witness' written approval, shall, 

17 upon request, be entitled to examine and copy a transcript 

18 of the record for the period of such witness' own appearance 

19 before the grand jury, and if a witness is proceeding in forma 

20 pauperis, he shall be furnished, upon request, a copy of such 

21 transcript. Such transcript shall be availabl-e for inspection 

22 and copying not later than forty-eight hours after the conclu- 

23 sion of such witness' testimony. After examination of such 

24 transcript, a witness may submit additional statements to 

25 explain his testimony. Such additional statements shall be- 



283 



17 

1 come part of the official transcript and shall be shown to the 

2 members of the grand jury. 

3 ■ "(j) Any witness summoned to testify before a grand 

4 jury or the attorney for such witness with the witness' writ- 

5 ten approval shall be entitled, prior to testifying, to examine 

6 and copy any statement in the possession of the United States 

7 which such witness has made and which relates to the sub- 

8 jeot matter under inquiry by the grand jury. The term 'state- 

9 ment' as used in this subsection shall be defined as in section 

10 3500(e) of this title. 

11 "(k) No person subpenaed to testify or to produce 

12 books, papers, documents, or other objects in any proceeding 

13 before any grand jury of the United States shall be required 

14 to testify or to produce such objects, or be confined pursuant 

15 to section 1826 of title 28, United States Oode, for his failure 

16 to so testify or produce such objects, if, upon an evidentiary 

17 hearing before the court which issued such subpena or a court 

18 having jurisdiction under subsection (1) of this section, the 

19 court finds that — 

20 " ( 1 ) a primary purpose or effect of requiring such 

21 person to so testify or to produce such objects to the 

22 grand jury is or will be to secure for trial testimony 

23 or to secure other information regarding the activities 

24 of any person who is already under indictment by the 

25 United States, a State, or any subdivision thereof for 



284 



18 

1 such activities; or of any person who is under formal 

2 accusation for such activities by any State or any sub- 

3 division thereof, where the accusation is by some form 

4 other than indictment; unless after a witness refuses to 

5 so testify or to produce such objects before the grand 

6 jury on the ground that the purpose or effect of requiring 

7 his testimony or the production of such objects is in 

8 violation of this clause, the Government establishes by 

9 a preponderance of the evidence that its inquiry is 

10 independent of such preexisting indictment or accusation, 

11 "(2) compliance with the subpena would be un- 

12 reasonable or oppressive because (i) such compliance 

13 would involve unnecessary appearances by the witness; 

14 (ii) the only testimony that can reasonably be expected 

15 from the witness is cumulative, unnecessary, or privi- 
15 leged; or (iii) other like circumstances, 

17 " (3) a primary purpose of the issuance of the sub- 

18 pena is to harass the witness, 

19 " (4) the witness has already been confined, im- 

20 prisoned, or fined under section 1826 of title 28, United 

21 States Code, or section 401 of this title for his ref,usal 

22 to testify before any grand jury investigating the same 

23 transaction, set of transactions, event, or events, or 

24 "(5) the witness has not be^n advised of his rights 

25 as specified in subsection (b) . 



285 



19 

2 " (1) The district court out of wliicli a subpena to ap- 

2 pear before a grand jury has been issued, the court m which 

3 ithe subpena was served, and the district court ui the district 

4 in which the witness who was served such subpena resides 

5 shall have concurrent jurisdiction over any motion made by 
g such witness to quash the subpena or for other relief under 
Y this section. A motion under this section may be made at 
g any thne prior to, d,m-ing, or when appropriate, subsequent 
g to the appearance of any witness before the grand jury. 

jQ Any motion made during or subsequent to tlie appearance 

■^l of the witness before the grand jury may be made only in 

22 the district court in which the grand jury is impaneled. If 

j3 the motion is made before or during the appearance of the 

14 witness before the grand jury, the appearance before the 

15 grand jury shall be stayed by the making of the motion 
Ig until the court before which the motion is pending rules on 
37 the motion. 

Ig " (m) The attorney for the Government shall be limited 

19 to asking questions or requesting the production of books, 

20 papers, documents, or other objects relevant to the subject 

21 matter under investigation. A relevant question or request 

22 is one having any tendency to make the existence of any fact 

23 that is of consequence to the matter under investigation 

24 more probable or less probable than such existence would be 

25 without the evidence. 



286 



20 

1 " (n) A grand jury may indict a person for an offense 

2 when (1) the evidence before sucli grand jury is legally 

3 sufficient to establish that such offense was committed, and 

4 (2) competent and admissible evidence before such grand 

5 jury provides reasonable cause to beUeve that such person 

6 committed such offense. An attorney for the Government 

7 shall present to the grand jury all exculpatory evidence in 

8 such attorney's possession relating to the person or persons 

9 under investigation. 

