[Congressional Record Volume 144, Number 53 (Monday, May 4, 1998)]
[Senate]
[Pages S4206-S4208]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. BUMPERS:
  S. 2030. A bill to amend the Federal rules of Civil Procedure, 
relating to counsel for witnesses in grand jury proceedings, and for 
other purposes; to the Committee on the Judiciary.


                     the grand jury due process act

  Mr. BUMPERS. Madam President, I am today introducing legislation 
which will remedy a longstanding injustice in our criminal justice 
system by granting to grand jury witnesses the right to the presence of 
counsel when testifying before the grand jury.
  In our legal system, the right to counsel is fundamental. Every 
person, no matter how guilty or innocent, deserves to have an advocate. 
So fundamental is this right to counsel that it was recognized by the 
founders and enshrined in the sixth amendment to the Constitution. 
Along with the right to an impartial jury, public trial, and the right 
to confront witnesses, it is a universal element of fundamental 
fairness recognized by every civilized system of justice. Lawyers may 
never be popular, said William Shakespeare in Henry VI, Act III Scene 
II: ``The first we do, let's kill all the lawyers.''
  But lawyers are a necessity. No one in his right mind wants to 
confront the judicial system without the benefit of a lawyer.
  The Anglo-American criminal justice system has given us more freedom 
and better justice than any country in the history of civilization. The 
rights of American citizens evolved over centuries of English and 
American history are now enshrined in the Bill of Rights and are the 
standards of freedom and liberty all over the world. We must not allow 
those rights to be eroded. No American would claim that our system is 
perfect, nor do I so claim. I am convinced beyond a doubt that our 
system has serious flaws, one of which most people are probably not 
even aware and many might find hard to believe in this day and age. A 
witness summoned before a grand jury has no right to the presence of 
his lawyer in the grand jury room. Depriving anybody of the right to 
counsel is fundamentally wrong. No person should be required to face 
any part of the criminal justice system without the presence of his or 
her lawyer if he or she chooses.

  Think of it this way. Police have absolutely no right to question an 
arrestee without his lawyer in the room unless the individual waives 
that right. The police even have a constitutional duty under the 
Miranda decision to advise people of their rights to a lawyer, even 
though anybody who has watched television in the last 35 years ought to 
know that they are entitled to a lawyer. If the police fail to observe 
this constitutional requirement, the statement by the accused is 
inadmissible in court.
  But when an ordinary citizen is called before a grand jury, no 
lawyer--no lawyers are allowed to be present. The prosecutor and the 
grand jury have the unlimited ability to question the witness, who is 
not even under arrest, without an attorney present. This gross 
inconsistency can only be described as Byzantine, an anachronism.
  I have never been one to say that criminal defendants have too many 
rights. They have no more than the Constitution entitles them. In this 
instance, however, a criminal defendant has more rights than the 
average ordinary citizen called before a grand jury. A criminal 
defendant cannot be questioned without a lawyer present, and he or she 
may invoke his or her right not to testify under the fifth amendment 
privilege against self-incrimination.
  But a witness, a witness in the grand jury room who may later become 
a target under criminal investigation, has no such rights. He or she 
must testify fully and truthfully, no matter how burdensome or 
embarrassing or impertinent or irrelevant the questions may be, and 
without the assistance of counsel. The rules of evidence which normally 
require that questions be relevant and material do not apply in the 
grand jury room. On the contrary, so-called ``fishing expeditions'' 
have become commonplace. No matter how irrelevant or outrageous the 
questions, the witness must answer.
  Madam President, I ask you or any American to consider whether, if 
you or your son or daughter were served a subpoena to testify before 
the grand jury on a criminal case, even though the grand jury is 
supposedly investigating somebody else, would you want the right to 
have your own lawyer in the room? Would you feel the process was a fair 
one if you were told that you were not legally entitled to have a 
lawyer present? What if you or your loved one were called before the 
grand jury for a second, third, or fourth time? Would you begin to feel 
that you might be under suspicion for something? And would you feel 
comfortable answering endless questions without your lawyer present?
  The grand jury is the only circumstance I can imagine in life where a 
free person does not have a complete legal right to hire a lawyer and 
have that lawyer accompany him in any kind of proceeding. No matter how 
serious the matter under consideration, no matter what the question--
from the most complex matter of tax accounting to the most personal, 
intimate family concerns--no matter how hazy your recollection might 
be, you have no right to a lawyer before the grand jury. The grand jury 
room is the one and only room in the courthouse, the very temple of 
justice, where the proceeding is entirely one-sided.

