[Congressional Record Volume 144, Number 91 (Friday, July 10, 1998)]
[Senate]
[Pages S7955-S7958]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. BUMPERS:
  S. 2289. A bill to amend the Federal Rules of Criminal Procedure, 
relating to grand jury proceedings, and for other purposes; to the 
Committee on the Judiciary.


                     grand jury reform act of 1998

  Mr. BUMPERS. Mr. President, recently I introduced S. 2030, the Grand 
Jury Due Process Act, to provide witnesses who are subpoenaed by 
federal grand juries with a right to the presence of counsel in the 
grand jury room. I am today introducing more comprehensive grand jury 
reform legislation which will remedy several major flaws in the grand 
jury system which today undermine the fairness of America's judicial 
system.
  Criminal justice must provide for more than swift and sure 
punishment. It must ensure fairness and due process to the accused as 
well as to witnesses and victims of crime. In the majority of cases, 
our courts provide a greater measure of justice than any other system 
known to man. Yet our system remains far from perfect.
  Of all aspects of America's criminal justice system, the grand jury 
has become the weakest link in ensuring due process of law. It is 
telling that most States have discarded grand juries entirely. Yet, the 
Federal Government is constrained by the fifth amendment constitutional 
requirement for grand juries, so we have to find ways to make the grand 
jury system work better.
  The legislation I am introducing makes five critical grand jury 
reforms:
  First, it directs the district courts to give basic legal 
instructions to the grand jurors at the time they begin their work. 
These instructions will include basic legal principles--the power to 
call witnesses, the power to investigate, and the power to indict on

[[Page S7956]]

whatever charges the grand jury deems appropriate. No one would 
disagree with these basic instructions, but they are not required in 
the present grand jury system. Instead, grand jurors are told only as 
much about the law as the prosecutor chooses to tell them. My bill will 
change that.
  Second, this bill gives grand jury witnesses the right to be 
accompanied by counsel in the grand jury room. This section is 
virtually identical to S. 2030 which I have already introduced. It also 
requires that a witness subpoenaed to testify before a grand jury be 
advised of his right to be accompanied by counsel, of the privilege 
against self-incrimination and other basic rights when the subpoena is 
issued.
  Third, this bill strengthens enforcement of the existing rule on 
grand jury secrecy, which is a matter of first importance to the 
integrity of the justice system. News reports indicate that grand jury 
secrecy is now being violated on a regular basis.
  Fourth, this bill mandates that prosecutors disclose to the grand 
jury any substantial evidence they possess which indicates that the 
accused is not, or may not be, guilty. While this may seem elementary 
to most Americans, it is contrary to a Supreme Court decision, United 
States v. Williams--a very recent decision--which held that the 
prosecutor has no such constitutional obligation.
  Fifth and finally, this bill entitles a defendant to a transcript of 
the grand jury testimony of all witnesses who are called against him at 
trial. This is a matter of basic fairness. Anyone charged with a crime 
should have a right to know what a witness against him has told the 
grand jury. Knowing the witness's prior testimony is the essence of the 
right of cross-examination enshrined in the confrontation clause of the 
sixth amendment.


                               background

  Grand juries have enormous power and they offer few protections to 
those who are called as witnesses or who are subject to investigation. 
Under the fifth amendment to the Constitution, Federal felony 
prosecutions must include indictment by a grand jury. This provision 
was intended to protect citizens against prosecutions which are without 
merit or which are politically motivated. The Founding Fathers had 
plenty of experience with prosecutorial misconduct by the English 
crown. That is the reason they inserted the grand jury into the 
Constitution. The Grand Jury was to be a bulwark against a tyrannical 
government.
  My own observations of grand juries go back to my years as a small 
town defense lawyer, but they are reinforced by present day cases and 
news reports. Too often, I have seen criminal prosecutions which should 
never have been brought, or witnesses who have been abused by 
prosecutors. Recently, newspapers are filled with stories of secret 
grand jury testimony--often attributed to prosecution sources--and of 
witnesses who have been called back to testify a fourth or fifth or 
sixth time before the same grand jury. Many of these witnesses are 
obviously not criminals, at least in a reasonable person's 
understanding of the word.
  To understand today's grand jury system, you must understand history. 
The grand jury, Mr. President, is one of the common law's most ancient 
institutions. Its roots go back even further than Magna Carta. In 1166, 
King Henry II proclaimed the Assize of Clarendon which required that 12 
``lawful men'' out of every hundred be sworn to tell whether they knew 
of any crimes committed in their towns. In these early days, grand 
juries operated mostly on the personal knowledge of the grand jurors.

