Testimony of Professor Peter J. Henning, Wayne State University Law School

Subcommittee on the Constitution, Committee on the Judiciary

Hearing on Constitutional Rights and the Grand Jury

Thursday, July 27, 2000

Chairman Hyde, Representative Canady, and Members of the Subcommittee:

I appreciate the opportunity to testify before the Subcommittee on the Constitution at this hearing on Constitutional Rights and the Grand Jury. I am an Associate Professor of Law at Wayne State University Law School in Detroit, Michigan. Prior to joining the faculty at Wayne State, I was a Trial Attorney in the Fraud Section of the Criminal Division in the United States Department of Justice. I made numerous appearances before federal grand juries in connection with investigations of bank fraud, mail and wire fraud, and money laundering.

The Investigatory Function of the Federal Grand Jury

A grand jury is made up of 23 citizens chosen at random from the community. They have no special training in the law, and no resources to pursue a case on their own. While the grand jury's roots are traceable to twelfth-century England, it is a body whose role in the legal system is not entirely clear because it combines two almost antithetical functions: it investigates criminal activity (the investigatory function) and then the same group must weigh objectively the evidence to decide whether there is probable cause a person committed the crime (the accusatory function). The Constitution's sole reference to the grand jury is the Fifth Amendment guarantee that no one may be charged with a capital or "otherwise infamous" offense except by a grand jury indictment.

The importance of the grand jury is not its role in deciding whether to indict a defendant, despite the fact that the Fifth Amendment specifically identifies that act as a protected right of a defendant. Indeed, the ability of the grand jurors to exercise their independent judgment regarding whether to indict a defendant has been questioned. Some commentators bemoan the grand jury's lack of real autonomy from the controlling hand of the prosecutor, assailing it as a "lapdog," "rubberstamp," and a "total captive of the prosecutor." These criticisms focus on the grand jury's accusatory role, that it simply follows a prosecutor's lead in mindlessly handing up indictments. Professor Leipold's excellent article, Why Grand Juries Do Not (and Cannot) Protect the Accused, 80 CORNELL L. REV. 260 (1995), explains very clearly why grand juries are not an effective means to screen cases from prosecution. Therefore, it is the investigatory function, unmentioned in the Constitution, that is the grand jury's more important role in the criminal justice system.

In American history, grand juries have occasionally served as watchdogs of governmental misconduct, and even more rarely thwarted prosecutorial overzealousness by refusing to indict. The accusatory function declined in importance during the nineteenth century when a number of states authorized prosecutors to file complaints directly with the court to initiate a criminal prosecution. In Hurtado v. California, 110 U.S. 516 (1884), the Supreme Court held that states need not charge capital crimes by a grand jury indictment, and this federal right is one of only two criminal protections in the Bill of Rights not applicable to the states.

The development of a large body of professional prosecutors in the twentieth century has enhanced the grand jury's investigatory role. Federal criminal prosecutors do not have independent authority to compel the production of documents or the appearance of witnesses, so they must work under the auspices of the grand jury. As the Department of Justice made economic and organizational crimes--such as money laundering, fraud, and RICO--a priority over the past thirty years, the significance of the grand jury in federal law enforcement increased because its broad authority to compel the production of evidence and the testimony of witnesses is unmatched. While the accusatory function may be largely an anachronism, the grand jury today plays an integral part in the investigation of criminal conduct, especially white collar crimes.

