NCJ Number
52793
Journal
Criminal Law Bulletin Volume: 14 Issue: 2 Dated: (MARCH/APRIL 1978) Pages: 123-139
Date Published
1978
Length
17 pages
Annotation
CASE LAW PERTAINING TO ABUSES OF THE FEDERAL GRAND JURY'S POWERS IS SURVEYED, AND CONCLUSIONS ARE DRAWN ABOUT THE NEED FOR GREATER JUDICIAL CONTROL OVER GRAND JURY PROCEEDINGS.
Abstract
MANY CONSTITUTIONAL PROTECTIONS ASSURED DURING TRIALS OR POLICE INTERROGATIONS ARE ABSENT IN GRAND JURY PROCEEDINGS. THE GRAND JURY WITNESS IS DENIED THE RIGHT TO COUNSEL AND THE RIGHT TO KNOW THE SUBJECT OF THE INQUIRY. THERE IS NO GENERAL EXCLUSIONARY RULE (RULE FORBIDDING THE USE OF ILLEGALLY GAINED EVIDENCE). THE WITNESS HAS NO RIGHT TO APPEAR AND OFFER EVIDENCE CONTRADICTORY TO THAT OFFERED BY THE PROSECUTOR. ALTHOUGH ABUSES TAKE MANY FORMS, THE MOST PREVALENT PROBLEM SEEMS TO BE THE USE OF THE GRAND JURY FOR PURPOSES OF PRETRIAL DISCOVERY AND GENERAL TRIAL PREPARATION BY THE PROSECUTOR. IN MOST CASES, THE COURTS HAVE BEEN UNWILLING TO INTERVENE IN GRAND JURY MATTERS UNLESS THE ABUSE IS SO BLATANT THAT IT CANNOT BE OVERLOOKED. GENERALLY THE BURDEN IS ON THE PARTY RESISTING A GRAND JURY SUBPOENA TO ESTABLISH THAT THE GRAND JURY HAS BEEN USED FOR AN IMPROPER PURPOSE. TO ESTABLISH THIS, IT MUST BE SHOWN THAT THE SOLE OR DOMINANT PURPOSE OF THE INQUIRY IS AN IMPROPER ONE. WITH NO RIGHT TO KNOW THE SUBJECT OF THE GRAND JURY'S INVESTIGATION AND NO RIGHT TO KNOW WHAT OTHER PARTIES HAVE BEEN SUBPOENAED, THE PARTY ATTEMPTING TO ESTABLISH IMPROPER USE OF THE GRAND JURY MAY FIND THAT TASK IMPOSSIBLE, ESPECIALLY IN THE ABSENCE OF FLAGRANT ABUSE. THE COURTS HAVE REFUSED TO RECOGNIZE REALITY, HIDING BEHIND REFERENCES TO THE IDEALIZED FUNCTIONS OF THE GRAND JURY. REGARDLESS OF WHAT IT IS SUPPOSED TO DO AND WHOM IT IS SUPPOSED TO PROTECT, THE MODERN GRAND JURY HAS BECOME A POWERFUL PROSECUTORIAL TOOL WITH AWESOME POTENTIAL FOR ABUSE. THE COURTS HAVE NOT HESITATED TO INTERVENE IN PROSECUTORIAL OR POLICE INVESTIGATIONS, YET CONTINUE TO INSIST THAT GRAND JURY SECRECY SHOULD NOT BE INTERFERED WITH. THIS POSITION IS NOT JUSTIFIABLE, AND THE COURTS SHOULD PLACE MORE EFFECTIVE CONTROLS ON GRAND JURY PROCEEDINGS. (AUTHOR ABSTRACT MODIFIED--LKM)