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he was called before the grand jury, In re Craven, supra; In re Biaggi, 478 F.2d 489 (2d Cir. 1973); and (iv) to protect the witness from the possibility of government violation of use immunity extended to the witness, In re Minkofj, 12 Crim.L.Rptr. 2191 (D.R.I. 1972).

No rule or statute on this subject is recommended, as: (a) In at least some cases, providing a transcript would be inconsistent with the secrecy requirement. See In re Alvarez, 351 F.Supp. 1089 (S.D. Cal. 1972), noting that if a transcript could be obtained the witness might be pressured into getting one so that the persons being investigated could see if the witness implicated them and thus could in large measure prevent the witness from making disclosures which he would otherwise make; and In re Craven, supra, and in re Biaggi, supra, both declining to release a transcript which identified the persons about whom the witness testified. (b) Given appropriate circumstances, courts presently possess the power to provide a transcript to the witness. See In re Ru880, supra, and in re Biaggi, supra. (c) The circumstances which might call for permitting the witness to receive a transcript are so varied that a general standard could not be expressed in a rule or statute.

Thus, the Committee is opposed to the proposals in H.R. 1277, H.R. 2986 and H.R. 6006 which would allow every grand jury witness to inspect and copy a transcript of his testimony and, if indigent, to receive a copy thereof.

(9) Recalcitrant witnesses. H.R. 1277, H.R. 2986, H.R. 6006 and H.R. 6207 would revise 18 U.S.C. $ 1826 so as to limit the authority of a court to deal with a recalcitrant grand jury witness by use of the contempt power. Among other things, it is proposed that the outside limit on the period of confinement be changed from 18 months to six months and that no person once confined as a recalcitrant grand jury witness be so confined again for a second refusal concerning the same transaction, set of transactions, event or events.

The Committee does not favor such limitation of the court's contempt power. If the investigative activities of federal grand juries are not to be thwarted, it is necessary that the court have available sufficient means to deal with the witness who without just cause fails to comply with an order of the court to testify or otherwise provide information which may be critical to a grand jury investigation into suspected criminal conduct.

(10) Immunity of witnesses. H.R. 1277, H.R. 2986, H.R. 6006 and H.R. 6207 · would make certain changes in the law regarding the grant of immunity to a grand jury witness. These bills would grant transactional rather than use immunity, and some of them would remove from the executive branch the decision as to whether the stated criteria for granting immunity (that the testimony "may be necessary to the public interest" and that the person has refused or is likely to refuse to testify on Fifth Amendment grounds) have been met. H.R. 1277 would place this decision in the court, and H.R. 2986 would make it the responsibility of the grand jury.

The Committee is opposed to these proposals. Use immunity gives ample protection to the witness and meets the requirements of the Fifth Amendment. As the Supreme Court held in Kastigar v. United States, 406 U.S. 441 (1972), "inimunity from use and derivative use is coextensive with the scope of the privilege against self-incrimination, and therefore is sufficient to compel testimony over a claim of the privilege ... Transactional immunity, which accords full immunity from prosecuiton for the offense to which the compelled testimony relates, affords the witness considerably broader protection than does the Fifth Amendment privilege. The privilege has never been construed to mean that one who invokes it cannot subsequently be prosecuted." The Kastigar decision noted that the witness is given “very substantial protection” with use immunity, for the government, if it later prosecutes, has the burden of showing the absence of taint. This burden "is not limited to a negation of taint; rather, it imposes on the prosecution the affirmative duty to prove that the evidence it proposes to use is derived from a legitimate source wholly independent of the compelled testimony."

As reflected in the legislative history of the present law, see 1970 U.S. Code Cong. and Adm. News 4018, it is appropriate to vest primary responsibility in the executive branch for determining whether the “public interest” would be served by a grant of immunity, and thus the present law requires that the U.S. attorney satisfy himself in this respect and obtain the appropriate approval from his superiors. Indeed, serious doubt has been expressed as to whether this decision could be taken out of the executive branch. See Ullmann v. United States, 350 U.S. 422 (1956); In re Kilgo, 484 F.2d 1215 (4th Cir. 1973).