  The grand jury then, like today, only had power to accuse. In those 
days, trial was by ordeal. The accused either had his hand placed in 
boiling water or was bound and thrown into a lake. If he survived 
without injury, this was an acquittal. It was not until the 13th 
Century that our English forbearers secured the right to a trial by 
jury.
  Trial by ordeal was supposedly abolished long ago, but I wonder 
whether many of today's grand jury witnesses might dispute this.
  In English and American history up until the time of the 
Constitution, grand juries were a bulwark of freedom which stood 
between oppressive government and the individual. Grand juries often 
disagreed with English and colonial judges who were in service to the 
Crown. These feuds helped define both the power of the grand jury and 
the liberties of free people. For example, grand jurors in colonial 
Massachusetts adamantly refused demands by the Crown to indict the 
colonists who had participated in the Stamp Act riots.
  Unhappily, the grand jury's role as defender of liberty, has changed 
dramatically for the worse over the years. Too often, the grand jury 
has become an arm of the executive branch and a rubber stamp for the 
prosecutor. In modern times, the Supreme Court has held that a grand 
jury may call witnesses to satisfy the mere suspicion that a crime may 
have been committed.
  Grand juries have been judged so superfluous by the states that about 
half of them decided long ago to eliminate grand juries and allow 
criminal charges to be brought directly by prosecutors.
  The chief judge of the State of New York remarked several years ago 
that most grand juries would indict ``a ham sandwich'' if the 
prosecutor so requested. A recent Supreme Court decision, United States 
v. Williams, the Court has held that the District Courts have no 
supervisory power over grand juries, and that grand juries are not even 
part of the judiciary. I disagree strenuously with Justice Scalia's 
conclusions in the Williams case. If grand juries are not accountable 
to the courts, then who are they accountable to?


                          Instructions of Law

  Under present Federal law, grand jurors receive no instructions on 
the law except for whatever the prosecutor may choose to tell them. 
This bill will provide for the District Court which empanels the grand 
jury to give some very basic legal instructions to the jurors before 
they begin their work. Included among these are the grand jury's duty 
to inquire into criminal offenses that have been committed in the 
jurisdiction; the right to call and interrogate witnesses; the right to 
request production of documents, including exculpatory evidence; the 
necessity of finding credible evidence of each element of the crime 
before returning an indictment; the right to ask the prosecutor to 
draft indictments for charges other than those originally presented; 
the obligations of grand jury secrecy; and such other rights and duties 
as the court deems appropriate.
  Mr. President, there is no good reason why these instructions should 
not be given. These rules of law are universally accepted. It makes no 
sense for the grand jury not to be told what its legal powers and 
duties are, and I cannot imagine that this provision would be disputed.


                            Right to Counsel

  Mr. President, as I indicated before, the institution of the grand 
jury goes back more than 800 years in Anglo-American legal history. but 
it was not until 1963 that the Supreme Court held in Gideon v. 
Wainwright that a man may not be sent to prison without having had a 
lawyer at trial. Under Gideon, a person unable to pay for a lawyer must 
have counsel appointed to represent him, or else the requirement of due 
process of law has not been met.
  In 1964, the Court held in Miranda v. Arizona that criminal 
defendants must be advised by the police of their right to counsel and 
of the Fifth Amendment privilege against self-incrimination. These 
rights are basic American freedoms which are the hallmarks of due 
process of law. And nobody today would take us back to the old days 
when those rules were not in effect.
  Our ideas of due process have changed for the better over the 
centuries. One legal tradition which has not changed, however, is the 
lack of counsel before the grand jury. A witness who is not a criminal 
defendant but who is legally summoned to testify by the grand jury may 
not have his lawyer in the room. This rule of law is perverse to say 
the least in that it gives criminals, or accused criminals, more rights 
than innocent people.
  A criminal defendant today has greater rights than an ordinary, 
unaccused witness testifying before a grand jury. The Federal Rule of 
Criminal Procedure which prohibits the presence of counsel for a 
witness is an anachronism, and it will be changed by this bill, as well 
as by S. 2030 which I previously introduced.