  Under existing law, there could be a sign on the grand jury room 
saying, ``No lawyers allowed.'' The Government has as many lawyers as 
the Treasury can pay. The witness has zero. Notwithstanding that he or 
she may be there against his or her will, notwithstanding the power of 
the grand jury and the prosecutor to indict, a witness before a grand 
jury is defenseless. He or she has no friend in the room. Surely, 
nobody feels so alone as a grand jury witness, knowing that the weight 
of the Federal criminal justice system rests on his or her every word. 
Give the wrong answer, you can be accused of perjury, obstruction of 
justice, or any other of a number of crimes. If you refuse to answer, 
you can go directly to jail without benefit of a trial, being held in 
contempt.
  Madam President, I ask you to consider, What kind of atmosphere is 
created in this one-sided proceeding? Is it one of fairness or is it 
one of intimidation? Bear in mind that there is no limit on the number 
of times a person may be called to testify before the same grand jury. 
In recent news reports--we have all read them--some people have been 
called to testify for the fifth or sixth time--no lawyer allowed--
before the same grand jury. If you were in this position, or a member 
of your family were, how would you feel about being called for the 
sixth time to testify without your lawyer present? Would you feel 
threatened or intimidated? And this kind of proceeding not only does 
not provide justice and fairness, it doesn't even provide the 
appearance of justice and fairness, which is essential if citizens are 
to have confidence in our criminal justice system.

[[Page S4207]]

  This system needs changing. The bill I am introducing is a modest 
proposal to give some balance to a very unlevel playing field. The main 
purpose of the original grand jury was probably helping in the 
collection of taxes. These ancient roots precede even the right to jury 
trial, because in the earliest times, trial was by ordeal. The accused 
was required to put his hand in boiling water or was tested by 
drowning. Needless to say, there weren't very many acquittals.
  The grand jury has always symbolized the power of the criminal 
justice system to bring any person before the bar of justice. No one is 
beyond the power of the grand jury to seek evidence and to indict if 
there is probable cause to believe that a crime has been committed. 
Even before the right to trial by jury was secured, English grand 
juries had power to investigate and to accuse. Composed of ordinary 
citizens, grand juries had the power to compel any person to appear and 
give testimony or evidence. Historically, the grand jury was a 
guarantor of liberty--a guarantor of liberty.
  The courts have often stated that the grand jury has a dual function. 
Listen to this. The courts have said that the grand jury has a dual 
function, ``to clear the innocent, no less than to bring to trial those 
who may be guilty.'' The grand juries exist ``as a means of protecting 
the citizen against unfounded accusation, whether it comes from the 
government, or be prompted by partisan passion or private enmity.''
  We just saw what private enmity is when somebody tried to set up 
Howard Baker in a tax fraud case.
  The Founding Fathers so respected the institution that they enshrined 
the right to indictment by a grand jury in the sixth amendment to the 
Constitution. Here it is:

       No person shall be held to answer for a capital, or 
     otherwise infamous crime, [and that has been interpreted many 
     times to mean a felony] unless on 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 * * *.

  That is amendment 5 to the Constitution. The grand jury should be 
both a sword and a shield, a powerful tool in the hands of prosecutors 
and a defender of liberty by protecting against meritless or 
overzealous prosecutions.
  In colonial America, a grand jury in Boston helped signal the 
beginning of the end of colonial government when the jurors refused the 
Government's request to indict the Stamp Act rioters. In modern times, 
however, the grand jury has become almost exclusively a sword and not a 
shield. Examples of the grand jury as a shield are hard to come by. In 
short, we have allowed the protection intended by the founders to take 
a 180-degree turn.
  The Supreme Court has conceded that the grand jury does not always 
serve its intended purpose of protecting the innocent. This is what the 
Supreme Court said in U.S. v. Dionisio:

       The grand jury may not always serve its historic role as a 
     protective bulwark standing solidly between the ordinary 
     citizen and an overzealous prosecutor.

  Those were the words of Justice Douglas. Douglas said in dissent in 
that case--he was much more explicit:

       It is, indeed, common knowledge that the grand jury, having 
     been conceived as a bulwark between the citizen and the 
     government, is now a tool of the Executive.

