functioning of the grand jury or burden the criminal justice process? Would you describe this impact for each of the bills? 4. On page 20 of your statement you indicate that similar guidelines are being considered in order to protect individual rights in connection with the use of the grand jury's powers and that these guidelines "may offer a solution to other legitimate concerns? Can you describe what guidelines are being considered and in what areas? 2. IMMUNITY 1. In the Organized Crime Control Act of 1970 Congress authorized "use" immunity which, according to many supporters of this type of immunity, would enable the Department of Justice to effectively combat the problem of organized crime in this country. Would you please evaluate for the Subcommittee the success of the "use" immunity device in reducing the crime problem in general and the problem of organized crime in particular? In addition to presenting your evaluation, would you please provide the following statistical information: (a) The number, types, and source of request for immunity grants authorized since the 1970 law; (b) A breakdown of the number of immunity requests concurred in or approved by each of the divisions within the Department of Justice; (c) The number of immunity applications approved and denied ; (d) The number of witnesses who refused to testify after being granted immunity; (e) The number held in contempt after being granted immunity and refusing to testify; (f) A summary of the guidelines and criteria followed by the Department in considering immunity applications; (g) The number of persons prosecuted for any crime after being granted immunity; (h) The number of immunity authorizations granted but not used; (i) The number of grants actually used in grand jury proceedings; in trial proceedings; and (j) The number of "use" vs. "transactional" immunity grants for each year during this period. 2. Do you have any statistics as to "letter" or "informal" immunity grants given by U.S. Attorneys or other Justice Department officials to witnesses-promising them total exemption from prosecution if they cooperate? How many of them were granted last year? Who authorizes them? 3. Do you believe that our experience with use immunity demonstrates a need for reinstating "transactional" immunity as a matter of public policy, especially in view of your statement that "no form of immunity actually places a witness in precisely the same situation he would be in had he remained silent". 4. Shouldn't there be a uniform requirement (mandated by legislation) that the prosecuting attorney fully and carefully explain the nature and scope of an immunity grant which has been authorized? 5. Shouldn't the recipient of an immunity grant be given a reasonable time period in order to determine whether to comply with the immunity order (i.e., time to consult with an attorney)? 6. Some have suggested that defendants should have the right to require immunization of witnesses who could be helpful to the defense but who assert the Fifth Amendment privilege against self-incrimination. I would like your reaction as to whether immunity should be made available to the defense? 7. Would you support an amendment to the immunity section of current law (18 U.S.C. 6003) which would require the personal approval of the Attorney General for any requests for an immunity order? Is there any particular type of case (i.e., cases involving political or governmental corruption) in which an immunity request and application is made which should involve the exclusive approval of the Attorney General? 8. Subsection (e) of 18 U.S.C. § 6005 allows the district court at the request of the Attorney General to delay issuance of a Congressional grant of immunity. My bill would eliminate this 20-day period but would retain the existing provision which requires a 10-day notification to the Attorney General of the Congress' intent to request an immunity order. I would like your specific comments on my proposal. 9. Would you indicate particularly whether the Department of Justice should be in a position to delay for 20 days the issuance of an immunity order requested by a Committee or Subcommittee of the Congress? What factors in your opinion would justify requesting this 20-day delay? 3. RECALCITRANT WITNESS 1. How many individuals-over each of the last five years-have been imprisoned for refusing to testify before a grand jury? (a) How many of these were for civil contempt-under the recalcitrant witness statute (18 U.S.C. 1826) ? (b) How many of these were for criminal contempt? (c) What was their average length of confinement for civil contempt and criminal contempt? (d) How many were released because they agreed to testify? (e) How many were released because of other reasons? What were those reasons? (f) How many individuals-over each of the last five years-have, after serving one contempt sentence, been resubpoenaed and reimprisoned? 2. Who, if anyone, is assigned to review decisions to request imprisonment for contempt? 3. If the purpose of imprisonment for recalcitrance is to "coerce" testimony, rather than to impose punishment, does anyone review, on a continual and regular basis, the imprisonment of witnesses to see if such imprisonment is still in fact coercive, or only punitive? 4. Who determines whether civil or criminal contempt provisions are used for witnesses who refuse to testify? 4. RIGHTS OF WITNESSES 1. Could you describe for me the present practice of giving notice to a grand jury witness-that is, how many districts give no notice; 5 days' notice; 10 days' notice? 2. In your statement, you indicate that in most districts, counsel is allowed to remain outside the grand jury room and a witness is allowed to leave the grand jury room to consult with his counsel. Could you tell me exactly how many distriets utilize this procedure; whether utilization of this procedure is a policy of the Justice Department; and what action, if any, if taken against any government attorney who does not use this procedure? 3. Do you believe a potential defendant should be given the right to testify before a grand jury on an issue being investigated? 