Inside the grand jury chamber, prosecutors can easily, and often do become a law unto themselves. They are free to grill witnesses on whatever subject strikes their fancy. There is, in a very real sense, prosecutorial freedom to badger, harass and trick grand jury witnesses, and the witness is absolutely prohibited from having counsel present to explain the procedures and questioning or to give advice. Ignoring constitutionally protected areas is an everyday occurrence as dissenters are questioned about their political beliefs, reporters on their news sources, attorneys on their clients affairs, strikers on their union, sons about their fathers, wives about their husbands and so on.

It is indeed quite tragic that the right to a grand jury indictment, thought so important by the founders of our nation that it was included in the Bill of Rights, has become a mockery of protection-serving instead to shield the very people it was designed to check. The right to a grand jury indictment meant a guarantee that no person would be forced to stand the ordeal of a trial until an independent panel of citizens-the grand jury-determined there was sufficient evidence to warrant further prosecution, not a panel to rubber stamp a previously made prosecutorial decision. It was meant to provide a shield from overzealous or politicially motivated prosecutors, not a tool to further a prosecutor's political ambitions or popularity. It was meant to be a citizen review body over official conduct, not a mechanism behind which wrongdoing could be concealed.

Of course, to say the grand jury is no longer independent does not shed any new light on the situation. But perhaps even more frightening is the fact that the grand jury has lost its ability to protect Americans, and there is very little an individual can do to protect him or herself. The Supreme Court just recently in U.S. v. Mandujano, — U.S. —. LW (1976) ruled that the rights to science and the assistance of counsel meant to be assured by Miranda warnings are inappropriate in the grand jury chamber. In the past, the Court has handed down rulings that, in my mind, offend the Constitution and contribute significantly to the perversion of the grand jury process-for example, allowing that an indictment may be totally based on hearsay evidence (Costello v. U.S., 350 U.S. 359 (1956)) or that the fruits of an illegal search and seizure may still be admissible before a grand jury (U.S. v. Calandra, 414 U.S. 338 (1974)). The courts have demonstrated that the hopes of grand jury reform rest on this subcommittee and the Congress.

Mr. Chairman, it is clear that you have taken this obligation seriously by introducing the House's first comprehensive grand jury reform legislation, H.R. 1277, and I am also quite heartened by that fact that many of your colleagues including my fellow Michiganite. Representative John Conyers have also sponsored or co-sponsored grand jury reform legislation.

The provisions of your bill would go a long way in restoring integrity to the grand jury process, and I fully support, for example, the provisions which would provide:

Allowing a witness to have counsel inside the chamber during questioning; Requiring that a transcript of the proceedings be made;

Requiring that the grand jurors be informed of their right to call witnesses, to request the production of evidence, and conduct an independent inquiry; Requiring a minimum period of notice between service of a subpoena and the witness' appearance;

Requiring that the witness be notified, at the time of service of the subpoena, of certain rights including the right against self incrimination and the subject matter of the grand jury investigation;

Changing the current venue rules;

Abolishing "use" immunity and returning to "transactional” immunity, and assuring that the witness reasonably understands the meaning of immunity; Requiring a 7-day period between issuance of the immunity grant and the appearance before the grand jury and establishing standards for the judge to follow in deciding to issue such a grant;

Reducing the maximum period of incarceration from 18 to 6 months for a recalcitrant witness; prohibiting reiterative contempt, and providing a presumption of bail for a witness appealing a civil contempt finding;

Allowing that a witness may refuse to answer questions or produce information if the inquiry is derived from illegal electronic surveillance;

Imposing criminal penalties for disclosure of any grand jury matters by persons other than the witness and/or his/her counsel.

I would like to urge that the committee consider just a few additional matters which I feel would supplement the protections provided for in your legislation.

First, on the issue of grand jury independence, I have been quite disturbed by what I see as the usurpation of the subpoena power by prosecutors and agents of the Federal Bureau of Investigation. The thought of a grand jury subpoena being taken along on questioning just in case an individual exercises his/her right not to answer F.B.I. questions for whatever reasons, is frightening. As you know, the Congress has refused to give the F.B.I. subpoena power, yet, the U.S. Attorney in Detroit was quoted in the New York Times as saying that agents are sent out with these very same subpoenas in their pockets. I would suggest that this panel consider a requirement that at least 12 members of the grand jury must agree before a subpoena can be issued. This, I think, would drastically limit this blatant abuse of the awesome subpoena power and would help assure that the grand jury is conducting its business for itself. I would also suggest that the committee consider requiring the same grand jury input before a grant of immunity for a witness is sought.

