to themselves and their family are not going to give a tinker's damn about whether we have forced immunity on them and they are going to jail for contempt.

I dismiss that notion in terms of expediting the criminal justice process. I heard the Attorney General in his testimony before you. I think it was more academic than in the real world.

I was frankly affronted as a Member of Congress that after all the months that you have delayed these hearings for him-and I happen to know personally that you did, he would submit to only a few minutes of interrogation. I am personally acquainted with the fact that several members of this subcommittee had anticipated extensive questioning with the chief law officer of the United States.

I completely disagree with his proposals.

Mr. EILBERG. Under your bill if a witness consents to a grant of immunity, could he revoke his consent at any time or refuse to answer questions?

Mr. CONYERS. That we have not thought about. I would be willing to agree that it would be a nonrevocable consent. I can't imagine circumstances that a witness himself is not aware of that would lead him to refuse. I think it ought to be nonrevocable.

Mr. EILBERG. H.R. 11660 requires the personal approval of the Attorney General and a majority of the grand jury for any grant of immunity. Would not the Attorney General's approval be nothing more than a pro forma acceptance of the DA's advice?

· Mr. CONYERS. It probably would. It is hard to eliminate this internal rubberstamping that goes on within all of the Government agencies, but at least we bring him into it. At least he can't claim no knowledge, even if he delegates it.

He is not delegating the fact that he had the responsibility to know what people at the local level were doing. So I think it is important that he be included to this extent even though it might be pro forma. We would hope that a diligent Attorney General would not allow that to happen.

Mr. EILBERG. Would not the requirement that the grand jury vote for the grant of immunity prejudice a potential defendant since it would require the grand jury to receive explanations for the need? Mr. CONYERS. That is the whole idea.

Mr. EILBERG. We don't want the grand jury to be prejudiced or biased before they hear anything.

Mr. CONYERS. I don't think their being advised of the premises for a grant of immunity would prejudice them. What is happening when they are hearing all that the U.S. attorney is dumping on them to get the indictment in the first place?

Mr. EILBERG. Don't we endanger the witness or the potential defendant even more by mandating the district attorney to poison the minds of the grand jury further in explaining why immunity should be granted? This is the thrust of my question.

Mr. CONYERS. I think that is a risk that citizens would have to run in order to gain this additional safeguard against having immunity thrust upon them. If the evidence, material, or information is so damaging that it leads to influence the grand jury to ultimately vote for an indictment, as we say in the First District, that is the way

the cookie crumbles. We are not here to save each and every witness from ever having a grant of immunity.

We are here to prevent the grant of immunity from being forced upon him. He has got to be at least willing to undergo the dangers which you suggest might flow from that.

Mr. EILBERG. Please proceed and perhaps summarize some of your materials.

Mr. CONYERS. Well, I think we have put in our case through this discussion process, Mr. Chairman. I would only want to close by citing and quoting an attorney general who is head of the Criminal Division of the Department of Justice, a rather distinguished one, John Rogge. I don't remember if he was from the Republican administra-tion or not. But here is what he said in opposing the widening of the grand jury abuse that came about when the McCarthy era was at its height. It is rather short.

We take a step in the direction of the inquisitorial technique, and degrade individuals by giving them the choice either of confessing their sins and naming their associates or going to jail. We give up part of our birthright for less than a mess of potage. Our accusatorial method has helped us to develop a more independent and mature citizenry than will be found in eastern countries. With us an individual does not have to be submissive when the state points an accusing finger at him. He has the right to remain silent, along with a right to counsel, to a formal accusation, to bail in nearly all cases, to a public trial, to be confronted with his accusers, and to be proved guilty beyond a reasonable doubt.

We should not let any of these rights atrophy, least of all the right of silence. The compulsory confession of one's sins and the naming of one's associates may be standard operating procedure in authoritarian regimes, but is unbecoming to a free people.

I think that eloquence borrowed from a former head of the Criminal Division is an appropriate place for me to conclude. Thank you for allowing this testimony before your subcommittee.

Mr. EILBERG. Mr. Conyers, we would like to continue. We would enjoy discussing this with you for hours but time does not permit that. We have prepared a number of points which we would like to discuss with you.

I wondered if you could answer those for us for the record so we can have a fuller expression of your views.

Mr. CONYERS. I will be pleased to. The other members of the subcommittee and I fully appreciate the problems of time.

Mr. EILBERG. There are five subcommittees meeting at the present time.

Mr. CONYERS. If on any of the points in my bill I don't satisfy your questions in writing, I would be pleased to attend either an informal discussion with any of your colleagues on the committee or a formal meeting of the committee. It is my earnest hope, Mr. Chairman, that the subcommittee will be able, in this Bicentennial atmosphere, to move to where the grand jury ought to be.

I think the idea of consentual immunity has reached a time where we can discuss it not as some ideal notion but as something that is fundamental to how the grand jury ought to be operated.

Mr. EILBERG. I would like to thank you also for giving us some illustrative cases of alleged grand jury abuse. It is interesting to note that the Library of Congress is preparing a detailed description of alleged cases of abuse that are known and available.