The key to the grand jury's investigatory power is the authority to issue subpoenas that require the recipient to turn over evidence and appear before the grand jury to testify, on pain of criminal contempt if there is no basis for a refusal to comply. The label "grand jury investigation" is a misnomer because the grand jurors themselves have little to do with the investigatory process of issuing subpoenas, reviewing records, and interviewing witnesses. The prosecutors in the United States Attorney's Office and the investigative agencies--primarily the Federal Bureau of Investigation--control the scope and pace of the investigation. Prosecutors routinely issue subpoenas, usually without informing the grand jurors; a grand jury subpoena can be issued without the jurors even being aware that an investigation exists. In most United States Attorney's Offices, there is a set of blank subpoenas that prosecutors, legal assistants, and support staff can fill out at any time, often upon the request of an investigative agent without further inquiry. In my experience, many subpoenas for records employ boilerplate language describing the documents or material sought, and little thought is given to the breadth of the subpoena--at least not until a recipient objects. In complex white collar crime investigations involving a large number of documents, the vast majority of the records subpoenaed are never shown to the grand jury, only those that the prosecutor deems relevant to the investigation. It is common for prospective grand jury witnesses to meet with prosecutors for an interview before the grand jury session. While there is nothing wrong with any of these procedures, the prosecutor's control of the process means that the grand jury's role is mainly that of an observer and not a participant, even though technically it is the grand jury that has the authority to compel the production of evidence and appearance of witnesses.

While the recipient of a subpoena can challenge it in court, the threshold for enforcement of a grand jury subpoena is quite low. In United States v. R. Enterprises, the Supreme Court held that under Rule 17(c) of the Federal Rules of Criminal Procedure a subpoena is enforceable "unless the district court determines that there is no reasonable possibility that the category of materials the Government seeks will produce information relevant to the general subject matter of the grand jury's investigation." 498 U.S. 292, 301 (1991). The investigative powers exercised by prosecutors under the auspices of the grand jury are subject to little external constraint because the Supreme Court has acknowledged that a grand jury is "free to pursue its investigations unhindered by external influence or supervision so long as it does not trench upon the legitimate rights of any witness called before it." United States v. Dionisio, 410 U.S. 1, 17-18 (1973). The grand jurors often are only "along for the ride" in investigations that fall largely outside the control of the judiciary, even though the courts are responsible for calling the grand jury into existence and charged with enforcing its demands for information.

Constitutional Regulation of the Grand Jury

The Constitution provides a panoply of rights to individuals before they are charged with a crime. The Fourth Amendment prohibits unreasonable searches and seizures, and under Miranda and its progeny custodial interrogations must be preceded by a litany of warnings to inform suspects that they may cut-off all questioning. Through the remedy of the exclusionary rule, the Supreme Court has fashioned a potent means of enforcing these constitutional restrictions on the investigation of criminal conduct that is aimed at deterring the police from violating an individual's constitutional rights. Given that the grand jury is an investigatory body, one might think that the same protections would be afforded in that proceeding. While witnesses retain their Fifth Amendment privilege against self-incrimination, the Supreme Court has rejected all efforts to extend to grand jury proceedings the constitutional protections that are available in other police investigations. Among the Court's decisions in this area are:

• United States v. Dionisio: a grand jury subpoena is not a "seizure" subject to the reasonableness requirement of the Fourth Amendment.

• United States v. Calandra: evidence subject to the exclusionary rule as the product of an unlawful search in violation of the Fourth Amendment may be used by a grand jury to determine probable cause.



• United States v. Mandujano: a witness subpoenaed to testify before the grand jury need not be provided with a Miranda-type warning regarding the right to silence.



• United States v. Washington: a witness appearing before a grand jury need not be warned that he is a "target" of the investigation.



• United States v. Doe (Doe II): an order directing a witness to sign a waiver of confidentiality for foreign bank records was not compelled testimony in violation of the witness' Fifth Amendment privilege against self-incrimination.

With almost no protection available in grand jury investigations through the specific protections of the Fourth and Fifth Amendments, defendants sought dismissal of indictments by alleging that prosecutorial misconduct tainted the grand jury process. The Supreme Court, however, rejected all efforts to use claims of prosecutorial misconduct in the grand jury as a means to review any aspect of the grand jury's decision to indict, including the conduct of the prosecutor. The linchpin for understanding how the Court has limited judicial review of the prosecutor's conduct in grand jury is its decision in Costello v. United States, 350 U.S. 359 (1956).

