Author: Marcus J. Berghahn

1. Theory

1. History of the Grand Jury

Origin of grand jury dates back to 1166, when the King of England, Henry II, issued the Assize of Clarendon. The assize called for twelve “good and lawful” men from the community to come together under oath to act as an investigative agent of the monarchy. There was, at the time, great pressure exerted, usually in the form of fines imposed upon grand jurors to provide information accusing citizens’ of crimes. Those who were accused were tried by ordeal. This early form of the grand jury was not meant to protect citizens from false accusations, but rather increased the King’s control.

In 1215 trial by ordeal was abolished and replaced with trial by jury. At first the accused was tried by the same jury that accused him. Over time the petit jury came to be increasingly separated from the grand jury.

By the 14th century the grand jury began to hear evidence in secret. The 17th century saw the grand jury gain vitality. For example, in 1681 in England, Charles II sought to indict Anthony Ashley Cooper and Stephen Colledge; a grand jury in London declined to indict the two. (They were subsequently indicted by a grand jury sitting in Oxford, where the populace was more amenable to the royalty; they were then executed).

The first use of the grand jury in the American Colonies occurred in 1635. In 1791 the grand jury is incorporated into our constitutional structure.

Referring to the history of the grand jury, Justice Powell, in United States v. Calandra, 414 U.S. 338, 343 (1974), noted that:

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

ii. Functions of American grand jury

Responsibilities continue to include both the determination whether there is probable cause to believe a crime has been committed and the protection of citizens against unfounded criminal prosecutions. United States v. Calandra, 414 U.S. 338, 343 (1974).

Serves as a “protective bulwark standing solidly between an ordinary citizen and an overzealous prosecutor.” United States v. Dionisio, 410 U.S. 1, 17 (1973).

Basic purpose of the English grand jury which was later adopted by our Constitution was “to provide a fair method for instituting criminal proceedings against persons believed to have committed crimes.” Costello v. United States, 350 U.S. 359, 362 (1956).

2. Reality

1. Statutory Authority

Fifth Amendment to United States Constitution

“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury …”

18 U.S. Code § 3321

Every grand jury impaneled before any district court shall consist of not less than 16 nor more than 23 persons.

18 U.S. Code § 3331

Places an 18 month limit on the life of a special grand jury – those empaneled to hear evidence of a lengthy and continuing investigation. Upon application, the grand jury’s life may be extended to 36 months.

If the district court fails to issue appropriate order extending the life of the grand jury, subsequent indictments are void. United States v. Daniels, 902 F.2d 1238, 1240 (7th Cir. 1990).

28 U.S. Code § 1861

All litigants in federal court are entitled to trial by jury shall have the right to grand and petit juries selected at random from a fair cross section of the community in the district or division wherein the court convenes.

Federal Rule of Criminal Procedure 6

Rules on summoning of grand jury, objections to grand jury and to grand jurors, who may be present, how the proceeding is recorded, who may be present, the rule of secrecy, indictment and discharge of the grand jury.

ii. 210 years later; the Grand Jury today.

Judge William J. Campbell, Eliminate the Grand Jury, 64 J. Crim. L. & Criminology 174, 180 (1974): “today, the grand jury is the total captive of the prosecutor who, if he is candid, will concede that he can indict anybody, at any time, for almost anything, before any grand jury.”

3. Practical Application

As a general rule, the district court has no supervisory authority over the grand jury. United States v. Stout, 965 F.2d 340, 343 (7th Cir. 1992).

The exercise of supervisory authority is thus limited to those instances that violate the integrity of the grand jury function, e.g., violations of the Constitution, applicable statutes and/or the Federal Rules of Criminal Procedure. United States v. Gillespie, 974 F.2d 796, 801 (7th Cir. 1992).

The district court acts as a buffer or referee. United States v. Lamantia, 59 F.3d 705, 707 (7th Cir. 1995).

A petit jury’s verdict renders harmless any errors, defects or variances that do not affect substantial rights. United States v. Mechanik, 475 U.S. 66, 73 (1986).

Secrecy: the proper functioning of the grand jury depends on absolute secrecy. Matter of Grand Jury Proceedings, 942 F.2d 1195, 1198 (7th Cir. 1991). Secrecy interests exist so that prospective witnesses will not hesitate to come forward, so they will be more inclined to testify truthfully, so that the target will not flee and so that people exonerated will be protected. Id. It is one of the few areas of the law that permits in camera and ex parte communications with the court. United States v. Ousley, 100 F.3d 75, 77 n.1 (7th Cir. 1996).

i. The powers of the Grand Jury

The power of the grand jury is “unrestrained by the technical procedural and evidentiary rules governing the conduct of criminal trials.” United States v. Calandra, 414 U.S. 338, 343 (1974).

