Prosecutors, Grand Juries, and Defense Attorneys

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1 CHAPTER 11 Prosecutors, Grand Juries, and Defense Attorneys OUTLINE Introduction: Bringing Charges and Mounting a Defense THE PROSECUTOR The Charging Decision Deciding Not to Prosecute Challenging the Decision Not to Prosecute Restrictions on Bringing Charges Unfair and Selective Prosecution Vindictive Prosecution Prosecution in Disregard of Legislative Intent Joinder Multiple Charges against the Same Individual Charges against Multiple Defendants THE GRAND JURY How a Grand Jury Is Constructed Duration Size Voting Requirements Selection of Members Secrecy of Grand Jury Proceedings Disclosure of Witness Testimony to the Defense Disclosure of Witness Testimony to Other Parties Enter the Patriot Act Rights of Witnesses Testifying before Grand Juries Right to Testify Being Advised of the Right Not to Testify Right to Counsel Investigative Powers of the Grand Jury Subpoenas Grants of Immunity Findings of Contempt Challenging a Grand Jury Indictment THE DEFENSE ATTORNEY The Right to Counsel in a Criminal Prosecution Due Process Origins The Contemporary Sixth Amendment Approach The Right to Counsel at Other Stages of the Criminal Process The Sixth Amendment Approach The Fifth Amendment Approach The Due Process/Equal Protection Approach Criminal Procedure in Post September 11 America Waiver of the Right to Counsel Indigent versus Nonindigent Defendants Right to Counsel of Their Choice Effective Assistance of Counsel When the Right Applies The Meaning of Effective Assistance THE COURTROOM WORK GROUP Conclusion Review Questions KEY TERMS prosecutor prosecutorial discretion selective prosecution pretextual prosecution vindictive prosecution joinder severance grand jury true bill subpoena ad testificandum subpoena duces tecum transactional immunity use and derivative use immunity contempt power variance pro se defense effective assistance of counsel courtroom work group

2 INTRODUCTION Bringing Charges and Mounting a Defense This chapter turns attention to the roles of the prosecutor, grand jury, and defense attorney. In a way, this chapter does not flow directly from the preceding chapter; for example, the right to counsel attaches to varying degrees well before the pretrial process is set into motion. Similarly, when the services of the grand jury are required, it can perform an investigative function well before the arrest stage of the criminal process. Prosecutors, too, perform a great deal of work before the pretrial process. Nevertheless, the functions of all three parties will be considered here for the sake of an orderly presentation. Just understand that the prosecutor, grand jury, and defense attorney do not necessarily enter the picture after the pretrial process has commenced. This chapter begins by focusing on the prosecutor and, in particular, the decision whether or not to charge. In this vein, this chapter also introduces restrictions on the prosecutor s charging decision as well as the notion of joinder. Most of the discussion will be limited to the prosecutor s role leading up to a criminal trial. To delve into the prosecutor s role at trial (e.g., the order and method by which the state s case is presented) would take the discussion into another area. The prosecutor s role at trial is best understood in terms of the law of evidence, a topic not typically taken up in criminal procedure class. Next, this chapter turns attention to the grand jury. The function of the grand jury is a source of some confusion to criminal procedure students. As such, the role of the grand jury is considered in detail, particularly when a grand jury is required and what roles it performs. This chapter also discusses the secrecy of grand juries, the rights of witnesses testifying before grand juries, and the various methods for challenging indictments. As with the section on the prosecutor, the grand jury section of this chapter is pretrial in nature. Indeed, the grand jury s function ceases once the charging decision has been made. KEY CASES Prosecutor Oyler v. Boles, 368 U.S. 448 (1968) Blackledge v. Perry, 417 U.S. 21 (1974) United States v. Batchelder, 442 U.S. 114 (1979) United States v. Lane, 474 U.S. 438 (1986) Grand Jury Hurtado v. California, 110 U.S. 516 (1884) Taylor v. Louisiana, 419 U.S. 522 (1975) Rose v. Mitchell, 443 U.S. 545 (1979) Butterworth v. Smith, 494 U.S. 624 (1990) United States v. Mandujano, 425 U.S. 564 (1976) United States v. Calandra, 414 U.S. 338 (1974) United States v. Dioniso, 410 U.S. 1 (1973) Hale v. Henkel, 201 U.S. 43 (1906) United States v. Miller, 471 U.S. 130 (1985) Defense Attorney Gideon v. Wainwright, 372 U.S. 335 (1963) Powell v. Alabama, 287 U.S. 45 (1932) United States v. Wade, 388 U.S. 218 (1967) Kirby v. Illinois, 406 U.S. 682 (1972) Johnson v. Zerbst, 304 U.S. 458 (1938) Strickland v. Washington, 466 U.S. 668 (1984)

3 Finally, this chapter turns to the role of the defense attorney in criminal procedure. The Fourth Amendment and interrogation sections of this text have already discussed the function of defense counsel at various stages of the criminal process. Those functions are revisited briefly in this chapter, but the focus is primarily on the defense attorney s role at trial. The bulk of the defense attorney section of this chapter concerns the accused s right to effective assistance of counsel. This chapter also discusses the waiver of counsel and the distinctions between privately retained counsel and public defenders. It concludes with some attention to the so-called courtroom work group. THE PROSECUTOR The prosecutor performs a valuable function in reinforcing the notion that a crime is an offense against the state. In fact, Article II, Section 3, of the U.S. Constitution states that the executive branch of the federal government shall take Care that the Laws be faithfully executed. This constitutionally mandated duty to execute the law usually falls on prosecutors. Of course, police officers, as part of the executive branch, do their part to execute the laws, but a strong argument can be made that prosecutors possess even more authority because of their ability to decide whether to bring formal charges against suspected criminals. Just as police officers have the discretion to decide whether to make an arrest, so, too, do prosecutors have enormous discretion. As the Supreme Court noted in Bordenkircher v. Hayes (434 U.S. 357 [1978]), [S]o long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely on his discretion (p. 364). Figure 11.1 presents a sample prosecutor s charging document. Prosecutors do not have unlimited discretion, however. There are important restrictions on their decision to charge. Some stem from the Constitution, while others stem from statutes and other related sources. The Charging Decision The prosecutor generally has the authority to decide whether to proceed with charges. This is known as prosecutorial discretion. He or she can elect not to charge for a number of reasons, even over strenuous objection on the part of the complainant or victim. The prosecutor s discretion can be further manifested by the act of plea bargaining (see Chapter 12); that is, he or she can accept a guilty plea for a lesser offense than the one charged. Finally, prosecutors sometimes have to answer to authorities that mandate, or at least strongly encourage, prosecution. 310 Deciding Not to Prosecute The most obvious reason for nonprosecution is lack of evidence. The prosecutor may determine that, based on the evidence presented to him or her by the police, the suspect is innocent. In such an event, there would be no point in proceeding to trial on the slight