(11) Independent grand jury inquiry. H.R. 1277 and H.R. 2986 both include proposed new statutory provisions which would encourage federal grand juries to undertake independent inquiries upon their own initiative. Although the two bills are not identical in all respects, they are similar in that both provide for (a) notice to each grand jury of its independent authority and means for its exercise, (b) authority in every grand jury to conduct investigations upon its own initiative, and (c) appointment of special counsel, assistants and investigators to act on behalf of the grand jury in such investigations.

The Committee is opposed to such changes. There is a serious danger that the great powers given to grand juries by these bills might be misused, and that elaborate investigations of the same subject might be undertaken by several grand juries at the same time. A private attorney would not be familiar with or subject to the important and sensitive policies which the Department of Justice has formulated over the years with respect to such matters as the division of responsibility between state and federal authorities and between civilian and military authorities. The provisions of these bills would not only constitute an encroachment upon the executive power, but would be likely to cause confusion, the prosecution of indictments without adequate preparation, and other unfortunate results.

ADDENDUM: REPORT OF THE COMMITTEE ON THE ADMINISTRATION OF THE

CRIMINAL LAW (Note: An earlier draft of the Report of the Advisory Committee on Criminal Rules, not including what are now Parts One, Three, and Seven of the Report and referring to H.R. 1277 and H.R. 2986 but not H.R. 6006 and H.R. 6207, was considered by the Committee on the Administration of the Criminal Law of the Judicial Conference. The Report of the latter Committee, as contained in a letter from Judge Alfonso J. Zirpoli to Judge J. Edward Lumbard, is set out below.) 1. Size of the Grand Jury

We approve the recommendation of your Committee that Title 18 U.S.C. sec. tion 3321 and Rule 6 of the Federal Rules of Criminal Procedure be revised to provide that the grand jury be reduced in size to not less than nine and not more than fifteen and that concurrence by two-thirds of the members thereof be required for an indictment. The mechanics of such statutory revision and change in Rule 6 should be so timed that each becomes effective on the same date. 2. Rule 6(e). Recording of Grand Jury Proceedings

We approve the recommendation of your Committee that Rule 6(e) (1) of the Federal Rules of Criminal Procedure be amended to make the recordation of grand jury proceedings mandatory, but express serious reservation as to the provision which would permit electronic recording as an alternative to stenographic recording.

We also approve the suggested amendment to Rule 6(e) (2) of your Commit: tee relating to the secrecy and disclosure of grand jury proceedings. 3. Rule 7(0). Motion to Dismiss Indictment

While we find nothing particularly objectionable in the recommendation of your Committee which would add subparagraph (g) to Rule 7 of the Federal Rules of Criminal Procedure to provide :

(g) Motion to Dismi88 Indictment. A motion to dismiss the indictment may not be based on the ground that it is not supported by suficient or competent evidence, We nevertheless recommend that Rule 7(g) should not be adopted. It is not a precept that should be codified by rule or statute. It should be left to case law. See United States v. Calandra, 414 U.S. 338 (Jan. 8, 1974). We feel that this is a matter that could be better handled by an advisory committee note and thus avoid conflict with the principle that an indictment should be returned only upon showing of probable cause that a federal offense has been committed.

For the reasons indicated in your Report, we too do not favor the proposal in H.R. 2986 which would provide for dismissal of any indictment on the ground that the evidence was insufficient or that there was not competent and admissible evidence showing reasonable cause.

4. Making Unauthorized Disclosure an Offense

We reviewed the suggested statute in the Report of your Committee which would make it an offense to knowingly disclose matters appearing before the grand jury. While we find no cause to object to such statute, we are of the view that the matter of disclosure by witnesses of testimony given before a grand jury should be the subject of further study. We note that the grand jury secrecy provisions of H.R. 1277 (proposed amendment to section 1512 of Title 18 U.S.C.) is more limited than that of the proposed statute of your Committee, for the former expressly excludes disclosure by a person not present at such grand jury proceedings.

