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EFFECTIVE DATE; SAVINGS PROVISION

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Sec. 10. The provisions of this Act shall take effect on

3 the date of enactment of this Act. No amendment to any

4 provision of law made by any provision of this Act shall 5 affect any immunity to which any individual is entitled under 6 such provision by reason of any testimony of other infor7 mation given before such day.

Mr. EiLBERG. Now we have our colleague from New York, Congressman Mario Biaggi.

TESTIMONY OF HON. MARIO BIAGGI, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF NEW YORK

Mr. Biaggi. I want to congratulate you for bringing this issue of grand jury out into the daylight and dealing with the system and its abuses. I have spent some 23 years in the police department in the city of New York in various ranks and I have been steeped in law enforcement and law enforcement attitudes, processed in reality rather than theory. What we have in fact is not what the Founding Fathers of the Constitution had in mind.

The grand jury system is one that was constituted for the purpose of protecting people. It may have been that initially.

Mr. ELLBERG. Do you have a statement !
Mr. BIAGGI. Yes.
Mr. EILBERG. Would you like to make it part of the record ?
Mr. BIAGGI. Yes.
Mr. EiLBERG. We will make it a part of the record at this point.
Mr. Biagi. Thank you, Mr. Chairman.
Mr. EiLBERG. Please proceed.
[The prepared statement of Hon. Mario Biaggi follows:]

STATEMENT OF HON. MARIO BIAGGI, A REPRESENTATIVE IN CONGRESS FROM THE

STATE OF NEW YORK

Mr. CHAIRMAN. I am pleased at the opportunity to appear before this subcommittee which is deliberating on a subject of tremendous importance to the American judicial system-grand jury reform. should preface my remarks by stating that I support the continuation of the grand jury system. It performs an important function in our criminal justice system through the safeguarding of the rights of the individual to due process.

However the system is ill. The ailments are several : If not corrected-could render the system ineffective. What are some of the compelling problems in the grand jury system which need reform?

First—unauthorized leaks of grand jury proceedings. This problem has proliferated in recent years on both the State and Federal levels. Despite the present State and Federal statutes banning the disclosure of grand jury proceedings without an authorization from the Court. These statutes appear to have no real effect. Perhaps this is the single most dangerous threat to the security of the rights of the individual. Consider some of the conseqeunces and injustices which can result from unauthorized grand jury leaks. For one, a person's reputation can be ruined even when no indictments are returned and even when no wrongdoing of any kind can be shown. Erroneous information disclosed from unauthorized grand jury leaks is often difficult to refute because the sources of the leaks are not disclosed. Further, if a trial is begun, the adverse pre-trial publicity generated from the leaks could jeopardize the individual's right to a fair trial.

Where do these leaks come from and how can they be stopped? They can come from any number of sources-court employees, press, and even members of the grand jury themselves. However, perhaps the most common offender is the prosecutor. We are having to contend with a growing problem in our criminal justice system—the growth of politically motivated prosecutors who have come to use the forum of the grand jury as a manipulative tool to further their own ambitions-by in some cases, indulging in character assassinations of political foes. We must be extremely vigilant in the protection of our individual rights. It is for this reason that I wholeheartedly support the provisions in H.R. 1277 which would impose criminal penalties against any person who discloses any aspect of a grand jury proceeding without the express authorization of the court. I urge that this section be adopted without any exemptions. Failure to enact, and more

importantly, enforce such a new law will result in continued abuses. For the system to work, secrecy must be binding on all unless and until a crime has been charged.

First of course there are many reforms needed in the grand jury system. One is the need for a right to counsel for all persons called before the grand jury. The supreme court in their landmark decision of Gideon v. Wainwright, mandated that the right to counsel be considered a fundamental right. Yet in grand jury proceedings, there must be more than merely a right to counsel. The individual should be able to have the lawyer with him at all times during the proceeding as an additional protection against possible violations of individual rights by the prosecutor.

Another current and very dangerous abuse in the grand jury system is the situation which places the Government attorney in the dual position of being both a prosecutor and legal advisor to the grand jury. As a result, he has an undue amount of influence over the quantity of--and the manner in which evidence is presented for the grand jury's consideration. When one adversary in a grand jury proceeding has a substantial edge over the other, then the objective of impartiality is impaired, if not totally destroyed. It has now become obvious that a basic reform must be undertaken to correct this situation. The codes committee of the New York State assembly in their recent report on grand juries, recommended the creation of the Office of Grand Jury Counsel whose job "would be solely to present all relevant evidence (to the grand jury) in a purely professional and impartial manner." I support this.

Another important recommendation made by this same New York State Assembly panel was that all indictments should be subject to judicial review before filing. Oftentimes, grand juries hand down erroneous indictments caused in part by inadequate information or biased presentation of evidence by prosecutors. Extensive publicity of an erroneous indictment can thoroughly destroy a person's reputation and even if the indictment is thrown out, the damage has been done.

Briefly, two other reforms recommended by the State assembly panel which bear consideration include; the fact that prosecutors must prior to trial, present to the defense all exculpatory evidence in favor of a defendant. Also, prosecutors must inform all witnesses of their rights prior to a grand jury appearance. While they should also be advised of the subject matter of the hearing--they too, must be covered under penalties for divulging information about a grand jury proceeding.

One final point-but central to any meaningful grand jury reform-must be the adoption at both the Federal and State levels of a specific code of conduct for all prosecutors. This code should contain prohibitions against using an office for political gain as well as a strict adherence to basic due process rules in the conduct of his activities before a grand jury, prosecutors today hold far too much power and if allowed to continue, the rights of the individual will be trampled on. The grand jury system was created as a means of assuring an individual's right of due process. Yet even grand juries have not escaped the manipulative powers of prosecutors. The grand juries' future, may rest with the ability of Congress to pass meaningful reform legislation. I support your efforts today and hope they will be successful for the benefit of All Americans.

