STATEMENT OF RICHARD E. GERSTEIN, CHAIRMAN, CRIMINAL JUSTICE SECTION, COMMITTEE ON THE GRAND JURY, AMERICAN BAR ASSOCIATION

Mr. Chairman, and members of the Subcommittee: My name is Richard E. Gerstein and I am State Attorney of Dade County, Florida. 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.

I am chairman of the Committee on the Grand Jury of the Criminal Justice Section of the American Bar Association. Mr. Austern is a member of the Committee. The Committee on the Grand Jury was created by the Criminal Justice Section in September, 1974. Our mandate is to examine proposed legislation to revise grand jury procedure, and to offer proposed changes for American Bar Association approval.

We appear today to express American Bar Association opposition in principle to House Joint Resolution 46, and to support in principle certain amendments to Title 18 and 28 U.S.C. as proposed by H.R. 1277, and to oppose in principle others.

It is significant to note that the membership of the Criminal Justice Section of the American Bar Association represents every segment of the criminal justice system: prosecutors, trial and appellate judges, public and private defense attorneys, corrections officials, persons engaged in investigation and enforcement, law school professors and students, and others. We number over 12,000 attorneys and law student members.

The Committee on the Grand Jury is equally representative of the profession, and consists of federal and state prosecutors, practicing defense attorneys, public defenders, law professors, and law students. During the past two years the Committee has met on some eight occasions to consider and study grand jury procedures and practices.

From September, 1974 to June, 1975, the Section Committee on the Grand Jury studied legislation pending in the Congress with respect to the grand jury. The Committee issued a report, parts of which were subsequently approved by both the Council of the Criminal Justice Section and the House of Delegates of the American Bar Association. Since September, 1975, the Committee has pursued a different tack. Rather than studying and issuing a report with respect to pending legislation, the Committee, through the work of six subcommittees, has proposed changes of its own in grand jury procedure. These Committee grand jury proposals were presented to the governing Council of the Criminal Justice Section in May. Although copies of these proposals have been made available to the members of this Subcommittee, the proposals have not been approved by either the Section Council or the House of Delegates of the American Bar Association, and consequently are not the approved policy of the American Bar Association or the Section.

This morning, therefore, I shall limit my remarks to the approved American Bar Association position with respect to legislation presented in the first session of the 94th Congress, namely, H.J. Res. 46, H.R. 1277, H.R. 2986, and H.R. 4604. Following my statement with respect to this legislation, Mr. Austern and I will be happy to answer any questions you may have concerning these proposals.

I. H.J. RESOLUTION 46

The American Bar Association opposes, in principle, House Joint Resolution 46, which would amend the 5th Amendment to the United States Constitution, to eliminate the requirement that a defendant to be charged for any "capital or otherwise infamous crime" against the United States be proceeded against by way of indictment. Although we are mindful of the expense and time consumed in presenting many federal offenses to a grand jury which might more efficiently be prosecuted by way of information (forgery and uttering, interstate transportation of a stolen motor vehicle, etc.), we are unable to propose a satisfactory resolution to this problem which would be short of Constitutional amendment.

We note that the difficulty of presenting every felony case to a federal grand jury may take on added importance in the future in light of the recently enacted Speedy Trial Act, which will place a substantially increased burden on both the prosecutor and the grand jury process itself.

II. H.R. 1277

The American Bar Association endorses in principle certain amendments to Titles 18 and 28 of the United States Code as proposed by H.R. 1277, and opposes in principle certain other amendments.

We support in principle Section 2(a) of H.R. 1277, to the extent that it would amend the extant recalcitrant witness statute (28 U.S.C. 1826(a)) to prohibit multiple confinements of a witness upon subsequent refusals of the witness to testify about the same transaction.

The Association also supports in principle Section 2(c) of H.R. 1277. This would permit a witness before a federal grand jury to allege a violation of Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (18 U.S.C. 251, commonly referred to as the "Federal Wiretapping Act") as a defense to an action brought against him or her under the recalcitrant witness statute of which I just spoke, 18 U.S.C. 1826(a).

In addition, the Association supports in principle Section 4(a) of H.R. 1277, which, by the addition of 18 U.S.C. 3330A(c) and by an amendment to Rule 6(d) of the Federal Rules of Criminal Procedure, would entitle every witness called to testify before a grand jury to have counsel present in the grand jury room in order to advise the witness of his or her rights in connection with that appear

ance.

Finally, with respect to Section 5 of H.R. 1277, the American Bar Association supports in principle the amendment to 18 U.S.C. 6002, which would permit the granting of "transactional" immunity from prosecution to a witness, rather than "use" immunity as presently provided for in federal law, and in Section 3111 of the proposed revision of the Federal Criminal Code (S.1, 94th Congress).

Two sub-sections of H.R. 1277 are supported in principle by the American Bar Association, subject to suggested revisions.