Regarding immunity, I feel that the return to transactional immunity is necessary, but is really an incomplete reform.

Quite frankly, I am bothered by the prospect of a person's fifth amendment rights being stripped from him or her without that person's consent. These rights were included in the Bill of Rights to serve as protections for our citizens. I would agree with those who say that such rights are often obstacles to prosecutionbut that is the very reason the founders of our nation included them. The Bill of Rights is just that-individual rights. I would therefore suggest that the subcommittee adopt a policy of consensual immunity. I wholly discount government assertions that forced immunity is critical to organized crime investigations, and I ask where the proof of this position is. My guess is that there is no proof. But I have seen use of forced immunity as a way to get individuals behind bars without ever having to go through the charge-trial-conviction process, a process replete with safeguards for the individual. In a nation that professes to love liberty as we do, this situation is intolerable.

In conclusion, Mr. Chairman, let me just say that no individual in the entire criminal justice system has been allowed the unaccountable powers that a federal prosecutor before a federal grand jury holds. The list of grand jury horror stories which this subcommittee has already heard can only continue to grow as long as we allow prosecutors a blank check in the grand jury chamber. The founders of our republic would not have tolerated an exception to the Bill of Rights. Neither should we.

Thank you.

APPENDIX 3

Statutes and Rules Relating to the Federal Grand Jury

UNITED STATES CONSTITUTION-FIFTH AMENDMENT

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any persons be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation.

FEDERAL RULES OF CRIMINAL PROCEDURE

Rule 6-The Grand Jury

(a) Summoning grand juries.-The court shall order one or more grand juries: to be summoned at such times as the public interest requires. The grand jury shall consist of not less than 16 nor more than 23 members. The court shall direct that a sufficient number of legally qualified persons be summoned to meet this requirement.

(b) Objections to grand jury and to grand jurors.

(1) Challenges.-The attorney for the government or a defendant who has been held to answer in the district court may challenge the array of jurors on the ground that the grand jury was not selected, drawn or summoned in accordance with law, and may challenge an individual juror on the ground that the juror is not legally qualified. Challenges shall be made before the administration of the death to the jurors and shall be tried by the court.

(2) Motion to dismiss.-A motion to dismiss the indictment may be based on objections to the array or on the lack of legal qualification of an individual juror, if not previously determined upon challenge. It shall be made in the manner prescribed in 28 U.S.C. § 1867 (e) and shall be granted under the conditions prescribed in that statute. An indictment shall not be dismissed on the ground that one or more members of the grand jury were not legally qualified if it appears from the record kept pursuant to subdivision (c) of this rule that 12 or more jurors, after deducting the number not legally qualified, concurred in finding the indictment.

(c) Foreman and Deputy Foreman.-The court shall appoint one of the jurors to be foreman and another to be deputy foreman. The foreman shall have power to administer oaths and affirmations and shall sign all indictments. He or another juror designated by him shall keep a record of the number of jurors concurring in the finding of every indictment and shall file the record with the clerk of the court, but the record shall not be made public except on order of the court. During the absence of the foreman, the deputy foreman shall act as foreman.

(d) Who May be Present.-Attorneys for the government, the witness under examination, interpreters when needed and, for the purpose of taking the evidence, a stenographer or operator of a recording device may be present while the grand jury is in session, but no person other than the jurors may be present while the grand jury is deliberating or voting.

(e) Secrecy of proceedings and disclosure.-Disclosure of matters occurring before the grand jury other than its deliberations and the vote of any juror may be made to the attorneys for the government for use in the performance of their duties. For purposes of this subdivision, "attorneys for the government" includes those enumerated in Rule 54 (c); it also includes such other government personnel as are necessary to assist the attorneys for the government in the performance of their duties. Otherwise a juror, attorney, interpreter, stenographer, operator of a recording device, or any typist who transcribes recorded testimony may disclose matters occurring before the grand jury only when so directed by the court preliminarily to or in connection with a judicial proceeding or when permitted by the court at the request of the defendant upon a showing that grounds may exist for a motion to dismiss the indictment because of matters occurring before the grand jury. No obligation of secrecy may be imposed upon any person except in accordance with this rule. The federal magistrate to whom an indictment is returned may direct that it shall be kept secret until the defendant is in custody or has been released pending trial. Thereupon the clerk shall seal the indictment and no person shall disclose the finding of the indictment except when necessary for the issuance and execution of a warrant or summons.

