The federal grand jury is the backbone of the federal prosecution efforts. There is a lot of myth about the grand jury, a lot of platitudes issued by federal prosecutors, as well as criticism from legal scholars and the defense bar. Despite all the rhetoric, the grand jury is an institution that is not going to be radically changed without a constitutional amendment, which is very unlikely. It is essential that the bar and the public know how the grand jury really operates and how to deal with it.
The original thirteen states felt so strongly about the need for the grand jury that they insisted on its insertion as the Fifth Amendment to the newly drafted Constitution. The Fifth Amendment requires that a grand jury return all felony charges. It is ironic that today, a majority of the states have either abolished the grand jury or significantly modified its use after the Supreme Court held that the grand jury requirement for felony charges was inapplicable to the states. See Hurtado v. California, 110 U.S. 516 (1884). England, the original source of the grand jury, has long done away with it. There is no entity even remotely similar in any court system in the civilized world. The charging magistrates in certain European countries such as Spain and France have the closest similarity.
The original purpose of the grand jury, as it came to the American colonies from England, was to act as an independent bulwark between the king (or the prosecutor) and the citizen. As one court said, “the grand jury is a sword and a shield; sword because it is a terror to criminals and a shield because it is the protection of the innocent against unjust prosecution.” United States v. Cox, 342 F.2d 167 (5th Cir. 1965).
Times have changed, and even the Supreme Court has frankly stated that the grand jury does not live up to that original purpose of serving as an independent body. “The grand jury may not always serve its historic role as a protective bulwark standing solidly between the ordinary citizen and an overzealous prosecutor . . . .” United States v. Dionisio, 410 U.S. 1, 17 (1973). Although the grand jury was created to be independent of any branch of the government, Costello v. United States, 350 U.S. 359 (1956), for all practical purposes the grand jury has become the instrument of the prosecutor.
Despite its short comings, there are those, including this writer, who would not want the grand jury replaced with some adversary probable cause system, or would want the vast power of the grand jury to issue subpoenas to be watered down. Despite its shortcomings, one of the reasons this country has a bona fide law enforcement system with the ability to investigate and expose vast financial and political corruption, is the power of the federal grand jury. In the Watergate scandal, despite all his stonewalling, President Nixon conceded his office would respect the grand jury subpoena.
This does not mean that the grand jury is without flaws. One must recognize it for what it is today, a powerful law enforcement tool with limited rights for the witnesses and defendants. This article will provide a practical and realistic review of current federal grand jury practice.
What Is The Grand Jury
The federal grand jury is comprised of 23 citizens selected at random from the voters’ rolls. The grand jury has the power to inquire into possible violations of the law based upon information from investigators, or tips, rumors, and hearsay. There is no probable cause requirement for the grand jury to initiate an inquiry or issue subpoenas. A grand jury is impaneled to sit for 18 months. Fed. R. Crim. P. 6(g). The term of the grand jury may be extended for a period of up to six months. Id.
Grand Jury Procedure
The prosecutor makes the decision as to what areas to investigate. In most instances, the federal agencies supply subjects for investigation as a result of their own agency inquiries. The grand jury is used to subpoena records from business entities or persons or to subpoena persons for personal testimony.
The prosecutor makes the decision which persons and what records to subpoena. It is very rare that the grand jury is given any discretion as to who will be subpoenaed and what documents will be requested. There is no recorded instance of a grand jury counter-manding a prosecutor’s decision to subpoena certain persons or certain documents.
In order to cause the grand jury to return an indictment, the prosecutors must present sufficient evidence to demonstrate there is probable cause to believe that a felony has been committed by a person, and that the person should stand trial for that charge. Sixteen grand jurors are required for a quorum. The vote of 12 grand jurors is required for the return of the indictment.
The defense counsel is not entitled to appear before the grand jury, and the prosecutor is not obligated to present the grand jury with any briefs or arguments written by defense counsel, nor is the prosecution required to call any witnesses suggested by the defense counsel. The defense counsel is not permitted to review the evidence presented to the grand jury if his client would appear and testify. The targeted potential defendant may appear before the grand jury if he elects to testify; however, in today’s grand jury procedure few experienced defense counsel will permit their clients to do so.