                          Exculpatory Evidence

  Even with a lawyer for the witness present, the grand jury will 
always be

[[Page S7957]]

a one-sided affair in which only the prosecutor presents evidence. My 
bill will not change that. The prosecutor will naturally present only 
the evidence most favorable to the government. The Supreme Court has 
held that a prosecutor has no constitutional obligation to present the 
grand jury with any exculpatory evidence. This case, United States v. 
Williams, was a 5-4 decision written by Justice Scalia and as I said, 
in my opinion, it could not be more wrong.
  If due process of law means anything at all, it means that both sides 
of a case must be heard. How can due process permit the government to 
withhold evidence which might prevent the indictment from even being 
issued?
  My bill today reverses United States v. Williams by amending the 
Rules of Criminal Procedure to require that prosecutors present the 
grand jury any substantial evidence which directly negates the guilt of 
the accused.
  This bill will not make the grand jury a ``mini-trial'' since the 
accused will not be able to present evidence or to cross-examine. But 
the Government will be required to tell the grand jury, before it 
decides to indict, of substantial evidence against guilt. Due process 
of law requires no less. those who are not guilty. It is no answer to 
say that evidence of innocence can be considered at trial, and the jury 
will correct mistakes of the grand jury. If the Government has evidence 
which--if it were shown to be the grand jury--would lead the grand jury 
not to indict, the government must share that evidence with those who 
have power to indict. U.S. v. Williams is a gross misreading of due 
process which cries out for correction.


                           grand jury secrecy

  Mr. President, the secrecy of grand jury proceedings is a matter of 
fundamental importance which is already clearly required by Rule 6(e) 
of the Federal Rules. Yet the rule is flouted on almost a regular 
basis. Weekly, if not daily, the newspapers have carried stories about 
the several Independent Counsels' investigations which begin, ``Sources 
close to the investigation report  * * *'' Every time the law regarding 
grand jury secrecy is violated, a fair and impartial trial is 
impossible.
  Grand jury secrecy is as ancient as the institution itself. Without 
it, our judicial system would degenerate into a horrific state. An 
indictment is already tantamount to guilt in the opinion of most 
people. At the same time, the grand jurors must be insulated from 
outside pressure which might influence their decisions to indict or 
not. Grand jury secrecy is necessary for the protection of both 
witnesses and grand jurors.
  The grand jury hears all kinds of testimony--some true, some 
scurrilous. Many things said to the grand jury may be incredibly 
damaging to people if they are revealed. Since the accused and his 
lawyer are not in the room, there is no safeguard of cross-examination. 
False testimony can easily go undiscovered until trial, which is one 
reason grand jury secrecy is so important.
  If the public learns that a witness has made some horrendous 
accusation, it will be cold comfort that the grand jury later decides 
not to believe the testimony and not to indict.
  More than one witness has lost his life when it was learned that he 
had testified against a leader of organized crime or a murderer. Grand 
jury secrecy can literally be a matter of life and death. Its 
importance to law enforcement and the cause of justice cannot be 
overstated.
  At the same time, a witness who has testified before a grand jury is 
perfectly free, if he so chooses, to go on television and tell the 
world what he or she has testified to.
  Present law places responsibility for enforcing grand jury secrecy on 
the prosecutor. If a member of the prosecution staff is leaking to the 
press, this is the clearest conflict of interest. Asking any prosecutor 
to investigate his own conduct is an obvious conflict of interest. Yet 
that is what present law provides.
  Mr. President, the way to resolve this problem is to place authority 
for investigating violations of grand jury secrecy on the District 
Court which empaneled the grand jury in the first place. My bill does 
exactly that by giving the Court power to appoint an investigator or 
counsel if necessary to determine the source of leaks. It should be the 
exceptional case where such action will be necessary.
  The existence of the possibility of an independent investigation 
should be enough to deter any prosecutor from breaching grand jury 
secrecy.
  Mr. President, the public's confidence in law enforcement, in the 
courts, and in the administration of justice for all Americans has 
taken a beating in recent years. Time and again, we have seen 
misconduct by police and prosecutors, as well as jury verdicts and 
court judgments that seem to defy reason and common sense. This 
Congress has an extraordinary opportunity to restore public confidence 
in the judicial system. Almost every point in this bill is long-
standing policy supported by the American Bar Association. I believe 
the public and the bar will widely support these changes, and I hope my 
colleagues will move swiftly to enact this bill into law.
  Mr. President, I yield the floor.
  Mr. WARNER addressed the Chair.
  The PRESIDING OFFICER. The distinguished Senator from Virginia.
  Mr. WARNER. Thank you.
  I listened with great interest to my colleague's presentation of his 
bill, and it is quite interesting. You have never ceased in this 
institution to take on some of the toughest challenges.
  Mr. BUMPERS. Thank you.
  Mr. WARNER. I foresee some tough hills to climb within this 
legislation before it is through. But anyway, you are the man to do it 
if it is to be done. I cannot pass judgment at this time, but having 
been a prosecutor and having spent some time myself in this area, it is 
quite interesting.
  Mr. BUMPERS. Mr. President, I ask unanimous consent that the text of 
the Grand Jury Reform Act, which I am introducing today, be printed in 
the Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                S. 2289

       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 Reform Act of 
     1998''.

