directed or permitted by a court, regardless of the correctness of the court's action. The third exception is disclosure by a witness before the grand jury of testimony he has given or information he has produced, as permitted under present law, In re Petition for Disclosure of Evidence Before Oct., 1959 Grand Jury of this Court, 184 F. Supp. 38 (E.D. Va. 1960).

Subsection (c) (1) defines the term "attorney for the government," and does so in a way to include other government personnel as are necessary to assist attorneys for the government in the performance of their duties. See advisory committee note to rule 6(e), Preliminary Draft of Proposed Amendments to the Federal Rules of Criminal Procedure (January 1973). Subsection (c) (2) defines the term "disclosure by a witness" to include disclosure by others of what the witness has theretofore disclosed and in consequence of such disclosure by the witness. Thus, for example, it would not be criminal for one to disclose the testimony of a witness which that witness has disclosed to him. On the other hand, an unauthorized disclosure by, say, a grand juror of what a particular witness testified to before the grand jury would not become authorized by the mere fact that the witness later made the same disclosure.

Subsection (d) makes it clear that the existence of the statutory provision, carrying criminal sanctions for unauthorized disclosure, does not limit the preexisting power of courts to deal with certain disclosures by use of the contempt power. It is not necessary also to state that contempt proceedings do not bar criminal prosecution for the same act, for this is covered in 18 U.S.C. § 3285.

(The grand jury secrecy statute proposed in H.R. 1277, it should be noted, is more limited than the proposed statute set out above, for the former expressly excludes disclosure by a person not present at grand jury proceedings.) Enactment of a statute along these lines would require some change in rule 6(e), as follows:

(e) SECRECY OF PROCEEDINGS AND DISCLOSURE. Disclosure of matters occurring before the grand jury other than its deliberations and the vote of any juror may be made to the attorneys for the government for use in the performance of their rules. For purposes of this subdivision, "attorneys for the government" includes those enumerated in rule 54(c); it also includes such other government personnel as are necessary to assist the attorneys for the government in the performance of their duties. Otherwise a juror, attorney, interpreter, stenographer, operator of a recording device, or any typist who transcribes recorded testimony may disclose matters occurring before the grand jury only when so directed by the court prior to or in connection with a judicial proceeding or when permitted by the court at the request of the defendant upon a showing that grounds may exist for a motion to dismiss the indictment because of matters occurring before the grand jury. No obligation of secrecy may be imposed upon any witness as to any matter concerning which the witness has testified or produced other information before the grand jury. The court may direct that an indictment shall be kept secret until the defendant is in custody or has been released pending trial, and in that event the clerk shall seal the indictment and no person shall disclose the finding of the indictment except when necessary for the issuance and execution of a warrant or summons.

The sentence added at lines 5 through 9 is designed to facilitate an increasing need, on the part of government attorneys, to make use of outside expertise in complex litigation. It has already been proposed, and appears in Preliminary Draft of Proposed Amendments to the Federal Rules of Criminal Procedure (January 1973).

The language at lines 21 and 22 has been stricken, as it would be inconsistent with a statute barring unauthorized disclosure by anyone, without regard to whether they are specifically enumerated in Rule 6(e). The language added at lines 19 through 22 maintains the right of the witness to disclose testimony or other information which he has given to the grand jury. Permitting such disclosure is consistent with present law. see, e.g.. In re Petition for Disclosure of Evidence Before Oct., 1959 Grand Jury of this Court, 184 F.Supp. 38 (E.D.Va. 1960), and appears to cover what was intended by the deleted language. The original committee note to Rule 6 observes: "The seal of secrecy on witnesses seems an unnecessary hardship and may lead to injustice if a witness is not permitted to make disclosure to counsel or an associate."

The change at lines 24 and 25 reflects the fact that under the Bail Reform Act of 1966 some persons will be released without requiring bail. See 18 U.S.C.. § 3146, § 3148.

