interaction between the prosecutor and the jury (and the court in its original charge) must be recorded, whether a witness is present or not. There is no other way for a court effectively to oversee the operation of the grand jury and arbitrate disagreements.

The complete transcript will also minimize undue prosecutorial influence on the grand jury and flagrant extra-legal presentations. Perhaps more than any other measure, such a recording requirement will insure that prosecutors keep to the stated business at hand, letting the grand jury hear evidence and make its own determinations.

Making a complete record of grand jury proceedings, of course, is only one part of the transcript reform needed. Witnesses should have the right to inspect and copy their own testimony quickly and also be able to file clarifying statements for the record. Indigent witnesses should have the right to a free copy of their testimony.

We cannot leave this subject without noting the arguments against reform that the Justice Department has raised in this area. The Department suggests in its Memorandum that the keeping of a complete transcript will increase litigation. The fact is that such a measure will decrease the need for such litigation since prosecutorial abuse will surely diminish when prosecutors know their conduct can easily be subject to later scrutiny.

In what can only be described as sheer sophistry, the Attorney General, speaking before this Subcommittee, argued against giving a witness the right to a transcript in order, again, to protect witnesses. He warned that "witnesses could be pressured into obtaining transcripts so that those being investigated could see whether they can been implicated in the witness' testimony."

Once again the Department of Justice has resorted to the spectre of fear and set up an organized crime strawman. Any witness can keep his or her appearance before a grand jury secret and can choose any lawyer or no lawyer. Sooner or later, if the witness is to testify at trial, his or her identity will become known, and the government will have to deal with protecting him or her from reprisals. The Department of Justice would not be taken seriously if it argued that public trials should be abolished to "protect" witnesses. Its argument against the grand jury witness' right to a transcript deserves the same treatment.

In any case, we are growing increasingly weary of these Justice Department attempts to obfuscate serious grand jury problems with far-fetched organized crime scenarios. Our liberties cannot survive the constant onslaught being perpetrated against them in the name of fighting crime. It is clear to us that the Organized Crime Control Act of 1970 did more to organize crime in the White House than it ever did to fight the mob.

PROCEDURAL PROTECTIONS, EVIDENTIARY AND RELEVANCY RULES

Opposition to the guaranteeing of procedural, evidentiary and relevancy rules in the grand jury process all rests on the same basic premise: that insuring fair play will hamper effective and efficient prosecution. In a sense such arguments by the Department of Justice and others are irrefutable. Enforcing the law while respecting fundamental human rights is simply not as sufficient as, let's say, the good old rack and screw. The Spanish Inquisition would never have gotten off the ground if Torquemada had been forced to respect human dignity. Certainly, in this sense, the First, Fourth, Fifth and Sixth Amendments to the Constitution are "inefficient". All they contribute to the criminal justice system is justice.

The Attorney General, in his June 10 testimony, also struck another alarming note that has become familiar to us-namely that rights are perfectly okay as long as they are not exercised. Arguing against warning grand jury witnesses of their Fifth Amendment rights, Levi reasoned that such warnings would encourage more witnesses to refuse to give self-incriminating testimony and thus discourage the production of evidence. Mr. Levi does not directly challenge the Fifth Amendment right of grand jury witnesses, only their right to know about it. For the Attorney General, a little knowledge is a very dangerous thing. After all. if people understand their rights, they might take the grossly inefficient step of actually exercising them!

Grand jury procedural safeguards are also opposed on the grounds that since the grand jury is not a "critical stage" in the criminal justice process, rights and procedures are not important. But the Framers saw the grand jury as critical, in a protective sense, and the abuses that have come to light in recent years

should make it clear that witnesses in the grand jury face dangers as potentially debilitating as any in the criminal justice process. Ironically, the very safeguards the courts have injected in other stages of the criminal justice process have led to increased activity and abuse in the unregulated realm of the grand jury, which has, thanks to judicial blindness, remained a prosecutorial enclave from extensions of due process.