4 The Prosecutor 311 FIGURE 11.1 Sample Prosecutor s Charging Document STATE OF MISSOURI, IN THE CIRCUIT COURT OF COLE COUNTY, MISSOURI DIVISION III vs. (DEFENDANT) (ADDRESS) (SSN/DOB) Plaintiff, Defendant. No. OCN No.(OCN) COMPLAINT Comes now, Prosecuting Attorney, Carl B. Cohen, being duly sworn according to Law, deposes and states upon information and belief, that the above-named defendant committed the following crimes, to-wit: CHARGES: (CHARGE) (DATE/PLACE) The facts which form the basis for this belief are: SUMMARY:(SUMMARY) (PROSECUTOR) (ASSISTANT) Prosecuting Attorney Subscribed and sworn to before me this (DATE). Source: Used courtesy of Cole County, Missouri. chance that a conviction would be obtained. Even if the prosecutor believes the suspect is guilty, if there is not enough evidence to obtain a conviction, then he or she will likely elect not to prosecute. There are other reasons not to prosecute, as well. For example, even if the state s case is strong, there may be an incentive not to prosecute. In particular, if it appears the defense s case is stronger, then it may behoove the prosecutor to proceed with charges against a different individual.

5 312 CHAPTER 11 Prosecutors, Grand Juries, and Defense Attorneys Nonetheless, prosecutors are human and, as such, can be influenced by the facts of a particular case. Say, for instance, that a law mandates life in prison for growing in excess of 1,000 marijuana plants. Assume further that a suspect apprehended for violating such a law has a spotless record, is married, and has four children. Would life in prison be the best punishment for such an individual, or would a fine, community service, or other sanction be more appropriate? This decision is up to the prosecutor, and depending on the nature of the case, he or she may elect not to proceed with charges. As another example, California s three strikes law requires life in prison for thirdtime felons. The first two felonies that qualify as strikeable under California s law can only be of certain varieties; typically, they are serious offenses. However, the third felony can be of any type. Critics of California s three strikes law often point to the man who was sentenced to prison for life for stealing a slice of pizza. Had the prosecutor that charged this individual been more sensible in exercising his or her discretion, then public outcry may not have been so significant. Another reason for not charging traces to economic concerns. Simply put, it is not possible, given the resource restrictions that exist in most public agencies (prosecutors offices included), to proceed with charges against every suspect. Not having the time to build a case because of a high caseload may effectively force a prosecutor to be lenient with certain individuals. DECISION MAKING EXERCISE 11.1 Reasons for Nonprosecution Another controversial reason for nonprosecution is a byproduct of the United States so-called war on drugs. Civil asset forfeiture statutes permit the forfeiture of money and property tied to criminal activity most frequently, the illicit drug trade. Many asset forfeiture statutes permit forfeited proceeds to go to the executive branch, which usually means the police but sometimes prosecutors. Some have argued that when there is not enough evidence to proceed with a criminal case, prosecutors can opt to pursue civil forfeiture, for which the burden of proof is generally lower. And as an added bonus, if a forfeiture action succeeds and a person s property is forfeited to the state, then the prosecutor may reap a financial reward for selecting a civil proceeding instead of a criminal one. Is the possibility of civil asset forfeiture a legitimate reason not to prosecute? That is, if a prosecutor chooses not to press criminal charges against someone, instead opting for forfeiture, should the decision be considered constitutional? Challenging the Decision Not to Prosecute A prosecutor s decision not to press charges is rarely challenged, but on occasion, higher authorities may get involved when they disagree with a prosecutor s decision. Failure to press charges can sometimes be questioned by a court, which can provide relief to individuals who disagree with the prosecutor s decision (e.g., NAACP v. Levi, 418 F.Supp [D.D.C. 1976]). Other times, a prosecutor s supervisor or other high-ranking official may step in. According to one source, Many states by statute confer upon the attorney general the power to initiate prosecution in cases where the local prosecutor has failed to act. In practice, however, attorneys general have seldom exercised much control over local prosecuting attorneys. 1 1 Y. Kamisar, W. LaFave, and J. Israel, Modern Criminal Procedure, 9th ed. (St. Paul, MN: West, 1999), p. 894.

6 The Prosecutor 313 The Decision Not to Charge Following are the facts reported by the U.S. District Court for the District of Columbia in NAACP v. Levi (418 F. Supp [D.D.C. 1976]), discussed on the previous page: On May 31,1971,Carnell Russ,a 24-year-old black,while operating his motor vehicle on an Arkansas highway,was arrested for an alleged speeding violation by Jerry Mac Green,a white state trooper.russ was accompanied by his wife,their minor children and an adult cousin.the trooper directed him to the County Courthouse.Russ complied and upon arrival,parked his vehicle and was escorted into the Courthouse by the arresting trooper and two other white law enforcement officers,charles Ratliff and Norman Draper.Minutes later,russ returned to the vehicle where his family awaited.he requested and received from his wife sufficient money to post the necessary collateral.he then joined the three officers who were close by observing his actions.the four retraced their steps with Russ again in custody.a short time thereafter,mrs.russ first observed two of the officers leave and minutes later an ambulance depart from the rear of the Courthouse area where her husband had just entered in the officers custody.she later learned that Mr.Russ,while under detention,had been shot in the center of his forehead by Ratliff and then transported to a hospital.green and Draper were the sole witnesses to the shooting. Her husband died from the gunshot wound within hours.(p.1112) Ratliff was indicted and found not guilty of voluntary manslaughter pursuant to an investigation by the state police. Criminal charges were not brought against the other two officers, and the case was closed. Does the prosecutor s decision not to pursue charges against the other officers seem reasonable? DECISION MAKING EXERCISE 11.2 Another way of preventing prosecutors from abusing their discretion (i.e., by failing to act) is to require them to abide by standards of conduct. These standards help prosecutors decide which cases are worthy of prosecution as well as what charges to pursue, all the while ensuring that they act in accordance with the law. Figure 11.2 (pages ) presents portions of the Code of Conduct for Judicial Employees, published by the Administrative Office of the U.S. Courts. Some U.S. jurisdictions require court approval of a prosecutor s decision not to pursue charges. The prosecutor is typically required to explain to the court in writing his or her reasons for failing to prosecute. While this approach may seem sensible on its face, the Supreme Court has been somewhat critical of judicial review of prosecutorial decisions. In Wayte v. United States (470 U.S. 598 [1985]), the Court gave this reason for avoiding judicial oversight: Such factors as the strength of the case, the prosecution s general deterrence value, the Government s overall enforcement plan are not readily susceptible to the kind of analysis the courts are competent to make (p. 606). In general, if the prosecutor s decision not to press charges stems from legitimate factors, such as lack of evidence or case backlog, then the decision should be honored. The prosecutor s decision should be honored even if he or she agrees to dismiss criminal charges if the defendant agrees not to file a civil suit. Another Decision Not to Charge Chief Lord, of the Springfield Police Department, arrested Nancy Simpson for tampering with a witness,terri Flanders, the alleged victim of an assault by a friend of Simpson s. Simpson hired an attorney, and discussions with the local prosecutor ensued. Simpson agreed to sign a written release in which she promised not to sue the city, its officials, or the alleged victim of the assault if the prosecutor dismissed the criminal charges.the criminal charges were dropped. Is fear of being sued a valid reason not to prosecute? DECISION MAKING EXERCISE 11.3