10 " (o) The district court before w^hich a grand jury is 

11 impaneled shall dismiss any indictment of the grand jury 

12 if such district court finds that — 

13 " ( 1 ) t^6 evidence before the grand jury was legally 

14 insufficient to estabfish that the offense for which the 

15 indictment was rendered was committed; 

16 " (2) there was not competent and admissible evi- 

17 deuce before the grand jury to provide reasonable cause 

18 to believe that the person indicted committed such 

19 offense ; or 

20 " (3) the attorney for the Government has not pre- 

21 sented to the grand jury all exculpatory evidence in his 

22 possession with respect to the person indicted, 

23 "(p) Any person may approach the attorney for the 

24 Government and request to testify in an inquiry before a 

25 grand jury or to appear before a grand jury and request that 



287 



21 

1 the grand jury proceed in accordance with its powers under 

2 section 3330 of this title. An attorney for the Government 

3 shall estabhsh a pubUc record of all such requests to that 

4 attorney for the Government and the action taken on each 

5 such request including the reasons for not allowing such 

6 person to testify or appear, if such person is not allowed to 

7 testify or appear. If the person making such request is 

8 dissatisfied with the Government's decision, the court shall 

9 review the decision, and may permit the person to testify 

10 or appear before the grand jury, if the court finds that such 

11 testimony or appearance would serve the interests of justice.". 

12 (b) The table of sections for chapter 215 of title 18, 

13 United States Code, is amended by adding at the end thereof 

14 the following new items : 

"3329. Notice to grand jury of its rights and duties. 
"3330. Independent grand jury inquiry. 
"3330A. Certain rights of grand jury witnesses.". 

15 Sec. 6. Section 6001 of title 18, United States Code, 

16 is amended by striking out paragraph (4) , and by striking 

17 out "; and" at the end of paragraph (3) and inserting in 

18 lieu thereof a period. 

19 Sec. 7. Section 6002 of title 18, United States Code, is 

20 amended to read as follows: 

21 "§ 6002. Immunity generally. 

22 "Whenever a witness refuses, on the basis of his privl- 



288 



22 

^ lege against self-incrimination, to testify or provide other 

2 information in a proceeding before or ancillary to — 

2 "(1) an agency of the United States, or 

^ "(2) either House of Congress, a joint committee 

g of the two Houses, or a committee or subcommittee of 

P either House, 

rj and the person presiding over the proceeding communicates 

g to the witness an order issued under this part, the witness 

Q may not refuse to comply with the order on the basis of 

2Q his privilege against self-incrimination; and such witness 

2;IL shall not be prosecuted or subjected to any penalty or for- 

22 feiture on account of any transaction, matter, or thing 

23 concerning which he is compelled, after having claimed his 

24 privilege against self-incrimination, to testify or produce 

25 evidence, nor shall testimony or other information compelled 

26 under the order (or any information directly or indirectly 
Yj derived from such testimony or other information) be used 

28 against the witness in any criminal case, except a prosecu- 

29 tion for perjury, giving a false statement, or otherwise 

20 failing to comply with the order.". 

21 Sec. 8. (a) Part V of title 18, United States Code, is 

22 amended by striking out section 6003. 

23 (b) The table of sections of part V of title 18, United 

24 States Code, is amended by striking out item G003. 

25 Sec. 9. (a) Part V of title 18, United States Code, is 



289 



23 

1 amended by adding at the end of such part the following 

2 new section : 

3 "§6006. Reports concerning grand jury investigations. 

4 "In Januaiy of each year, the Attorney General or an 

5 Assistant Attorney General specially designated by the At- 

6 torney General shall report to the Congress and to the 

7 x4^dministrative Office of the United States Courts — 

8 "(1) the number of investigations undertaken dur- 

9 ing the preceding year in which a grand jury or a special 

10 grand jury was utilized together with a description of the' 

11 nature of each investigation undertaken; 

12 "(2) the number of requests by United States 

13 grand juries to the Attorney General for approval and 

14 to witnesses for written consent to make application to 

15 the court for an order compelling testimony under sec- 

16 tion 2514 of this title, and the number of such requests 

17 approved by the Attorney General; 

18 "(3) the number of applications to district courts 

19 for orders granting immunity under this title; 

20 " (4) the number of applications to district courts 

21 for orders granting immunity under this title that were 

22 approved and the nature of the investigations for which 

23 the orders were sought; 

24 " (5) the number of instances in which witnesses in 



290 



24 

1 such investigations were held in contempt and con- 

2 fined, and the dates and lengths of such confinements; 

3 " (6) the number of arrests, indictments, no-bills, 

4 trials, and convictions resulting from testimony obtained 

5 under orders granting immunity; the offenses for which 

6 the convictions were obtained; and a general assessment 

7 of the importance of the immunity; 

8 "C^) a description of data banks and other pro- 

9 cedures by which grand jury information is processed, 

10 stored, and used by the Department of Justice; and 

11 "(8) other appropriate indicia and information 

12 concerning grand jury activity during such year. 

