Grand Jury (Update)

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The grand jury clause of the Fifth Amendment is an anomaly. It gives constitutional stature to a secret inquisitorial process that is quite at odds with the open adversarial character of the remainder of the federal judicial system. The clause preserves the institution of the grand jury without placing it clearly within any of the three branches of the federal government. The federal grand jury, like its English progenitor, has two conflicting functions. The guarantee of review by a grand jury was included in the Fifth Amendment because the grand jury serves as a shield or buffer protecting individuals against baseless or malicious charges. But the grand jury also has another side: it serves as an investigatory agency that ferrets out crime.

Since the original publication of this encyclopedia in 1986 the Supreme Court has decided six grand jury cases. Four involved prosecutorial errors or abuses that could impair the grand jury's ability to shield individuals from unfounded charges. In each case, the question was the availability of a judicial remedy. The other two cases considered the ramifications of grand jury secrecy.

The issue of remedies for abuse of the grand jury reached the Supreme Court because of the lower courts' increasing willingness to invalidate federal indictments if the government committed errors at the grand jury phase. Until the mid-1970s, federal courts showed little inclination to police the grand jury process to ensure that it fulfilled its constitutional function of protecting the accused against unfounded criminal charges. In Costello v. United States (1956) the Supreme Court held that the federal grand jury was to operate, like its English progenitor, free of technical rules of evidence and procedure. Under the influence of Costello, the lower federal courts typically refused to consider claims of error or abuse in the grand jury process. Beginning in the mid-1970s, some lower courts became increasingly willing to review grand jury proceedings and consider claims of abuse, with the understanding that the indictment might be dismissed if the claims were well founded. Grand jury litigation was attractive to the defense because, even if the indictment was not dismissed, the review process offered an opportunity for discovery otherwise precluded by jury secrecy.

Three of the Supreme Court's recent decisions rebuffed the lower courts' efforts to ensure that the grand jury fulfilled its protective function. In the first of the three decisions, United States v. Mechanik (1986), the Court held that any error that had occurred at the grand jury stage was harmless in light of the jury's guilty verdict. The Court stated that the federal rule limiting the persons who could be present during grand jury sessions was designed to protect against the danger of charges not supported by probable cause. The trial jury's guilty verdict established that there was proof beyond a reasonable doubt of the defendant's guilt and thus any violation of the procedural rule at the grand jury phase was harmless. Reversal of a conviction entails significant social costs. A retrial burdens witnesses, victims, the prosecution, and the courts. If the prosecution is unable to retry the defendant after the first conviction is reversed, the social cost is even greater. These costs are not justified, the Court concluded, where an error at the grand jury stage had no effect on the outcome of the trial.

Although Mechanik was criticized as an open invitation to prosecutors to disregard grand jury procedures, it left open two possible avenues of judicial review and relief. First, some lower courts held that Mechanik did not limit the federal courts' supervisory powers. This interpretation left the courts free to grant relief from grand jury abuse, even in the absence of demonstrable prejudice in the exercise of supervisory power. Second, several circuits permitted defendants to bring interlocutory appeals seeking review of unfavorable pretrial rulings on grand jury issues under the collateral order doctrine, on the theory that the issues would be mooted by the verdict.

The Supreme Court eventually resolved both of these issues, again rebuffing the lower courts' efforts to police the grand jury process. In Bank of Nova Scotia v. United States (1988), the Court applied the harmless error rule announced in Mechanik to supervisory power rulings. Mechanik and Bank of Nova Scotia increased the pressure on the appellate courts to grant interlocutory review on claims of grand jury abuse, and the Supreme Court was forced to turn next to the issue of interlocutory appeals. In Midland Asphalt Corp. v. United States (1989), the Court concluded that interlocutory review would be available on claims of grand jury abuse only when the defendant alleged a defect so fundamental that it caused the grand jury not to be a grand jury or the indictment not to be an indictment.