Costello involved the prosecution of an organized crime figure for tax evasion through what is known as the "net worth" method, which requires the government to produce a large body of evidence showing a disparity between the income declared on the tax return and the amount of the defendant's expenditures. While the government produced over 140 witnesses at trial, the grand jury only heard the testimony of three investigators who summarized the case against the defendant. The defendant alleged a violation of his Fifth Amendment right on the ground that the grand jury relied solely on inadmissible hearsay. The Supreme Court rejected that argument, holding that an "indictment returned by a legally constituted and unbiased grand jury . . . if valid on its face, is enough to call for a trial of the charge on the merits." 350 U.S. at 363. In Costello, the Court refused to inject what it viewed as unnecessary formality into a process otherwise "unfettered by technical rules."

Costello precludes a court from inquiring into the substance of the government's evidence used to secure an indictment, and by implication prohibits a court from examining how that evidence came before a grand jury. Simply put, once a grand jury indicts a defendant, the Supreme Court bars any challenge to the process if that would involve scrutinizing the contents or basis of a facially valid indictment. Judicial review of the adequacy of the evidence supporting an indictment would necessarily include examination of the process by which the prosecutor gathered and presented the evidence. The Court saw no benefit in permitting defendants to challenge the prosecutor's conduct when that would entail reviewing the sufficiency of the evidence or adequacy of its presentation to the grand jury, especially when the trial will resolve the fundamental issue of guilt and the indictment is only a probable cause determination.

In light of Costello's prohibition on judicial review of facially valid indictments, it is impossible to fashion a remedy for prosecutorial misconduct in a grand jury investigation if that claim would require a court to take into account the impact of the violation on the grand jury decision to indict. A court cannot inquire about the weight of the evidence the grand jurors considered, or how the investigation proceeded apart from the misconduct. A grand jury may consider a wide variety of evidence, and the probable cause standard for deciding whether to hand up an indictment is quite low so measuring the impact of a violation would be difficult. The only remedy available, therefore, would be dismissal of the indictment without any inquiry into the effect of the misconduct on the grand jury, i.e. a prophylactic rule. Yet, if the grand jury has sufficient evidence to indict but a court precludes the government from prosecuting the defendant, there is a substantial cost in the failure to vindicate society's right to seek redress for criminal conduct. Lower courts refer sometimes to the need to deter future prosecutorial misconduct by ordering dismissal, but the impact of the remedy is felt by society and at best only indirectly by the prosecutor.

Dismissal is quite different from applying the exclusionary rule, which only eliminates evidence flowing directly from the constitutional violation. While suppression of evidence may preclude further prosecution, often the government has other evidence to prove its case. Fashioning a remedy for prosecutorial misconduct short of outright dismissal, such as ordering the government to reindict the defendant before a new grand jury, would be ineffectual. A prophylactic rule requiring dismissal of the indictment and preclusion of further proceedings against the defendant is a very high price to pay for misconduct whose impact on the grand jury process may have been minimal. The harm suffered by a defendant from prosecutorial misconduct may have little to do with the decision to indict, yet with no realistic remedy short of dismissal a court would either have to ignore the misconduct or levy a severe penalty on the government and society.

The Supreme Court has avoided imposing any constitutional limitations on prosecutors in the conduct of grand jury investigations because there is no way to provide a remedy tailored to address the harm, if any, from the violation. The effect of a prophylactic rule would exceed the benefits it would provide. This is especially so because the probable cause standard is so low that it is often unlikely that a constitutional violation would have much effect on the grand jury, and any harm from the misconduct can be addressed at trial. The lack of an appropriate remedy has led the Court to reject efforts by lower courts to create rules governing the prosecutor's conduct of grand jury investigations through the application of the judiciary's inherent supervisory power. While judges have authority over the conduct of the prosecutor in the courtroom, the Court has precluded use of the supervisory power to control the manner in which the grand jury investigation proceeds and the type of evidence the prosecutor can--or must--present to secure an indictment.