One justification for the judical neglect that some have advanced is the doctrine that the grand jury has the right to every person's evidence. This proposition has been elevated into an inalterable rule, with scant understanding of its origins. This right-to-every-person's-evidence bromide was never meant to exist in a void. It presupposes an independent grand jury, working to serve the community at large, not the government. Equally important, the "evidence" referred to is evidence for legitimate criminal inquiries. It was assumed that the grand jury would only seek such evidence as it served its protective function. But today the grand jury is not independent, and the prosecutor who dominates it is not bound by any evidentiary restraints. In such a setting, mechanical assertions of the right-to-every-person's-evidence doctrine invite prosecutorial overreaching. We cannot allow the government to transmogrify the grand jury's right to every person's evidence into the prosecutor's right to invade every person's privacy.

One final point before we enumerate some of the key procedural and evidentiary reforms we feel are necessary if the Congress is to feed certain rules, procedures and rights into the grand jury process, then teeth must be provided to insure that these rights are swallowed. To require that a subpoena inform witnesses of their various rights and whether they are targets of an investigation is all well and good. But unless failure to do so carries with it a provision that any testimony subsequently obtained cannot be used, the subpoena notification reform is virtually meaningless.

ABA standards for prosecutorial conduct already contain, we should remember, many of the procedural changes envisioned in the reform legislation. The standards hold that prosecutors should present all exculpatory evidence in their possession, not call witnesses who have announced their intention to claim the Fifth Amendment unless an immunity order is contemplated, inform witnesses of their Fifth Amendment rights and have their "communications and presentations to the grand jury" recorded. While we are sure that many prosecutors attempt to follow these guidelines, they are nonetheless violated with impunity. Just writing such safeguards into law, without appropriate accompanying sanctions for failure to comply, will not alter the basic grand jury equation.

SUBPOENAS AND THE SCOPE OF QUESTIONING

The grand jury subpoena power is awesome and unique. The Congress has never granted similar pre-trial compulsory process authority to prosecutors or to the national police, the FBI. But it is clear that federal prosecutors today, because of the grand jury, enjoy a virtually unabridged power to subpoena anyone or any materials, to anywhere, with no notice and for any reason they deem appropriate. In fact, cases have been reported where subpoenas were issued in the absence of a sitting grand jury and made returnable directly to the prosecutor, Even more disturbing has been the FBI manipulation of the grand jury subpoena power. Americans still enjoy the essential right not to answer questions put to them by federal agents, but those individuals who exercise this right often find themselves called to grand juries, sometimes with subpoenas filled in on the spot by the FBI agent. Out of this access to the grand jury's subpoena authority comes the dangerous power to probe into any matter, any association and, increasingly, behind any privilege. We have noted an incredible proliferation of subpoenas challenging the attorney-client privilege, for instance, over the last two years.

Many reforms are necessary to regulate these subpoena abuses and the improper questioning they encourage. First, no subpoena should be issued unless upon an affirmative majority vote of a grand jury, and every subpoena must be returnable to this same grand jury, not the prosecutor's office. Every witness forced to appear before a grand jury should be granted adequate time to obtain counsel, review materials and arrange his or her life to minimize any disruptions the appearance might cause.

Every subpoena must notify prospective witnesses of their right to counsel and the Fifth Amendment, as well as state the subject matter of the investigation, the criminal statutes involved and whether the witness is a target. Motions

to quash subpoenas should be permissible in a district where the subpoena is served, where it is returnable or where the witness lives. A witness should not be required to testify if the court finds that the subpoena is aimed at getting information for trial against a person already indicted, the purpose of the subpoena is punitive or the appearance would impose an unreasonable burden on the witness. These determinations should be made in an evidentiary hearing. Once inside the grand jury chamber, no witness should be threatened with a contempt confinement for refusing to answer improper questions, not only questions derived from illegal electronic surveillance, but also those based on any unlawful act or in violation of any of a witness' Constitutional or statutory rights. Such a provision would neutralize the 1974 Calandra decision, which allowed the fruits of illegal search and seizures to be admitted into evidence before the grand jury, and prevent the sweeping and chilling intrusions into a witness' personal and political life exemplified by this notorious 1970 question put to a witness before a Tucson, Arizona, federal grand jury:

13

I want you to tell the Grand Jury what period of time during the years 1969 and 1970 you resided at 2201 Ocean Front Walk, Venice (Los Angeles), who resided there at the time you lived at that address, and tell the Grand Jury all of the conversations that were held by you or others in your presence during the time you were at that address.