4. You have indicated in your statement that you believe "targeted witnesses" are given certain limited warnings before going into the grand jury room. Have you issued any guidelines to U.S. Attorneys and other Justice Department prosecutors as to what and when warnings are to be given? 5. In your opinion, do you believe warnings should be given to "targeted" witnesses? What type of warnings? 6. If you favor this procedure, why is the Justice Department opposing this procedure being adopted as a right, in the cases of U.S. v. Wong and U.S. v Washington, to be heard by the United States Supreme Court next term? 7. What is the policy of the Justice Department as to subpoenaing a witness or evidence as to a transaction, event, or occurrence after an indictment has been returned as to that transaction, event, or occurrence? How many times have subpoenas been issued to a person after he refuses to provide information to the FBI? 8. Should the subpoena advise the witness of those possible offenses which are being investigated and which relate to his requested testimony? If not, why? What percentage of subpoenas issued last year requesting or requiring a person's testimony before a grand jury were so-called "blank" subpoenas? 5. NATURE OF INQUIRY 1. Is there anyone in the Justice Department who reviews the locus of a grand jury investigation to determine whether or not it is being held in an area near to an offense? 2. If there is more than one grand jury investigation for an incident, occurrence, transaction, or offense, who coordinates these investigations? 3. Are any records kept, or a review made, of the scope of any particular grand jury inquiry? Are there any procedures, such as by using a subpoena with detailed information, to indicate to witnesses and others the scope of an inquiry? 6. INDEPENDENT GRAND JURY 1. Who determines whether a special attorney, or a local U.S. attorney, will be involved in a grand jury investigation? What are the standards and criteria for determining which is to maintain responsibility? 2. What kind of supervision and control is there by the Attorney General's office over special attorneys as compared to local U.S. attorneys? 3. 18 U.S.C. sections 3331-3334 authorizes the convening of a special grand jury. Since 1971, how many such special grand juries have been convened; what kind of investigations have they undertaken; and what has been their success in general? 7. NOTICE TO GRAND JURY 1. What is the present practice in preparing, distributing, and explaining to grand jurors their duties prior to and during their tenure; are there written handbooks? 2. How many jurisdictions actually have instructions regularly given; how many have not? 3. Does the Justice Department have any guidelines as to recommendations to federal prosecutors or judges for instructions? 4. Are transcripts made or other equivalent records made of instructions given to grand juries? 8. USE OF EVIDENCE 1. What is the general policy of the Justice Department as to seeking and then making available exculpatory evidence to the court and defense attorneys? 2. If a government attorney learns of evidence tending to prove the innocence of a witness, what do you believe is his obligation as to presentation of that evidence before the grand jury? 3. Are there any rules, guidelines, or procedures by the Justice Department to its employees, or U.S. Attorneys, as to when, where, and how to use hearsay as opposed to direct evidence in presentations to grand juries or as to a review of the admissibility of evidence to be introduced before a grand jury? 9. SECRECY 1. H.R. 1277 provides for a $500 fine and/or six month penalty for improper disclosure of information. Does the Department support such secrecy provisions? 2. How many prosecutions for contempt or for contravention of criminal statutes, have been instituted for violations of the secrecy rules? 3. What steps, if any, are taken to review and evaluate the release of information that is derived from grand jury investigations? 10. REPORTS 1. What, if any, reports are made to you on a regular basis from local U.S. attorneys, or from other investigators, as to grand jury activities? 2. What reports, if any, do you submit to Congressional Committees as to grand jury activities? 3. Should there be procedures for submitting your recommendations, and comments on grand jury procedures to Congress? 4. In your statement, you seem to suggest the need for guidelines to govern the "exercise of prosecutorial authority". Recognizing that the exercise of prosecutorial discretion is an executive function, in your judgment what role should the Congress or the Judiciary play with regard to insuring that proper guidelines are established, particularly as they relate to the conduct of grand jury investigations? Would you keep this Subcommittee fully informed on any criteria or guidelines which will be issued by the Department to reduce the possibility of prosecutorial misuse of the Federal grand jury? 11. COST 1. How many investigations were undertaken utilizing grand juries last year; how many bills of indictment were prepared; how many bills of indictment were approved and resulted in prosecutions and how many were ignored; how many individuals, as compared to indictments, were subject to grand jury investigations; how many of these were accused pursuant to indictments? 2. Can you supply for the Subcommittee the cost of maintaining the various Federal grand juries last year? 3. Could you estimate what was the cost of merely the indicting arm of the grand jury? 12. ELIMINATING CONSTITUTIONAL REQUIREMENT FOR INDICTMENT 1. H.J. Res. 46 would eliminate the Constitutional requirement of an indictment for serious crimes. In the previous Congress, the Department proposed an alternative amendment which would provide the U.S. Attorney with the discretionary authority to initiate a criminal prosecution either by indictment or by information. Does this still represent the Department's current position on the question of abolishing the Constitutional requirement of a grand jury indictment? 