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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 


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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 

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0 


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 

0 

30 

6 

1 

1 

27 

7 

2 

2 

26 

3 

1 

0 

3 

0 

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       A11   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 


0  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  is  or  may  be  held,  or 

2  in  which  the  witness  resides,  may  issue  an  order,  in  accord- 

3  ance  with  subsection   (b) ,  requiring  such  individual  to  give 

4  testimony  or  provide  other  information  which  he  refuses  to 

5  give  or  provide  on  the  basis  of  the  privilege  against  self- 

6  incrimination. 

7  "  (b)  A  United  States  attorney  may,  with  the  approval 

8  of  the  Attorney  General,  request  an  order  under  subsection 

9  (a)  if—  G 

10  *'  ( 1 )    the  individual  has  refused  to  testify  or  pro- 

11  vide   other  information  on   the  basis   of  the  privilege 

12  againsit  seK-incrimination ;  gr 

13  "(2)    such  individual  gives  written  consent  to  the 

14  request  for  the  order ;  i-l 

15  "  (3)    the  testimony  or  other  information  from  such 

16  individual  is  necessary  to  the  pubhc  -interest ;  and  ;  r 

17  "(4)    in  the  case  of  a  proceeding  before  a  grand 

18  jury,  12  grand  jurors  vote  to  request  the  order^rq  81 

19  "§6004.  Congressional  proceedings  .;j(i            61 

20  ■  "  (a)  In  the  case  of  any  individual  who  has  been  or  may 

21  be  called  to  testify  or  provide  other  infonnation  at  any  pro- 

22  ceeding  before  either  House  of  Congress,  a  joint  committee 

23  of  the  two  Houses,  or  a  committee  or  subcommittee  of  either" 

24  House,  the  United  States  district  court  for  the  judicial  diM 

25  trict  in  which  the  proceeding  is  or  may  be  held,  or  in  which 


296 


4 

1  the  witness  resides,  may  issue  an  order,  in  accordance  with 

2  subsection   (b),  requiring  such  individual  to  give  testimony 

3  or  provide  other  information  which  he  refuses  to  give  or 

4  provide  on  the  basis  of  the  privilege  against  self-incrimina- 

5  tion. 

6  ''(b)    An  authorized  representative  of  the  appropriate 

7  House  or  Committee   of  Congress   may  request  an   order 

8  under  subsection  (a)  if — 

9  "(1)  the  individual  has  refused  to  testify  or  provide 

10  other  information  on  the  basis  of  the  privilege  against 

11  self-incrimination ; 

12  "(2)   such  individual  gives  written  consent  to  the 

13  request  for  the  order; 

14  "  (3)  the  testimony  or  other  information  from  such 

15  individual  is  necessary  to  the  pubHc  interest; 

16  "  (4)  in  the  case  of  a  proceeding  before  either  House 

17  of  Congress,  the  request  for  such  an  order  has  been  ap- 

18  proved  by  an  affirmative  vote  of  a  majority  of  the  Mem- 

19  bers  present  of  that  House ;  and 

20  "  (5)  in  the  case  of  a  proceeding  before  a  committee 

21  or  subcommittee  of  either  House  of  Congress  or  a  joint 

22  committee  of  both  Houses,  the  request  for  such  an  order 

23  has  been  approved  by  an  affirmative  vote  of  two-thu-ds 

24  of  the  members  of  the  full  committee;  and 


297 

5 

J  "(6)   at  least  ten  days  prior  to  the  day  on  which 

2  the  request  for  such  an  order  was  made,  the  Attorney 

o  General  is  served  with  notice  of  an  intention  to  request 

^  the  order. 

g  "(c)    Upon  application  of  the  Attorney  General,   the 

g  United  States  district  court  shall  defer  the  issuance  of  any 

FT  order  under  suhsection    (a)   of  this  section  for  such  period, 

^ 

g  not  longer  than  twenty  days  from  the  date  of  the  request  for 

g  such  order,  as  the  Attorney  General  may  specify. 

10  "§  6^^5-  Reports  by  Attorney  General 

21  "  (a)   In  January  of  each  year,  the  Attorney  General 

12  shall  report  to  the  Congress  and  to  the  Administrative  Office 

13  of  the  United  States  Courts — 

14  "  ( 1 )  the  number  of  requests  for  an  order  compelling 

15  testimony  under  section  6003 — 

16  "  (A.)   made  by  United  States  attorneys; 

17  "(B)   approved  by  the  Attorney  General; 

18  "(C)   submitted  to  a  United  States  district  court; 

19  "(I^)   approved  by  a  United  States  district  court; 

20  and 

21  "(E)   actually  used  in  a  court,  grand  jury,  or 

22  agency  proceeding ;  and 

23  "(2)   the  number  of  arrests,  indictments,  informa- 

24  tions,   convictions    (by  plea   or  after   trial),   or   other 


298 


6 

2  enforcement  actions  resulting  from  testimony  or  other 

2  information   obtained   under  immunity   orders;    and   a 

3  general  assessment  of  the  value  of  immunity  orders. 