The effect of the Court's prohibition on the creation of rules limiting prosecutorial control of grand jury investigations is demonstrated by its decision in United States v. Williams, 504 U.S. 36 (1992). The Court rejected the Tenth Circuit's rule, issued under its supervisory power, requiring prosecutors to present exculpatory evidence to a grand jury or risk dismissal of the indictment. The Court held that because the grand jury is not required to listen to any evidence, the judiciary could not prescribe rules regarding what evidence the prosecutor must present to it. While the result certainly sounds incongruous--prosecutors are free to ignore exculpatory evidence and present only what they want the grand jury to hear--it is consistent with the approach set forth in Costello. The Court will not permit any inquiry into the substance of the grand jury's decision, thereby protecting the conduct of prosecutors in gathering evidence and presenting it to the grand jury even if that results in perceived unfairness in the proceeding.

Reforming Prosecutorial Control of the Investigation:

Would a Grand Jury Really Indict a Ham Sandwich?

A picaresque description of prosecutorial domination of the grand jury is that any decent prosecutor could secure the indictment of a ham sandwich. The Supreme Court's refusal to constrain the conduct of grand jury investigations through constitutional or judicial rules reinforces the view that the grand jury is subject to prosecutorial manipulation. Williams' stark rejection of a seemingly fair rule for conducting grand jury investigations heightens the perception of prosecutorial domination because even evidence of purported innocence need not be brought before the grand jury.

Assertions that prosecutors in fact misuse the process can be overblown, and generally are not supported by empirical data showing widespread abuse of authority. Defendants often assert claims of prosecutorial misconduct in grand jury investigations for tactical reasons, to gain discovery of the government's case or to distract the prosecutors. The fact that prosecutors can--and even sometimes do--misapply their authority does not necessarily mean that the grand jury system is flawed.

The Supreme Court's decisions on the conduct of the grand jury make it clear that there are no constitutional constraints on the investigatory process comparable to the limitations imposed under the Fourth and Fifth Amendments in police investigations. Similarly, lower courts cannot prescribe such rules on their own authority. Direct challenges to prosecutorial misconduct in a pending criminal proceeding are virtually impossible to raise because there are no grounds for asserting a claim that a court can hear. Redress can only be sought in a separate proceeding, apart from the prosecution in which the alleged misconduct took place. Congress--not the courts--can provide the means to address the issue of prosecutorial conduct of grand jury investigations, if it chooses.

Some proposals to reform the grand jury process focus on enhancing the independence of the grand jury in its determination whether to hand up an indictment. Suggestions for reform include allowing witnesses to bring counsel into the grand jury during their testimony and to require prosecutors to present exculpatory evidence, overturning the effect of Williams. The accusatory function, however, is much less important than the exercise of the grand jury's investigatory power through the prosecutor. I am not aware of evidence that prosecutors, with any regularity, seek to indict individuals who are clearly not guilty of a criminal offense, so changes targeted at the grand jury's accusatory function are unlikely to be of much importance in protecting innocent individuals.

The question is whether there is a need for additional rules proscribing the prosecutor's control of grand jury investigations. Reform proposals that seek to formalize the grand jury's decision-making process miss the real issue of providing a means for redressing prosecutorial misconduct when it occurs during the investigation. Most misconduct transpires outside the actual presence of the grand jury, so changing what occurs in the grand jury room is unlikely to have much effect on any problems arising in an investigation. The principal areas where prosecutors have acted improperly in the investigative stage, and which Congress may wish to consider, are:

• Rule 6(e) violations: The leaking of information about a current investigation to the media by any prosecutorial authority is reprehensible. Rule 6(e)(2) of the Federal Rules of Criminal Procedure prohibits disclosing "matters occurring before the grand jury," but the Rule has been narrowly interpreted by some courts so that prosecutors can disclose many details of an investigation without violating the secrecy requirement. Congress can address this issue by clarifying the scope of the grand jury secrecy rule.

• Attorney-Client Privilege: In the past decade, a number of lawyers have been called as witnesses in investigations of their clients and seen the execution of search warrants at their offices that seek information related to their clients. There are significant questions regarding the scope of the attorney-client privilege when a lawyer is called before a grand jury to testify about a client. Some districts require judicial approval of subpoenas to lawyers if the information sought relates to a client, and that may be a worthwhile area for Congress to explore. For law office searches, the Department of Justice guidelines on the subject may not give adequate protection to privileged information in files seized pursuant to a warrant, and procedures for neutral determination of privilege issues should be considered.

