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This is the second of a two-part series. It continues from Part I, which appeared on page 5 of yesterday’s edition of The Legal. There are few grounds to quash a subpoena for a personal appearance before the grand jury. A witness may not appeal the subpoena directly, but must disobey subpoena and challenge the subpoena at a contempt hearing. An exception to the rule is that a witness may demonstrate a physical inability to appear by a motion to quash. Upon receipt of a subpoena to testify, the witness should request to be notified of his or her status. Upon the witnesses’ request, the Department of Justice will inform the witness if he or she is a subject or target. A subject is a person whose conduct is within the scope of the grand jury’s investigation. A target is a person as to whom the prosecutor or the grand jury has substantial evidence linking him or her to the commission of a crime and, who, in the judgment of the prosecutor, is a putative defendant. Failure to notify a witness of his or her target status is not grounds for setting aside the indictment. The witness may assert certain testimonial privileges, and the notification to the prosecutor of the existence of certain privileges may excuse the witness from upon appearing. Department of Justice internal regulations permit the prosecutor to excuse a witness from appearing if the witness notifies the prosecutor that he intends to assert the Fifth Amendment to all questions. The assertion of the attorney client privilege or other privileges based upon factual premises will usually require a motion to quash to be heard by the court to substantiate the facts underlying the privilege. The power to compel compliance with grand jury subpoena lies with the court. A witness who refuses to appear may be held in criminal contempt or civil contempt. Review of Indictments Courts will not dismiss an indictment on grounds or the grand jury relied on evidence that the grand jury lacked sufficient evidence to indict or the indictment is based upon hearsay. Courts will not dismiss an indictment on grounds or the grand jury relied on evidence that may have been illegally obtained. The exclusionary rule does not apply to the grand jury. If trial results in conviction, a previous grand jury error will be deemed harmless. Each grand jury investigation in the Eastern District of Pennsylvania, in which a subpoena is issued, is assigned a supervisory district court judge who is selected by lot. Pursuant to a uniform docketing system, all motions pertaining to that docketed matter are referred to that judge for hearing. The judge will rule on questions of the scope subpoenas duces tecum or privileges relating to subpoenas ad testificandum, or issues of grand jury abuse. The Supreme Court has ruled that the district court has supervisory power to prevent grand jury abuse. This power is limited to errors that specifically prejudice the defendant. The supervisory authority cannot circumvent a harmless error inquiry prescribed by Fed. R. Crim. P. 52(a). As a practical matter, errors raised while the grand jury investigation is in process have a better chance at redress than if raised after the indictment. Right to Transcript At trial, pursuant to 18 U.S.C. Section 3500, the defendant is entitled to the grand jury testimony of any government witness who testifies at trial, after the witness has testified on direct. The defendant is entitled to his own grand jury testimony pursuant to Fed. R. Crim. P. 16. As to a non-indicted witness, the same rule of secrecy that prevents disclosure of grand jury testimony to third parties also generally prohibits a witness from receiving a transcript of his or her own testimony. A witness must show particularized need for obtaining the transcript that outweighs the traditional historical requirement of grand jury secrecy. Since the witness simply wants to review his or her own prior testimony, there should be little reason to deny such a request, although such requests are often denied. There are diverse rulings regarding a witness’s right to his or her own grand jury testimony. In one case a witness who was denied the transcript of his prior testimony alleged his memory had been impaired by an illness and skull fracture. After his second appearance before the grand jury, he was indicted for perjury. Other courts have permitted grand jury witnesses to review transcripts of their own testimony upon being recalled to appear before the grand jury. I am aware of a similar motion being granted in a major grand jury investigation in another district that is under seal. Stephen R. Delinsky, of the Boston office of Eckert Seamans Cherin & Mellot, said that he has often made this motion where a witness is recalled to the grand jury. Delinsky said he has been permitted to view the grand jury transcript approximately 50 percent of the time. The Prosecutor’s Role Is the grand jury an independent body? There is no doubt that the grand jury relies heavily on the prosecutor for advice, instruction and direction. The Advisory Committee Notes for the 1979 Amendment to Fed. R. Crim. P. 6(e) stated: “As noted in United States v. Gramolini: ‘Indeed a sophisticated prosecutor must acknowledge that there develops between a grand jury and the prosecutor with whom the jury has