PART SEVEN: ACCESS TO GRAND JURY TESTIMONY IN ADVANCE OF TRIAL

Section 102(d) of the Organized Crime Control Act placed recorded grand jury tesimony within the definition of the term "statement" under subsection (e) of the Jencks Act. As a consequence, recorded grand jury testimony is now discoverable at trial without a showing of particularized need, but appears to be nondiscoverable prior to trial. This is because rule 16 explicitly excludes from pretrial discovery statements of government witnesses that are subject to the Jencks Act, and subsection (a) of the Jencks Act provides that "no statement.. in the possession of the United States . . . which was made by a Government witness shall be the subject of . . . discovery . . . until said witness has testified on direct examination in the trial of the case." 18 U.S.C. § 3500.

...

It is believed that somewhat earlier disclosure would be more efficient and would result in more effective use of court time, thus aiding in compliance with the requirements of the Speedy Trial Act of 1974. As noted in Harris v. United States, 433 F. 2d 1127 (D.C. Cir. 1970), early disclosure "avoids delay inherent in tendering the testimony only after the witness testifies, and is in the interest of justice. In the event that the Government does not release its witnesses' grand jury testimony at the beginning of trial, any prosecution witness called in the meanwhile will automatically be subject to recall for further cross-examination by the defense if there is any reasonable basis therefor in the light of the grand jury testimony-of that or any other witness-subsequently made available to the accused." That the present procedure is a cause of delay is recognized in the Act itself, for it provides: "Whenever any statement is delivered to a defendant pursuant to this section, the court in its discretion, upon application of said defendant, may recess proceedings in the trial for such time as it may determine to be reasonably required for the examination of such statement by said defendant and his preparation for its use in the trial."

Consequently, it is recommended that 18 U.S.C. § 3500 be amended to provide that the recorded grand jury testimony of a government witness shall be discoverable before trial, at such time and in such manner as is directed by the court, except upon certification by the attorney for the government that there is good cause for not disclosing the testimony of that witness in advance of his testimony in the trial of the case.

PART EIGHT: OTHER MATTERS CONSIDERED

The Committee has considered several other matters, as to which no change is recommended, either because the present state of the law is deemed adequate or because what ever changes may occur are thought best left to evolution by court decisions rather than amendment of rules or statutes. These matters are summarized below.

(1) Requiring Prospective Defendant to Appear Before the Grand Jury as a Witness. A person who has been bound over by a magistrate or who is otherwise a potential defendant is treated no differently than any other witness; if he is called by the grand jury, he is required to appear and testify, although like any other witness he may claim his privilege with regard to any particular question that may be incriminating. See e.g., United States v. Friedman, 445 F. 2d 1076 (9th Cir. 1971); United States v. Capaldo, 402 F. 2d 821 (2d Cir. 1968). On occasion, this state of the law has been criticized. For example, in Jones v. United States, 342 F. 2d 863 (D.C. Cir. 1964), four members of the court argued that "mere interrogation before a grand jury may harm the accused as much as mere interrogation at trial." in that the grand jury may draw adverse conclusions from the fact he declines to answer certain questions on Fifth Amendment grounds.

No change is recommended, for these reasons: (a) As noted in United States v. Scully, 225 F. 2d 113 (2d Cir. 1955), the considerations which support the rule that a defendant may not be called to testify by the prosecution at his trial "do not apply to the inquisitorial proceedings of a Grand Jury," as that body "is not charged with the duty of deciding innocence or guilt." (b) As pointed out by four members of the court in Jones v. United States, supra, the grand jury's broad right of inquiry should not be impaired by granting a right of nonappearance to a certain class of persons, particularly if that class is defined so broadly as to encompass all who are a "target of inquiry," as appearance of such persons is desirable as an aid to the grand jury in determining whether those persons should be indicted and in pursuing the investigation of others. (c) A special

rule applicable to those who fall into the "prospective defendant" category would give rise to difficult problems in determining by what standard it should be determined whether a person falls within that category. See Bergon and Gerard, the Prospective Defendant Rule and the Privilege Against Self-Incrimination in New York, 15 Buff.L.Rev. 595 (1966). (d) As the Scully court noted, it is not generally the practice to subpoena a prospective defendant to appear before the grand jury.