7 314 CHAPTER 11 Prosecutors, Grand Juries, and Defense Attorneys FIGURE 11.2 Code of Conduct for Judicial Employees A. Code of Conduct for Judicial Employees. CANON 1: A JUDICIAL EMPLOYEE SHOULD UPHOLD THE INTEGRITY AND INDEPENDENCE OF THE JUDICIARY AND OF THE JUDICIAL EMPLOYEE S OFFICE An independent and honorable Judiciary is indispensable to justice in our society. A judicial employee should personally observe high standards of conduct so that the integrity and independence of the Judiciary are preserved and the judicial employee s office reflects a devotion to serving the public. Judicial employees should require adherence to such standards by personnel subject to their direction and control.the provisions of this code should be construed and applied to further these objectives. The standards of this code shall not affect or preclude other more stringent standards required by law, by court order, or by the appointing authority. CANON 2: A JUDICIAL EMPLOYEE SHOULD AVOID IMPROPRIETY AND THE APPEARANCE OF IMPROPRIETY IN ALL ACTIVITIES A judicial employee should not engage in any activities that would put into question the propriety of the judicial employee s conduct in carrying out the duties of the office. A judicial employee should not allow family, social, or other relationships to influence official conduct or judgment. A judicial employee should not lend the prestige of the office to advance or to appear to advance the private interests of others. A judicial employee should not use public office for private gain. CANON 3: A JUDICIAL EMPLOYEE SHOULD ADHERE TO APPROPRIATE STANDARDS IN PERFORMING THE DUTIES OF THE OFFICE In performing the duties prescribed by law, by resolution of the Judicial Conference of the United States, by court order, or by the judicial employee s appointing authority, the following standards apply: A. A judicial employee should respect and comply with the law and these canons. A judicial employee should report to the appropriate supervising authority any attempt to induce the judicial employee to violate these canons. Note: A number of criminal statutes of general applicability govern federal employees performance of official duties.these include: 18 U.S.C. 201 (bribery of public officials and witnesses); 18 U.S.C. 211 (acceptance or solicitation to obtain appointive public office); 18 U.S.C. 285 (taking or using papers relating to government claims); 18 U.S.C. 287 (false, fictitious, or fraudulent claims against the government); 18 U.S.C. 508 (counterfeiting or forging transportation requests); 18 U.S.C. 641 (embezzlement or conversion of government money, property, or records); 18 U.S.C. 643 (failing to account for public money); 18 U.S.C. 798 and 50 U.S.C. 783 (disclosure of classified information); 18 U.S.C (fraud or false statements in a government matter); 18 U.S.C (misuse of franking privilege); 18 U.S.C (concealing, removing, or mutilating a public record); 31 U.S.C (misuse of government vehicle); 31 U.S.C (false claims against the government). In addition, provisions of specific applicability to court officers include: 18 U.S.C. 153,154 (court officers embezzling or purchasing property from bankruptcy estate); 18 U.S.C. 645 (embezzlement and theft by court officers); 18 U.S.C. 646 (court officers failing to deposit registry moneys); 18 U.S.C. 647 (receiving loans from registry moneys from court officer). This is not a comprehensive listing but sets forth some of the more significant provisions with which judicial employees should be familiar. B. A judicial employee should be faithful to professional standards and maintain competence in the judicial employee s profession. C. A judicial employee should be patient, dignified, respectful, and courteous to all persons with whom the judicial employee deals in an official capacity, including the general public, and should require similar conduct of personnel subject to the judicial employee s direction and control. A judicial employee should diligently discharge the responsibilities of the office in a prompt, efficient, nondiscriminatory, fair, and professional manner. A judicial employee should never influence or attempt to influence the assignment of cases, or Source: From Chapter 2, Code of Conduct for Judicial Employees, in Guide to Judiciary Policies and Procedures, vol. 2 (Washington, DC: Administrative Office of the U.S. Courts, September 19, 1995). Available online:<www.uscourts.gov/guide/vol2/ch2a.html>.accessed July 30,2002.