Mr. Biaggi. In fact it has become a tool of the prosecuting attorney. The system is good but in order for it to be practical and provide what was intended, it requires one element and that is the question of integrity. Being mere mortals, we find some of us have failed in this in different capacities.

In the prosecuting end, the enthusiasm, if you will, or the desire to establish a good record statistically or just getting caught up in that whole fever of getting convictions and finding people guilty often sometimes pervades the process. The result is that the grand jury system has failed to a large measure.

The fact that you are holding hearings--I have discussed this with the chairman and other Members-highlights that point. I am hopeful that we will make some corrections at least on the Federal level. It is important. If we do it at this level, it will serve as exemplar for the prosecuting attorneys and the lesser subdivisions.

I listened to my colleague, Mr. Rangel. I would like to add to what he said. You posed a question whether the grand jury should give permission. I agree with him on that score. There are very few irdependent grand juries. They are psycned just by the very presence of the DA. They are literally wined and dined by the prosecutor's office. So after a short time, it does not become the prosecutor and grand jury and defendant or witness. It becomes us against them. I would suggest for whatever it is worth that the Attorney General of the United States be required to give permission to grant immunity.

Hopefully that would stay some ambitious, irresponsible and perhaps even unprincipled U.S. attorney on the local level from proceeding where he has no right.

I would like to believe that when you reach the office of Attorney General of the United States more objectivity is practiced.

Mr. EILBERG. What do you think of the proposal to have this matter heard in camera by the court! I am not sure that going to a higher level in the Justice Department will necessarily provide the kind of independent judgment that may be necessary.

Mr. Biaggi. T'hat becomes a value judgment at that point. Perhaps you are right 'but obviously we are both seeking the same thing. If the committee feels as a result of its hearing and experience having been that having determined in camera is superior and provides better protection, then I will defer to the committee's judgment.

But it is a question that I believe should be determined after considerable inquiry:

Mr. EILBERG. Presently of course, you know that it is just a rubber stamp operation. The Government attorney makes the judgment and it is rubberstamped by the court without any other inquiry. Our concern is that with the jury wrapped up and under the total control of the Government attorney, we tend to further prejudice the rights of the witness or potential defendant before the grand jury.

That is the reasoning for our feeling that there ought to be perhaps an independent hearing before the judge.

Mr. BIAGGI. Again I will defer to your judgment after you make extensive inquiry in this area. I know that you will because those concerns are obviously the same as mine. I would like to raise one point at least for the record.

It would be interesting to show for the record the rate of indictments versus trials versus convictions. I think that would have a very graphic portrayal. Many indictments are never in fact pursued. They are obtained by virtue of political motivation.

Many of them are washed out by motions.

Mr. EILBERG. We have proposed in our legislation that that become part of an annual report to the Congress.

Mr. Biaggi. What it does, it highlights the absence of substance to many indictments and a careless cavalier attitude is taken in connection with indictments. I can't emphasize sufficiently the damage that is done merely by an indictment of a public officer or an individual.

Everything is relative. Psychologically it is the same. It may be more lasting and broader to a public official but psychologically both of them have been tainted at least in their own mentalities.

That is a damage that can never be repaired. First, I support the continuation of the grand jury system. It performs an important function in our criminal justice system for safeguarding the rights of individuals to due process. However, the system is ill. The ailments are subtle. If not corrected it could render the system ineffective.

Some of the compelling problems which need reform: One is the need for right to counsei for all persons called before the grand jury in the grand jury room. I find no objection to that and I reject out of hand the argument in opposition that it is dilatory in nature and would delay.

To begin with it is a poor argument. I don't know in fact that that would result. If it would, it would be justified. Contrast that to the current situation. John Doe or plain citizen or John Doe public official called into the jury room. It is a psychologically traumatic experience to begin with.

You are almost hypnotized by one individual who dominates the entire picture, who harasses and denies proper requests and harasses and intimidates and coerces the individual with the grand jury remaining silent.

In my judgment his rights are being impaired. The process would be better protected by having an attorney present. Guidelines could be established. I don t mean for an attorney to be present and start the trial proceedings but at least be there to protect the individual.

The Supreme Court in the landmark decision Gideon v. Wainright mandated that the right to counsel be considered a fundamental right. Yet in grand jury proceedings there must be more than merely a right to counsel. The individual should be able to have him with him at all times during the proceedings and additional prosecution against violation of individual rights by the prosecutor.

Another abuse is the situation in which the Government attorney is in the dual position of being both the prosecutor and legal adviser of the grand jury. He has an undue amount of influence over the quality and quantity of evidence presented to the grand jury.

When one side has the edge over the other, the objectivity is impaired.

Mr. EiLBERG. We have a vote. Perhaps we ought to go over and vote and come back and conclude your testimony.

[Voting recess.]
Mr. ELLBERG. Mr. Biaggi, please proceed.

Mr. Biaggi. As a result he has nothing to do with the amount of influence over the manner of evidence which is presented.

Basic reform must be undertaken to correct this condition. The codes committee of the New York State Assembly recommended the creation of the office of grand jury counsel whose job would be solely to present all relative evidence to the grand jury in a purely professional and impartial manner.

As a theory I support the notion. It is intriguing and interesting. I don't know if it is practically applicable at this time. But it does point out the deficiency of the prosecutor presenting the evidence.

Another important recommendation by the same New York State Assembly panel was that all indictments should be subject to judicial review before filing. Let me expound on that for a moment. We had experience in New York City with the special prosecutor who abused the latitude that he possessed.

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