(2) Allowing Prospective Defendant to Appear Before the Grand Jury as a Witness. Under current law, the person who has been bound over by a magistrate or who is otherwise a potential defendant has no right to appear before the grand jury if it does not wish to hear him. See, e.g., United States ex rel. McCann v. Thompson, 144 F. 2d 604 (2d Cir. 1944); Yankwich, Charge to Federal Grand Jury, 19 F.R.D. 117, 120 (1956). It has sometimes been argued, however, that the grand jury would do a better job of screening if a prospective defendant were given a right to appear. See Model Code of Pre-Arrainment Procedure $340.3(1), Comment (Tent. Draft No. 5, 1972).

No change is recommended. For one thing, no such change would be feasible in those cases where the prosecution is being commenced by indictment, for there may be "a strong interest in keeping the grand jury's consideration of the matter secret." Ibid. As for those cases not commenced by indictment, we are advised that in the few instances in which prospective defendants ask to be allowed to appear before the grand jury, it is generally the practice to permit them to do so.

(3) Warning Witness of His Fifth Amendment Rights. At least until recent years, it has long been the view that a witness before a federal grand jury-even one who may possibly be indicted-need not be warned of his Fifth Amendment rights before he testifies. The leading case is United States v. Scully, supra, holding "that the mere possibility that the witness may later be indicted furnishes no basis for requring that he be advised of his rights under the Fifth Amendment, when summoned to give testimony before a Grand Jury." It has been noted, however, that "it is probable that such a warning is constitutionally required" of a potential defendant, 1 Wright, Federal Practice and Procedure-Criminal § 104 (1969).

No change by way of rule or statute is recommended, for these reasons: (a) The notion that a potential defendant must be warned is clearly expressed in the more recent decisions, e.g., Beverly v. United States, 468 F.2d 732 (5th Cir. 1972); United States v. Kreps, 349 F Supp. 1049 (W.D.Wis. 1972). (b) The cases reflect the fact that it is now common for prosecutors to give such a warning, particularly when the witness might be viewed as a potential defendant. See, e.g., United States v. Mingola, 424 F.2d 710 (2d Cir. 1970); United States v. Capaldo, 402 F.2d 821 (2d Cir. 1968); United States v. Irwin, 354 F.2d 192 (2d Cir. 1965); United States v. Winter, 348 F.2d 204 (2d Cir. 1965). (c) Consideration of the issue by the Supreme Court is pending. Certiorari was granted on March 24, 1975, in United States v. Mandujano, 496 F.2d 1050 (5th Cir. 1974). Thus, the Committee does not favor the proposals in H.R. 1277, H.R. 2986, H.R. 6006 and H.R. 6207 which would require warning, on a broader basis, of the privilege against self-incrimination and related matters.

(4) Right to Counsel of Grand Jury Witness. It is often said that there is no right to counsel for witnesses called to appear before a federal grand jury, see, e.g., 1967 Duke L.J. 97, 122 (1967) (collecting cases). However, the recent cases reflect the fact that the practice has developed of permitting a grand jury witness to leave the grand jury room in order to consult with his attorney. See, e.g., In re Tierney, 465 F.2d 806 (5th Cir. 1972); United States v. Daniels, 461 F.2d 1076 (5th Cir. 1972); United States v. Weinberg, 439 F.2d 743 (9th Cir. 1971); United States v. Isaacs, 347 F. Supp. 743 (N.D. Ill. 1972). This being the case, a rule or statute on that point is not deemed necessary.

It is well-settled that a witness before a federal grand jury is not entitled to have an attorney accompany him into the grand jury room, United States v. Fitch, 472 F.2d 548 (9th Cir. 1973). See also In re Groban, 352 U.S. 330, 77 S.Ct. 510, 1 L.Ed.2d 376 (1957), where the Court, in deciding that a witness had no right to counsel during interrogation by a state fire marshal, noted that a "witness before a grand jury cannot insist, as a matter of constitutional right, in being represented by his counsel": Black, J., dissenting, agreed as to the grand jury, noting it "would be very difficult for officers of the state seriously to abuse or deceive a witness in the presence of the grand jury."

The Committee does not favor a rule or statute which would invest a witness before the grand jury with a right to the presence of counsel in the jury room, and thus is not in agreement with the proposals to grant such a right in H.R. 1277, H.R. 2896, H.R. 6006 and H.R. 6207.