If an indictment is returned the defendant is not entitled to review the grand jury transcript, except for the transcript of the testimony of witnesses who testify at trial, and his own testimony if he appeared.
Grand jury sessions are secret, only the jurors, the prosecutor, the witness, and a stenographer are present. See Fed. R. Crim. P. 6(d)(1). No counsel for the witness can be present. United States v. Mandujano, 425 U.S. 564 (1976). A witness may leave room to consult with counsel. Id. Until 1979, grand jury sessions were not recorded. There were so many allegations of abuse that the Supreme Court amended Fed. R. Crim. P. 6(e)(1) to require all proceedings before the grand jury be transcribed by an official court reporter.
Grand jurors may be replaced by the court at any time during the term of the grand jury. There is no limit on the number of grand jurors that may be replaced. In United States v. Lang, 644 F.2d 1232 (7th Cir 1981), 15 of the original 23 jurors had been replaced when the indictment against the defendant was returned. Not all grand jury jurors need to attend all sessions. In United States v. Provenzano, 688 F.2d 194 (3d Cir 1982), the indictment was upheld where of the 12 jurors who voted to indict: three attended every session; four missed one session; three missed two sessions; two missed three sessions.
A matter heard by one grand jury may be continued before a successor grand jury. This transfer may be accomplished without court order, United States v. Claiborne, 765 F.2d 784 (9th Cir. 1985). The second grand jury is not required to hear all the direct testimony heard by the first grand jury; much of first grand jury testimony may be presented to the second grand jury by reading the jurors transcripts of the prior testimony. United States v. Flomenhoft, 714 F.2d 708 (7th Cir. 1983).
The grand jury may continue to investigate a matter after indictment if it has its purpose to investigate non-indicted persons, United States v. Dise, 763 F.2d 586 (3d Cir. 1985), or other crimes arising out of those circumstances. United States v. Under Seal (In re Grand Jury Proceedings), 33 F.3d 342 (4th Cir. 1994). Courts will not interfere with post-indictment grand jury proceedings as long as the dominate purpose of them is not to discover facts relating to a pending prosecution. United States v. Flemmi, 245 F.3d 24 (1st Cir. 2001).
What Evidence May the Grand Jury Hear
There are no formal rules of evidence for the grand jury. Hearsay is perfectly admissible. In the early part of the twentieth century up until the 1960s, the usual method of obtaining an indictment was to place one federal investigative agent on the witness stand to relate the results of his investigation. The agent would summarize his witness interviews, review of documents, factual observances, and any statements obtained from the defendant. This was perfectly acceptable.
In the early 1960s, the Organized Crime Section of the United States Department of Justice, under Attorney General Robert Kennedy, began to use the grand jury as an investigative tool. Numerous persons who were witnesses or parties to criminal activity were subpoenaed before the grand jury. Many of those witnesses had refused to be interviewed by federal agents. The Organized Crime Section was responsible for the wide use of the grand jury as an investigative tool that we know today. In the 1970s, United States Attorneys’ offices in New Jersey, Chicago, and Philadelphia began major investigations of political corruption using the grand jury. The use of the grand jury to obtain testimony from recalcitrant witnesses increased after the passage of the use immunity statute. See 18 U.S.C. § 6001, et seq.
As a practical matter, a great deal of evidence presented to the grand jury is hearsay. In 1972, the Second Circuit warned prosecutors, that although hearsay evidence was perfectly admissible, the grand jurors were not to be misled that the evidence they were hearing was the firsthand knowledge of the witness. United States v. Estepa, 471 F.2d 1132 (2d Cir. 1972). Today, with the use of extensive grand jury investigations and the appearance of multiple witnesses, the excessive use of hearsay evidence is no longer a credible issue. The grand jury may subpoena a witness to provide voice exemplars, United States v. Dionisio, 410 U.S. 1 (1973); handwriting samples, United States v. Mara, 410 U.S. 19 (1973), or hair samples and fingerprints, United States v. Boykins, 966 F.2d 1240 (8th Cir. 1992).