(f) Finding and return of indictment.-An indictment may be found only upon the concurrence of 12 or more jurors. The indictment shall be returned by the grand jury to a federal magistrate in open court. If a complaint or information is pending against the defendant and 12 jurors do not concur in finding an indictment, the foreman shall so report to a federal magistrate in writing forthwith.

(g) Discharge and excuse.-A grand jury shall serve until discharged by the court but no grand jury may serve more than 18 months. The tenure and powers of a grand jury are not affected by the beginning or expiration of a term of court. At any time for cause shown the court may excuse a juror either temporarily or permanently, and in the latter event the court may impanel another person in place of the juror excused.

Rule 7-The Indictment and Information

(a) Use of indictment or information.-An offense which may be punished by death shall be prosecuted by indictment. An offense which may be punished by imprisonment for a term exceeding one year or at hard labor shall be prosecuted by indictment or, if indictment is waived, it may be prosecuted by information. Any other offense may be prosecuted by indictment or by information. An information may be filed without leave of court.

(b) Waiver of indictment.-An offense which may be punished by imprisonment for a term exceeding one year or at hard labor may be prosecuted by information if the defendant, after he has been advised of the nature of the charge and of his rights, waives in open court prosecution by indictment. (c) Nature and contents.

(1) In general.-The indictment or the information shall be a plain, concise and definite written statement of the essential facts constituting the offense charged. It shall be signed by the attorney for the government. It need not contain a formal commencement, a formal conclusion or any other matter not necessary to such statement. Allegations made in one count may be incorporated by reference in another count. It may be alleged in a single count that the means by which the defendant committed the offense are unknown or that he committed it by one or more specified means. The indictment or information shall state for each count the official or customary citation of the statute, rule, regulation or other provision of law which the defendant is alleged therein to have violated.

(2) Criminal forfeiture.-When an offense charged may result in a criminal forfeiture, the indictment or the information shall allege the extent of the interest or property subject to forfeiture.

(3) Harmless error. Error in the citation or its omission shall not be ground for dismissal of the indictment or information or for reversal of a conviction if the error or omission did not mislead the defendant to his prejudice.

(d) Surplusage. The court on motion of the defendant may strike surplusage from the indictment or information.

(e) Amendment of information. The court may permit an information to be amended at any time before verdict or finding if no additional or different offense is charged and if substantial rights of the defendant are not prejudiced.

(f) Bill of particulars. The court may direct the filing of a bill of particulars. A motion for a bill of particulars may be made before arraignment or within ten days after arraignment or at such later time as the court may permit. A bill of particulars may be amended at any time subject to such conditions as justice requires.

Rule 17-Subpoena

(a) For attendance of witnesses; form; issuance.-A subpoena shall be issued by the clerk under the seal of the court. It shall state the name of the court and the title, if any, of the proceeding, and shall command each person to whom it is directed to attend and give testimony at the time and place specified therein. The clerk shall issue a subpoena, signed and sealed but otherwise in blank to a party requesting it, who shall fill in the blanks before it is served. A subpoena shall be issued by a United States magistrate in a proceeding before him, but it need not be under the seal of the court.

(b) Defendants unable to pay. The court shall order at any time that a subpoena be issued for service on a named witness upon an ex parte application of a defendant upon a satisfactory showing that the defendant is financially unable to pay the fees of the witness and that the presence of the witness is necessary to an adequate defense. If the court orders the subpoena to be issued the costs incurred by the process and the fees of the witness so subpoenaed shall be paid in the same manner in which similar costs and fees are paid in case of a witness subpoenaed in behalf of the government.