Grand jury proceedings are not adversary proceedings as to a potential defendant and certainly not as to the ordinary witness, and they should not become so. The problems of a witness before a grand jury who is willing to do what the law obliges him to do, i.e., tell the whole truth, are relatively few. The witness does have a legitimate interest in the proper exercise of such privileges as the law may afford him, but in the opinion of the Committee he does not need a lawyer at his elbow in the grand jury room adequately to protect those privileges.

Grand jury proceedings are in the main conducted in the absence of a judge. Whether counsel before the grand jury represents the witness as provided in H.R. 6006 or merely advises him as provided in H.R. 1277, in the absence of a judge exercising immediate control, there is no way in which improper objections stated as such or by way of advice or unwarranted directions not to answer can be ruled upon with any dispatch. Deliberate obstruction would be most difficult to control. A right to the presence of counsel for a witness before the grand jury carries with it a potential for an important breach of grand jury secrecy. "This problem could become particularly acute in an investigation directed toward an organized criminal group where each witness might appear before the grand jury with the same lawyer." Enker and Elsen, Counsel for the Suspect: Messiah v. United States and Escobedo v. Illinois, 49 Minn.L.Rev. 47, 74 n.84 (1964).

The arguments to the contrary, i.e., the attorney can better protect the witness if he hears the flow of the testimony; the proceedings will be more efficient if the witness does not have to make repeated trips out of the room to consult with counsel; and the secrecy of the proceedings is not impaired by the presence of counsel because the witness may disclose everything to his counsel anyway, are not without merit. See Model Code of Pre-Arraignment Procedure § 340.3, Comment (Proposed Official Draft, 1975); Meshbesher, Right to Counsel Before Grand Jury, 41 F.R.D. 189 (1966). The Committee, however, believes that the additional protections sought to be afforded to the witnesses are not necessary and that new rights should not be created at the risk of impairing the functioning of the grand jury.

(5) Requiring Showing of Grounds to Call a Witness. It has been alleged that there is a growing practice of subpoenaing witnesses without grounds to believe that those witnesses may be in a position to give information relating to the subject of the inquiry. See Donner and Cerruti, The Grand Jury Network, The Nation, Jan. 3, 1972. This has given rise to the suggestion that some minimal requirements be imposed upon the grand jury subpoena power, as by requiring some showing to a court before subpoenas are issued. Comment, 7 Harv. Civ. Rights-Civ. Lib.L. Rev. 432 (1972).

The Supreme Court has declined to establish such limits upon the power of the prosecutor to subpoena witnesses before the grand jury. In Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972), the Court rejected the claim of newspaper reporters that they "should not be forced either to appear or testify . . . until and unless sufficient grounds are shown for believing that the reporter possesses information relevant to the crime the grand jury is investigating" which is not available from other sources, noting that "the investigative power of the grand jury is necessarily broad if its public responsibility is to be adequately discharged," and that the grand jury must be free to run down every available clue even though the investigation is triggered by no more than tins or rumors. Similarly, in United States v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973), the Court held "that a subpoena to appear before a grand jury is not a 'seizure' in the Fourth Amendment sense," so that a preliminary showing of reasonableness is not required.

A departure from Branzburg and Dionisio by rule or statute is not recommended, for courts would appear to have the inherent power to protect witnesses from harassment. In Branzburg the Court observed: "Official harassment of the press undertaken not for purposes of law enforcement but to disrupt a rerorter's relationship with his news sources would have no justification. Grand juries are subject to judicial control and subpoenas to motions to quash." And in Hale v. Henkel, 201 U.S. 43, 26 S.Ct. 370, 50 L.Ed. 652 (1906), it was noted: "Doubtless abuses of this power may be imagined, as if the object of the inquiry were merely to pry into the details of domestic or business life. But were such abuses called to the attention of the court, it would doubtless be alert to repress them."