8 The Prosecutor 315 perform any discretionary or ministerial function of the court in a manner that improperly favors any litigant or attorney, nor should a judicial employee imply that he or she is in a position to do so. D. A judicial employee should avoid making public comment on the merits of a pending or impending action and should require similar restraint by personnel subject to the judicial employee s direction and control. This proscription does not extend to public statements made in the course of official duties or to the explanation of court procedures. A judicial employee should never disclose any confidential information received in the course of official duties except as required in the performance of such duties, nor should a judicial employee employ such information for personal gain. A former judicial employee should observe the same restrictions on disclosure of confidential information that apply to a current judicial employee, except as modified by the appointing authority. E. A judicial employee should not engage in nepotism prohibited by law. Note: See also 5 U.S.C (employment of relatives); 28 U.S.C. 458 (employment of judges relatives). F. Conflicts of Interest. (1) A judicial employee should avoid conflicts of interest in the performance of official duties. A conflict of interest arises when a judicial employee knows that he or she (or the spouse, minor child residing in the judicial employee s household, or other close relative of the judicial employee) might be so personally or financially affected by a matter that a reasonable person with knowledge of the relevant facts would question the judicial employee s ability properly to perform official duties in an impartial manner.... CANON 4: IN ENGAGING IN OUTSIDE ACTIVITIES, A JUDICIAL EMPLOYEE SHOULD AVOID THE RISK OF CONFLICT WITH OFFICIAL DUTIES, SHOULD AVOID THE APPEARANCE OF IMPROPRIETY, AND SHOULD COMPLY WITH DISCLOSURE REQUIREMENTS A. Outside Activities. A judicial employee s activities outside of official duties should not detract from the dignity of the court, interfere with the performance of official duties, or adversely reflect on the operation and dignity of the court or office the judicial employee serves. Subject to the foregoing standards and the other provisions of this code, a judicial employee may engage in such activities as civic, charitable, religious, professional, educational, cultural, avocational, social, fraternal, and recreational activities, and may speak, write, lecture, and teach. If such outside activities concern the law, the legal system, or the administration of justice, the judicial employee should first consult with the appointing authority to determine whether the proposed activities are consistent with the foregoing standards and the other provisions of this code.... CANON 5: A JUDICIAL EMPLOYEE SHOULD REFRAIN FROM INAPPROPRIATE POLITICAL ACTIVITY A. Partisan Political Activity. A judicial employee should refrain from partisan political activity; should not act as a leader or hold any office in a partisan political organization; should not make speeches for or publicly endorse or oppose a partisan political organization or candidate; should not solicit funds for or contribute to a partisan political organization, candidate, or event; should not become a candidate for partisan political office; and should not otherwise actively engage in partisan political activities. B. Nonpartisan Political Activity. A member of a judge s personal staff, clerk of court, chief probation officer, chief pretrial services officer, circuit executive, and district court executive should refrain from nonpartisan political activity such as campaigning for or publicly endorsing or opposing a nonpartisan political candidate; soliciting funds for or contributing to a nonpartisan political candidate or event; and becoming a candidate for nonpartisan political office. Other judicial employees may engage in nonpartisan political activity only if such activity does not tend to reflect adversely on the dignity or impartiality of the court or office and does not interfere with the proper performance of official duties. A judicial employee may not engage in such activity while on duty or in the judicial employee s workplace and may not utilize any federal resources in connection with any such activity. Note: See also 18 U.S.C. chapter 29 (elections and political activities).

9 316 CHAPTER 11 Prosecutors, Grand Juries, and Defense Attorneys Restrictions on Bringing Charges This section turns to situations in which charges are filed but for inappropriate reasons. In other words, whereas the previous sections considered situations in which the prosecutor fails to bring charges, this section considers situations in which the prosecutor cannot bring charges. There are three basic reasons a prosecutor cannot bring charges against an accused individual: (1) if the prosecution is unfair and selective (i.e., targets a certain individual unfairly); (2) if the prosecution is pursued for vindictive reasons; and (3) if the prosecution is pursued in disregard of statutory intent. The following subsections focus in detail on these situations. Before going ahead, it is important to point out that prosecutors may occasionally bring charges, say, for vindictive reasons. Assuming such conduct comes to the attention of someone in a higher position of authority, the prosecuting decision will essentially be overruled. That is, the charges against the accused will be dropped or, in the event that the person is charged and convicted, his or her conviction will be overturned. However, if a prosecutor brings charges for inappropriate reasons and this decision goes uncontested, then the charges will most likely stand. Unfair and Selective Prosecution If the prosecutor s decision to press charges is discriminatory in nature, the Fourteenth Amendment s equal protection clause can be violated. For example, in Yick Wo. v. Hopkins (118 U.S. 356 [1886]), the Supreme Court stated: Though the law itself be fair on its face and impartial in appearance, yet, if it is applied and administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the Constitution. (pp ) Oyler v. Boles, 368 U.S. 448 (1968) Simply put, if an individual is targeted for prosecution merely because he or she falls into a certain group (e.g., a minority group), then his or her constitutional rights will be violated. This is known as selective prosecution. Since Yick Wo, the Court has become more specific as to what constitutes selective prosecution. In Oyler v. Boles (368 U.S. 448 [1968]), the Court held that prosecution becomes selective and in violation of the equal protection clause only when it is intentional and is intended to target a certain class of cases...or specific persons. In that case, the defendant presented evidence that he was the only individual of six sentenced under a particular statute. The Court held that this was not discriminatory because the defendant was unable to demonstrate intent by the prosecutor or provide evidence that he fit the group targeted for prosecution. In fact, the Court noted: The conscious exercise of some selectivity in enforcement is not in itself a federal constitutional violation. Even though the statistics in this case might imply a policy of selective enforcement, it was not stated that the selection was deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification. (p. 456) Since the Oyler decision, the courts have imposed a three-pronged test for determining whether prosecution violates equal protection. It must be shown that (1) similarly situated individuals were not prosecuted, (2) the prosecutor intended for this to happen, and (3) the decision resulted from an arbitrary, rather than rational, classification scheme. An arbitrary classification scheme would be based on, for example, race or sex.

10 The Prosecutor 317 A rational classification scheme would be one that considers the evidence against each individual without regard to the color of his or her skin, country of origin, religious preference, sex, or other such criterion. Filing charges for discriminatory reasons is not the only type of unfair prosecution. Sometimes, prosecutors aggressively pursue conspicuous individuals and open themselves to criticism. This is not to say that highly public lawbreakers cannot be charged, however. Indeed, the courts have justified prosecution on the highest charge of certain individuals for the sole purpose of discouraging other people from committing the same offense. As one court noted, Selective enforcement may...be justified when a striking example or a few examples are sought in order to deter other violators (People v. Utica Daw s Drug Co., 16 A.D.2d 12 [1962], p. 21). What Is Selective Treatment? Donnerville instituted a zero-tolerance policy for speeding. Anyone who exceeded the posted speed limit by five or more miles per hour would receive a minimum $100 fine. The policy seemed to be working: Speeding was down, and revenue was up. However, one driver, Carol Wise, who had received a $1,000 ticket, claimed that she had been fined significantly more than other drivers. Moreover, she was prepared to present evidence that the reason for this was that she had said to the citing officer, You are a moron.the police force would be better off without the likes of you. Assuming Wise can present evidence that she was fined significantly more than other motorists, should she succeed with her claim that she was unfairly and selectively targeted? DECISION MAKING EXERCISE 11.4 In addition to being criticized for prosecuting high-profile offenders, prosecutors can also get into trouble for targeting the most significant offender in a group of offenders. To clarify, think of the conspicuous person cases discussed in the previous paragraphs, in which prosecutors opted to charge one offender instead of another, even though both were suspected of having committed the same offense. When a group of individuals is suspected of having committed various degrees of the same offense, why does the prosecutor only pursue the individual suspected of having committed the most serious offense? An example of a case illustrating this practice is State v. McCollum (159 Wis.2d 184 [App. 1990]). In that case, the court dismissed prostitution charges against nude female dancers. In its decision, the court pointed out that the male patrons of these dancers were not charged, even though Wisconsin law criminalized their behavior, as well. A fourth method by which prosecutors can open themselves to allegations of unfair and selective prosecution is through what is known as pretextual prosecution. This occurs when the prosecutor lacks the evidence to charge someone with a particular crime and so charges him or her with a lesser crime. However, prosecutors are rarely chastised for this type of conduct. For example, in United States v. Sacco (428 F.2d 164 [9th Cir. 1970]), a court noted that allowing a prosecutor to pursue lesser charges when the evidence to mount a more serious charge does not exist is perfectly acceptable. The Supreme Court recently decided a case dealing with alleged discriminatory prosecution. Specifically, in United States v. Bass (536 U.S. 862 [2002]), the Court considered a defendant s request for discovery of the Department of Justice s charging practices in capital cases. He alleged that blacks were disproportionately charged in such cases and that he was charged because of his race. His argument did not succeed, however.