Commenting further on the proposed statute of your Committee, it is our present thinking that paragraph (3) of subparagraph (b) of the statute should be revised to require witnesses not to disclose matters occurring before a grand jury when specifically directed not to do so by the court. 5. H.J. Res. 46. Amendment to Constitution to Bar Grand Jury Indictment

Our Committee concludes that H.J. Res. 46, 94th Cong., 1st Sess., calls for a policy determination to be made by the Congress. Hence we recommend that the Judicial Conference of the United States take no action on this House joint resolution. However, should the Conference desire a recommendation from our Committee, we would desire a recommendation from our Committee, we would recommend against absolute constitutional abolishment of the grand jury as a vehicle by which to hold a person to answer for a crime against the United States, but we would approve a constitutional amendment that would permit the holding of a person to answer for such crime by either indictment or information. Such alternative would preserve the institution of the grand jury where needed to prevent arbitrary action of the state and for those situations which involve organized crime, violations of the antitrust laws or other activities in the investigation of which the grand jury serves an effective and constructive purpose. 6. H.R. 1277 and H.R. 2986

Subject to an exception and observation herein noted, our Committee concurs in the recommendation of your Committee that H.R. 1277 and H.R. 1986, 94th Cong., 1st Sess., not be adopted.

The exception relates to recalcitrant witnesses. Whereas H.R. 1277 and H.R. H.R. 2986 would revise 18 U.S.C. section 1826 so as to limit the authority and contempt power of the court to deal with recalcitrant grand jury witnesses by a proposed outside limit on the period of confinement of six months and a proviso that no person once confined as a recalcitrant grand jury witness can be again confined for a second or subsequent refusal concerning the same transaction, set of transactions, event or events, your Committee recommended against such limitation of the court's contempt power. On this proviso our Committee was divided with six members thereof favoring the limitation that a person once confined as a recalcitrant grand jury witness cannot again be confined for a second refusal concerning the same transaction and only two members of our Committee favor the recommendation of your Committee. It should be further noted that of the six members favoring the proviso against a second confinement, five members of the Committee qualified their position with the further proviso that the initial period of confinement be retained as a period for the life of the grand jury, but in no event for more than eighteen months.

On the issue of immunity of witnesses our Committee voted 6 to 4 to support use rather than transactional immunity and approves the conclusion of your Committee that use immunity gives ample protection to the witness and meets the requirements of the Fifth Amendment.*

With the exception and observation just noted, our Committee unanimously agrees that the opposition to H.R. 1277 and H.R. 2986 is amply and persuasively supported for the reasons expressed in your Report. The reasons expressed in opposition to these bills are primarily based upon the same general considera

* Subsequently, the Committee reversed itself and by a divided vote supported transac. tional immunity.

tions expressed by our Committee to the Judicial Conference of the United States (and approved by the Conference) at its meeting in September 1973, when in our recommendation against the adoption of similar legislation and in particular H.R. 8461, 93d Cong., 1st Sess., we stated as follows:

This bill would effect radical changes in existing grand jury practices and procedures :

(a) It provides that any grand jury may turn into an independent grand jury, with court-appointed counsel and investigate staffs operating independently of the Department of Justice, with the power to inquire upon its own initiative into any offenses against the criminal laws of the United States alleged to have been committed within the district. We believe that there is serious danger that the great powers given to grand juries by the bill might be misused, and that elaborate investigations of the same subject might be undertaken by several grand juries at the same time, which might result in indictments in several districts for the same conspiracy or other multi-district offenses. A private attorney would not be familiar with or subject to the important and sensitive policies which the Department of Justice has formulated over the years with respect to such matters as the division of responsibility between state and federal authorities and between civilian and military authorities. The provisions of the bill would not only be an encroachment upon the executive power, but would be likely to cause confusion, the prosecution of indictments without adequate preparation, and other unfortunate results ;

(b) Witnesses before regular as well as independent grand juries would have the right to the assistance of counsel while testifying before grand juries, with court-appointed counsel for indigent witnesses; grand jury subpoenas could not be made returnable until one week after service; and subpoenas would be quashed if the court should find after hearing that appearance would impose a substantial and unnecessary hardship on such person or on his family because of the location of the proceeding. Transactional rather than use immunity would be afforded to witnesses compelled to testify and maximum continement of recalcitrant witnesses would be reduced from 18 to 6 months. The proposed changes in the rights of witnesses go far beyond any need of which we are currently aware, and would greatly hamper the effectiveness of grand juries.