(c) For production of documentary evidence and of objects.—A subpoena may also command the person to whom it is directed to produce the books, papers. documents or other objects designated therein. The court on motion made promptly may quash or modify the subpoena if compliance would be unreasonable or oppressive. The court may direct that books, papers, documents or objects designated in the subpoena be produced before the court at a time prior to the trial or prior to the time when they are to be offered in evidence and may upon their production permit the books, papers, documents or objects or portions thereof to be inspected by the parties and their attorneys.

(d) Service.-A subpoena may be served by the marshal. by his deputy or by any other person who is not a party and who is not less than 18 years of age. Service of a subpoena shall be made by delivering a copy thereof to the person named and by tendering to him the fee for 1 day's attendance and the mileage allowed by law. Fees and mileage need not be tendered to the witness upon service of a subpoena issued in behalf of the United States or an officer or agency thereof.

(e) Place of Service.

(1) In United States-A subpoena requiring the attendance of a witness at a hearing or trial may be served at any place within the United States.

(2) Abroad.-A subpoena directed to a witness in a foreign country shall issue under the circumstances and in the manner and be served as provided in Title 28, U.S.C., § 1783.

(f) For Taking Deposition; Place of Examination.

(1) Issuance.-An order to take a deposition authorizes the issuance by the clerk of the court for the district in which the deposition is to be taken of subpoenas for the persons named or described therein.

(2) Place. The witness whose deposition is to be taken may be required by subpoena to attend at any place designated by the trial court, taking into account the convenience of the witness and the parties.

(g) Contempt.-Failure by any person without adequate excuse to obey a subpoena served upon him may be deemed a contempt of the court from which the subpoena issued or of the court for the district in which it issued if it was issued by a United States magistrate.

UNITED STATES CODE-TITLE 18-CRIMES AND CRIMINAL PROCEDURE

§ 1621-Perjury generally

Whoever, having taken an oath before a competent tribunal, officer, or person, in any case in which a law of the United States authorizes an oath to be administered, that he will testify, declare, depose, or certify truly, or that any written testimony, declaration, deposition, or certificate by him subscribed, is true, wilfully and contrary to such oath states or subscribes any material matter which he does not believe to be true, is guilty of perjury, and shall, except as otherwise expressly provided by law be fined not more than $2,000 or imprisoned not more than five years, or both. This section is applicable whether the statement or subscription is made within or without the United States.

§ 1622-Subornation of perjury

Whoever procures another to commit any perjury is guilty of subornation of perjury, and shall be fined not more than $2.000 or imprisoned not more than five years, or both.

§ 1623-False declarations before grand jury or court

(a) Whoever under oath in any proceeding before or ancillary to any court or grand jury of the United States knowingly makes any false material declaration or makes or uses any other information, including any book, paper, document, record, recording, or other material, knowing the same to contain any false material declaration, shall be fined not more than $10,000 or imprisoned not more than five years, or both.

(b) This section is applicable whether the conduct occurred within or without the United States.

(c) An indictment or information for violation of this section alleging that, in any proceedings before or ancillary to any court or grand jury of the United States, the defendant under oath has knowingly made two or more declarations. which are inconsistent to the degree that one of them is necessarily false, need not specify which declaration is false if—(1) each declaration was material to the point in question; and (2) each declaration was made within the period of the statute of limitations for the offense charged under this section.

In any prosecution under this section, the falsity of a declaration set forth in the indictment or information shall be established sufficient for conviction by proof that the defendant while under oath made irreconcilably contradictory declarations material to the point in question in any proceeding before or ancillary to any court or grand jury. It shall be a defense to an indictment or information made pursuant to the first sentence of this subsection that the defendant at the time he made each declaration believed the declaration was true. (d) Where, in the same continuous court or grand jury proceeding in which a declaration is made, the person making the declaration admits such declaration to be false, such admission shall bar prosecution under this section if, at the time the admission is made, the declaration has not substantially affected the proceeding, or it has not become manifest that such falsity has been or will be exposed.

(e) Proof beyond a reasonable doubt under this section is sufficient for conviction. It shall not be necessary that such proof be made by any particular number of witnesses or by documentary or other type of evidence.

§ 3321-Number of grand jurors; summoning additional jurors

Every grand jury impaneled before any district court shall consist of not less than sixteen nor more than twenty-three persons. If less than sixteen of the persons summoned attend, they shall be placed on the grand jury, and the court shall