Section 2(c) of H.R. 1277 would proscribe the unauthorized disclosure of grand jury information, and the solution or attempt to obtain unauthorized disclosure. The Association would support this section if it were amended to provide an increase in the penalties for such disclosure. Section 4(a) of H.R. 1277 would add 18 U.S.C. 3330A (c) with respect to delaying the appearance of an immunized witness upon service of a subpoena. The bill would provide a oneweek period between service of subpoena and the witness's scheduled appearance unless the government shows special need for a shorter period. The Association would support this provision in principle if it were amended to provide a 72-hour period—instead of one week-unless special need is shown by counsel for the government. The ABA's rationale in urging the 72-hour period is that the longer period would unduly prolong grand jury proceedings and would reduce the effectiveness of grand jury investigations.

The American Bar Association opposes in principle Section 2(a) of H.R. 1277, which would amend the recalcitrant witness statute (28 U.S.C. 1826(a)) to reduce the maximum period of confinement for refusal to testify before a grand jury from 18 months to 6 months. The Association also opposes in principle Section 2(b) of H.R. 1277, which would amend 28 U.S.C. 1826(b) to place the burden of opposing bail pending appeal upon the government, following confinement of a witness for a refusal to testify before a grand jury. The Association also opposes in principle Section 4(a), which would add a new section (18 U.S.C. 3330) to permit a grand jury to require the Court to appoint a special prosecutor to assist the grand jury in the conduct of an independent inquiry.

III. OTHER GRAND JURY LEGISLATION

As I have previously noted, additional legislation affecting the grand jury was introduced in the 94th Congress-specifically, H.R. 2986 and H.R. 4604, introduced by Congressman John Conyers; and H.R. 6006, introduced by Congressman Robert Kastenmeier. The Criminal Justice Section confined its study of proposed grand jury legislation to H.R. 1277 and H.J. Res. 46.

This Subcommittee should note that the ABA recommendations are confined to these two measures. The Section's Committee on the Grand Jury is continuing its work and will be making further recommendations to the governing Council of the Criminal Justice Section. I am pleased to report that the Criminal Justice Section has decided to continue our Committee on the Grand Jury for another year. The Section is committed to a continuing study of grand jury reform. We believe this is important work, and a task which deserves our continuing attention.

We are mindful of the duty of the members of this Subcommittee to report to the full Congress as to these hearings and grand jury reform generally. I would, nonetheless, respectfully ask you to permit us to return in the near future, when additional positions concerning the grand jury have been acted upon by the House of Delegates of the American Bar Association.

Mr. Austern and I would be happy to answer any questions you may have with respect to our position on the grand jury.

Mr. EILBERG. Mr. Gerstein, I observe that if other prosecutors throughout the country were doing what you are doing, we would probably not be sitting here today.

Mr. GERSTEIN. Thank you.

I'm sure Mr. Austern has some comments.

Mr. EILBERG. Mr. Austern?

Mr. AUSTERN. I would only say that perhaps my experience in both New York and Washington have not reflected a typical grand jury experience as a prosecutor. The last witness gave you a rural flavor. Whereas I am sure you know that the Federal rules do not require that rules of evidence be followed in a Federal grand jury and hearsay pursuant to some Supreme Court cases can come before the grand jury.

I am afraid New York and Washington and Miami do not reflect normal grand jury activity throughout the country such as it may exist. I do think it would be very difficult for a prosecutor from New York or Washington to be either abusive or very abusive to a witness or to the system itself with the kind of sophisticated grand juries we have.

They are particularly sensitive to that kind of abuse.

Mr. EILBERG. Would you include Philadelphia in that group?
Mr. AUSTERN. I would certainly include Philadelphia.

Mr. EILBERG. I would not. I have served in the district attorney's office in Philadelphia. [Laughter.]

Forgive me for that. I appreciate your comments, gentlemen. I have some questions. I understand that the ABA approves of our proposal to grant a witness the right to counsel in the grand jury room. In your proposed standards you detail this, applying it to all witnesses, and providing for court control of improper actions by the counsel. Presently nine States grant the defendant the right to counsel in the grand jury room. What has been your experience?

Mr. GERSTEIN. We did not consider the experience of those States. Without considering the experience of those States and without even being aware that that number of States had already authorized that right, the committee overwhelmingly favored the right to counsel in the grand jury room.

I think there will of necessity have to be some substantial limitation placed upon the role that counsel for witnesses will play so that he will not become a disruptive factor.

Mr. EILBERG. One problem raised by the Justice Department and also by the Judicial Conference in providing the right to counsel is the issue of multiple representation. The fear is that a witness might be represented by counsel who represents another possible potential defendant or who is paid by a third party.

Do you believe the court can control this problem while still providing the right to counsel?

Mr. GERSTEIN. Yes; we do. We addressed that problem in the standards.

Mr. EILBERG. You place the obligation, as I read one of your proposed standards, to avoid conflicts on the lawyer. Do you believe this is sufficient?

