The Fifth Amendment to the Constitution provides that ‘‘[n]o person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury . . .’’ Before any person can be ‘‘indicted’’ for a federal felony offense, Rule 7 of the Federal Rules of Criminal Procedure requires that a grand jury be convened to investigate and decide whether to go forward with the case. For misdemeanor offenses, this has been interpreted to allow charges to be pursued without the convening of a grand jury. In addition, the U.S. Supreme Court has held that the requirement to have a grand jury prior to a felony indictment does not apply to charges brought within the state criminal justice courts. As such, fewer than half of the states in the United States employ the use of a grand jury and have replaced them with the preliminary hearing at which a judge hears evidence concerning the alleged offenses and makes a decision on whether the prosecution can proceed.
Often referred to as the ‘‘fourth branch’’ of the federal government, the grand jury is one of the most valuable devices in a federal investigation. It not only assists in obtaining otherwise inaccessible evidence such as documents, handwriting samples, DNA, and voice exemplars, but a grand jury can also secure a witness’s testimony on the record and subject to perjury that may otherwise corroborate and serve as key evidence in a criminal investigation. It is also available only for the prosecution, thus ensuring the sanctity of the grand jury by not providing a defendant easy access or automatic right to grand jury materials. In addition, what may start as an investigation into one matter may lead into directions never envisioned and encompass new individuals to be targeted under a completely separate and different nature of allegations.
With its roots traced back to Frankish lineage, the grand jury concept was introduced into England after the conquests and the Assize of Clarendon recognized what was to become a forerunner of the modern grand jury of American jurisprudence. The Assize of Clarendon enacted
that inquiry be made in each county and in each 100 by 12 lawful men of the 100 and 4 lawful men of every township, who are sworn to say truly whether in their 100 or township there is any man accused of being or notorious as a robber or a murderer or a thief or anybody who harbors of robbers or murderers or thieves since the King began to reign and this let the justices and the sheriffs inquire, each officer before himself.
The English Crown originally devised the grand jury to augment royal authority, as well as defend the citizens against prosecutions thought to be malicious and oppressive. Basically, the purpose of the English grand jury was to provide a fair method for instituting criminal proceedings against persons believed to have committed crimes. However, as a note of interest, England abolished its use of the grand jury in 1933 and now uses a committal procedure, as does Australia.
With the foundation of the grand jury dating back nearly 900 years, the U.S. Supreme Court stated in Costello v. United States, 350 U.S. 541 (1956), that the original purpose of the grand jury, by acting as an independent body, was to act as a safeguard against unjustified prosecutions by scrutinizing evidence, determining probable cause, and protecting citizens from otherwise overzealous allegations. Mirroring its prior opinions, the Supreme Court in United States v. Dionisio, 410 U.S. 1 (1973), emphasized the grand jury’s ‘‘historic role as a protective bulwark standing solidly between the ordinary citizen and an overzealous prosecutor . . . [and for it to] even approach the proper performance of its constitution mission . . . it must be free to pursue its investigations unhindered by external influence or supervision.’’
As prescribed by Section 1783(a) of title 28 of the U.S. Code, the grand jury differs from the ‘‘petit’’ (trial) jury in that it is composed of twenty-three voting members, with sixteen to constitute a quorum, and twelve votes favoring to return a ‘‘true bill’’ indictment to charge an individual with a crime. The Supreme Court has also described the duties of the grand jury in United States v. Sells Engineering, Inc. to have the ‘‘dual function of determining if probable cause exists to believe that the crime has been committed and of protecting the citizens against unfounded criminal prosecutions.’’ To carry out this dual function, the grand jury has the authority to subpoena witnesses to testify and to produce physical and documentary evidence.
While most law enforcement agents work for a particular agency and/or in conjunction with a prosecutor, that agent actually acts on behalf of the grand jury in not only initiating the investigation, but also securing the witnesses and documents that build the case. Furthermore, a grand jury is designed to act independently and without the constraints of ‘‘technical, procedural and evidentiary rules governing the conduct of criminal trials’’ and may initiate an investigation on mere ‘‘suspicion,’’ without a showing of probable cause. Unlike law enforcement personnel, a federal grand jury may freely use investigative techniques without any ‘‘preliminary showing of reasonableness’’ to justify the exercise of their powers to investigate any person without probable cause or reasonable suspicion.
The cornerstone of the federal grand jury is that everything in the proceedings takes place beneath a ‘‘veil of secrecy.’’ The secrecy serves public as well as private interests and is codified by Rule 6(e) of the Federal Rules of Criminal Procedure. Everything from the subject of the investigation, who testified, what was said, what documents were subpoenaed to the identities of the grand jurors is considered secret. Only in rare circumstances and with a court order can the information from the grand jury be disclosed to outside parties.