11 318 CHAPTER 11 Prosecutors, Grand Juries, and Defense Attorneys DECISION MAKING EXERCISE 11.5 What Is Pretextual Prosecution? The district attorney (D.A.) suspects that Corinne Dwyer is running a call-girl service out of her suburban home.the D.A. does not have enough evidence to prosecute Dwyer for her prostitution activities, but he does have sufficient evidence to prosecute Dwyer for abandoning an appliance. Dwyer had put a refrigerator at the end of her driveway with a Free sign on it, in violation of a statute that provides that any person who discards or abandons or leaves in any place accessible to children, any refrigerator, icebox, deep freeze locker,... which is no longer in use, and which has not had the door removed or the hinges and such portion of the latch mechanism removed to prevent latching or locking of the door, is guilty of a misdemeanor. (This is an actual offense under the California Penal Code, Section 402b.) Dwyer is thus charged and argues that she has been unfairly targeted for pretextual prosecution, in violation of her Fourteenth Amendment right to equal protection.what should the court decide? Blackledge v. Perry, 417 U.S. 21 (1974) Vindictive Prosecution If a prosecutor s charging decision is motivated by revenge, then the resulting charge violates the due process clause of the Fourteenth Amendment. Specifically, if a prosecutor charges an individual simply because he or she is exercising his or her constitutional rights, such charges will not be allowed. This is known as vindictive prosecution. This was the decision reached in Blackledge v. Perry (417 U.S. 21 [1974]). In that case, the defendant was convicted in a lower court for misdemeanor assault with a deadly weapon. After the defendant filed an appeal with the county superior court, the prosecutor obtained an indictment charging the offender with felony assault for the same conduct. The defendant pled guilty to this offense and was sentenced to five to seven years. Notwithstanding the obvious double-jeopardy concerns (covered further in Chapter 14) raised by the prosecutor s conduct in this case, the Supreme Court concluded that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial (p. 33). The Court concluded further that such punishment after the fact must be overturned, unless the prosecutor can explain the increase in charges. The Supreme Court s decision in Blackledge applies only in limited contexts, a point that cannot be overemphasized. Namely, it applies only after (1) the charged individual exercises his or her legal rights and (2) the prosecutor increases the charges after the first trial. With regard to the latter restriction, this means that if the prosecutor threatens the defendant with more serious charges during the pretrial phase, the Fourteenth Amendment will not be violated. New evidence could come along during this phase, which may legitimately warrant a more serious charge. However, in United States v. Goodwin (457 U.S. 368 [1982]), the Supreme Court noted that it is possible for a prosecutor to act vengefully during the pretrial phase. It is possible, the Court noted, that a defendant in an appropriate case might prove objectively that the prosecutor s [pretrial] charging decision was motivated by a desire to punish him for doing something that the law plainly allowed him to do (p. 384). Furthermore, while the defendant is free to tender evidence to the court to support a claim that enhanced charges are a direct and unjustifiable penalty for the exercise of a procedural right...only in rare cases [will] a defendant be able to overcome the presumptive validity of the prosecutor s actions through such a demonstration (p. 384). In other words, if the more serious charging decision is made prior to trial, it is presumed that the prosecutor is not acting in a vindictive fashion, and the defendant must prove otherwise.

12 The Prosecutor 319 What Is Vindictive Prosecution? Cesar Fresco was arrested for uttering (i.e., giving, offering, cashing, or passing or attempting to pass) a forged document, which is a felony punishable by a prison term of 2 to 10 years. He has an extensive criminal history and has committed forgery in the past. The prosecutor offers a plea bargain to Fresco, giving him two choices: (1) He can plead guilty to the crime and the prosecutor will recommend a 5-year sentence, or (2) he can reject the plea, be prosecuted under the habitual offender statute, and face a potential life term.the prosecutor tells Fresco, If you do not accept this agreement, I will prosecute you as a habitual offender and you will go to prison for the rest of your life. Fresco rejects the plea and is convicted. Later, he sues, claiming that the prosecution was vindictive. Will he succeed? DECISION MAKING EXERCISE 11.6 Prosecution in Disregard of Legislative Intent Legislators sometimes pass new laws without realizing that identical laws are already on the books. In doing so, they have been known to penalize the same conduct differently under the new law compared to the old law. Prosecutors are then faced with deciding which law to invoke when pressing charges. Such was the issue raised in United States v. Batchelder (442 U.S. 114 [1979]). There, a man was sentenced to five years in prison for a firearms offense. The court of appeals reversed this decision, noting that another statute provided a maximum penalty of only two years for the same conduct. The court concluded that the intent of the legislature was to limit the prison term to the two-year term, not the five-year term. The case then went to the Supreme Court, which concluded that the legislature did not intend for one or the other statute to be used. Specifically, it found no appreciable difference between the discretion a prosecutor exercises when deciding whether to charge under one or two statutes with different elements and the discretion he exercises when choosing one of two statutes with identical elements (p. 125). The Court s decision in Batchelder makes it nearly impossible for an individual to challenge his or her conviction based on the fact that two statutes mandate different punishments for the same conduct. Indeed, the Court concluded that neither a due process nor an equal protection claim would be successful in such a situation. United States v. Batchelder, 442 U.S. 114 (1979) Summary. Thus, there are two clear situations in which it is inappropriate for a prosecutor to bring charges: (1) when such prosecution is unfair or biased and (2) when it is vindictive. A third possible situation is when the charging decision is in disregard of legislative intent, but based on the Supreme Court s decision in Batchelder, it would seem that prosecution under a harsher statute that penalizes the same conduct as a milder statute is not problematic. Fortunately, such prosecutions are rare. Joinder Joinder refers to a situation in which the prosecutor either (1) brings multiple charges against the same individual in the same trial or (2) brings charges against multiple individuals in the same trial. In determining whether either is appropriate, two questions must be asked: First, based on the jurisdiction in question, is joinder appropriate? Second, if joinder is appropriate, will it be unfairly prejudicial? An answer of no to the first question and yes to the second requires what is known as a severance. The question of whether joinder is appropriate is best resolved prior to trial, but sometimes joinder is not addressed until after trial. Assume, for example, that a single