13 The matter contained in the report required to be made by 

14 this section shall be set forth according to judicial district.". 

15 (b) The table of sections for part V of title 18, United 

16 States Code, is amended by adding at the end thereof the 

17 following new item : 

"6006. Reports concerning grand jury investigations.". 



291 



[Related bills and resolutions introduced in the House of Representatives] 



94Tir CONGRESS 
IsT Session 



H. R. 10947 



IN THE HOUSE OF REPRESENTATIVES 

December 2, 1975 

Mr. Badillo introduced the following bill; which was referred to the Com- 
mittee on the Judiciary 



A BILL 

To provide the right to counsel to grand jnr}' witnesses in order 
to better protect the constitutional rights of such witnesses. 

1 Be it enacted by the Senate and House of Representa- 

2 tives of the United States of America in Congress assembled, 

3 That chapter 215 of title 18, United States Code, is amended 

4 by adding immediately after section 3328 the following new 

5 section : 

6 "Sec. 3329. Every witness subpenaed to appear and 

7 testify before a grand juiy or to produce books, papers, doc- 

8 uments, or other objects before such grand jury shall be en- 

9 titled to have the assistance of counsel, including assistance 

10 during such time as the witness is questioned in the grand 

11 jury room; such counsel may be retained by the witness or, 

I 



292 



1 may, for any person financially unable to obtain adequate 

2 assistance, be appointed in the same manner as if that per- 

3 son were eligible for appointed counsel under section 3006A 

4 of this title. The witness' counsel is authorized to disclose, 

5 outside the grand jury room, matters which occur before the 

6 grand jury while such counsel is present in the grand jury 

7 room.". 



293 



94th congress 

2d Session 



H.R. 11870 



IN THE HOUSE OF REPRESENTATIVES 

February 11,1976 

Mr. Drinan introduced the following- bill ; which was referred to the Com- 
mittee on the Judiciary 



A BILL 

To amend part V of title 18 of the United States Code to 
provide transactional immunity in certain cases in which 
the privilege against self-incrimination is asserted, and for 
other purposes. 

1 Be it enacted by the Senate and House of Representa- 

2 tives of the United States of America in Congress assembled, 

3 That the portion of part V of title 18 of the United States 

4 Code which follows section 6001 is amended to read as 

5 follows : 

6 "§6002. Immunity generally 

7 "Whenever a witness refuses, on the basis of his privilege 

8 against self-incrimination, to testify or provide other informa- 

9 tion in a proceeding before or ancillary to — 

I 



78-905 O - 77 - 20 



294 



pq 



1 " (1) a court or grand jury of the United States, 

2 " (2) an agency of the United States, or 

3 '' (3) either House of Congress, a joint committee of 

4 the two Houses, or a committee or subcommittee of either 

StroD House, '■?/ ;iliii "iiiwoflo'V 9xiJ b?»frbo-i5. 

6 and the person presiding over the proceeding communicates 

7 to the witness an order issued under section 6003 or 6004, 

8 the witness may not refuse to comply with the order on the 

9 basis of the privilege against self-incrimination. Such witness 

10 shall not be prosecuted or subjected to any penalty or for- 

11 feiture on account of any transaction, matter, dr thing con- 

12 cerning which the witness is compelled, after having claimed 
13' the privilege against self-incrimihation, to testify or produce 
14'' "evidence, nor shall testimony or other information compelled 
15'' 'Wilder the omer '(of any ihforniati6n"'direct!y' or indirectly 

16 derived from such testimony or other information) be used 

17 against the witness in any criminal case, except a prosecution 

18 for perjury (section 1621), making a false declaration (sec- 

19 tion 1623), maldhg a false sktemMt (secfioh 1001), or 
2(y'"btherwise failing to comply with the order. ' *"^'^'"' 

21 "§6003. Court, grand jiify, and agency proceedings 

22 "(a) In the case of any individual who has been or may 

23 be called to testify or provide other informadon at any pro- 

24 ceeding before or ancillary to a court, grand juiy, or agency 

25 of the United States, the United States district court for the 



295 



3 

1 judicial district in which the proceeding