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FEDERAL GRAND JURY

THURSDAY, JULY 1, 1976

HOUSE OF REPRESENTATIVES,
SUBCOMMITTEE ON IMMIGRATION,
CITIZENSHIP, AND INTERNATIONAL LAW
OF THE COMMITTEE ON THE JUDICIARY,

Washington, D.C. The subcommittee met, pursuant to notice, at 10:34 a.m., in room 2237, Rayburn House Office Building, Hon. Joshua Eilberg (chairman of the subcommittee) presiding.

Present: Representative Eilberg.

Also present: Garner J. Cline, Arthur P. Endres, Jr., and Martin H. Belsky, counsel; and Raymond V. Smietanka, associate counsel.

Mr. EiLBERG. This is the second in our series of hearings on proposed legislation to reform the Federal grand jury system.

These hearings are the first attempt, since the adoption of the Bill of Rights in 1789, by any committee of Congress, to undertake a comprehensive review of the Federal grand jury system.

The grand jury system, like any other system, can be abused.

The Federal grand jury system has been abused—by prosecutors, and through prosecutors, by White House officials. It has been misused for partisan political purposes; it has been misused to harass philosophical enemies; it has been misused to punish distasteful, but noncriminal activities.

The grand jury system can also be properly used to provide citizen input into the criminal justice system, to investigate allegations of impropriety, and to insure and maintain the public's confidence in our system of laws. The Federal grand jury system has often been used to investigate official corruption; it has been properly used to reveal briberies and payoffs; it has been properly used to reveal so-called political dirty tricks.

Reforms in grand jury practices are essential to preserve the Federal grand jury's role as a bulwark against oppression and as a means to investigate and reveal illegal actions, while at the same time insuring that individual rights are protected and possible prosecutorial overreaching is prevented.

Toward these ends I have introduced H.R. 1277, detailing needed grand jury reforms. In addition, other Members have introduced reform bills. I was hopeful that the executive branch would work with us on preparing necessary legislation. Unfortunately on June 10, when Attorney General Levi presented the administration's position on

grand jury reform, he ignored all of the abuses of the past and the tential for abuse in the present and future, and recommended that there be no changes in the present system.

However, it is clear that the Federal grand jury system must be reformed and it is my intention to report out legislation this year or early in the next Congress.

We are pleased today to welcome representatives of the Federal bench and organized bar. Establishment and maintenance of a fair grand jury system depends on three things:

1. Reform of laws to provide for equitable procedures;

2. Competent, ethical and aggressive attorneys--both in behalf or prosecution and on behalf of the defense--to insure that information is obtained and rights are preserved, and

3. Evenhanded and thoughtful supervision by the court—to insure that our laws are enforced and that attorneys for both sides are noi allowed to overstep their duties and to insure that witnesses, potential defendants, and the public are protected.

Reform must be a joint undertaking by the Congress, the courts and by attorneys. All the legislation in the world will not eliminate abuses. Lawyers and judges must live up to their ethical and moral responsibilities.

They must live up to their duties and powers—pursuant, of course, to fair and proper legislative guidelines. Lawyers and judges must therefore cooperate with us in establishing these guidelines.

It is my hope that beginning with these witnesses we will hear meaningful comments and proposals for returning the grand jury to its historic purpose as a protector of innocent people against governmental threats and abuse instead of what it is now, an unquestioning tool of the prosecutor.

Our first witness today represents the Judicial Conference of the United States-all Federal judges. On October 29, 1975, the Advisory Committee on Criminal Rules of the Judicial Conference prepared a preliminary report on grand jury matters.

While this report has not been approved by the Judicial Conference, it will serve as the basis of today's testimony by our first witness, the Honorable Russell E. Smith, chairman, Ad Hoc Subcommittee on Grand Juries of the Advisory Committee on Criminal Rules of the Judicial Conference.

Welcome.
We would be glad to hear any statement you have.

TESTIMONY OF RUSSELL E. SMITH, CHAIRMAN, AD HOC COMMIT

TEE ON GRAND JURIES OF THE ADVISORY COMMITTEE ON CRIMINAL RULES OF THE U.S. JUDICIAL CONFERENCE

Mr. Smith. Thank you, Mr. Chairman. First I should begin with a caveat and that is that as the chairman has stated, the views that are represented in the report of the Advisory Committee have not been approved by the Judicial Conference.

As a second part of the caveat, I think it should be understood that the committee did not, section by section, consider the various bills

before this committee and express an opinion on those bills in terms of recommending or not recommending a particular section.

So this report represents, and what I have to say represents, the subject matter view of the committee on the subjects that we will discuss.

We did not cover the whole field that is covered by the various proposals in these bills. So our study does not exactly mesh with the proposals that have been made.

I should like first of all to give the committee some idea of what the advisory committee is. It is chaired by Judge Lumbard, once Chief Judge of the second circuit, and now in senior status. The committee is appointed by the Chief Justice and in the period in question, it has been composed about as follows—I say about because there have been changes from time to time.

There are four Federal circuit judges, two State supreme court judges, and an Assistant Attorney General of the United States, a law professor, and four practicing lawyers.

I think it may be safe to say that the lawyers were largely defense oriented. Much of the research for the committee here was done by its reporters, Professor Remington, of the University of Washington Law School, and Professor La Fave, of the University of Illinois.

Professor La Fave was to be here today but due to a serious illness of a very close member of the family, he simply was unable to come. I think it is fair to say that our committee brought to bear upon the various proposals submitted to it a wide and deep comprehension of the operation of the criminal law, a comprehension reflecting the varied viewpoints of trial and appellate lawyers, law professors, and lawyers for the prosecution and the defense.