Subpoenas Duces Tecum
One cannot overstate the power of the grand jury to issue subpoenas duces tecum. Realistically this power is virtually unlimited. The grand jury does not have to demonstrate the relevance of the subpoena duces tecum nor does it need to demonstrate probable cause to issue a subpoena duces tecum.
For example, a prosecutor may suspect that a certain corporation or public entity is being used by its officers for fraudulent purposes. He may have some intelligence information supporting his suspicion, but that is not necessary. Without more, the prosecutor can simply issue a grand jury subpoena to the organization for financial records. There is no credible challenge that can be made to quash the subpoena on the grounds that there are no grounds to initiate the investigation.
A court may quash or modify a grand jury subpoena duces tecum if it is unreasonable or oppressive in scope. See Fed. R. Crim P. 17(c)(2). However, courts give a great deal of deference given to the grand jury. Subpoenas have been upheld for massive amounts of records dating back five years or more. For instance, a subpoena duces tecum in an antitrust investigation may request documents filling hundreds of filing drawers. Realistically the grand jury does not examine these documents. The documents are given to federal agents pursuant to Fed. R. Crim. P. 6(e)(3)(A) and (B) for examination, who report to the grand jury if any incriminating information is discovered.
Subpoenas Ad Testificandum
There are few grounds to quash a subpoena for a personal appearance before the grand jury. A witness may not appeal the subpoena directly, but must disobey subpoena and challenge the subpoena at a contempt hearing, In re Subpoenas to Local 478, Int’l Union of Operating Engineers, 708 F.2d 65 (2d Cir. 1983). An exception to the rule is that a witness may demonstrate a physical inability to appear by a motion to quash. Upon receipt of a subpoena to testify, the witness should request to be notified of his or her status. Upon the witnesses’ request, the Department of Justice will inform the witness if he or she is a subject or target. A subject is a person whose conduct is within the scope of the grand jury’s investigation. A target is a person as to whom the prosecutor or the grand jury has substantial evidence linking him or her to the commission of a crime and, who, in the judgment of the prosecutor, is a putative defendant. See United States Attorneys’ Manual (“USAM”) 9-11.151. Failure to notify a witness of his or her target status is not grounds for setting aside the indictment. United States v. Washington, 431 U.S. 181, 189 (1977).
The witness may assert certain testimonial privileges, and the notification to the prosecutor of the existence of certain privileges may excuse the witness from upon appearing. Department of Justice internal regulations permit the prosecutor to excuse a witness from appearing if the witness notifies the prosecutor that he intends to assert the Fifth Amendment to all questions. The assertion of the attorney client privilege or other privileges based upon factual premises will usually require a motion to quash to be heard by the court to substantiate the facts underlying the privilege.
The power to compel compliance with grand jury subpoena lies with the court. United States v. Williams, 504 U.S. 36 (1992). A witness who refuses to appear may be held in criminal contempt, United States v. Marquardo, 149 F.3d 36 (1st Cir. 1998) or civil contempt. See 8 U.S.C. § 401; 28 U.S.C. § 1826(a).
Judicial Review of Indictments
Courts will not dismiss an indictment on grounds or the grand jury relied on evidence that the grand jury lacked sufficient evidence to indict or the indictment is based upon hearsay. Costello v. United States, 350 U.S. 359 (1956). Courts will not dismiss an indictment on grounds or the grand jury relied on evidence that may have been illegally obtained. United States v. Calandra, 414 U.S. 338 (1974). The exclusionary rule does not apply to the grand jury. United States v. Puglia, 8 F.3d 478 (7th Cir. 1993). If trial results in conviction, a previous grand jury error will be deemed harmless. United States v. Mechanik, 475 U.S. 66 (1986).
The Supervisory Role of the Court
Each grand jury investigation in the Eastern District of Pennsylvania in which a subpoena is issued, is assigned a supervisory district court judge who is selected by lot. Pursuant to a uniform docketing system, all motions pertaining to that docketed matter are referred to that judge for hearing. See Local R. Crim. P. 6. The judge will rule on questions of the scope subpoenas duces tecum or privileges relating to subpoenas ad testificandum, or issues of grand jury abuse.