Taken together, Mechanik, Bank of Nova Scotia, and Midland Asphalt demonstrate the Supreme Court's unwillingness to subject the grand jury's internal proceedings to judicial review. Midland Asphalt holds that interlocutory appeal ordinarily is not permitted if the trial judge denies relief on a grand jury claim before trial. Mechanik and Bank of Nova Scotia hold that if the defendant is convicted and appeals, the jury's guilty verdict moots any error in the grand jury process. Relief is theoretically available in the district court before trial, but given grand jury secrecy, the defendant will seldom have sufficient information about the grand jury process at this point to make the necessary showing of government error and resulting prejudice. These decisions reflect a firm consensus on the Court. Eight members of the Court joined the opinion in Bank of Nova Scotia, and the opinion in Midland Asphalt was unanimous. Given the limited resources available to the criminal justice system, the Court is simply unwilling to divert judicial resources to a preliminary trial of the grand jury process, particularly when there is no indication that the outcome of a case will change. The Court's decisions avoid not only the cost of reversals in cases where there has been a serious abuse of the grand jury but also the cost of extensive judicial review (with the resultant breach in grand jury secrecy) in all cases.

The Supreme Court did reverse one conviction because of an error at the grand jury stage in a case involving what the Court called the "special problem of racial discrimination." In Vasquez v. Hillery (1986) the Court held that racial discrimination in the selection of the grand jury required the reversal of a twenty-year-old murder conviction, even if the state could not reprosecute so long after the original conviction. In a striking contrast to Mechanik, which was decided during the same term, the Court rejected the argument that the discrimination at the grand jury phase was harmless error in light of the jury's guilty verdict after a fair trial. Emphasizing that racial discrimination strikes at the fundamental values of the criminal justice system, the Court concluded that the remedy of dismissing the indictment and reversing the resulting conviction was not disproportionate. Although the constitutional prohibition against racial discrimination was the driving force behind this decision, it is worth noting that claims of racial discrimination at the selection stage (unlike the claims in Mechanik, Bank of Nova Scotia, and Midland Asphalt) can be adjudicated without any breach of grand jury secrecy. Traditionally secrecy is required only after the grand jury has been impaneled.

The Court also decided two cases involving facets of grand jury secrecy. United States v. John Doe, Inc. I (1987) dealt with the question of when the government can use materials collected in a grand jury investigation. Doe effectively cut back on an earlier decision that held grand jury secrecy prohibits prosecutors from disclosing grand jury evidence to other government lawyers for use in civil proceedings unless the prosecutors obtain a court order based upon a showing of particularized need. This rule ensured that prosecutors had no incentive to misuse the grand jury for civil discovery and decreased the likelihood that grand jury secrecy will be breached. Doe gave the grand jury secrecy rule a narrow interpretation, allowing prosecutors conducting grand jury proceedings freely to disclose grand jury materials to civil division attorneys with whom they were consulting about the desirability of filing a civil suit. Permitting informal disclosure without judicial supervision facilitated the government's determination whether to proceed civilly or criminally without duplicative investigations by civil attorneys.

The Court also recognized that the first amendment places limits on the principle of grand jury secrecy. Butterworth v. Smith (1990) held that the Florida rule prohibiting a witness from ever diclosing his own testimony violates the First Amendment. The Court found that the state's interests were not sufficient to justify a permanent ban on a reporter's right to make a truthful statement of information that he gathered on his own before he was called to testify. Although neither the federal rules nor those in the majority of states would have prohibited disclosure under those circumstances, fourteen other states have secrecy rules like Florida's. The Court did not question the validity of the more narrowly drawn federal and state secrecy rules.

Sara Sun b eale


Arnella, Peter 1980 Reforming the Federal Grand Jury and the State Preliminary Hearing to Prevent Conviction Without Adjudication. Michigan Law Review 78:463–585.

Beale, Sara Sun and Bryson, William C. 1986 and Supp. 1990 Grand Jury Law and Practice. Wilmette, Ill.: Callaghan.

Note [A rfaa, Christopher M.] 1988 Mechanikal Applications of the Harmless Error Rule in Cases of Prosecutorial Grand Jury Misconduct. Duke Law Journal 1988:1242–1271.