While the members of the committee did not say so, I suspect that and it was evident to me from the debate that was carried on—that their approach to these proposals for change were much the same as mine. The first is, is there a need for a change and second, does that need justify the burden that a particular change might place upon the system

People who deal with criminal law and operation know that the creation of rights, procedural or otherwise, requires the expenditure of additional time in the protection of those rights.

When the rule of Miranda became law governing the admissibility of confessions, the number of hearings on motions to suppress confessions increased. When the rule of weeks excluding illegally seized evidence in Federal courts was applied under the 14th amendment, to the States, in Mapp v. Ohio, the habeas corpus load of the Federal judges increased significantly.

I am not here commenting on the wisdom of either. I am saying that the creation of these rights increased the load. It was thought, of course, by the courts, that the protections involved warranted that increased load.

With this in mind I turn to the subject matter of some of the specific proposals. First of all I am going to talk about the matter that I hoped that Professor Le Fave would cover and that is the affirmative provosals made by our committee.

One was with respect to a constitutional amendment. In that connection we approve of House Joint Resolution No. 46 insofar as it would preserve the investigatory function of the grand jury.

We approve of it insofar as it introduces the idea of alternative methods of charging crime. We regard the grand jury as a cumbersome and unnecessary method in many, many and perhaps the great bulk of all cases. In many States—and I live in one of them we have been operating by means of the information and as nearly as I know, there has been no complaint about it.

In my memory we have had two grand juries and both of them wound up in fiascos. It is an unnecessary cumbersome method of charging a crime.

It may be that an information, backed up of course by the preliminary hearing to determine whether there should be a felony charge filed, is a preferable system. We do think, however, that there are cases, particularly those of public interest involving big people, big events, which would be better charged by the grand jury and for that reason we would retain its function.

The size of the grand jury we would reduce. We find no particular merit in a grand jury composed of 23 or 16. We would reduce that from 15 to 9 with two-thirds of the 9 enabled to bring in a true bill. I think this is largely for economy purposes and I think it would accomplish a substantial savings.

We have made a proposal for summoning the grand jury and it simply is this: At the present I think it is the view in most judicial districts that we must summon the grand jury from the whole of the district.

Montana is 400 miles deep and 800 miles long. We have six divisions in the district and bringing the grand jury together in a district of that size is a very substantial cost. So we would provide that a grand jury might be drawn from the district or from any division in the district, whether court created or otherwise.

This is permissive because we recognize that there could be constitutional objections to drawing a grand jury from some segment of a district in some places.

In Montana this probably is not so. Our population is largely homogeneous except for our Indians. Drawing a grand jury from a division would not seriously—could not seriously-introduce anything in the way of a racial or any other kind of an imbalance.

With respect to the Indians, if the grand jury were drawn from the district in which the reservation is, there would be a greater chance that the minority would be represented than there is if we draw at large. That is with respect to some of them.

Recording of grand jury proceedings we now approve. I opposed it for a long time for reasons which I will disclose later. But the majority of the committee has finally approved that. With respect to the use of the grand jury proceedings, we recommend that they be made available to the defendants not as a matter of right but within the court's discretion. The only reason we hold any court discretion is that we can in some kinds of cases envisage an abuse if there is a very early revelation of grand jury proceedings.

We would limit the revelation to the testimony of witnesses who might be appearing against the accused. We don't see that his rights

and needs go any further than that. Grand jury secrecy, I think we do not deal with that much differently from the way that it is dealt with in H.R. 1277. I think maybe there are differences in degree but I don't know that they represent any philosophical differences or represent any very practical considerations one way or another.

Now then I will get into the matters with which I was going to discuss with you. First of all, the rights of witnesses. Section 3308 of H.R. 1277 which has labeled some rights of grand jury witnesses contains subject matter not strictly related to witnesses.

We will discuss it at this time anyway. Some elements of the provision of other bills cover the same general subject matter. So I am simply going to look at 3330(a) and talk to you about that.

As a matter of general background, we note the grand jury proceedings are not adversary in character. We believe that they cannot be if they are to remain an effective investigatory body. The Supreme Court has said that the public has a right to every man's evidence. It said that as late as May 19 of this year. The duty of a witness before the grand jury is to tell the truth and witnesses telling the truth as we see it have no great legal problems except in those cases where fifth amendment privileges may be available to them.

We recognize that witnesses are inconvenienced when called before a grand jury but that is equally true whether they appear in response to a grand jury subpena or whether they appear in response to a subpena issued in connection with the trial of an ordinary criminal or civil case.

In the latter case, there are no safeguards such as would be created by these various bills. We regard the inconvenience to the witness as a part of the price that has to be paid if some semblance of order in society is to be maintained.

It must be remembered that where rights are created, procedural safeguards must be created also if the rights are to be enforced. Those safeguards involve hearings and hearings involve delays. Of course Congress in its Speedy Trial Act of 1974, to put it rather facetiously, shocked the judiciary out of its shoes.

With these general thoughts in mind, let me turn to some of the specific sections. Section A requires that grand jury subpenas issue only on the vote of 12 members of the grand jury. At the present time the U.S. attorney simply issues the subpena and the subpena is made returnable at a time when the grand jury is in session and ready to go to work.

Under the bill the subpena must be issued on the vote of 12 members of the grand jury and we must have a grand jury session to get the subpena and then another grand jury session to hear the witness testify.

I don't know how much inconvenience this would cause in a place where the grand jury is in session all the time. For my own district, and I am sure there are many, many like it—it would just about double our grand juries. We have five or six a year and they sit perhaps 3 or 4 days.

We would have to call the grand jury and get the subpena, discharge them, issue the subpenas and then call them back at a time when the subpenas were returnable. That is one of the practical con

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