Imagine you own a company that sells televisions imported from
Japan.
A federal prosecutor is trying to convince a grand jury to charge
you with misrepresenting what you paid for your TVs to avoid
dumping accusations. He calls the CEO of one of your competitors to
the stand and lets him wax poetic about the quality of American
workmanship and your distinct lack of patriotism. He mysteriously
fails to present evidence that favors you. Naturally, the grand
jury indicts.
Or imagine you sell some oil leases improperly. You discover and
report your own infractions, and the government says it won't
prosecute you if you pay back everyone you defrauded. You repay the
investors, and the prosecutor uses the information you volunteered
to win an indictment.
Can't happen? In fact, both cases are real. In too many cases,
prosecutors have gone from using federal grand juries for their
original purposes-to sift out weak cases and to protect the accused
from overaggressive police and prosecutors-to manipulating them by
presenting misleading and/or inadmissible evidence and withholding
evidence that favors defendants.
In an effort to curb this increased propensity for cutting corners
to win indictments, the National Association of Criminal Defense
Lawyers' Commission to Reform the Federal Grand Jury has developed
a Federal Grand Jury Bill of Rights. The commission, which included
such law luminaries as Anton Valukas, a U.S. Attorney during the
Reagan administration, and Larry D. Thompson, now the No. 2 man in
the Justice Department, recommended 10 reforms designed to return
the federal grand jury to its proper role. Not all are workable,
but many would help the system operate more efficiently by
exposing-and dismissing-weak cases.
Among the reforms:
No prosecutor shall knowingly fail to disclose to the
federal grand jury evidence that exonerates the target or subject
of the offense
In other words, if evidence suggests the subject is
innocent, move on.
The prosecutor shall not present to the federal grand jury
evidence that he or she knows to be constitutionally inadmissible
at trial
Although illegally seized evidence is admissible to the
grand jury, why should a prosecutor try to use such evidence to win
an indictment when he knows he can't use it to convict at
trial?
A target or subject of a grand jury investigation should
have the right to testify before the grand jury
If the targets of a grand jury investigation want to
explain their actions, prosecutors should let them. The explanation
may end the prosecution … or expedite it.
Federal grand juries shall no longer name unindicted
co-conspirators in a criminal conspiracy
If prosecutors can't hope to convict someone, why
disparage him? Why not simply mention the name during the trial, if
necessary?
All subjects or targets who don't receive immunity for
their testimony before a grand jury should be given Miranda
warnings before being questioned
Prosecutors routinely tell witnesses that they are not a
target of an investigation to get them to answer questions, only to
later use their answers to charge them.
All subpoenas for witnesses called before the federal grand
jury shall be issued at least 72 hours before the appearance, not
to include weekends and holidays, except for emergencies
These 11th-hour subpoenas, which help prosecutors
essentially mug unprepared witnesses, don't constitute fair
play.
Federal grand jurors shall receive meaningful jury
instructions, and defendants should have the right to copies of the
instructions after indictment
If people are guilty, tricks aren't necessary; they're
shortcuts that shouldn't be taken.
The commission also suggested witnesses be allowed to bring their
attorneys and obtain transcripts of their testimony. While these
sound like good ideas, they can be dangerous, especially with Mafia
and other gang defendants. Often, in these cases, the attorney is
there to make sure the witness doesn't give up gang secrets, which
has, of course, a chilling effect on testimony. Same goes for
transcripts. Witnesses sometimes need some deniability about their
testimony.
Running the justice system is more challenging than ever, thanks to
Sept. 11 and the ongoing terrorist threat. That's why it's more-not
less-important now than ever before that the grand jury function
properly.
Paul Rosenzweig is a senior legal research fellow in
the Center for Legal and Judicial Studies at The Heritage
Foundation (www.heritage.org) and an adjunct professor of law at
George Mason University.