Grand Jury Clause: Doctrine and Practice

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Amdt5.1.1.2 Grand Jury Clause: Doctrine and Practice

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, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

The prescribed constitutional function of grand juries in federal courts1 is to return criminal indictments, but the juries serve a considerably broader series of purposes as well. Principal among these is the investigative function, which is served through the fact that grand juries may summon witnesses by process and compel testimony and the production of evidence generally. Operating in secret, under the direction but not control of a prosecutor, not bound by many evidentiary and constitutional restrictions, such juries may examine witnesses in the absence of their counsel and without informing them of the object of the investigation or the place of the witnesses in it.2 The exclusionary rule is inapplicable in grand jury proceedings, with the result that a witness called before a grand jury may be questioned on the basis of knowledge obtained through the use of illegally seized evidence.3 , to prohibit use of unlawful wiretap information as a basis for questioning witnesses before grand juries. Gelbard v. United States, 408 U.S. 41 (1972). In thus allowing the use of evidence obtained in violation of the Fourth Amendment, the Court nonetheless restated the principle that, although free of many rules of evidence that bind trial courts, grand juries are not unrestrained by constitutional consideration.4 A witness called before a grand jury is not entitled to be informed that he may be indicted for the offense under inquiry5 and the commission of perjury by a witness before the grand jury is punishable, irrespective of the nature of the warning given him when he appears and regardless of the fact that he may already be a putative defendant when he is called.6

Of greater significance were two cases in which the Court held the Fourth Amendment to be inapplicable to grand jury subpoenas requiring named parties to give voice exemplars and handwriting samples to the grand jury for identification purposes.7 According to the Court, the issue turned on a dual inquiry— “whether either the initial compulsion of the person to appear before the grand jury, or the subsequent directive to make a voice recording is an unreasonable ‘seizure’ within the meaning of the Fourth Amendment.” 8 First, a subpoena to appear was held not to be a seizure, because it entailed significantly less social and personal affront than did an arrest or an investigative stop, and because every citizen has an obligation, which may be onerous at times, to appear and give whatever aid he may to a grand jury.9 Second, the directive to make a voice recording or to produce handwriting samples did not bring the Fourth Amendment into play because no one has any expectation of privacy in the characteristics of either his voice or his handwriting.10 Because the Fourth Amendment was inapplicable, there was no necessity for the government to make a preliminary showing of the reasonableness of the grand jury requests.

Besides indictments, grand juries may also issue reports that may indicate nonindictable misbehavior, mis- or malfeasance of public officers, or other objectionable conduct.11 . Despite the vast power of grand juries, there is little in the way of judicial or legislative response designed to impose some supervisory restrictions on them.12 -68. Racial discrimination in selection of juries is constitutionally proscribed in both state and federal courts. See discussion under “Juries,” infra.

Within the meaning of this article a crime is made “infamous” by the quality of the punishment that may be imposed.13 “What punishments shall be considered as infamous may be affected by the changes of public opinion from one age to another.” 14 Imprisonment in a state prison or penitentiary, with or without hard labor,15 or imprisonment at hard labor in the workhouse of the District of Columbia,16 falls within this category. The pivotal question is whether the offense is one for which the court is authorized to award such punishment; the sentence actually imposed is immaterial. “When the accused is in danger of being subjected to an infamous punishment if convicted, he has the right to insist that he shall not be put upon his trial, except on the accusation of a grand jury.” 17 Thus, an act that authorized imprisonment at hard labor for one year, as well as deportation, of Chinese aliens found to be unlawfully within the United States, created an offense that could be tried only upon indictment.18 Counterfeiting,19 fraudulent alteration of poll books,20 fraudulent voting,21 and embezzlement,22 have been declared to be infamous crimes. It is immaterial how Congress has classified the offense.23 An act punishable by a fine of not more than $1,000 or imprisonment for not more than six months is a misdemeanor, which can be tried without indictment, even though the punishment exceeds that specified in the statutory definition of “petty offenses.” 24

A person can be tried only upon the indictment as found by the grand jury, and especially upon its language found in the charging part of the instrument.25 A change in the indictment that does not narrow its scope deprives the court of the power to try the accused.26 Although additions to offenses alleged in an indictment are prohibited, the Court has now ruled that it is permissible “to drop from an indictment those allegations that are unnecessary to an offense that is clearly contained within it,” as, for example, a lesser included offense.27 There being no constitutional requirement that an indictment be presented by a grand jury in a body, an indictment delivered by the foreman in the absence of other grand jurors is valid.28 If valid on its face, an indictment returned by a legally constituted, non-biased grand jury satisfies the requirement of the Fifth Amendment and is enough to call for a trial on the merits; it is not open to challenge on the ground that there was inadequate or incompetent evidence before the grand jury.29