The Supreme Court has ruled that the district court has supervisory power to prevent grand jury abuse. This power is limited to errors that specifically prejudice the defendant. The supervisory authority cannot circumvent a harmless error inquiry prescribed by Fed. R. Crim. P. 52(a). See Bank of Nova Scotia v. United States, 487 U.S. 250 (1988). As a practical matter, errors raised while the grand jury investigation is in process have a better chance at redress than if raised after the indictment.
Right to Grand Jury Transcript
At trial, pursuant to 18 U.S.C. § 3500, the defendant is entitled to the grand jury testimony of any government witness who testifies at trial, after the witness has testified on direct. The defendant is entitled to his own grand jury testimony pursuant to Fed. R. Crim. P. 16.
As to a non-indicted witness, the same rule of secrecy that prevents disclosure of grand jury testimony to third parties also generally prohibits a witness from receiving a transcript of his or her own testimony. See In re Bianchi, 542 F.2d 98 (1st Cir. 1976). A witness must show particularized need for obtaining the transcript which outweighs the traditional historical requirement of grand jury secrecy. United States v. Proctor & Gamble Co., et al., 356 U.S. 677, 683 (1958); Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211 (1979). Since the witness simply wants to review his or her own prior testimony, there should be little reason to deny such a request, although such requests are often denied. Doe v. United States (In re Grand Jury Subpoena), 72 F.3d 271 (2nd Cir. 1995).
There are diverse rulings regarding a witness’ right to his or her own grand jury testimony. In one case a witness who was denied the transcript of his prior testimony alleged his memory had been impaired by an illness and skull fracture. After his second appearance before the grand jury, he was indicted for perjury. United States v. Clavey, 565 F.2d 111 (7th Cir. 1977); aff’d by an equally divided court, 578 F.2d 1219 (1978).
Other courts have permitted grand jury witnesses to review transcripts of their own testimony upon being recalled to appear before the grand jury. In re Grand Jury Investigation of Braniff Airways Inc., 390 F.Supp. 344 (W.D. Tex. 1975); Bursey v. United States, 466 F.2d 1059 (9th Cir. 1988), overruled by statute on other grounds, In Re Grand Jury Proceedings, 863 F.2d 667 (9th Cir. 1988); United States U.S. v. America Radiator, 45 F.R.D. 477 (W.D. Pa. 1968); Matter of Ferris, 512 F.Supp. 91 (D. Nev. 1981). The author is aware of a similar motion being granted in a major grand jury investigation in another district which is under seal. Stephen R. Delinsky, of the Boston office of Eckert Seamans Cherin & Mellot, said that he has often made this motion where a witness is recalled to the grand jury. Delinsky said he has been permitted to view the grand jury transcript approximately 50% of the time.
The Role of the Prosecutor and the Independence of the Grand Jury
Is the grand jury an independent body? There is no doubt that the grand jury relies heavily on the prosecutor for advice, instruction and direction. The Advisory Committee Notes for the 1979 Amendment to Fed. R. Crim. P. 6(e) stated:
As noted in United States v. Gramolini, 301 F.Supp. 39 (D.R.I. 1969): ‘Indeed a sophisticated prosecutor must acknowledge that there develops between a grand jury and the prosecutor with whom the jury has closeted a rapport – a dependency relationship – which can easily be turned into an instrument of influence on grand jury deliberations . . . .’
The grand jury depends upon the prosecutor for direction. The prosecutor presents evidence, examines witnesses; and if the prosecutor believes an indictment is warranted, will present the written indictment to the grand jury and ask for a vote.
This procedure may continue over months or years, depending upon the complexity of the case. The jurors are presented with multiple-count indictments, often of 30 counts or more. It is unrealistic to believe that the grand jurors read all the counts and weigh the evidence as to each count.
According to a statement made by then Assistant Attorney General James Robinson to Congress in 2000, “unless the grand jury has been previously instructed, at the conclusion of the evidence, the prosecutor typically reviews the elements of each offense and instructs the jurors regarding the legal framework for their evaluation of whether probable cause exists . . . .” DAVID MARSHALL NISSMAN, PROVING FEDERAL CRIMES, § 12:01 (2005). This vague statement of procedure is not a legal requirement.