closeted a rapport – a dependency relationship – which can easily be turned into an instrument of influence on grand jury deliberations.’” The grand jury depends upon the prosecutor for direction. The prosecutor presents evidence, examines witnesses; and if the prosecutor believes an indictment is warranted, will present the written indictment to the grand jury and ask for a vote. This procedure may continue over months or years, depending upon the complexity of the case. The jurors are presented with multiple-count indictments, often of 30 counts or more. It is unrealistic to believe that the grand jurors read all the counts and weigh the evidence as to each count. According to a statement made by then Assistant Attorney General James Robinson to Congress in 2000, “Unless the grand jury has been previously instructed, at the conclusion of the evidence, the prosecutor typically reviews the elements of each offense and instructs the jurors regarding the legal framework for their evaluation of whether probable cause exists.” This vague statement of procedure is not a legal requirement. There is no obligation for the prosecutor to give the grand jury legal instructions. An incorrect instruction will not void an indictment. The prosecutor may give a closing argument, summing up the evidence. The prosecutor must refrain from giving his personal opinion whether there is probable cause to indict. There is no requirement for the prosecutor to present exculpatory evidence that would cause doubt as the probable cause whether the target of the grand jury committed an offense, no matter how substantial the exculpatory evidence. The prosecution is not obligated to produce evidence that would impeach the credibility of a key witness. As a practical matter, a prosecutor should present the grand jury with proof of a cooperating witness’s prior convictions, although failure to do so will not void the indictment. Often in complicated fraud, political corruption, or organized crime cases, the only witnesses to the crime or surrounding events are persons who are some way involved in the crime, or who have personal, political or business relationships with the major figures in the scheme. These individuals are reluctant to testify, even when granted immunity from prosecution pursuant to 18 U.S.C. sections 6001-6004. Prosecutors are often faced with evasive testimony by such witnesses. Questioning the evasive witness requires balance, as finding the truth is important, more so than offending the witness. Judge Leonard Hand said, “I agree that when faced with a potentially unwilling witness, the grand jury [the prosecutor] was free to press . . . [the] cross-examination hard and sharp; truth is more important than the sensibilities of the witness.” After making this statement, Hand then decided the prosecutor had gone too far. If counsel becomes aware of such heavy-handed examination tactics, the circumstance should be reported to the court, and a request should be made for an in-camera examination. In the past, some severe situations have caused supervisory courts to issue critical opinions, and even dismissing indictments on the grounds it produced a biased grand jury. Recently, courts are more prone to request that the prosecutors be disciplined by the Department of Justice, rather than dismissing the indictment. Does the grand jury ever refuse to indict? The answer is rarely. There are no readily available statistics; however, in the author’s opinion, the return of a no bill occurs less than 20 times a year in the entire country. One of the reasons for this is that federal prosecutors are not obligated to ask for a grand jury vote if the investigation fails to produce convincing evidence that an offense has been committed or produces evidence that is most likely to result in an acquittal. Unlike some state grand jury procedures where matters presented must be put to a vote, the federal prosecutor can simply abandon the investigation. When confronted with the adverse comments about the fairness of federal grand jury practice, prosecutors point out that the acquittal rate for federal indictments is very low. On average of all federal indictments returned each year, approximately 90 percent result in guilty pleas. Of those that go to trial approximately 85-90 percent result in convictions. In summary, the federal grand jury process is not an adversary system in which both sides appear before a tribunal. If the prosecutor is convinced a person has committed a federal crime and can be successfully prosecuted, an indictment will be returned. The defense counsel’s job is to obtain as much information about the government’s prospective case beforehand and make a personal presentation to the prosecutor that will dictate in favor of a declination. These declinations do occur, but they require a great deal of private investigation and preparation on the part of the defense counsel. Federal criminal defense practice is a highly specialized field based on a great deal on practical experience. PETER F. VAIRA is a principal shareholder in the Philadelphia law firm ofVaira & Riley. He is the author of Eastern District Federal Practice Rules, Annotated (Gann Law Books). He may be contactedconcerning issues of Eastern District practice at [email protected].

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