While we should not get involved in particular cases, it is worthwhile to consider illustrative cases.

Mr. Conyers, I want to thank you for going to an awfully lot of trouble and work expressing yourself so well. I have read your statement and it is a fine one. I know it will be helpful to this subcommittee and the full committee in its deliberations.

We will move with the quickest possible speed.

Mr. CONYERS. With the chair's permission, I would like to insert into the record at this point four articles I believe explore several specific subareas of what we mean when we speak of grand jury abuse. The problems of grand jury leaks, grand jury investigations, and the collective bargaining process, immunity and the grand jury threat to the attorney-client privilege are detailed here in a depth I was not able to match in my testimony this morning.

The articles: "The Problem of Grand Jury Leaks," Herald Price Fahringer, Trial, May 1976. "Organized Labor Threatened by Abuse of Grand Jury System," Rep. John Burton, News and Views, May 1976. "Use Immunity: Jail for Those Who Refuse to Play," Judy Avner and Kathy Johnson, Trial, January 1976. "The Grand Jury: Making Trouble for Movement Lawyers," Fred Solowey, Juris Doctor, March 1976.

Mr. EILBERG. I wondered if we could take a look at those and reserve judgment?

Mr. CONYERS. I know you will examine them and I hope you will favorably consider this request.

[The articles referred to follow:]

[From Trial, Vol. 12, No. 5, May 1976]

THE PROBLEM OF GRAND JURY LEAKS

(By Herald Price Fahringer)

During February of this year, the New York State Investigation Commission conducted hearings to investigate the cause of grand jury leaks. This inquiry provided the public with a harrowing ringside view of one of the most disgraceful failures of our grand jury system. Within the past year, a number of public officials and other prominent persons have had their characters assassinated by outrageous disclosures originating from grand jury investigations. One special prosecutor, posing as the lago of our court system, repeatedly whispered the most scandalous rumors of official infidelity into the public's ear. Witnesses before the commission distributed the blame among prosecutors, defense lawyers, and in some instances insurgent grand jurors. Members of the commission understandably viewed these constitutional defaults with indignation. Certainly this sizable rift in grand jury security represents the most serious threat to its continued vitality as an institution essential to our criminal justice system.

It must be acknowledged that the alarming rise in grand jury investigations of celebrated people has placed enormous strains on a grand jury's secrecy. The perimeters of the grand jury room provide an excellent breeding ground for rumors, speculation, and scandal. This tangled territory is constantly stalked by newsmen and others anxious to capture confidential information and publicize it. Consequently, today our justice system is confronted with a crisis of unprecedented proportions.

Any evaluation of grand jury leaks must be made against the backdrop of its historic and constitutional function. The Fifth Amendment to our federal Constitution provides that:

"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury..."

The existence of this constitutional safeguard means that no citizen may be brought to trial for a serious crime unless the grand jury has heard sufficient evidence to vote an indictment.

In 1887, the United States Supreme Court concluded that a grand jury's primary purpose is to protect citizens from open and public accusation before the grand jury determines whether there is probable cause for an indictment. [Ex parte Bain, 121 U.S. 1 (1887).] The grand jury guarantees that a citizen's suspected wrongdoing shall be privately assessed so that he or she does not suffer the irreparable harm of an unwarranted public charge. The secrecy provisions governing the grand jury set forth in New York Criminal Procedure Law § 190.25 and Rule 6(e) of the Federal Rules of Criminal Procedure are designed to accommodate this objective.

Penal Law § 215.70 punishes a person who violates a grand jury's confidentiality with a fine of $500 and/or a three-month term of imprisonment. It is indeed distressing that despite these well-intended laws, the serious problem of unauthorized grand jury disclosures still exists.

Some witnesses before the commission suggested that the problem of grand jury leakage can be handled by :

(1) Appointing special prosecutors to enforce grand jury secrecy laws;

(2) Along Special pees or the attomey General's office to investigate and pursue violations of a grand jury's secrecy; and

(3) Increasing the penalties for those who violate grand jury secrecy statutes. These proposals are misconceived. Obviously, existing penal sanctions are ineffective, not because of inadequate penalties, but because the laws governing grand jury privacy are not enforced. In addition, the frightening proliferation of new law enforcement agencies, such as special prosecutors, strike forces, and special investigating commissions, is alarming. The unleashing of swarms of elite police forces on the public is unhealthy and is bound to have an anguishing impact on our civil liberties. This overemphasis of police power in the executive branch of our government is inching us towards a garrison society.

The answer to this emergency facing our grand jury system is closer judicial supervision. Although those resources are overtaxed, the allocation of more judges to this emergency need must take priority over other social demands. The ever-widening gulf between our courts and the grand jury must be closed. The justice presiding over the grand jury should issue stricter instructions concerning the security of information received by grand jurors and offered by prosecutors. Daily reports of the grand jury's endeavors should be furnished to the judge. When evidence escapes from the grand jury room and appears in the press, the presiding justice should immediately conduct an ex parte investigation to determine how this leak occurred. The invoking of firm judicial authority is bound to inhibit grand jury divulgences. Such judicial intervention can be easily directed from the Office of Court Administration.