Establishing such standards for subpoena and questioning relevancy would help shield citizens from prosecutorial misconduct in the grand jury chamber. Combining these standards with a requirement that indictments be dismissed if the prosecutor has withheld exculpatory evidence or built a case on legally insufficient evidence would not make for endless delays, but rather for closer judicial oversight and legitimate Constitutional constraints. Judges will retain both the responsibility and the power to weed out frivolous complaints.

GRAND JUROR INDEPENDENCE

The institution of the grand jury is supposed to be, in its essence, a procedural safeguard for an accused. The grand jury the Framers wrote into the Bill of Rights was intended to watchdog prosecutors. Unfortunately, grand jurors now seldom do more than silently watch prosecutors. They will not be able to fulfill their Constitutional role until we take positive steps to decrease prosecutorial domination of the grand jury process.

As an initial step, every grand jury needs a strong written charge from the court, detailing the grand jury's various powers and historical responsibilities. Indictments returned from a grand jury not so charged should be dismissed, since the grand jury had not been told how to do its job, and the defendant was thus denied the right to a grand jury buffer.

Another serious limitation on grand juror independence is the prosecutorial ability to sidestep grand juries that begin to assert their institutional integrityperhaps by asking questions or calling witnesses a prosecutor would rather not present by switching grand juries or ignoring a no-bill and taking the case to another grand jury. No one will be able to speak confidently about the grand jury shield until the passage of a provision banning subsequent grand jury inquiries once an initial grand jury has failed to return an indictment (pending, of course, a showing by the government that additional relevant evidence has been discovered).

No institution can retain its integrity if its prerogatives are routinely exercised without its consent. If we are to restore grand jury independence, grand juries should vote on each and every subpoena issued, each and every immunity order and each and every request for a contempt hearing. After all, we are dealing with grand jury subpoenas, immunity from a grand jury indictment and contempt of the grand jury.

Connected, naturally, to the issue of grand jury independence from prosecutorial domination is the concept of independent grand jury inquiry, the power of the grand jury to utilize court-appointed counsel and engage in investigations independently of the Department of Justice. Several observations immediately come to mind on this subject.

1. No mechanism for indepenent grand jury inquiry should be implemented until many other procedural and Constitutional rights are guaranteed throughout

13 Question asked by Guy Goodwin of the Internal Security Division of the U.S. Department of Justice, quoted by the Hon. John Conyers in Congressional Record, Feb. 6, 1975.

the grand jury system. The runaway grand jury indictments of civil rights workers in the South over a decade ago illustrate that it is not only prosecutors who can abuse the grand jury process and violate individual rights.

2. The right of independent inquiry should be limited to situations in which criminal activity by government officials is to be investigated, a limitation that corresponds to the historical heritage of the grand jury as the people's shield against government. Protecting citizens from the government may sometimes mean protecting them from official attempts to conceal government corruption and misconduct. If there is any realm where we can expect the greatest laxity in investigation and prosecution, it is where we rely on the government to police itself.

3. Still, the existing prosecutorial apparatus should first be given the opportunity to function. Before a grand jury is allowed to enlist court-appointed counsel, the grand jury should first attempt to work with the U.S. Attorney with normal jurisdiction. Only if she or he refuses to assist or hinders an inquiry should the procurement of other counsel be permitted.

4. A grand jury cannot inquire independently until it has a matter warranting inquiry. It is not likely, except in situations where a prosecutor has fumbled an attempt to cover up corruption or in matters of tremendous notoriety, that grand jurors themselves will discover government criminal activity that needs investigating. Average citizens, then, with charges of official malfeasance to make, should not be blocked from the grand jury chamber. For the sake of efficiency, we have no objections to allowing U.S. Attorney's offices to screen such requests to appear before the grand jury, provided adequate records of the screening process are kept. Grand jurors are entitled to explanations when would-be witnesses are turned away.

CONCLUSION

Certainly none of the bills currently under consideration by this Subcommittee solve all the problems of the grand jury system, nor could they. Such matters as transcripts for defendants, permitting counsel for an already arrested defendant to participate in the grand jury, democratizing jury selection, job security for grand jurors (two lost their jobs during the Watergate case) and grand juror fees all will require additional attention, even with the passage of an historic "comprehensive" grand jury reform bill.