Mr. GERSTEIN. Since the lawyer is an officer of the court and since any abuses that occur can be brought to the attention of the court or to the attention of the bar association, it seems to us that that i a sufficient control.

Mr. AUSTERN. Mr. Chairman, it may be a little bit self-serving to say this but I believe more and more courts are citing ABA standards on the subject to assist them in reaching decisions. Hopefully the mere fact that if the ABA comes out recommending that the court control this to a certain extent or the attorney control it, that in and of itself can be used.

Mr. EILBERG. What has been the experience of your group in representing a client called by the grand jury? Is the client always free to leave the grand jury room to consult with you? Do you find that indigent witnesses are provided with counsel?

Mr. GERSTEIN. I believe most of the members of the committee-
Mr. EILBERG. I am sorry?

Mr. GERSTEIN. I believe most of the members of the committee said that they had been permitted to remain outside and consult with their client. I think that situation would provide a barrier to the witness frequently consulting with counsel.

I think there would be a natural feeling, except among very sophisticated witnesses, that he was annoying the prosecutor, annoying the jurors by continually leaving. I think that makes for a very clumsy setup. However, I do not know of anyone who is not afforded that right.

In my jurisdiction, while we have not had the situation, if an indigent witness needed counsel, the public defender would represent him. Mr. AUSTERN. Specifically, the Federal Criminal Justice Act does not provide for appointed counsel for witnesses who appear before the grand jury. If the committee felt that indigent witnesses should be given that right, I would think the Criminal Justice Act would have to be amended.

Mr. EILBERG. Would you agree with the statement that a witness who requested the right to see his lawyer outside the grand jury room runs the risk-or he runs the embarrassment of limiting his credibility with that grand jury.

Mr. AUSTERN. Absolutely. In addition to delaying the process I think it clearly annoys the grand jurors and raises speculations in their mind as to the purposes of the consultation.

Mr. GERSTEIN. I agree with that. There is no question about that. Mr. EILBERG. Do you feel or do you know of cases where witnesses have been discouraged from leaving the grand jury room by the prosecutor or by grand jurors?

Mr. AUSTERN. I had a witness report to me that, as to any question of fact, they were not interested in my answer but the witness' answer and there was no need to consult me.

Mr. EILBERG. Do you feel that there is such abuse and a quantity of such abuse to warrant our attention to this problem?

Mr. AUSTERN. Yes. The committee has recommended that you have counsel inside of the grand jury. A lot of the appearance of running back and forth between rooms would be solved.

Mr. EILBERG. Going into the area of immunity and contempt, the ABA opposes reducing the maximum penalty for a recalcitrant witness. I am concerned by this opposition to this provision in H.R. 1277. Under the law today an individual who is punished for more than 6 months is entitled to full due process rights including the right to a jury trial. Since we limit these rights in the contempt situation, shouldn't we also limit the term of confinement?

Mr. GERSTEIN. Our response is that we would not limit the terms of confinement. We would expand the rights of the witness.

Mr. EILBERG. Do you feel that the 18 months needs to be retained? Mr. GERSTEIN. Well, I think there are situations where perhaps the 18 months should be retained. I think what is needed is for the courts in those situations to constantly review whether or not the confined witness is likely to testify if the confinement continues.

But there was a New Jersey case where the witness had been confined for 4 years, the supreme court of New Jersey said that the fact that he kept petitioning for release was indicative of the fact that the confinement was working.

Mr. EILBERG. Do you have any evidence or information indicating whether the 18-month confinement is actually worthwhile or productive?

Mr. GERSTEIN. I am not in a position to testify about that because the life of my grand juries is a maximum of 9 months. I have never had that situation confront me. Perhaps Mr. Austern can add to that.

Mr. AUSTERN. I have never had a client incarcerated for failure to testify. But speaking only for myself, I don't think confinement does very much for conviction and I certainly don't think it does very much with recalcitrant witnesses.

You are going to have confinement-if you're going to have confinement for obstruction of justice, 6 months is unjust.

Mr. EILBERG. Is 9 months sufficient?

Mr. AUSTERN. I don't know. I know you have to draw the line somewhere. I-as much as I am against confinement I would much rather see the rights of the witnesses expanded and the courts taking a more active role in challenges to what is going on in the grand jury than I would like to see the penalty truncated for actual violations.

Mr. EILBERG. If there is need for increased punishment for coercion of testimony, could this not be handled through a prosecution for criminal contempt or should it involve, if necessary, a jury trial?

Mr. GERSTEIN. Well, it could be handled in that fashion, yes. But I do not think that jury trials in this situation are appropos.

Mr. EILBERG. Why not?

Mr. GERSTEIN. It just seems to me that the matter involves contempt. It should be handled by the court and not a jury, provided there are sufficient safeguards for the witness.

I am not sure that they presently exist.

Mr. EILBERG. Do you believe in the concept that we are considering: that is, a hearing before the judge in camera?