We will now continue our discussion about the Grand Jury.
Last week we briefly d
We will now continue our discussion about the Grand Jury.
Last week we briefly discussed the grand jury’s investigative power. As mentioned, the grand jury
indicts upon a finding of probable cause. Accordingly, the grand jury’s power to investigate is
quite encompassing. As discussed by the US Supreme Court in US v R Enterprises (link appears
below), for the grand jury to determine probable cause, its investigative power is not limited by
probable cause to investigate; the threshold to investigate is way much lower. This is because the
grand jury cannot know in advance what information will be obtained in its investigation. Read
the case below:
https://supreme.justia.com/cases/federal/us/498/292/case.html
Last week, we also discussed that a target of an investigation is not constitutionally nor by any
Rule entitled to counsel inside the grand jury. (US v Mandujano; Rule 6) This does not mean that
a grand jury witness or target cannot have his attorney. If he/she does, counsel must wait outside
the grand jury room, and the witness/target is free to walk out and consult whenever necessary.
Because every citizen is required to appear before a grand jury, and normally one will not be under
police custody when so summoned, Miranda Warnings need not be constitutionally given. Hence,
anyone who incriminates or perjures himself before the Grand Jury cannot later invoke a lack of
Miranda Warnings (US v Mandujano page 2 of syllabus).
In addition, because the Grand Jury proceeding constitutes an investigative stage, prior to the
issuance of an indictment many other constitutional rights do not apply. For example, the
government is not required to provide the grand jury any exculpatory evidence (as is required of
the government to provide to the defense once formal criminal charges attach — something we
shall discuss during our class on Discovery) — (US v Williams page 2 of syllabus); likewise the
government can unlike in a criminal trial present evidence that may be suppressed if obtained in
violation of the IVth Amendment prohibition against unreasonable searches and seizures (US v
Calandra page 2 of syllabus). You are not required to read the Williams and Calandra cases,
however, its is recommended.
Witnesses who appear before the Grand Jury must normally answer all questions posed, except
any which may be self-incriminating and are thus protected by the Vth Amendment. Also, certain
questions need not be answered on the grounds of certain few and specific privileges, for example
attorney-client.
A Grand Jury witness cannot generically claim Fifth Amendment privilege. For example, he/she
cannot refuse to provide name, address and other non-incriminating information. Also, a witness
cannot decline to provide physical evidence, such as hair and blood samples, or remove her shirt
to show a scar or tattoo, or even provide a voice or handwriting sample. (US v. Dionisio and US
v Mara page 2 of syllabus — you are not required to read these cases as well; I am including them
for your information).
Witnesses who invoke the Vth Amendment may still be required to answer questions if the
Government immunizes them. That is, under the federal immunity statute, 18 USC sec 6002, once
immunity is given, the witness cannot be charged criminally regarding any testimony given, nor
from evidence derived from the testimony. Immunity, when used properly is a useful tool for the
Government to obtain evidence. If the witness refuses to answer, he/she can be found in criminal
contempt. The following short article and video further explain the concept of immunity. Please
read and view the same:
https://www.whitecollarcrimeresources.com/how-immunity-works-in-federal-criminal-cases.html
. After reading US v R Enterprises, what limits, if any, exist to a federal grand
jury’s investigative power. Please discuss and provide an original example not from
the case.
2. Agree or disagree with the following statement: While the government can
benefit from immunizing a witness, so too can a witness or target benefit from
immunity. Explain your answer.
3. Optional — Have any of you ever participated in a grand jury proceeding to
testify about an investigation? If so, what has been your general experience?
(Because the proceeding is confidential, you need not provide details; also if ongoing
do not answer)