When grand jury information escapes through the prosecutor's office, different action is required. Time has taught us that the only way to effectively cope with prosecutorial delinquency is to disable prosecutions resulting from unconstitutional practices. The misdeeds of law enforcement officers are singularly discouraged by making their misadventures unprofitable. When evidence is seized illegally, confessions coerced, and unlawful identification procedures used, that tainted proof is judically suppressed. Why not utilize the same judicial process by making the proceeds of a grand jury investigation unavailable to the state when it is contaminated by criminal practices?

In 1973, the United States Supreme Court in United States v. Russell [411 U.S. 423 (1973)] acknowledged that the misconduct of law enforcement officials can be so outrageous as to foreclose the invoking of judicial process. The Criminal Procedure Law has the basic equipment to deal with this dilemma. CPL § 210.35 authorizes the dismissal of an indictment where a grand jury proceeding fails to conform to legal requirements ". . . to such a degree that the integrity thereof is impaired and prejudice to the defendant may result." This statute should be exploited by the victims of unwarranted grand jury publications prior to indictment.

I recommend that the Criminal Procedure Law be amended to include another section, which would supplement and fortify § 210.35, authorizing a full judicial investigation of any complaint made by either a witness or the subject of a grand jury investigation where leaks occur. This new statute would authorize a judge to suppress the evidence before a grand jury concerning the one aggrieved by unauthorized disclosures or, as an alternative, stay the grand jury investigation until the harm is remedied. A judicial hearing of this type would help locate the offender and would authorize the judge to take immediate corrective action. Investigations of such serious legal violations cannot be left to the self-regulating

forces of the prosecutor who may be the culprit. Such an important inquiry should be conducted in an adversary forum under judicial supervision.

Any discussion of this subject is incomplete without dealing with the media. Although the press is not an active malefactor, it does compound the predicament by publicizing the illegal disclosures. Without the cooperation of the press, most breaches of a grand jury's confidentiality would be meaningless. The real injury is caused by the news media's widespread circulation of the revelation.

Our deep devotion to the First Amendment and dedication to a free press makes this problem most troublesome. However, it must be acknowledged that the reporter is in the best position to identify the offender. Any examination of the reporter, however, presents another constitutional confrontation caused by the conflict between the investigator and the "newsman's privilege." Since these disclosures involve the commission of crimes and often irreparable injury to a citizen's reputation, the sanctity of the newsman's privilege may have to yield to the broader public interest. Recently, the United States Supreme Court rejected the invocation of a newsman's privilege before grand juries. [Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646 (1972).] Certainly the existence of the proposed statute will encourage much more responsible behavior on the part of all parties involved in a grand jury enterprise.

A hue and cry is bound to spring up from the camps of prosecutors and other quarters of our profession potesting that the invoking of these procedures will unduly disrupt and impede grand jury investigations. That may well be. But, those prosecutors who tend to treat the grand jury room as their private closet must be made to understand that some inefficiency in that institution is the price we must pay to protect the innocent.

It is apparent that the self-imposed disciplines expected of the principals in this investigative process have not been fulfilled. Obviously, more harsh measures are needed to maintain professional responsibility in this phase of our craft. These new procedures, or others like it, will have to be force-fed into an ailing grand jury system that is in desperate need of rehabilitation.

Today there are those who say that the grand jury has lost its usefulness and should be abandoned. Lack of public confidence in that institution has caused its authority to decline. Perhaps this distrust is due to an overall moral anemia that is eating away at the vitals of our criminal justice system and threatens to devour it. There are no simple solutions to these perplexing problems. But one thing is certain. If the breaks in the grand jury's seams are not stitched up, that establishment will soon perish. We must all-judges, lawyers, prosecutors, and legislators-devote ourselves unsparingly to the regeneration of the grand jury system. Drastic action is required, so that the American grand jury can be restored to its original place in our hierarchy of constitutional values. If we fail, we will all be the losers.

[From News and Views, vol. 8, No. 5, May 1976]

ORGANIZED LABOR THREATENED BY ABUSE OF GRAND JURY SYSTEM

(By John L. Burton, Member of Congress)

The collective bargaining rights American workers have won through years of struggle and sacrifice are hardly as secure as they sometimes seem. Whenever an employer short-circuits serious negotiations by running to a court for an injunction for hiring permanent replacements, to fill the jobs of striking workers, we're reminded once again just how fragile the collective bargaining balance is.

In these hard economic times, the last thing workers need is another weight to tip this balance still further management's way. Unfortunately, a new weight has been added anyway, in the form of a familiar, yet seldom understood institution central to our criminal justice system, the federal grand jury.

Years of neglect followed by the Nixon Administration's heavy-handed tinkering have harmed the grand jury, once honored as a bulwark of liberty against malicious or overzealous prosecutors, into an unaccountable panel with awesome strikebreaking potential. In 1973, Senator Kennedy called the grand jury "a modern form of Star Chamber secret inquisition," and the record of the past six years bears him out:

In 1972, federal prosecutors had seven unionists from a New York Amalgamated Meat Cutters Local indicted for "conspiracy to extort a labor union contract" after they struck a dry cleaning company that had illegally, according to the