13 320 CHAPTER 11 Prosecutors, Grand Juries, and Defense Attorneys United States v. Lane, 474 U.S. 438 (1986) defendant is charged in the same trial for assault and robbery. Assume further that he is convicted on both counts. If he later claims that joinder was inappropriate (which, incidentally, means the burden of proof falls on him) and succeeds with this argument, what will the result be? According to the Supreme Court in United States v. Lane (474 U.S. 438 [1986]), if this joinder has a substantial and injurious effect or influence in determining the jury s verdict (p. 449), then new and separate trials must be held. Multiple Charges against the Same Individual According to the Federal Rules of Criminal Procedure, multiple charges can be brought against the same individual under the following circumstances: when the charges arise out of (1) the same criminal event (e.g., robbery of a convenience store and assault when fleeing the scene); (2) two separate criminal acts that are tied together in some fashion (e.g., a convenience store robbery to obtain cash to buy and sell illegal drugs); or (3) two criminal acts that are the same or similar in character. 2 This latter circumstance is somewhat vague, but an example should clarify: If a serial killer uses the same modus operandi against his victims, he may be tried for several homicides in the same criminal trial. When the defense argues against joinder, there are a number of motivating concerns. First, there is the concern that the jury (or the judge, if a bench trial is held) will not consider the criminal acts for which the accused is charged separately. Another concern is that the jury will view all the evidence against the accused in a cumulative, rather than separate, fashion. Say, for example, that the prosecution presents eyewitness testimony against a defendant accused of robbery. Also assume that the prosecution presents a murder weapon allegedly used by the defendant on the victim of the robbery. The jury may consider together the eyewitness testimony and the murder weapon and arrive at the conclusion that the accused is guilty. But if the robbery and homicide were tried separately, the jury may not arrive at this conclusion so easily. Finally, another defense argument against joinder is that by trying an individual on several charges in the same trial, he or she will have difficulty asserting separate defenses to the criminal acts at issue. An obvious problem with joinder is the possibility of double jeopardy. When a prosecutor tries a person on several related crimes in the same trial, he or she must do so carefully. In short, the criminal acts alleged must be similar but not identical. Double jeopardy is considered in Chapter 14, but for now, an example may prove helpful: If the prosecutor charges an individual for first-degree as well as second-degree murder of the same victim in the same trial and the individual is convicted of both offenses, then it will be deemed unconstitutional. Charges against Multiple Defendants The second form of joinder is when multiple defendants are charged in the same criminal trial. The Federal Rules of Criminal Procedure state, Two or more defendants may be charged in the same indictment or information if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses. 3 In other words, joinder of defendants is reserved in most instances for crimes of conspiracy (i.e., crimes where two or more individuals plot during a criminal act). As with joinder of charges, joinder of defendants raises a number of concerns. For instance, the jury may get confused as to who, if anyone, is guilty and simply convict all of the defendants. Or the jury may convict one defendant who is perhaps less guilty than 2 Federal Rules of Criminal Procedure, Rule 8, issued by the 107th Congress, First Session, December 1, Available online: <www.house.gov/judiciary/crim2001.pdf>. 3 Federal Rules of Criminal Procedure, Rule 8[b].

14 The Grand Jury 321 another defendant who is clearly guilty simply because they associated together. Also, it is conceivable that one defendant may testify against another but then refuse to answer questions on cross-examination, citing self-incrimination concerns. There are clearly arguments against joinder, concerning both charges and defendants. However, there is one clear argument in favor of joinder namely, efficiency. Allowing prosecutors to join charges and defendants reduces court backlog and speeds up the administration of justice. THE GRAND JURY According to the 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. This part of the Fifth Amendment cannot be fully appreciated without considering the time in which it was written. The framers favored grand jury indictments in certain situations for fear that the prosecutor, a representative of government, could become too powerful in terms of making charging decisions. Indeed, the framers shared a clear sentiment that government should be kept in check, and the grand jury was one method of ensuring this. Despite that intent, the grand jury is no longer so independent. Instead, the grand jury is now highly dependent on the actions of the prosecutor. Grand juries still perform important investigative functions, and they are quite powerful in terms of, for instance, being able to subpoena witnesses and records. But their role today is tied closely to the prosecutor. In fact, almost every state makes the prosecutor the main legal adviser of the grand jury and requires him or her to be present during all grand jury sessions. However, in some states, the grand jury functions independently of the prosecutor. Even though the Fifth Amendment suggests that indictment by grand jury is guaranteed for certain offenses, this right has not been incorporated. In the 1884 decision of Hurtado v. California (110 U.S. 516 [1884]), the Supreme Court stated that indictment by a grand jury is not a right guaranteed by the due process clause of the Fourteenth Amendment. The Court stated: Hurtado v. California, 110 U.S. 516 (1884) [W]e are unable to say that the substitution for a presentment or indictment by a grand jury of [a] proceeding by information after examination and commitment by a magistrate, certifying to the probable guilt of the defendant, with the right on his part to the aid of counsel, and to the cross-examination of the witnesses produced for the prosecution, is not due process of law. (p. 538) It should be emphasized that just because the right to grand jury indictment has not been incorporated to the states, this does not mean that states do not require this method of prosecution. Several states do require that, for the most part, felonies are to be prosecuted only by grand jury indictment. The same is true for the federal system. Most states, however, permit prosecution by indictment or information. See Figure 11.3 for an overview of the mechanisms for filing serious charges in each state. So, since most states permit indictment or information, under what circumstances is one or the other method used? Typically, grand jury indictment will be the charging mechanism of choice when (1) the case is of great public and/or political significance; (2) the investigative power of the grand jury is useful; (3) the grand jury may be able to issue an indictment more quickly compared to holding a preliminary hearing and then issuing an information indictment; or (4) one or more witnesses is hesitant to speak in open court, preferring the secrecy surrounding grand jury proceedings.