There is no obligation for the prosecutor to give the grand jury legal instructions. United States v. Lopez-Lopez, 282 F.3d 1, 8 (1st Cir. 2002). An incorrect instruction will not void an indictment. United States v. Felice, 481 F. Supp. 79, 82 (N.D. Ohio 1978), aff’d 609 F.2d 276 (6th Cir. 1979).
The prosecutor may give a closing argument, summing up the evidence. United States v. United States District Court, 238 F.2d 713 (4th Cir. 1956). The prosecutor must refrain from giving his personal opinion whether there is probable cause to indict. United States v. McKenzie, 678 F.2d 629 (5th Cir. 1982).
There is no requirement for the prosecutor to present exculpatory evidence which would cause doubt as the probable cause whether the target of the grand jury committed an offense, United States v. Williams, 504 U.S. 36 (1992), no matter how substantial the exculpatory evidence, United States v. Rivera-Santiago, 872 F.2d 1073 (1st Cir. 1989). The prosecution is not obligated to produce evidence that would impeach the credibility of a key witness, United States v. Haynes, 216 F.3d 789 (9th Cir. 2000), amended by 2000 U.S. App. LEXIS 19970 (9th Cir. Aug. 15, 2000). As a practical matter, a prosecutor should present the grand jury with proof of a cooperating witness' prior convictions, although failure to do so will not void the indictment.
Often in complicated fraud, political corruption, or organized crime cases, the only witnesses to the crime or surrounding events are persons who are some way involved in the crime, or who have personal, political or business relationships with the major figures in the scheme. These individuals are reluctant to testify, even when granted immunity from prosecution pursuant to 18 U.S.C. §§ 6001-6004. Prosecutors are often faced with evasive testimony by such witnesses.
Questioning the evasive witness requires balance, as finding the truth is important, more so than offending the witness. Judge Leonard Hand said, “I agree that when faced with a potentially unwilling witness, the grand jury [the prosecutor] was free to press . . . [the] cross-examination hard and sharp; truth is more important than the sensibilities of the witness.” United States v. Remington, 208 F.2d 567 (2nd Cir. 1953) (Hand, J., dissenting). After making this statement, Judge Hand then decided the prosecutor had gone too far.
If counsel becomes aware of such heavy-handed examination tactics, the circumstance should be reported to the court, and a request should be made for an in-camera examination. In the past, some severe situations have caused supervisory courts to issue critical opinions, and even dismissing indictments on the grounds it produced a biased grand jury. United States v. Samango, 607 F.2d 877 (9th Cir. 1979). Recently, courts are more prone to request that the prosecutors be disciplined by the Department of Justice, rather than dismissing the indictment.
Does the grand jury ever refuse to indict? The answer is rarely. There are no readily available statistics; however, in the author’s opinion, the return of a no bill occurs less than 20 times a year in the entire country. One of the reasons for this is that federal prosecutors are not obligated to ask for a grand jury vote if the investigation fails to produce convincing evidence that an offense has been committed or produces evidence that is most likely to result in an acquittal. Unlike some state grand jury procedures where matters presented must be put to a vote, the federal prosecutor can simply abandon the investigation.
When confronted with the adverse comments about the fairness of federal grand jury practice, prosecutors point out that the acquittal rate for federal indictments is very low. On average of all federal indictments returned each year, approximately 90% result in guilty pleas. Of those that go to trial approximately 85% to 90% result in convictions.
In summary, the federal grand jury process is not an adversary system in which both sides appear before a tribunal. If the prosecutor is convinced a person has committed a federal crime and can be successfully prosecuted, an indictment will be returned. The defense counsel’s job is to obtain as much information about the government’s prospective case beforehand and make a personal presentation to the prosecutor that will dictate in favor of a declination. These declinations do occur, but they require a great deal of private investigation and preparation on the part of the defense counsel. Federal criminal defense practice is a highly specialized field based on a great deal on practical experience.
