Presentation Transcript

1. Grand Jury Practice

   “A mindless mob using a prosecutor for a brain”
2. Grand Jury Practice The power to investigate and indict The grand jury "can investigate merely on suspicion that the law is being violated, or even just because it wants assurance that it is not." U.S. v. Morton Salt Co., 338 U.S. 632, 642-643 (1950)
3. Rule 6 16 to 23 members 12 members must concur to indict 18 months service (generally); court can extend service
4. Grand Jury 101 Wide latitude; No judge presides; Deliberates in secret; Determines its own course; Compels the production of evidence or testimony; Unrestrained by procedural and evidentiary rules; “It is a grand inquest, a body with powers of investigation and inquisition, the scope of whose inquiry is not to be limited narrowly. . . ." United States v. Calandra, 414 U.S. 338, 343 (1974).  
5. Grand Jury Practice Foreperson and Deputy Foreperson Who else may be present? Government attorneys Witness Court reporter
6. Grand Jury Secrecy Secrecy 6(e)(2) Who must maintain secrecy? Grand Jurors Government attorneys Government personnel (investigators from the Federal Bureau of Investigation, IRS, and other law enforcement agencies, accountants, handwriting experts, and other persons with special skills). Who can talk?
7. Grand Jury Practice The grand jury hears only cases brought to it by the prosecutor; The prosecutor decides which witnesses to call; The prosecutor decides which witnesses will receive immunity; Questioning is done by the prosecutor;
8. Grand Jury Practice Grand jury members ask questions at the end of a witness's testimony (if awake); The prosecutor decides if he or she has enough evidence to seek an indictment; The prosecutor drafts the charges and reads them to the grand jury; There is no requirement that the grand jury be read any instructions on the law, and such instructions are rarely given.
9. Grand Jury Subpoena Grand Jury Subpoena Person or Documents Fact Witness: “You are hereby commanded to appear and testify before the Grand Jury . . . at the place, date, and time specified below.” Documents: “You are also commanded to bring with you the following document (s) or object (s).”
10. Subpoena Service Service A non-party over 18 Personal Service (Rule 17) Anywhere in the U.S. or its territories (no mile limits) Interview Risk (18 U.S.C. § 1001)
11. Defense Attorney’s Role Do I need an attorney? Investigation Preparation Conversation with the Government (ascertain client’s role) Maintain consistency Sit outside (no telephone standby) De-briefing notes
12. Grand Jury Subpoenas Grand jury subpoenas are presumed to seek relevant information. Anyone who is trying to avoid complying with a subpoena has to show that there is no way it could seek any information relevant to the grand jury’s investigation. Since the nature and scope of a grand jury’s investigation is secret, this is very difficult to do. U.S. v. R. Enterprises, Inc., 498 U.S. 292 (1991)
13. Subpoena’s Power A grand jury subpoena requiring someone to testify does not fall within the provisions of the Fourth Amendment, and so cannot be challenged as inflicting an unconstitutional search and seizure. The Fifth Amendment does not protect a grand jury witness from having to give samples of his or her voice, or other kinds of physical evidence. U.S. v. Dionisio, 410 U.S. 1 (1973)
14. Grand Jury Practice A prosecutor can obtain a subpoena to summon anyone to testify; The person subpoenaed to testify is compelled to answer questions unless he or she can claim a specific privilege, such as the marital privilege, lawyer/client privilege, or the privilege against self-incrimination.
15. Grand Jury Practice Subject (anyone with evidence within the grand jury's purview) Verbal warning Formal letter Proffer from witness or counsel; Queen for a Day Letter
16. Queen for a Day Letter Proffer letter verbiage: No statements made will be used against you; Derivative use: “the government may make derivative use of and may pursue any investigative leads suggested by any statements made by, or other information provided by your client.” “[T]his will eliminate the necessity for a Kastigar hearing”]; Impeachment at trial for perjury, obstruction of justice.
17. Fifth Amendment Fifth Amendment: No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury . . .nor shall any person . . . be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law. . . .
18. Assertion of Fifth Compelling Testimony: Assertion of Fifth Amendment Witness affirms will continue to assert Reading compulsion order and conferring statutory immunity
19. Statutory Immunity Immunity: Overcomes the witness's privilege against self-incrimination; Testimony is required; Prosecutor cannot use testimony or leads from it to bring charges against the witness; Kastigar: if a subsequent prosecution is brought, the prosecutor bears the burden of proving that all evidence was obtained independent of the immunized testimony; Difficult to successfully prosecute for criminal activity discussed in immunized testimony unless prosecution had a fully prepared case before immunity was granted.
20. Grand Jury Practice Target Letter (more likely than not to be indicted) Options Testify before Grand Jury without immunity (crazy) Pursue plea bargain (race to the prosecutor’s office)
21. Grand Jury Practice Parting Notes: A court cannot force a prosecutor to present evidence to a grand jury that shows the person they’re investigating may NOT have committed a crime; Courts have little power to intervene in grand jury proceedings because grand juries are not part of the court system; Grand juries are closer to a fourth branch of government, separate and apart from the judiciary, the executive branch, and the legislature. U.S. v. Williams, 504 U.S. 36 (1992)