A grand jury may investigate mere on suspicion that the law is being violated, or even because it wants assurances that it is not. United States v. R Enterprises, Inc., 498 U.S. 292, 297 (1991).

There are no limits to the questions that may be asked of the witness. There is no relevancy requirement nor is the witness entitle to know the purpose of the questioning. A witness may not challenge the scope of the investigation. The grand jury “may compel the production of evidence or the testimony of witnesses as it consider appropriate and its operation generally is unrestrained by the technical procedural and evidentiary rules governing the conduct of criminal trials.” Id.

ii. Pre-Indictment Representation and Appearance before the Grand Jury

There is no right to counsel in a grand jury proceeding. United States v. Mandujano, 425 U.S. 564 (1976).

a. Determining a client’s status

• Target

• Subject

• Witness

Witnesses need not be given Miranda warnings. United States v. Gillespie, 974 F.2d 796, 800 (7th Cir. 1992); United States v. Mandujano, 425 U.S. 564 (1976).

Miranda warnings are not constitutionally required of targets of the grand jury’s investigation. United States v. Washington, 431 U.S. 181, 189 (1977).

b. Subpoenas

• Individuals

• Documents

In addition to the authority to summon witnesses to testify before it the grand jury has the use of subpoenas duces tecum. Fed.R.Crim.Pro. 17(c).

A grand jury can subpoena business records, handwriting samples, voice exemplars and samples of a witness’s hair. It has the power to compel a witness to appear in a line up, to compel a witness to execute a consent form directing the disclosure of foreign bank records.

c. Immunity

Can only be granted by the district court. See 18 U.S. Code §§ 6002 and 6003.

Once granted, immunity overcomes assertion of Fifth Amendment privilege and that basis will no longer serve as a basis to refuse to testify or quash the subpoena. See In re Grand Jury Subpoena v. McDougal, 97 F.3d 1090 (8th Cir. 1996).

A grant of immunity protects only against the Fifth Amendment; it does not overcome other objections or privileges.

Two types of immunity:

• Transactional Immunity

• Use and Fruits Immunity (18 U.S. Code § 6002)

d. Privileges

Legitimate need and relevance are presumed, with the burden being on the defendant to demonstrate that a privilege exists.

e. Proffers

Hypothetical proffer permits counsel to give prosecutor an outline of the client’s testimony without attributing any information directly to the client or waiving the client’s Fifth Amendment privilege.

• “King/Queen for a day” and other debriefings

• “Poison pills” and “immunity bath”

f. Contempt

Once immunized, a witness with no other recognized privilege may not refuse to testify. United States v. Bell, 902 F.2d 563 (7th Cir. 1990).

See, generally, In re Grand Jury Subpoena v. McDougal, 97 F.3d 1090 (8th Cir. 1996)

A federal court may use its civil contempt power to coerce compliance. In the Matter of Grand Jury Proceedings of December 1989, 903 F.2d 1167, 1169 (7th Cir. 1990). Civil contempt lasts for an indeterminate time, until the contemnor performs the acts required by the court. Id. The contemnor maybe held until the end of the term of the grand jury, i.e., up to 18 months.

g. Negotiations

• Plea negotiations

• Immunity

• Terms of the subpoena (i.e., language and scope)

h. Preparing the Witness

Practice pointer: See attached materials to be provided to client-witnesses.

Teach the client to recognize proper questions and those where counsel should be consulted.

Witness should bring a note pad and pen into the grand jury room and write down questions that he wishes to discuss with counsel.

Client should tell grand jurors, respectfully, “I wish to request an opportunity to discuss this question with my lawyer.”

The client must, at a minimum, understand: do not lie; do not answer any question you do not understand; consult with your lawyer.