15 322 CHAPTER 11 Prosecutors, Grand Juries, and Defense Attorneys FIGURE 11.3 Charging Methods for Serious Crimes by State Washington New Hampshire Vermont Maine Montana North Dakota Minnesota Massachusetts Oregon Nevada California Idaho Utah Arizona Wyoming Colorado New Mexico South Dakota Nebraska Kansas Oklahoma Iowa Wisconsin Missouri Arkansas Illinois Mississippi Michigan Tennessee Alabama Georgia New York Pennsylvania Indiana Ohio West Virginia Virginia Kentucky North Carolina South Carolina Connecticut New Jersey Delaware Maryland Rhode Island Texas Louisiana Florida Hawaii Alaska Key Grand jury indictment required Grand jury indictment required only in capital and life imprisonment cases Grand jury indictment not required Source: Based on S. S. Beale et al., Grand Jury Law and Practice, 2nd ed. (St. Paul, MN:West Publishing, 2001). How a Grand Jury Is Constructed A grand jury can be impaneled either by the court or the prosecutor. Usually, the court has this responsibility, but prosecutors are becoming increasingly able to decide whether a grand jury is necessary. The term grand jury should not be construed as singular; in larger jurisdictions, several grand juries may be acting at the same time. One or more could be performing investigative functions, and one or more others could be working on specific cases. Duration Once a grand jury has been convened, its members serve for a specified period of time. A term can last from one to three months but sometimes less, if the court or prosecutor believes that further deliberation is unnecessary. Under the Federal Rules of Criminal Procedure, a regular grand jury cannot serve for a period longer than 18 months, unless the court extends the service upon a determination that such extension is in the public interest. 4 Fortunately, people selected for grand juries do not have to meet every day; usually, a grand jury meets several days a month. 4 Federal Rules of Criminal Procedure, Rule 6[g].

16 The Grand Jury 323 FIGURE 11.4 California 11, 19, or 23 Hawaii 16 Washington 12 Oregon 7 Nevada 17 Idaho 16 Grand Jury Size Requirements by State Utah 9 15 Arizona Alaska Montana 11 Wyoming 2 Colorado 12 or 23 New Mexico 12 North Dakota 8 11 South Dakota 6 10 Nebraska 16 Kansas 15 Texas 12 Minnesota Oklahoma 12 Iowa 7 Wisconsin 17 Missouri 12 Illinois 16 Kentucky 12 Tennessee 13 Arkansas 16 Mississippi Alabama 18 Louisiana 12 Michigan Indiana 6 Ohio 9 Georgia New Hampshire 23 Maine Vermont New York Pennsylvania 23 West Virginia 16 Virginia 5 or 7 North Carolina South Carolina 18 Florida Massachusetts 23 Rhode Island Connecticut 1 3 New Jersey 23 Delaware 10 or 15 Maryland 23 DC Source: Data available online:<www.udayton.edu/~grandjur/stategj/sizegj.htm>. Size Grand juries are larger than ordinary trial juries. In the past, grand juries consisting of 24 or so people were not uncommon. Today, grand juries are usually smaller, or in the neighborhood of 16 to 20 people. One state, Tennessee, permits a grand jury of 13 individuals, but the voting requirements in that state are fairly restrictive. See Figure 11.4 for an illustration of grand jury size requirements by state. Voting Requirements Grand jury voting requirements also vary by state. The most common voting requirement is that 12 grand jury members must agree on an indictment. However, one state, Virginia, requires only four votes for issuance of a true bill, which is the endorsement made by a grand jury when it finds sufficient evidence to warrant a criminal charge. As with a petit jury (i.e., that used in criminal trials), a grand jury is headed by a foreperson, who is charged with, among other duties, signing the indictment and keeping track of the votes of each member. Figure 11.5 (page 324) presents a sample grand jury indictment. Selection of Members People are selected for a grand jury in the same way they are selected for an ordinary trial (i.e., petit) jury: They are subpoenaed. In some states, grand jury members are selected

17 324 CHAPTER 11 Prosecutors, Grand Juries, and Defense Attorneys FIGURE 11.5 Sample Grand Jury Indictment IN THE CIRCUIT COURT OF COLE COUNTY, MISSOURI STATE OF MISSOURI, ) Plaintiff, ) ) vs. ) Case No. ) OCN No. JOHN DOE, ) Defendant. ) INDICTMENT The Grand Jurors of the County of Lewis, State of Missouri, charge that the defendant, John Doe, in violation of Section ,RSMo, committed the class D felony of hindering prosecutions punishable upon conviction under Section (4) and RSMo, in that on or about March 5, 2003, in the County of Cole, State of Missouri, the defendant, for the purpose of preventing the apprehension of Lawrence Green for conduct constituting the crime of a felony of murder in the first degree and robbery in the first degree on or about March 4, 2003, by providing Lawrence Green transportation. Defendant is a prior offender under Sections and RSMo, in that he has pleaded guilty to or has been found guilty of a felony as follows: 1. On or about November 2, 1998, defendant pleaded guilty to; was convicted of or was found guilty of the felony of property damage first degree in the Circuit Court of Cole County, Missouri. A true bill Foreman Carl B. Cohen #24290 Prosecuting Attorney Received and filed this day of March, 2003, and bail set at $. Circuit Judge WITNESSES FOR STATE Source: Used courtesy of Cole County, Missouri. from a list of eligible voters. In others, they are selected from a list of licensed drivers. Still other states select grand jury members from a list of tax returns, telephone directories, and so on. Most people do not get the opportunity to serve on a grand jury because grand juries are not convened that frequently. The grand jury selection process usually involves two stages. First, a list of potential grand jury members is compiled by any of the methods (or others) just described. This

18 The Grand Jury 325 The pool from which a grand jury is selected must be a fair cross-section of the community. list of grand jury members is known as the venire. Next, people are selected from the list to serve on the grand jury. At both stages, constitutional complications can arise. First, special steps need to be taken to ensure that the list of potential grand jurors, like that for a typical petit jury, is fair and impartial. In particular, the defendant can raise constitutional challenges to the grand jury selection process if it is not fair and impartial. One such challenge is based on the equal protection clause. This requires showing that there is a significant disparity between a group s representation in the community and its representation on the grand jury (see Casteneda v. Partida, 430 U.S. 482 [1977]). Another constitutional challenge against the composition of the grand jury pool stems from the fair cross-section requirement announced in Taylor v. Louisiana (419 U.S. 522 [1975]). There, the Court held that systematic exclusion of a large distinct group from the pool from which the (petit) jury is chosen violates the Sixth Amendment. The same logic carries over to the grand jury. If, for example, a grand jury consists of all white members and 40 percent of the community is black, the fair cross-section requirement will have been violated. By contrast, if the grand jury does not contain a snake handler, a militant feminist, a rabbi, or some such specific type of individual, the fair crosssection requirement will not have been violated because these and other individuals do not constitute large, distinct groups. As for the selection of grand jury members from the pool, similar constitutional concerns can be raised. If, for instance, the grand jury pool is representative of a fair cross-section of the community, it is still possible that people could be excluded from the jury on a systematic basis. In Rose v. Mitchell (443 U.S. 545 [1979]), the Court held that the right to equal protection of the laws [is] denied when [the defendant] is indicted from a grand jury from which members of a racial group purposefully have been excluded (p. 556). The final composition of the grand jury can also be challenged on due process grounds (see Beck v. Washington, 369 U.S. 541 [1962]). Taylor v. Louisiana, 419 U.S. 522 (1975) Rose v. Mitchell, 443 U.S. 545 (1979) Secrecy of Grand Jury Proceedings Grand jury proceedings are intensely secretive. In United States v. Rose (215 F.2d 617 [1954]), the Third Circuit Court of Appeals announced several reasons for this:

19 326 CHAPTER 11 Prosecutors, Grand Juries, and Defense Attorneys (1) to prevent the escape of those whose indictment may be contemplated; (2) to insure the utmost freedom to the grand jury in its deliberations, and to prevent persons subject to indictment or their friends from importuning the grand jurors; (3) to prevent subornation of perjury or tampering with the witnesses who may testify before the grand jury and later appear at the trial of those indicted by it; (4) to encourage free and untrammeled disclosures by persons who have information with respect to the commission of crimes; [and] (5) to protect the innocent accused who is exonerated from disclosure of the fact that he has been under investigation, and from the expense of standing trial where there was no probability of guilt. (pp ) Notwithstanding these concerns, there are two categories of case law concerning grand jury secrecy: (1) cases addressing whether grand jury witness testimony should be supplied to the defense and (2) cases addressing the extent to which grand jury witnesses can share their testimony with other parties, such as other government officials. Disclosure of Witness Testimony to the Defense According to the Federal Rules of Criminal Procedure, grand jury proceedings can be shared with the defense when the defendant makes a showing that grounds may exist for a motion to dismiss the indictment because of matters occurring before the grand jury. 5 This type of disclosure is exceedingly rare and generally limited to situations in which there is evidence that prosecutorial misconduct occurred before the grand jury proceedings commenced. Butterworth v. Smith, 494 U.S. 624 (1990) Disclosure of Witness Testimony to Other Parties In Butterworth v. Smith (494 U.S. 624 [1990]), the Supreme Court declared that the First Amendment may provide an exception to the grand jury secrecy requirement. In that case, the Court held that a Florida statute that prohibited grand jury witnesses from recounting their own testimony violated freedom of speech. Butterworth dealt with a defendant who wanted to share his testimony with third parties. However, many more cases deal with the issue of whether other third parties (i.e., besides the defense) should be able to access the records of grand jury proceedings. One such case is Douglas Oil Co. of California v. Petrol Stops Northwest (441 U.S. 211 [1979]). In that case, the Supreme Court held that parties seeking access to grand jury records must show that the material they seek is needed to avoid a possible injustice to another judicial proceeding, that the need for disclosure is greater than the need for continued secrecy, and that their request is structured to cover only material so needed (p. 222). A third party that has traditionally been given greater latitude in terms of access to grand jury proceedings is the government. In fact, the Federal Rules of Criminal Procedure provide that no showing of particularized need is necessary in order to disclose information to other government attorneys who are assisting in prosecution. 6 However, when disclosure is sought by government officials who are not assisting in the prosecution, the Supreme Court has held that a showing of need does have to be made (see United States v. Sells Engineering, Inc., 463 U.S. 418 [1983]). Enter the Patriot Act Section 203(a) of the Patriot Act, passed in late 2001 (see Chapter 1 for an introduction), amends Rule 6 of the Federal Rules of Criminal Procedure, drastically altering the historic secrecy of grand jury proceedings. Specifically, the new version of Rule 6 allows the disclosure of foreign intelligence, counterintelligence, and foreign intelligence information that 5 Federal Rules of Criminal Procedure, Rule 6. 6 Ibid.

20 The Grand Jury 327 has arisen from a grand jury s investigation to a variety of federal officials in order to assist the official in receiving that information in the performance of his official duties (U.S. Patriot Act, Pub. L. No , 203a, 115 Stat. 272 [2001], p. 280). Prior to the Patriot Act, the records of all grand jury proceedings were closely guarded unless, for example, the defense could show a substantial need for such records to be disclosed. What is controversial about the portion of the Patriot Act addressing grand jury secrecy is the definition of the term foreign intelligence information. It includes the following: (A) information, whether or not concerning a United States person, that relates to the ability of the United States to protect against (i) actual or potential attack or other grave hostile acts of a foreign power or an agent of a foreign power; (ii) sabotage or international terrorism by a foreign power or an agent of a foreign power; or (iii) clandestine intelligence activities by an intelligence service or network of a foreign power or by an agent of foreign power; or (B) information, whether or not concerning a United States person, with respect to a foreign power or foreign territory that relates to (i) the national defense or the security of the United States; or (ii) the conduct of the foreign affairs of the United States. (p. 281) Note the whether or not language. Interpreted literally, this means that even information relating to U.S. citizens that results from grand jury investigations can be shared between law enforcement agencies. This provision of the Patriot Act seems to chip away substantially at the historical secrecy of grand jury investigations. Rights of Witnesses Testifying before Grand Juries Grand juries rely heavily on witness testimony. However, the rights afforded to grand jury witnesses differ significantly from those afforded to witnesses in other settings (e.g., at trial). Also, the rights afforded to the individuals targeted by grand jury investigations differ from those afforded to criminal defendants. The cases in this area revolve around three issues: (1) the right of the individual targeted by a grand jury investigation to testify; (2) whether grand jury witnesses are required to be advised of their right not to testify; and (3) the right to counsel as applied in grand jury proceedings. Right to Testify It is well known that the defendant in a criminal trial has a constitutional right to testify or not testify in his or her own defense. In contrast, someone who is the target of a grand jury investigation usually does not enjoy the right to testify. Indeed, several states do not even grant the target of a grand jury investigation the right to be present. This restriction is justified on the same secrecy grounds discussed earlier. Also, since many grand jury proceedings are investigative, there may not be a specific target until the proceedings have reached a close. In such a situation, it would be cumbersome to allow all potential targets to be present in order to give testimony in their defense. Being Advised of the Right Not to Testify When witnesses appear before grand juries, they enjoy the Fifth Amendment s privilege against self-incrimination. This is no different than in a criminal trial. However, a question has arisen in the courts over whether grand jury witnesses must be told that they can remain silent. In other words, the courts have grappled with whether the Miranda warnings should apply in the grand jury context. As noted earlier in this book, the Miranda warnings are only required during custodial interrogation. Therefore, the question must be asked, Are grand jury proceedings

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