What sort of reform package deserves the description "comprehensive"? That is an important question. We know that the chairman and members of this panel are sincere in their opposition to grand jury inquisitions. We know also that not every change we have proposed today will be adopted by this Subcommittee or by the Congress. We understand that Congresspeople do not live in an ideal world, but rather in a world of practicality, of competing pressures and of compromise. Though we appreciate all of this, we would like to leave you with what we feel is a telling little story. Last November 10 the New Leader magazine devoted an entire issue to an article by Federal Judge Marvin E. Frankel and a young former prosecutor named Gary P. Naftalis. The article, "The Grand Jury: an Institution on Trial", was thoughtful and not insensitive to the problems of grand jury abuse.

In the final pages of the piece, the authors suggested a dozen reforms ranging from the right to counsel in the grand jury chamber to informing subpoenaed witnesses whether they are the targets of the investigation. This laundry list of reforms was impressive, but deeply flawed, as a colleague of mine from the Coalition noted in a subsequent letter to the New Leader. Nothing that Judge Frankel and Mr. Naftalis proposed would actually prevent any new additions to the modern string of political grand jury inquisitions that began with Nixon's Internal Security Division grand jury witchhunts in 1970 and have continued, with time out for Watergate, until the present day.

What then is "comprehensive" reform? Reform that makes no compromise with the use of the grand jury to mutilate American liberties. The mark-up and passage of anything less than a legislative package that makes the grand jury star chamber inquisition no more than a bad memory may in the short run create the illusion of progress, but the deeper cancer will continue to spread. Those of us who cherish "the people's panel", yet fear its perverted presence in our midst, will not rest until that cancer is completely excised.

Mr. EILBERG. Thank you very much, Ms. Avner, for a very fine

statement.

I had occasion over the past weekend to visit the Independence Hall area, particularly the Benjamin Franklin Building, at Third and Arch Streets, in Philadelphia. As you know, I live in Philadelphia. And one need only to walk through those restored buildings in that hallowed area to revere further the work that was done there.

I have a number of prepared questions which I would like to present to you, perhaps to both of you. And we do expect other members to appear during the course of the morning. I am sure that they will join in the questioning if and when they arrive.

In your statement, you oppose the abolition of the grand jury as an indicting body. You state "to indict is to investigate" and that there can never be "an investigative rationale independent of the indictment function."

In Pennsylvania, we have eliminated the indicting grand jury in many counties, but have not eliminated the investigating grand jury. Grand juries are convened, under a specific court charge, to investigate certain activities. If they find an offense, they issue a "presentment" which can lead to formal criminal charges in an "information." Assuming needed reforms in the investigative procedures of the grand jury are implemented, would not a process analogous to the Pennsylvania one eliminate the delay and cost of the rubber stamp indicting grand jury?

Mr. REIN. If I understand what you are suggesting that happened in Pennsylvania, it is that eliminating the grand jury and its indicting function means that the indicting function will be exclusively with the prosecution. And if that is the effect of it, I know that they recently had a case in Florida where the grand jury has no indicting function, and the prosecution would decide when to prosecute, without any intermediary body. And he only calls the grand jury in when he feels he needs it for some political purposes. But I think that that would be removing the basic protection of the fifth amendment.

Mr. EILBERG. I don't wish to quarrel with you, Mr. Rein, but I just want to be sure that we have the hypothetical situation before us properly. In Pennsylvania the grand jury may issue a presentment, which then can lead to formal criminal charges and information.

Mr. REIN. Does it mean that the prosecution does not have the authority to issue an information on its own unless the grand jury is given a presentment? That is the only thing I am not clear about.

Mr. EILBERG. They would have that right, but there would have to be a preliminary hearing before there can be a trial.

Mr. REIN. I say then we feel that that would be taking away the real need and the guarantee of the fifth amendment: That there be a body between the prosecution and the citizen before he can be indicted.

Mr. EILBERG. We are asking the question, should we do away with that provision in the fifth amendment.

Mr. REIN. The answer, we would say, is "No." We think that the original intention of the founders of our country in putting that into the Constitution was very desirable and important. The fact that the grand jury's indicting role has been denigrated over the years and that the grand jury no longer shields the innocent, in our view, is no