NCJ Number
49028
Journal
American Criminal Law Review Volume: 15 Issue: 4 Dated: (SPRING 1978) Pages: 307-335
Date Published
1978
Length
29 pages
Annotation
ARGUMENTS FOR ADMITTING COUNSEL TO THE GRAND JURY ROOM ARE PRESENTED, WITH REFERENCE TO THE EXPERIENCES OF STATES WHERE COUNSEL IS PERMITTED AND TO RELEVANT CASE LAW.
Abstract
AN OVERVIEW OF PERCEIVED GRAND JURY ABUSES AND A REVIEW OF PROPOSALS FOR ADMITTING COUNSEL TO THE GRAND JURY ROOM OPEN THE DISCUSSION. EXPERIENCES IN STATES WHERE COUNSEL IS PERMITTED ARE NOTED, AND CASE LAW PERTAINING TO THE GENERAL RIGHT TO COUNSEL AND TO THE DENIAL OF THIS RIGHT TO GRAND JURY WITNESSES IS CITED. TECHNICAL PROBLEMS REQUIRING THE PRESENCE OF COUNSEL ARE POINTED OUT; E.G., THE AVERAGE WITNESS' INABILITY TO DETERMINE WHEN TO INVOKE THE FIFTH AMENDMENT. ARGUMENTS AGAINST ADMITTING COUNSEL ARE CITED AND COUNTERED, INCLUDING OBJECTIONS CONCERNED WITH POSSIBLE IMPAIRMENT OF THE SECRECY OF GRAND JURY PROCEEDINGS AND WITH THE PROBLEM OF MULTIPLE REPRESENTATION TO WITNESSES. IT IS FURTHER SUGGESTED THAT REQUIRING WITNESSES TO CONFER WITH COUNSEL ONLY OUTSIDE THE GRAND JURY ROOM RESULTS IN A PARODY OF DUE PROCESS IN WHICH THE WITNESS AND THE UNSEEN LAWYER ARE CAST AS VILLAINS BEFORE THE GRAND JURY. IT IS CONCLUDED THAT PERMITTING WITNESS' COUNSEL IN THE GRAND JURY ROOM WOULD DISCOURAGE PROSECUTORIAL ABUSE OF THE GRAND JURY SYSTEM, AND WOULD GUARANTEE THE WITNESS NEEDED ASSISTANCE IN ASSERTING RIGHTS AND PRIVILEGES. CONGRESS IS URGED TO PROVIDE FOR PRESENCE OF COUNSEL IN FEDERAL GRAND JURY HEARINGS AND IS REMINDED THAT THE GRAND JURY PROCEEDING IS ONE IN WHICH TARGET WITNESSES MAY CLEAR OR INCULPATE THEMSELVES AND NONTARGET WITNESSES MAY MAKE STATEMENTS LEADING TO CRIMINAL PROSECUTION OR SEVERE EMBARRASSMENT. EXTENSIVE FOOTNOTES ARE PROVIDED. (LKM)