4  "  (b)  For  each  category  of  data  required  to  be  furnished 

5  under  subsection   (a)  (1),  the  report  shall  indicate — 

g  *'(1)    the  source  of  the  request    (individual,  grand 

7  jury,  agency,  other  government  entity  or  employee,  or 

8  a  combination  of  such  sources)  ; 

9  "  ( 2 )    the   judicial    district   in    which    the    request 

10  occurred ; 

11  "(3)   the  subject  matter  of  the  proceeding  out  of 

12  which  the  request  arose ;  and 

13  "  (4)   the  number  of  times  sanctions  were  imposed 

14  upon  a  witness  who  violated  an  immunity  order.". 

15  Sec.  2.  The  table  of  sections  for  part  V  of  title   18, 

16  United  States  Code,  is  amended  to  read  as  follows: 

"Sec. 

"6001.  Definitions. 

"6002.  Immunity  generally. 

"6003.  Court,  grand  jury,  and  agency  proceedings. 

"6004.  Congressional  proceedings. 

"6005.  Reports  by  Attorney  General.". 


299 


&4ra  CONGRESS 
2d  Session 


H.  It  14146 


uijiv/  f'.'.y^.uioi     i 

:!;<[  ./iwuij    r; 
IN  THE  HOUSE  OE  REPRESENTATIVES 

June  2, 1976 

Ms.  HoLTZMAN  introduced  the  following  bill ;  which  was  referred  to  the  Com- 
mittee on  the  Judiciary 

ll-)JJ«   tplll  ^hilR 


A  BILL 

To  amend  titles  18  and  28  of  the  United  States  Code  to  limit 
tJie  circumstances  in  which  an  individual  appearing  before 
certain  grand  juries  can  be  held  in  contempt  and  to  limit 
the  imprisonment  for  such  contempt. 

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  "Civil  Contempt  Reform 

4  Act  of  1976". 

5  Sec.  2.  Section  1826  of  title  28,  United  States  Code, 

6  is  amended  to  read  as  follows : 

7  "§  1826.  Recalcitrant  witnesses 

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

9  or  ancillary  to  any  court  or  grand  jiuy  of  the  United  States 

I 


300 


2 

1  refuses  without  just  cause  shown  to  comply  with  an  order  of 

2  the  court  to  testify  or  provide  other  information,  including  any 

3  book,  paper,  document,  record,  recordmg,  or  other  material, 

4  the  court,  upon  such  refusal  and  after  a  hearmg  at  which  the 

5  witness  may  be  represented  by  counsel,  may,  if  the  court 

6  finds  that  such  refusal  was  without  just  cause,  hold  the  wit- 

7  ness  in  contempt  and  order  the  witness  to  be  imprisoned. 

8  "(2)    -^^y  imprisonment  for  refusal  to  give  testimony 

9  or  provide  information  pursuant  to  this  subsection  shall  be  at 

10  a  Federal  correctional  institution  unless  the  witness  agrees  to 

11  confinement  at  a  non-Federal  institution  designated  by  the 

12  Attorney  General. 

13  "  ( 3 )    Upon  a  showing  of  need  or  hardship,  the  court 

14  ordering  such  imprisonment  may  grant  a  request  by  the 

15  witness  to  be  imprisoned  at  a  suitable  correctional  institution 

16  near  the  place  of  residence  or  employment  of  the  witness  or 

17  the  witness'  family  or  relatives  or  the  attorney  of  the  witness. 

18  "  (4)    Any  imprisonment  for  refusal  to  give  testimony 

19  or  provide  information  pursuant  to  this  subsection  shall  com- 

20  tinue  until  s-uch  time  as  the  witness  is  willing  to  give  such 

21  testimony  or  provide  such  infomiation  except  that  no  period 

22  of  such  imprisonment  shall  exceed  the  lesser  of — 

23  ''  (A)  (i)  in  the  case  of  a  court  proceeding,  the  Ufe 

24  of  the  court  proceeding  before  which  such  refusal  to 

25  comply  with  the  court  order  occurred,  or 


301 


3 

1  "  (ii)   ill  the  case  of  a  grand  jury,  the  tenn  of  the 

2  grand  jury,  includhig  extensions,  before  which  such  re- 

3  fusal  to  comply  with  the  court  order  occurred;  or 

4  "  (B)  six  months. 

5  "(5)    No  hearing  shall  be  held  under  this  subsection 

6  unless  ten  da3's'  notice  is  given  to  the  witness  who  has  re- 

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

8  except  that  a  witness  sul)penacd  for  a  trial  may  be  given  a 

9  shorter  notice  of  not  less  than  five  days  if  the  court,  upon  a 

10  showing  of  special  need,  so  orders. 