This provision applies only in federal courts and is not applicable to the states, either as an element of due process or as a direct command of the Fourteenth Amendment. Hurtado v. California, 110 U.S. 516 (1884); Palko v. Connecticut, 302 U.S. 319, 323 (1937); Alexander v. Louisiana, 405 U.S. 625, 633 (1972). back
Witnesses are not entitled to have counsel present in the room. Fed. R. Civ. P. 6(d). The validity of this restriction was asserted in dictum in In re Groban, 352 U.S. 330, 333 (1957), and inferentially accepted by the dissent in that case. Id. at 346–47 (Justice Black, distinguishing grand juries from the investigative entity before the Court). The decision in Coleman v. Alabama, 399 U.S. 1 (1970), deeming the preliminary hearing a “critical stage of the prosecution” at which counsel must be provided, called this rule in question, inasmuch as the preliminary hearing and the grand jury both determine whether there is probable cause with regard to a suspect. See id. at 25 (Chief Justice Burger dissenting). In United States v. Mandujano, 425 U.S. 564, 581 (1976) (plurality opinion), Chief Justice Burger wrote: “Respondent was also informed that if he desired he could have the assistance of counsel, but that counsel could not be inside the grand jury room. That statement was plainly a correct recital of the law. No criminal proceedings had been instituted against respondent, hence the Sixth Amendment right to counsel had not come into play.” By emphasizing the point of institution of criminal proceedings, relevant to the right of counsel at line-ups and the like, the Chief Justice not only reasserted the absence of a right to counsel in the room but also, despite his having referred to it, cast doubt upon the existence of any constitutional requirement that a grand jury witness be permitted to consult with counsel out of the room, and, further, raised the implication that a witness or putative defendant unable to afford counsel would have no right to appointed counsel. Concurring, Justice Brennan argued that access to counsel was essential and constitutionally required for the protection of constitutional rights; Brennan accepted the likelihood, without agreeing, that consultation outside the room would be adequate to preserve a witness’ rights, id. at 602–09 (with Justice Marshall). Justices Stewart and Blackmun reserved judgment. Id. at 609. The dispute appears ripe for revisiting. back
United States v. Calandra, 414 U.S. 338 (1974). The Court has interpreted a provision of federal wiretap law, 18 U.S.C. § 2515, to prohibit use of unlawful wiretap information as a basis for questioning witnesses before grand juries. Gelbard v. United States, 408 U.S. 41 (1972). back
“Of course, the grand jury’s subpoena power is not unlimited. It may consider incompetent evidence, but it may not itself violate a valid privilege, whether established by the Constitution, statutes, or the common law. . . . Although, for example, an indictment based on evidence obtained in violation of a defendant’s Fifth Amendment privilege is nevertheless valid . . . , the grand jury may not force a witness to answer questions in violation of that constitutional guarantee. . . . Similarly, a grand jury may not compel a person to produce books and papers that would incriminate him. . . . The grand jury is also without power to invade a legitimate privacy interest protected by the Fourth Amendment. A grand jury’s subpoena duces tecum will be disallowed if it is ‘far too sweeping in its terms to be regarded as reasonable' under the Fourth Amendment. Hale v. Henkel, 201 U.S. 43, 76 (1906). Judicial supervision is properly exercised in such cases to prevent the wrong before it occurs.” United States v. Calandra, 414 U.S. 338, 346 (1974). See also United States v. Dionisio, 410 U.S. 1, 11–12 (1973). Grand juries must operate within the limits of the First Amendment and may not harass the exercise of speech and press rights. Branzburg v. Hayes, 408 U.S. 665, 707–08 (1972). Protection of Fourth Amendment interests is as extensive before the grand jury as before any investigative officers, Silverthorne Lumber Co. v. United States, 251 U.S. 385 (1920); Hale v. Henkel, 201 U.S. 43, 76–77 (1906), but not more so either. United States v. Dionisio, 410 U.S. 1 (1973) (subpoena to give voice exemplars); United States v. Mara, 410 U.S. 19 (1973) (handwriting exemplars). The Fifth Amendment’s Self-Incrimination Clause must be respected. Blau v. United States, 340 U.S. 159 (1950); Hoffman v. United States, 341 U.S. 479 (1951). On common-law privileges, see Blau v. United States, 340 U.S. 332 (1951) (husband-wife privilege); Alexander v. United States, 138 U.S. 353 (1891) (attorney-client privilege). The traditional secrecy of grand jury proceedings has been relaxed a degree to permit a limited discovery of testimony. Compare Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395 (1959), with Dennis v. United States, 384 U.S. 855 (1966). See Fed. R. Crim. P. 6(e) (secrecy requirements and exceptions). back