     SEC. 2. GRAND JURIES.

       (a) In General.--Rule 6 of the Federal Rules of Criminal 
     Procedure is amended--
       (1) in subdivision (a), by adding at the end the following:
       ``(3) Instruction on rights, responsibilities, and 
     duties.--Upon impaneling a grand jury, the court shall 
     instruct and charge the grand jury on the rights, 
     responsibilities, and duties of the grand jury under this 
     rule, including--
       ``(A) the duty to inquire into criminal offenses that are 
     alleged to have been committed within the jurisdiction;
       ``(B) the right to call and interrogate witnesses;
       ``(C) the right to request production of a book, paper, 
     document, or other object, including exculpatory evidence;
       ``(D) the necessity of finding credible evidence of each 
     material element of the crime charged before returning a true 
     bill;
       ``(E) the right to request that the attorney for the 
     government draft indictments for charges other than those 
     originally requested by that attorney;
       ``(F) the obligation of secrecy under subdivision (e)(2); 
     and
       ``(G) such other rights, responsibilities, and duties as 
     the court determines to be appropriate.'';
       (2) in subdivision (d), by inserting ``and counsel for that 
     witness (as provided in subdivision (i))'' after ``under 
     examination'';
       (3) in subdivision (e)(2), by adding at the end the 
     following: ``The court shall have the authority to 
     investigate any violation of this paragraph, including the 
     authority to appoint counsel to investigate and report to the 
     court regarding any such violation.''; and
       (4) by adding at the end the following:
       ``(h) Notice to Witnesses.--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--
       ``(1) his or her right to counsel, as provided in 
     subdivision (i);
       ``(2) his or her privilege against self-incrimination;
       ``(3) the subject matter of the grand jury investigation;
       ``(4) whether his or her own conduct is under investigation 
     by the grand jury;
       ``(5) the criminal statute, the violation of which is under 
     consideration by the grand jury, if such statute is known at 
     the time of issuance of the subpoena;
       ``(6) his or her rights regarding immunity; and
       ``(7) any other rights and privileges which the court deems 
     necessary or appropriate.
       ``(i) Counsel for Grand Jury Witnesses.--
       ``(1) In general.--

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       ``(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; and
       ``(B) shall not be permitted to address any grand juror, or 
     otherwise participate in the proceedings before the grand 
     jury.
       ``(3) Powers of the court.--
       ``(A) In general.--If the court determines that counsel 
     retained by or appointed for a 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 remove the counsel 
     and either appoint new counsel or order the witness to obtain 
     new counsel.
       ``(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.
       ``(j) Exculpatory Evidence.--An attorney for the government 
     shall disclose to the grand jury any substantial evidence of 
     which that attorney has knowledge that directly negates the 
     guilt of the accused. Failure to disclose such evidence may 
     be the basis for a motion to dismiss the indictment, if the 
     court determines that the evidence might reasonably be 
     expected to lead the grand jury not to indict.
       ``(k) Availability of Grand Jury Transcripts and Other 
     Statements.--
       ``(1) In general.--Subject to paragraph (2), not later than 
     10 days before trial (unless the court shall for good cause 
     determine otherwise), and after the return of an indictment 
     or the filing of any information, a defendant shall, upon 
     request, and as the court determines to be reasonable, be 
     entitled to examine and duplicate a transcript or electronic 
     recording of--
       ``(A) the grand jury testimony of all witnesses to be 
     called at trial;
       ``(B) all statements relating to the defendant's case made 
     to the grand jury by the court, the attorney for the 
     government, or a special attorney;
       ``(C) all grand jury testimony or evidence which in any 
     manner could be considered exculpatory; and
       ``(D) all other grand jury testimony or evidence that is 
     determined by the court to be material to the defense.
       ``(2) Exception.--The court may refuse to allow a defendant 
     to examine and duplicate a transcript or electronic recording 
     of any testimony, statement, or evidence described in 
     paragraph (1), if the court determines that such examination 
     or duplication would endanger any witness.''.
       (b) Conforming Amendments.--Section 3500(e) of title 18, 
     United States Code, is amended--
       (1) in paragraph (1), by adding ``or'' at the end;
       (2) in paragraph (2), by striking ``, or'' and inserting a 
     period; and
       (3) by striking paragraph (3).
                                 ______