GRAND JURY SECRECY AND THE ADMINISTRATIVE AGENCY BALANCING EFFECTIVE PROSECUTION OF WHITE-COLLAR CRIME AGAINST TRADITIONAL SAFEGUARDS

• NCJ Number: 66198
• Journal: Washington and Lee Law Review Volume: 36 Issue: 4 Dated: (FALL 1979) Pages: 1027-1047
• Author(s): M G PICKHOLZ; J M PICKHOLZ
• Date Published: 1979
• Length: 21 pages
• Corporate Author: Washington and Lee University
• Publication Format: Article
• Language: English
• Country: United States of America

Annotation

INCREASED PROSECUTIONS FOR WHITE-COLLAR CRIME AND RELATED PARTICIPATION OF ADMINISTRATIVE AGENCY PERSONNEL IN SUCH RIGHTS. RIGHTS.

Abstract

THROUGHOUT OUR HISTORY, BELIEF IN GRAND JURY SECREY HAS REMAINED UNCHANGED. REASONS GIVEN TO JUSTIFY SECRECY INCLUDE PREVENTION OF THE ESCAPE OF THOSE WHOSE INDICTMENT MAY BE CONTEMPLATED, ENSURING THE GRAND JURY'S FREEDOM FROM OUTSIDE INFLUENCES, AND ENCOURAGING FREE DISCLOSURES BY PERSONS POSSESSING INFORMATION WITH RESPECT TO THE COMMISSION OF CRIMES. THE GRAND JURY HAS RETAINED BROAD INQUISITORIAL POWERS TO ENABLE IT TO PERFORM ITS SOLE FUNCTION OF DETERMINING WHETHER TO INSTITUTE CRIMINAL CHARGES, AND CONGRESS HAS NOT GRANTED TO ADMINISTRATIVE AGENCIES COMPARABLE INQUISITORIAL POWERS. HOWEVER, CONGRESS HAS GIVEN AGENCIES LIMITED POWER TO DECIDE WHETHER TO INSTITUTE SECRET CIVIL INVESTIGATIONS OF ALLEGED VIOLATIONS OF STATUTES ENTRUSTED TO THEM. RULE 6(E) OF THE FEDERAL RULES OF CRIMINAL PROCEDURE, ORGINALLY PROMULGATED IN 1945, CODIFIED PRIOR CASE LAW GOVERNING ACCESS TO GRAND JURY MATERIALS. WITH THE ADVENT OF THE NUMEROUS REGULATORY AGENCIES OF THE 1930'S CAME THE QUESTIONING OF THE ASSISTANCE PROCEDURE AND MORE FREQUENT EXAMINATION BY THE COURTS OF THE CONSTITUTIONAL AND PROCEDURAL PROBLEMS CREATED BY AGENCY ASSISTANCE IN INVESTIGATIONS. IN 'ROBERT HAWTHORNE, INC. V. DIRECTOR OF INTERNAL REVENUE' (1976) AND 'J.R. SIMPLOT CO. V. UNITED STATES' (1976) THE COURTS ATTEMPTED TO BALANCE TRADITIONAL GRAND JURY SECRECY PRINCIPLES AGAINST THE GOVERNMENT'S NEED FOR AGENCY ASSISTANCE IN PROSECUTION EFFORTS. THE RECENT AMENDMENT TO RULE 6 (E) REMOVED RESTRICTIONS ON THE USE OF GOVERNMENT EXPERTS IMPOSED IN THESE CASES WHILE IT FACILITATED 'RESOLUTION OF SUBSEQUENT CLAIMS OF IMPROPER DISCLOSURE.' POTENTIAL FOR ABUSE OF THE 6(E) PROVISION EXISTS, AND PARTICIPATING AGENCY PERSONNEL SHOULD BE SWORN TO SECRECY WHEN AIDING IN INVESTIGATIONS. IN ADDITION, A RULE 6(E) DOCKET SHOULD BE PREPARED AND MAINTAINED WHICH INDICATES THE IDENTITY OF PERSONS HAVING ACCESS TO GRAND JURY MATERIALS. FOOTNOTES ARE PROVIDED IN THE ARTICLE. (LWM)