11  ''(b)   No  person  imprisoned  under  this  section  for  re- 

12  fusal  to  testify  or  provide  other  information  concerning  any 

13  transaction,  set  of  transactions,   event,   or  events  may  be 

14  again  imprisoned  under  this  section  or  under  section  401 

15  of  title  18,  United  States  Code,  for  a  subsequent  refusal  to 

16  testify  or  provide  other  information  concerning  the  same 

17  transaction,  set  of  transactions,  event,  or  events. 

18  "(c)   Any  person  confined  pursuant  to  subsection   (a) 

19  of  this  section  shall  be  admitted  to  bail  or  released  in  accord- 

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

21  States  Code,  pending  the  determination  of  an  appeal  taken 

22  by  such  person  from  the  order  of  imprisonment,  miless  the 

23  appeal  is  patently  frivolous.  If  the  person  has  not  been  re- 

24  leased  on  bail  or  otherwise  released,  any  appeal  from  an 

25  order  of  imprisonment  under  this  section  shall  be  disposed 


302 


4 

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

2  and  in  no  event  more  than  thirty  days  from  the  filing  of 

3  such  appeal.  If  the  appellate  court  shall  fail  to  dispose  of  the 

4  appeal   of   a   person   who   remains   confined   within    thirty 

5  days,  the  person  shall  automatically  be  released  on  his  or 

6  her  personal  recognizance  pending  disposition  of  the  appeal. 

7  "  (d)   In  any  proceeding  conducted  under  this  section, 

8  counsel  may  be  appointed  in  the  same  manner  as  provided 

9  in  section  3 006 A  of  title  18,  United  States  Code,  for  any 

10  person  financially  unable  to  obtain  adequate  assistance. 

11  "(e)   A  refusal  to  answer  a  question  or  provide  other 
J2  information  before  a  grand  jury  of  the  United  States  shall 

13  not  be  punishable  under  this  section  or  under  section  401 

14  of  title  18,  United  States  Code,  if  the  question  asked  or  the 

15  request  for  other  information  is  based  in  whole  or  in  part 

16  upon  evidence  obtained  by  an  unlawful  act  or  in  violation  of 

17  the  witness'  constitutional  rights  or  of  rights  established  or 

18  protected  by  any  statute  of  the  United  States.", 

19  Sec.  3.  (a)  Chapter  21  of  title  18,  United  States  Code, 

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

21  section : 

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

23  proceeding 

24  ''No  person  who  has  been  imprisoned  or  fined  by  a  court 

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


303 


5 

1  to  testify  or  provide  other  information  concerning  any  trans- 

2  action,  set  of  transactions,  event,  or  events  in  a  proceeding 

3  before  a  grand  jury    (including  a  special  grand  jury  sum- 

4  moned  under  section  3331  of  this  title)   impaneled  before 

5  any  district  court  of  the  United  States  may  again  be  Im- 

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

7  section  1826  of  title  28,  United  States  Code,  for  a  subse- 

8  quent  refusal  to  testify  or  provide  other  information  concern- 

9  ing  the   same   transaction,    set   of   transactions,    event,    or 

10  events.".- 

11  (b)    The  table  of  sections  for  chapter  21  of  title  18, 

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

13  the  following  new  item: 

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


304 


94th  congress 
1st  Session 


H.  J.  RES.  46 


IN  THE  HOUSE  OF  EEPEESENTATIVES 

January  14,1975 

Mr.  EiLBERG  introduced  the  following  joint  resolution;  which  was  referred 
to  the  Committee  on  the  Judiciary 


JOINT  RESOLUTION 

Proposing  an  amendment  to  the  Constitution  of  the  United  States 
with  respect  to  grand  jm"ies, 

1  Resolved  by  the  Senate  and  House  of  Representatives  of 

2  tlie  United  States  of  America  in  Congress  assembled  (two- 

3  thirds  of  each  House  concurring  therein),  That  the  following 

4  article  is  proposed  as  an  amendment  to  the  Constitution  of 

5  the  United  States,  to  he  valid  only  if  ratified  by  the  legis- 

6  latures  of  three-fourths  of  the  several  States  within  seven 

7  years  after  the  date  of  final  passage  of  this  joint  resolution. 

8  "Article  — 

9  "'Section  1.  No  grand  jury  may  present  or  indict  or 

10  otherwise  hold  any  person  to  answer  for  any  crime  against 

11  the  United  States.  No  presentment  or  indictment  of  a  grand 

I 


305 


2 

1  jury  shall  be  required  in  order  to  hold  any  person  to  answer 

2  for  any  crime  against  the  United  States  but  no  person  may 

3  be  so  held  except  pursuant  to  an  information  signed  by  the 

4  attorney  for  the  Government  and  stating  the  essential  facts 

5  of  the  crime  charged. 

6  "Sec.  2.  This  article  shall  not  aflPect  the  power  of  Con- 

7  gress   to   enact  appropriate  legislation  to  provide  for  the 

8  impaneling  of,  and  procedures  with  respect  to,  any  grand 

9  jury  whose  sole  function  shall  be  to  investigate  any  organized 
10    criminal  activity  or  any  crime  against  the  United  States." 

O 


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