While reforms in grand jury proceedings may be desirable, we recommend against enactment of H.R. 8461. Mr. EiLBERG. Our next witnesses are the representatives of the American Bar Association. At a house of delegates meeting in August 1975 the ABA passed a resolution relating to grand jury reform, specifically relating to H.R. 1277 and House Joint Resolution 46. Since that time, a special committee has been working on a series of standards as to all grand jury issues.

These standards are only in the draft proposal stage and have not been adopted by either the criminal justice section or the ABA House of Delegates. Richard Gerstein is the State's attorney for Dade County, Miami, Fla., and is presently the chairman of that special committee on grand jury matters of the criminal justice section for the ABA.

Mr. Gerstein was past president of the National District Attorney's Association.

Accompanying Mr. Gerstein is David Austern, a member of the grand jury committee. Mr. Austern was assistant district attorney in New York City and assistant U.S. attorney in Washington.

He is presently in private practice and teaching law courses part time. Gentlemen, we are pleased to have you with us this morning. Please proceed in any way you wish.

77-787 O -77 - 17

TESTIMONY OF RICHARD GERSTEIN, CHAIRMAN OF THE COMMIT

TEE ON GRAND JURY MATTERS OF THE CRIMINAL JUSTICE SECTION OF THE AMERICAN BAR ASSOCIATION, ACCOMPANIED BY DAVID AUSTERN, MEMBER OF THE COMMITTEE

Mr. GERSTEIN. Thank you, Mr. Chairman. My name is Richard E. Gerstein and I am the State attorney of Dade County, Fla. I appear today to present the views of the American Bar Association with respect to proposed changes in grand jury procedures. Accompanying me today is David T. Austern, an attorney in private practice in Washington, D.C.

Mr. EILBERG. You may read your statement but we could put it into the record.

Mr. GERSTEIN. I think I will put it into the record. There is an amendment. The members of the judiciary are represented on our committee as well as prosecutors and defense counsel.

I would like to make one additional comment. It is the position of the ABA and our committee that we strongly support the concept of the grand jury. We also strongly support the need for reform in the grand jury system. I am the prosecuting attorney in a jurisdiction that I believe has a tradition of the most independent grand jury operation that exists anywhere in the United States.

The grand jury in the judicial circuit where I have been the prosecutor for 20 years has the right to retain independent counsel. It has the right to have any citizen that it petitions to appear before it appear before it. It has the right to request that the Governor of the State assign a State attorney from another judicial circuit to the grand jury.

It has the right to request the court to appoint a special prosecutor. I have made it a practice on a voluntary basis to permit only that testimony before the grand jury which would be admissible at trial. That is, to voluntarily exclude any testimony which could not be used by the State at the trial on the theory that the grand jury should operate as a fair institution with a view toward doing substantial justice, not a view toward only returning indictments but a view toward doing substantial justice.

No grand jury should rely on evidence which a trial jury will not be permitted to hear. In addition to that, for the 20 years I have been a prosecutor, we have voluntarily placed before the grand jury any exculpatory evidence which would tend to prove the innocence of the person involved.

In addition we have permitted defendants—afforded the right to any defendant to appear before the grand jury—to testify in his own behalf, provided he would sign a waiver of immunity. We permit defendants to produce any material witnesses they have, provided they sign waivers of immunity.

These are things we do on a voluntary basis, many of which have been included in the proposed standards being drafted by our committee.

Mr. EILBERG. Thank you.

We will place your full statement in the record at this point, Mr. Gerstein.

[The prepared statement of Richard E. Gerstein, follows:]

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