(6) Challenge of Questions on Grounds of Irrelevancy. The longstanding doctrine of Blair v. United States, 250 U.S. 273, 39 S.Ct. 468, 63 L.Ed. 979 (1919), is that a grand jury witness may not object to questions put to him on the ground that they are not relevant to the matter under inquiry. Recently, some witnesses have challenged that doctrine, often by noting that such objections may be made in the course of legislative inquires, but to no avail. The analogy has been rejected primarily on these grounds: (i) an inquiry into relevancy would intrude upon grand jury secrecy; (ii) the grand jury should be allowed to pursue a line of questioning even when the relevancy thereof is not then apparent to the witness; and (iii) to prevent such challenges would enable witnesses to obstruct and delay grand jury proceedings. See, e.g., United States v. Doe, 460 F.2d 328 (1st Cir. 1972). In recent years, many have expressed concern about the power of the grand jury to subject witnesses to unlimited inquiry. See Comment, 7 Harv. Civ. RightsCiv. Lib. L. Rev. 432 (1972); Cowan, The New Grand Jury, N.Y. Times Mag., April 29, 1973, p. 19; Donner and Cerruti, the Grand Jury Network, The Nation, Jan. 3, 1972. However, no departure from Blair by rule or statute is recommended. For one thing, as noted in item (5) above, courts presently possess inherent power to protect witnesses from harassment. Moreover, a general rule that witnesses may challenge questions on grounds of relevancy would not likely provide any greater protection, for it would be most difficult for the objecting witness to make the necessary showing. In some states grand jury witnesses are permitted to raise the relevancy objection as a defense to contempt for refusal to answer, but the courts tend to resolve doubts in favor of a finding of relevancy. See In re Koota, 17 N.Y.2d 147, 269 N.Y.S.2d 393, 216 N.E.2d 568 (1966).

Thus, the Committee does not favor the proposals in H.R. 2986 and H.R. 6006 which would spell out in considerable detail a variety of grounds, some related to relevancy, which would justify a grand jury witness in refusing to answer questions or supply subpoenaed materials.

(7) Suppression of Testimony as Fruit of Violation of the Constitutional Rights of the Witness. In United States v. Calandra, 414 U.S. 333, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974), the Court held that a witness summoned to appear and testify before a grand jury may not refuse to answer questions on the ground that they are based on evidence obtained from an unlawful search and seizure. This ruling was based upon these considerations: (a) The exclusionary rule is a judiciallycreated remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect on future police conduct, rather than as a personal constitutional right of the party aggrieved. (b) The rule does not proscribe the use of illegally seized evidence in all proceedings or against all persons, and its application has been restricted to those areas where its remedial objectives are thought most efficaciously served. (c) Allowing a grand jury witness to invoke the exclusionary rule would unduly interfere with the effective and expeditious discharge of the grand jury's duties. (d) Grand jury questions based on evidence obtained from an unlawful search and seizure invoke no independent governmental invasion of privacy.

These considerations are persuasive, and thus no departure from Calandra by rule or statute is recommended. The Committee is opposed to the proposal in H.R. 2986 and H.R. 6006 to overturn the Calandra rule, and in H.R. 1277 to extend Gelbard v. United States, 408 U.S. 41, 92 S.Ct. 2357, 33 L.Ed.2d 179 (1972), by permitting a grand jury witness to obtain a ruling on a prior court-approved eavesdropping of his conversations. As Justice White noted in Gelbard, suppression hearings in these circumstances "would result in protracted interruption of grand jury proceedings."

(8) Transcript of Testimony for Grand Jury Witness. In the case of In re Russo, 53 F.R.D. 564 (C.D.Cal. 1971), the court decided to purge the witness of civil contempt by accepting his promise to testify if he was furnished a transcript of his testimony. Noting that a witness is free to disclose his testimony under rule 6(e), the court concluded that it could "conceive of no reason why furnishing a witness a written transcript of his testimony should interfere with the valid functions of the grand jury any more than does the existing practice," as the witness could keep the transcript confidential or reveal it at his option.

Courts have given these reasons for permitting a grand jury witness to receive a transcript: (i) to minimize the risk that the witness, perhaps unintentionally, would not correctly relate to others the substance of his testimony, In re Russo, supra; (ii) to give the witness an opportunity to correct inadverent mistakes in his testimony, In re Russo, supra ; In re Craven, 13 Crim. L.Rptr. 2100 (N.D.Cal. 1973); (iii) to protect the witness from prejudicial inferences because of the fact