|Federal Grand Jury Reform|
In the words of William J. Campbell, a former federal chief judge in Chicago, "[t]he 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." This allocation of power is completely at odds with the constitutional responsibilities (not to mention considerable burdens) of grand jury service. Congress should work with a new administration to empower federal grand jurors and address the institution's long-neglected shortcomings. Most importantly, anyone facing the awesome power of a federal prosecutor armed with a federal grand jury should be allowed to have counsel with them.
Summary of the Problem: The federal grand jury system does not adequately protect against wrongful, and often ruinous, indictments and prosecutions. While the federal grand jury was originally intended to serve both a screening and investigative function, modern grand jury procedures are incompatible with the screening function. Only before a grand jury can the government compel someone to appear and face questioning without an attorney. The rules of evidence that govern trials do not apply to grand jury proceedings, opening the door to illegally seized evidence, coerced statements, and hearsay. The target of the investigation has no right to testify or present evidence, nor is the prosecutor required to present the grand jury with evidence that would exculpate the target. Many states have fixed these and other flaws without impairing the effectiveness of their grand jury systems.
Executive: The Department of Justice's United States Attorney's Manual includes certain admonitions regarding the conduct of grand jury investigations. While the Executive has authority to strengthen the manual's language, the most crucial reforms require statutory and/or federal rules changes. Moreover, the existing guidelines do not adequately protect against grand jury abuse, in part because the manual is unenforceable.
Legislative Changes: Congress should pass comprehensive legislation to strengthen the grand jury's screening function, empower grand jurors, and protect the rights of witnesses, subjects, and targets of grand jury investigations:
Executive Branch: Department of Justice
Legislative Branch: House and Senate Judiciary Committees
Executive Branch: The courts have largely abdicated any responsibility for policing the conduct of prosecutors within the grand jury room. This power vacuum is not filled by Chapter 9-11 of the United States Attorneys' Manual, which contains DOJ's policy on grand jury practice. The Manual is not enforceable at law and fails to address grand jury's most glaring inequities. Where the Manual does speak to a particular issue-such as the naming of an unindicted coconspirator or a target's request to testify-the policy is generally consistent with the proposals outlined here. In these areas, the DOJ's opposition, essentially an effort to avoid being bound by its own policies, are particularly unjustifiable.
Legislative Branch: From 1977-87, Rep. John Conyers (D-MI), among others, introduced various bills incorporating one or more of the proposed reforms and congressional hearings were held on several occasions. In 1998, Sen. Dale Bumpers (D-AR) introduced the Grand Jury Due Process Act (S. 2030), to provided a right to assistance of counsel in the grand jury room, and the more comprehensive Grand Jury Reform Act (S. 2289). In July 1998, Bumpers offered his right-to-counsel proposal as an amendment to an appropriations bill (S. Amdt. 3243 to S. 2260), but it was defeated 59-41. In 1999, in the wake of alleged grand jury abuses by Independent Counsel Kenneth Starr, Rep. Bill Delahunt (D-MA), a former state prosecutor, announced his intention to introduce a bill mandating comprehensive changes in the way federal grand juries operate. In 2000, the House Constitution Subcommittee held a hearing on grand jury reform, but Rep. Delahunt's grand jury bill never saw introduction. Senator Specter (who voted in favor of the 1998 Bumpers amendment) scheduled a Judiciary Committee hearing regarding the federal grand jury system for November 16, 2005, but other matters forced him to postpone.
Judicial Branch: In 1999, as required by H.R. 4276, 105th Cong. § 622 (1998), the Judicial Conference submitted a report "evaluating whether an amendment to Rule 6 of the Federal Rules of Criminal Procedure permitting the presence in the grand jury room of counsel for a witness who is testifying before the grand jury would further the interests of justice and law enforcement." In recommending against any amendment, the Judicial Conference's 5-page report relies extensively on a report submitted in 1975.
Potential Allies, Potential Opposition, and Public Opinion:
Potential Opposition: The Department of Justice and the Judicial Conference have opposed grand jury reform, arguing that that the various proposals would undermine the grand jury's investigative function. These opponents also argue that the reforms would convert grand jury proceedings into "mini-trials."
In response, it should be noted that all ten reform proposals are supported by a politically diverse group of former U.S. Attorneys and Department of Justice officials (e.g., NACDL's Commission to Reform the Federal Grand Jury). In addition, several states, including New York, Massachusetts, and Colorado, have successfully incorporated many of these proposals into their grand jury systems. At least twenty states allow a witness's attorney in the grand jury room, and a review of the case law from those states fails to reveal any problems. Dismissing this fact, the Justice Department asserts that federal prosecutions are uniquely complex, which ignores the fact that states like New York and Massachusetts handle their share of complex crimes-just as the federal system handles its share (and then some) of traditional state crimes.
For Further Information:
Major reports and other resources are compiled at http://www.nacdl.org/grandjury.
|Last Updated on Monday, 10 November 2008 17:02|