  Despite its ancient origins, the grand jury remains one of the most 
controversial aspects of our judiciary system. Most States have 
abandoned or abolished grand juries in favor of the filing of 
information by prosecutors. That is the way we do it in my home State 
of Arkansas. Many would argue that the grand jury is an anachronism 
which costs more than it is worth. In one of the most famous critiques 
of the institution, the Chief Judge of the State of New York stated 
that most grand juries would ``indict a ham sandwich'' if the 
prosecutor requested it.
  While some have argued for eliminating the grand jury, I am not one 
to second-guess the wisdom of our Founding Fathers. Rather, I believe 
we should make the system work as intended--as a protector of freedom--
by reforming the grand jury system so as to ensure due process of law 
for all concerned.
  In the 1970s, there was considerable debate in Congress over the 
merits of the grand jury following revelations of abuses of the system 
under the Nixon administration. There has been no serious congressional 
debate over the grand jury system for over 10 years. The time for that 
debate has come.
  Over 30 years ago, the Supreme Court said in Gideon v. Wainwright 
that counsel must be appointed for those who cannot afford a lawyer 
before any criminal trial in which a prison sentence may result.
  The bill I am introducing today is a logical extension of the sixth 
amendment to the Constitution, as well as the fifth amendment's promise 
of due process of law. Granted, a witness before a grand jury is not 
under immediate threat of indictment, but most of them are there 
against their will, and they are certainly looking over the abyss.
  Let me emphasize that my bill, although a departure from historical 
practice, is still a modest proposal. This bill would not in any way 
change criminal procedure except for allowing a witness' lawyer to be 
present in the grand jury room. The lawyer would not be allowed to 
speak to the jury or to examine witnesses. He or she would be able to 
advise his or her client and no more.
  Allowing the mere presence of a witness' lawyer will in no way 
disrupt or slow the grand jury proceedings. What it might do is to 
deter a prosecutor from doing something improper simply because he 
knows there is no other lawyer watching. It may give a witness some 
comfort to be able to ask his or her lawyer for advice before answering 
a complex question. That right is provided today, but the witness has 
to go outside the courtroom to see his or her counselor because the 
counsel is not allowed in the grand jury room.
  My bill will thus allow for grand juries to operate more smoothly and 
efficiently, reducing the need to stop proceedings so the witness can 
go out of the room and talk to his or her lawyer.
  This bill goes to the very reason lawyers exist. It may give the 
public more confidence that the proceedings are fair and balanced at a 
time when public confidence in the judicial system is about as low as 
it has ever been. If any of these purposes are met, my legislation will 
have served a noble purpose.
  Mr. President, I hope that all Senators will take note of this bill 
and that they will support it. It will be referred to the Judiciary 
Committee, and I hope that the committee will schedule hearings very 
promptly.
  I ask unanimous consent that the bill be printed in the Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                S. 2030

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Grand Jury Due Process 
     Act''.

     SEC. 2. GRAND JURIES.

       (a) In General.--Rule 6 of the Federal Rules of Criminal 
     Procedure is amended--
       (1) in subdivision (d), by inserting ``and counsel for that 
     witness (as provided in subdivision (h))'' after ``under 
     examination''; and
       (2) by adding at the end the following:
       ``(h) Counsel for Grand Jury Witnesses.--
       ``(1) In general.--
       ``(A) Right of assistance.--Each witness subpoenaed to 
     appear and testify before a grand jury in a district court, 
     or to produce books, papers, documents, or other objects 
     before that grand jury, shall be allowed the assistance of 
     counsel during such time as the witness is questioned in the 
     grand jury room.
       ``(B) Retention or appointment.--Counsel for a witness 
     described in subparagraph (A)--
       ``(i) may be retained by the witness; or
       ``(ii) in the case of a witness who is determined by the 
     court to be financially unable to obtain counsel, shall be 
     appointed as provided in section 3006A of title 18, United 
     States Code.
       ``(2) Powers and duties of counsel.--A counsel retained by 
     or appointed for a witness under paragraph (1)--
       ``(A) shall be allowed to be present in the grand jury room 
     only during the questioning of the witness and only to advise 
     the witness;
       ``(B) shall not be permitted to address the attorney for 
     the government or any grand juror, or otherwise participate 
     in the proceedings before the grand jury; and
       ``(C) shall not represent more than 1 client in a grand 
     jury proceeding, if the exercise of the independent judgment 
     of the counsel on behalf of 1 or both clients will be, or is 
     likely to be, adversely affected by the representation of 
     another client.
       ``(3) Powers of the court.--
       ``(A) In general.--If the court determines that counsel 
     retained by or appointed for a

[[Page S4208]]

     witness under this subdivision has violated paragraph (2), or 
     that such action is necessary to ensure that the activities 
     of the grand jury are not unduly delayed or impeded, the 
     court may--
       ``(i) remove the counsel and either appoint new counsel or 
     order the witness to obtain new counsel; and
       ``(ii) with respect to a violation of paragraph (2)(C), 
     order separate representation of the witnesses at issue, 
     giving appropriate weight to the right of each witness to 
     counsel of his or her own choosing.
       ``(B) No effect on other sanctions.--Nothing in this 
     paragraph shall be construed to affect the contempt powers of 
     the court or the power of the court to impose other 
     appropriate sanctions.
       ``(4) Notice.--Upon service of any subpoena requiring any 
     witness to testify or produce information at any proceeding 
     before a grand jury impaneled before a district court, the 
     witness shall be given adequate and reasonable notice of the 
     right to the presence of counsel in the grand jury room, as 
     provided in this subdivision.''.

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