Counsel as potted plant.

iii. Other Issues

a. Co-defendants

b. Joint Defense Agreements

D. Motion Practice

i. Recognized bases to quash grand jury subpoena:

• expiration of grand jury’s term

• improper composition of the grand jury and systematic exclusion of a particular group of the community

• biased or tainted grand jury because of publicity

• taint because of an illegal search or seizure or electronic surveillance

• prosecutor’s abuse of the grand jury subpoena power

• witness not competent to testify

• lack of jurisdiction – venue

• technical defects in subpoena

ii. Constitutional grounds to quash subpoena

• First Amendment

• Fifth Amendment

• Attorney-client privilege

• Marital privilege

5. The Future of the Grand Jury: Reforming the Process

i. Grand Jury Bill of Rights

Important Information For Witnesses Subpoenaed Before the Grand Jury

Please review the following carefully If you should have any questions, please consult with your attorney.

A subpoena has been issued requiring you to appear and to provide testimony before a grand jury sitting in the United States District Court for the Western District of Wisconsin.

You have certain rights which you alone may choose to exercise.

The Fifth Amendment to the United States Constitution provides:

“No person … shall be compelled in any criminal case to be a witness against himself”

You have the right to know whether you are a target or a subject of the United States Attorney’s investigation.

You may ask the assistant United States Attorney who is conducting the interview or examination whether or not you are a target or subject.

If you are either a target or subject, anything you say to government agents and/or the assistant United States Attorney can and will be used against you, even if you are not testifying before the grand jury.

The government may ask the court to grant you immunity, in which case the information you provide may not be used against you directly. Only the United States District Court can grant you immunity from prosecution.

If you are a target or a subject you have the right to consult with a lawyer prior to answering any (and every) question posed to you by either the assistant United States attorney, a government agent or the grand jury.

Speaking with an attorney does not foreclose your ability to provide information to the government.

Whether or not you exercise your right to have an attorney present is your decision.

If you are represented by an attorney, you may consult with him or her prior to answering each and every question posed to you by the assistant United States attorney when you testify before the grand jury.

Regardless of whether or not you decide to assert you right to an attorney, any statement to government agents and/or the assistant United States Attorney and/or the grand jury must be truthful.

Providing a misleading or false answer is a crime punishable by a term of imprisonment of up to five years. See 18 United States Code §§ 1001, 1621 and 1623.

Important Advice For All Witnesses

20 Tips for Testifying Effectively — please review the following carefully –if you should have any questions, please consult your attorney

1. Think before you speak.

2. You must tell the truth. If you do not, you may later be charged with perjury, false swearing or obstruction of justice, all of which are felony criminal offenses.

3. Do not guess at answers. If your answer is a guess, clearly say so.

4. Unless you are absolutely certain of the accuracy of your memory, you should not be specific about dates, times, exact words, exact positions, exact movements, etc.

5. If you do not remember, it is OK to say so; “I don’t know” is a legitimate answer.

6. It is OK to preface your answers. For example, say “to the best of my recollection at the present time…” or “I don’t remember at the present time…” or “this is just a guess.”

7. If you wish to clear up an earlier answer, do so while you are still under oath. If necessary, ask to stop and go back to a previously asked question.

8. Demand clarification of questions you do not understand. Ask the questioner to rephrase the question until you understand what is being asked.

9. If words you do not know are used, ask that they be explained to you. Attorneys may use legal language that is unfamiliar to you; it is your right to ask for clarification of those words or phrases that you did not understand.

10. Do not answer multiple questions until they are broken down into an understandable, simple form.

11. A brief answer is usually the best answer.

12. Stay within the limits of the question.

13. If you are thinking through the details of a question in order to give a simple answer, think silently, not out loud. Remember, your testimony results in a written document. The pause while you think through the facts will not be recorded.

14. Relate only personal knowledge, not hearsay (or rumor or innuendo). Hearsay is what a second person told you that a third person said to the second.

15. If you do relate hearsay, you should preface your answer with an warning that you do not have personal knowledge of the information’s accuracy.

16. Avoid guessing at the facts.

17. If you are uncertain about the legal significance of a question, ask to speak with your attorney. You should ask: ” I wish to speak with my attorney so that I may be advised of what my legal rights are with regard to this question.”

18. Even if you are granted immunity by the court [only a court may grant you immunity], you may still request to speak with your attorney. Testimony under a grant of immunity does not permit one to testify falsely.

19. If you have not been granted immunity and you wish to assert your right against providing testimony against yourself, that is, you believe that your response will incriminate you, respond as follows to every question except for your name:

On advice of counsel, I respectfully decline to answer that question on the grounds that my answer may tend to incriminate me. Answering the question would violate my rights under the First, Fourth, Fifth, Sixth, Ninth Amendments to the United States Constitution.

20. Think before speaking.