13. GRAND JURY EVIDENCE AND TESTIMONY 1. Does the Department maintain any files composed of, or act as a repository for, any information elicited during grand jury proceedings? 2. If a transcript of the grand jury proceedings is made, what happens to that transcript upon the termination of that grand jury? 3. H.R. 1277 requires recordation of grand jury proceedings-What is the Department's position on this requirement? Should witnesses be provided with a copy of their testimony before the grand jury? If so, when? If a witness is indigent, should a transcript be provided free of charge? Should the cost of such recordation be borne by the Judiciary or the Department of Justice? 14. SIZE OF GRAND JURY 1. The Judicial Conference has suggested that the size of the grand jury be substantially reduced. What is the Department's position on this matter? 2. What are the arguments in favor of reducing the size of the grand jury? Do these arguments outweigh the fact that grand juries currently serve as a valuable vehicle for public participation in the criminal justice process? 3. What cost savings would be realized by reducing the size of the grand jury as recommended by the Judicial Conference? Hon. JOSHUA EILBERG, WATERGATE SPECIAL PROSECUTION FORCE, U.S. DEPARTMENT OF JUSTICE, Washington, D.C., August 31, 1976. Chairman, Subcommittee on Immigration, Citizenship, and International Law, Committee on the Judiciary, House of Representatives, Washington, D.C. DEAR MR. CHAIRMAN: The Attorney General has referred your request for information concerning grants of immunity to this Office for response. I have set out below the number of matters under each of the relevant categories included in your questions submitted to the Attorney General on June 25, 1976: 1. (c) The Watergate Special Prosecution Force has secured 31 statutory grants of immunity under 18 U.S.C. 6003. No requests for authority to seek grants of immunity have been denied. 1. (d) One witness refused to testify after being granted immunity although this occurred before this Office actually began operations. 1. (e) The same individual referred to above refused to testify after being granted immunity and was held in civil contempt. 1. (g) Two individuals were prosecuted for unrelated offenses after having been granted immunity in connection with grand jury investigations. 1. (h) One grant of immunity was authorized but not used. 1. (i) All but one grant of immunity was in connection with a grand jury proceeding. 1. (j) All grants of immunity were pursuant to 18 U.S.C. 6003. 2. Thirteen individuals were granted immunity by letter from the Special Prosecutor. If the individual to be immunized was a witness, he was granted the equivalent of use immunity. Exemption from prosecution was granted only through the plea bargaining process if the individual involved had some criminal liability. I trust this is responsive to your needs, but if I may be of any further assistance, please advise me. Sincerely, CHARLES F. C. RUFF, Special Prosecutor. OFFICE OF THE ATTORNEY GENERAL, Hon. JOSHUA EILBERG, DEAR CONGRESSMAN EILBERG: Pursuant to your letter of June 25, 1976, I have asked the Office of Policy and Planning of the Department of Justice to respond to the questions posed by your staff concerning the operation and proposed reforms of the federal grand jury system. It is my understanding that the Office of Policy and Planning will be completing its assignment shortly and will forward to you a memorandum which is responsive to the questions raised by your staff. When I addressed your Subcommittee on June 10, 1976, concerning various proposals to alter federal law with respect to grand juries, I submitted a document prepared by the Office of Policy and Planning entitled "Memorandum on the Grand Jury" for inclusion in the hearing record. The memorandum currently being prepared by the Office of Policy and Planning should be read in conjunction with the more detailed document previously submitted to your Subcommittee. To provide you with additional information concerning the views of the Department of Justice in this area, I have asked that a copy of the Department's recent detailed report on S. 3274, a bill similar to H.R. 1277 and other proposals under consideration by your Subcommittee, be forwarded to you. As I indicated in my statement before the Subcommittee on June 10th, any reforms of the grand jury should be made with a view of the place of the grand jury in our legal system and of the derivation of the institution's strengths and weaknesses, if we are to achieve reform that will reinforce the proper and multiple functions it has served while repairing the flaws we find. I hope that my statement of June 10th and the materials previously submitted to your Subcommittee, as well as the memorandum to be forwarded to you shortly, will serve to assist you in defining the proper role of the grand jury in the federal system. Sincerely, Hon. JOSHUA EILBERG, EDWARD H. LEVI, Attorney General. U.S. DEPARTMENT OF JUSTICE, Washington, D.C., October 28, 1976. Chairman, Subcommittee on Immigration, Citizenship, and International Law, House of Representatives, Washington, D.C. DEAR MR. CHAIRMAN: Enclosed is a memorandum responding to the questions posed by your staff on June 25, 1976, concerning the operation of the federal grand jury system and proposals for its reform. The memorandum, which was drafted by the Criminal Division in conjunction with this Office, was prepared for your use at the request of the Attorney General. Enclosed as an appendix to the memorandum are three documents which reflect past and current Departmental policy in connection with applications for "immunity" orders-Department of Justice Memorandum 595 (including Supplements 1-4); Department of Justice Memorandum 777; and an October 18, 1971, Criminal Division memorandum. Also included with the memorandum is a copy of the Department's recent report on S. 3274, a bill similar to H.R. 1277. I hope that the information contained in the enclosed materials, when considered in the light of the Attorney General's statement of June 10, 1976, will be of assistance to your Subcommittee. Sincerely, Enclosures. RONALD L. GAINER, Director. |