• Improper Investigative Tactics and Biased Decisions: The Hyde Amendment (18 U.S.C. § 3006A) is a significant step in permitting vindicated defendants to seek a form of redress for prosecutorial misconduct in the institution or prosecution of criminal charges. The adjudication of a claim for attorney's fees under the statute requires judicial scrutiny of the prosecutor's tactics, including pre-indictment actions in the investigation, to determine if the government's position was "vexatious, frivolous, or in bad faith." That is the type of judicial review prohibited under the Supreme Court's decisions if a defendant raised it as a ground to dismiss an indictment. The statute is not clear, however, regarding when one is a "prevailing party" who can seek attorney's fees. For example, can a subpoena recipient who successfully quashes a subpoena seek attorney's fees as a prevailing party, or is the statute limited to those charged with crimes? Congress may wish to consider whether to extend explicitly the attorney's fee provision to pre-indictment proceedings, such as Rule 17(c) motions to quash subpoenas or Rule 41(e) motions for return of property improperly seized.

Conclusion

I appreciate this opportunity to provide a brief overview of my understanding of the relationship of the grand jury to the Constitution, and analysis of why the Supreme Court has taken such a hands-off approach to the conduct of prosecutors in leading grand jury investigations. I will be happy to answer any questions the Members of the Subcommittee on the Constitution may have.

In accordance with House Rule XI, clause 2(g)(4), I hereby certify that I have received no Government grants, contracts or subcontracts in this or in the two preceding fiscal years.

Subcommittee on the Constitution, Committee on the Judiciary

Hearing on Constitutional Rights and the Grand Jury

Testimony of Professor Peter J. Henning, Wayne State University Law School

Thursday, July 27, 2000

Summary of Prepared Testimony

• The importance of the grand jury is not its role in deciding whether to indict a defendant, despite the fact that the Fifth Amendment specifically identifies that act as a constitutional right of a defendant. It is the investigatory function, unmentioned in the Constitution, that gives the grand jury a key role in the judicial system.


• The label "grand jury investigation" is a misnomer because the grand jurors themselves have little if anything to do with the investigatory process. Prosecutors in the United States Attorneys Office and the investigative agencies--primarily the Federal Bureau of Investigation--control the scope and pace of the investigation.



• The key to the grand jury's investigatory power is the authority to issue subpoenas to compel the production of evidence and the appearance of witnesses. While witnesses appearing before the grand jury retain their Fifth Amendment privilege against self-incrimination, the Supreme Court has rejected all efforts to extend to grand jury proceedings the familiar constitutional protections of the Fourth and Fifth Amendments that are available in other police investigations.


• The Supreme Court consistently rejected efforts to allow claims of prosecutorial misconduct in the grand jury to be raised in the criminal prosecution in which the alleged misconduct occurred. In Costello v. United States, the Supreme Court prohibited any judicial review of facially valid indictments, so it is impossible to fashion a remedy for prosecutorial misconduct in grand jury investigations if, before granting a remedy, courts must take into account the impact of the violation on the grand jury decision to indict.


• The Supreme Court's refusal to constrain the prosecutor's conduct of grand jury investigations through constitutional or judicial rules reinforces the view that the grand jury is subject to prosecutorial manipulation. Assertions that prosecutors in fact abuse the process are often overblown, however, or at least are not supported by any empirical data showing widespread misuse of authority. Defendants often assert claims of prosecutorial misconduct in grand jury investigations for tactical reasons, to gain discovery of the government's case or to distract the prosecutors. Proposals to reform the grand jury that seek to formalize the decision-making process miss the real issue of providing a means for redressing prosecutorial misconduct when it occurs during the investigation. Congress should focus on investigatory issues related to improper disclosures during investigations, attorney-client privilege issues, and the right to seek attorney's fees when the government's position is in bad faith.