[Congressional Record Volume 144, Number 53 (Monday, May 4, 1998)]
[Senate]
[Page S4202]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                 EXCULPATORY EVIDENCE AND GRAND JURIES

  Mr. BUMPERS. Madam President, on a separate matter, I want to inform 
my colleagues that I am also working on legislation that will require 
prosecutors, before they ask for an indictment, to also give the grand 
jury any exculpatory evidence they may possess.
  Prosecutors, as I previously outlined in some detail, have such an 
advantage, such an upper hand. Some of it is legitimate, and some of it 
is not. As one New York judge said, ``A grand jury will indict a ham 
sandwich'' if the prosecutor asked them to.
  I had a prosecutor tell me one time, ``This is the best grand jury I 
ever saw; it indicted everybody I asked them to indict.'' Of course 
they indicted everybody. They are putty in his hands.
  I will just give you an illustration of the kind of case that I am 
trying to get at.
  Let's assume that you are a prosecutor and you are getting ready to 
ask the grand jury to indict somebody for capital murder. Assume 
further that all the testimony that has been taken in that case said 
that the man who pulled the trigger and committed the murder was 
wearing a green jacket.
  Assume further that the prosecutor has had information come to him 
personally, though it has never been presented to the grand jury, that 
it was, in fact, a red jacket.
  I am making a rather extreme case here, but I ask you, in the spirit 
of elemental fairness, do you believe that the prosecutor, before he 
asks somebody to go on trial and possibly end up in the electric chair, 
is beholden in any way to tell the grand jury of totally exculpatory 
evidence that he may have in his possession?
  There is a Supreme Court decision, the name of which I forget, in 
which the Supreme Court ruled 5-4 that the prosecutor is absolutely 
under no compulsion to tell the grand jury of any exculpatory evidence 
in his possession. If that isn't a betrayal of everything that we 
Americans believe, including fundamental fairness, if that is not a 
betrayal of everything I was taught in law school, I cannot think of a 
more egregious case.
  Madam President, one of the reasons we have not had these debates in 
the past is because the crime rate in this country was soaring. And 
everybody was in a put-them-in-jail and throw-away-the-key mode. But I 
wanted my colleagues to stop and just reflect for a moment. God knows, 
I am not suggesting any guilty person should go free, but you heard 
that old story: Better that 1,000 guilty people go free than one 
innocent person be convicted.
  I did not do very much criminal trial work when I practiced law. I 
used to take maybe one case a year just so I would have to stay boned 
up on what the Supreme Court had ruled on, mostly rules of evidence and 
defendants' rights. And, yes, I defended a man one time that in my own 
mind I felt sure was guilty and the jury acquitted him. That sounds 
terrible to a lot of people who do not understand the criminal justice 
system. Everybody is entitled to a trial.
  So all I am saying is the crime rates are coming down. People ought 
to be in a little more circumspect mood about what the Founding Fathers 
meant. The most important thing I said in my former remarks a moment 
ago about the bill I am introducing today is that the law is supposed 
to be a shield as well as a sword. It is supposed to protect the 
liberty of people in this country as well as to prosecute the guilty. 
It also has an obligation to defend and free the innocent. So that is 
all these proposals I am making are calculated to do; keep a firm 
commitment to our elemental belief in fairness, in the rights of the 
innocent and, yes, to prosecute and convict the guilty.
  Madam President, I yield the floor and suggest the absence of a 
quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. DORGAN. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. DORGAN. Madam President, I ask unanimous consent to speak for 10 
minutes as in morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.

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