The only individuals allowed in the grand jury are the attorneys for the government (serving as legal advisors), witnesses under examination, interpreters, stenographers, and the grand jurors. The investigating case agent, like a witness’s attorney, cannot be present along with a witness or sit with the prosecutor as he or she might during the actual trial. While states are not required to use a grand jury in charging a defendant, some state jurisdictions that do may vary from these federal procedures and allow for attorney representation within the grand jury room. Nongovernmental witnesses who appear before the federal grand jury, however, are free to discuss their testimony with anyone as evidenced during the Clinton/ Whitewater investigation.
Different types of witnesses are called to appear before a grand jury. Some may be considered ‘‘targets’’ of the investigation, and some may be mere testimonial whose involvement is limited to their conduct within the scope of the grand jury’s investigation. A ‘‘target’’ is a person for whom the grand jury has evidence linking him or her to the commission of a crime and is a potential defendant. Of significance with the federal grand jury is that witnesses have no legal right to be informed whether they a subject or target of the investigation; to be reminded of the right against self-incrimination or the right to counsel, or even to be told that the conduct in question is being investigated for possible violations of federal criminal law.
It is important to note that corporations do not have a Fifth Amendment privilege. Accordingly, records generated by corporations are not shielded by the privilege against self-incrimination, and neither a corporation nor its employees may avoid a grand jury subpoena for documents by asserting that the records may expose the corporation to criminal liability. In Braswell v. United States, 487 U.S. 99 (1998), the Court held that there is no Fifth Amendment privilege against the production of corporation records by a corporate representative, reasoning that corporations are artificial entities and can only operate through their agents and representatives. Courts have also found that the act of compelling the corporate custodian to identify documents produced does not violate the Fifth Amendment privilege. However, in United States v. Hubbell, 53 U.S. 27 (2000), the U.S. Supreme Court held that the mere act of producing documents under a grand jury subpoena could result in self-incrimination in certain circumstances.
If any witness refuses to testify, the prosecutor may seek a motion to compel from a judge, but must first obtain a grant of ‘‘transactional immunity’’ for the grand jury witness pursuant to Section 6003 of Title 18 of the United States Code. Once the prosecutor receives an order compelling a witness to testify, the witness is brought back before the grand jury and asked whether, despite the immunity order, he or she still refuses to answer questions. A witness’s failure to comply can subject the witness to contempt charges by the court. Generally, there are two forms of contempt: civil and criminal. Under civil contempt, a witness may be incarcerated for the life of the grand jury, but in no event any longer than six months, and the witness can purge the civil contempt by complying with the order. Under criminal contempt, a witness subject to contempt is punishable by fine or imprisonment (but not both). Unlike the civil contempt witness, a witness charged with criminal contempt cannot purge the contempt charge by subsequently agreeing to testify, and a federal court may impose a sentence of up to six months pursuant to Section 402 of Title 18 of the United States Code.
The ability to gather evidence through issuance of subpoenas is a central function of the federal grand jury. This process is rarely decided by the grand jury, but rather is directed and guided by its legal advisor— usually the prosecutor. These subpoenas are not limited to the jurisdiction from which they arose and have a nationwide service of process pursuant to Rule 17 of the Federal Rules of Evidence. A grand jury may issue dozens if not hundreds of subpoenas in investigations that range from complex white-collar to simple felonin- possession cases. There are two basic types of subpoenas: the subpoena ad testifcandum (to require witness testimony) and the subpoena duces tecum (issued for documents or other physical evidence).
Despite the vast scope of the grand jury’s power, it is not without its limits. It is inappropriate to issue a grand jury subpoena for the purpose of gathering evidence for a civil case, preparing for trial, harassing or intimidating the recipient of the subpoena, investigating cases not in that venue, or compelling a witness’s appearance at a federal prosecutor’s office for the sole purpose of conducting an interview.
As evidenced during the Whitewater investigation during the Clinton presidency, any investigation may start in one area and expand into a completely different allegation. The ability of law enforcement to investigate a case thoroughly derives from a wide variety of resources. Field interviews, running background checks on suspects, calling on reliable sources and informants, and, of course, a seasoned law enforcement officer’s instincts are all tools that help build a successful case. During any given case, the government may conduct long-term investigations in multiple ways: covert operations, search warrants, ‘‘crunching data,’’ and the powerful tool of the grand jury. While it is often said that a grand jury could ‘‘indict a ham sandwich,’’ another much quoted statement from the federal district court case, In re Grand Jury Proceedings, 4 F. Supp. 283, 284 (E.D. Pa. 1933), arguably summed it up best in recognizing that the grand jury is ‘‘an engine of discovery against organized and far reaching crime, it has no counterpart.’’
ROBERT DON GIFFORD
References and Further Reading
Cases and Statutes Cited