United States v. Washington, 431 U.S. 181 (1977). Because defendant when he appeared before the grand jury was warned of his rights to decline to answer questions on the basis of self-incrimination, the decision was framed in terms of those warnings, but the Court twice noted that it had not decided, and was not deciding, “whether any Fifth Amendment warnings whatever are constitutionally required for grand jury witnesses . . . .” Id. at 186. back
United States v. Mandujano, 425 U.S. 564 (1976); United States v. Wong, 431 U.S. 174 (1977). Mandujano had been told of his right to assert the privilege against self-incrimination, of the consequences of perjury, and of his right to counsel, but not to have counsel with him in the jury room. Chief Justice Burger and Justices White, Powell, and Rehnquist took the position that no Miranda warning was required because there was no police custodial interrogation and that in any event commission of perjury was not excusable on the basis of lack of any warning. Justices Brennan, Marshall, Stewart, and Blackmun agreed that whatever rights a grand jury witness had, perjury was punishable and not to be excused. Id. at 584, 609. Wong was assumed on appeal not to have understood the warnings given her and the opinion proceeds on the premise that absence of warnings altogether does not preclude a perjury prosecution. back
United States v. Dionisio, 410 U.S. 1 (1973); United States v. Mara, 410 U.S. 19 (1973). back
Dionisio, 410 U.S. at 9. back
410 U.S. at 9–13. back
410 U.S. at 13–15. The privacy rationale proceeds from Katz v. United States, 389 U.S. 347 (1967). back
The grand jury “is a grand inquest, a body with powers of investigation and inquisition, the scope of whose inquiries is not to be limited narrowly by questions of propriety or forecasts of whether any particular individual will be found properly subject to an accusation of crime.” Blair v. United States, 250 U.S. 273, 281 (1919). On the reports function of the grand jury, see In re Grand Jury January, 1969, 315 F. Supp. 662 (D. Md. 1970), and Report of the January 1970 Grand Jury (Black Panther Shooting) (N.D. Ill., released May 15, 1970). Congress has now specifically authorized issuance of reports in cases concerning public officers and organized crime. 18 U.S.C. § 333. back
Congress has required that in the selection of federal grand juries, as well as petit juries, random selection of a fair cross section of the community is to take place, and has provided a procedure for challenging discriminatory selection by moving to dismiss the indictment. 28 U.S.C. §§ 1861-68. Racial discrimination in selection of juries is constitutionally proscribed in both state and federal courts. See discussion under “Juries,” infra. back
Ex parte Wilson, 114 U.S. 417 (1885). back
114 U.S. at 427. back
Mackin v. United States, 117 U.S. 348, 352 (1886). back
United States v. Moreland, 258 U.S. 433 (1922). back
Ex parte Wilson, 114 U.S. 417, 426 (1885). back
Wong Wing v. United States, 163 U.S. 228, 237 (1896). back
Ex parte Wilson, 114 U.S. 417 (1885). back
Mackin v. United States, 117 U.S. 348 (1886). back
Parkinson v. United States, 121 U.S. 281 (1887). back
United States v. DeWalt, 128 U.S. 393 (1888). back
Ex parte Wilson, 114 U.S. 417, 426 (1885). back
Duke v. United States, 301 U.S. 492 (1937). back
See Stirone v. United States, 361 U.S. 212 (1960), which held that a variation between pleading and proof deprived petitioner of his right to be tried only upon charges presented in the indictment. back
Ex parte Bain, 121 U.S. 1, 12 (1887). Ex parte Bain was overruled in United States v. Miller, 471 U.S. 130 (1985), to the extent that it held that a narrowing of an indictment is impermissible. Ex parte Bain was also overruled to the extent that it held that it held that a defective indictment was not just substantive error, but that it deprived a court of subject-matter jurisdiction over a case. United States v. Cotton, 535 U.S. 625 (2002). While a defendant’s failure to challenge an error of substantive law at trial level may result in waiver of such issue for purpose of appeal, challenges to subject-matter jurisdiction may be made at any time. Thus, where a defendant failed to assert his right to a non-defective grand jury indictment, appellate review of the matter would limited to a “plain error” analysis. 535 U.S. at 631 (2002). back
United States v. Miller, 471 U.S. 130, 144 (1985). back
Breese v. United States, 226 U.S. 1 (1912). back
Costello v. United States, 350 U.S. 359 (1956); Lawn v. United States, 355 U.S. 339 (1958); United States v. Blue, 384 U.S. 251 (1966). Cf. Gelbard v. United States, 408 U.S. 41 (1972). back

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