Ex Parte Bain, 121 U.S. 1 (1887) (discussion of role of grand jury as protective shield; requires charges in grand jury indictment to be specific).

Ex Parte United States, 287 U.S. 241 (1932) (district court must issue bench warrant on indictment; indictment conclusive determination of sufficient basis for charges).

Ex Parte Wilson, 114 U.S. 417 (1885) (indictment required for "infamous crime"-punishable by pentitentiary sentence).

Gelbard v. United States, 408 U.S. 41 (1972) (wiretap statute provides defense in grand jury proceedings to questions and contempt for refusal to testify-if based on illegal wiretap evidence).

Hale v. Henkel, 201 U.S. 43 (1906) (discussion of role of grand jury-stands between prosecutor and accused; can compel testimony even without specific charge pending against particular person; standard of proof for indictment— "prima facie evidence").

Harris v. United States, 382 U.S. 162 (1965) (overrules Brown v. United States (1959)-refusal to testify is indirect criminal contempt).

Hoffman v. United States, 341 U.S. 479 (1952) (grand jury and Fifth Amendment privilege).

Holt v. United States, 218 U.S. 245 (1910) (indictments may not be quashed because supported in part by incompetent evidence).

Hurtado v. California, 110 U.S. 516 (1884) (Fifth Amendment requirement of prosecution by indictment not extend to states; dissenting opinion of Harlan— details reasons for secrecy in grand jury proceedings.)

In re Biaggi, 478 F.2d 489 (2d Cir. 1973) (secrecy-release of grand jury testimony).

In re Black, 47 F.2d 542 (2d Cir. 1931) (witness not entitled to know subject of grand jury investigation; dictum-no right to counsel).

In re Dionisio, 442 F.2d 276 (7th Cir. 1971), rev'd sub. nom United States v. Dionisio, 410 U.S. 1 (1973) (compelled production of grand jury evidence and Fourth Amendment-probable cause requirement and Fifth Amendment privilege).

In re Grand Jury Empanelled January 21, 1975, 536 F.2d 1009 (3d Cir. 1976) (right of counsel to represent multiple witnesses before grand jury). In re Grand Jury Proceedings, Harrisburg, Pa., (Egan) 450 F.2d 199 (3d Cir. 1971) aff'd sub. Nom. Gelbard v. United States, 408 U.S. 41 (1971). (“Harrisburg Eight" case-use of illegal wiretapping defense to contempt for refusal to testify.)

In re Grand Jury Proceedings (Schofield I), 486 F.2d 85 (3d Cir. 1973) (minimum showing-in camera to court-needed as to relevancy of evidence sought by subpoena).

In re Grand Jury Proceedings (Schofield II), 507 F.2d 963 (3d Cir. 1975) (preliminary showing for subpoena-items relevant to grand jury investigation and not sought for other purposes).

In re Groban, 352 U.S. 330 (1957) (dictum-no right to counsel for grand jury witness).

In re Parker, 411 F.2d 1067 (10th Cir. 1969), vacated and remanded for dismissal as being moot sub. nom. Parker v. United States, 397 U.S. 96 (1970) (use immunity-foreign prosecution).

In re Pflaumer, 53 F.R.D. 464 (E.D. Pa. 1971) (prosecution may transmit grand jury evidence to other government agencies such as IRS-if under "aegis" of prosecutor).

In re Quinn, 525 F.2d 222 (1st Cir. 1975) (immunity grant sufficient-no showing of substantial danger of foreign prosecution).

In re Report and Recommendation of June 5, 1972, Grand Jury, 370 F. Supp. 1219 (D.D. C. 1974) (authorizes release of Watergate Grand Jury Report). In re Russo, 53 F.R.D. 564 (C.D. Cal. 1971) (grand jury witness may request copy of prior testimony-before testifying again; civil contempt purged on conditional agreement to so testify).

In re Russo, 448 F.2d 369 (9th Cir. 1971) (Los Angeles-Pentagon Papers Grand Jury-questioning of witness allowed after return oof indictmentsproper contempt).

In re Tierney, 465 F.2d 806 (5th Cir. 1972) ("Fort Worth Five" case-no right to counsel; use immunity upheld; no substantial risk of foreign prosecutionimmunity order valid-contempt).

In re United Electrical, Radio, and Machine Workers, 111 F. Supp. 858 (S.D. NY 1953) (role of grand jury should be limited to deciding whether or not to indict).

In re Vericker, 446 F.2d 244 (2d Cir. 1971) (Brooklyn Grand Jury-investigating theft of F.B.I. records and destruction of draft files-witness may challenge subject matter of grand jury inquiry to seek determination if type of case statutorily authorized to grant immunity).

In re Verplank, 329 F. Supp. 433 (C.D. Cal. 1971) (Los Angeles anti-draft movement grand jury-priest-penitent privilege).

Jones v. United States, 342 F.2d 803 (D.C. Cir. 1967) (plurarity-en bancquestions right to call potential defendant; as exercise of court's supervisory power-provides right to counsel to potential defendant at time of grand jury appearance).

Kastigar v. United States, 406 U.S. 441 (1972) ("use" immunity statuteconstitutional).

Lawn v. United States, 355 U.S. 339 (1958) (not challenge indictment on grounds it is based on illegally obtained or incompetent evidence).

Levin v. Marshall, 317 F. Supp. (D. Md. 1970) (First Amendment and compulsory process-reprints Justice Department memorandum limiting grand jury subpoenas when freedom of press involved).

Marcus v. United States, 210 F.2d 143 (3d Cir. 1962) (witness not able to challenge purpose or relevance of grand jury questions).

McCarthy v. Arndstein, 266 U.S. 34 (1924) (transactional immunity is constitutional minimum).

Murphy v. Waterfront Commission, 378 U.S. 52 (1964) (transactional immunity applies to both Federal and state prosecutions).

Nelson v. United States, 201 U.S. 92 (1906) (witness cannot challenge relevancy or materiality of grand jury questions).

Nixon v. United States, 418 U.S. 683 (1974) (grand jury right to every man's evidence; limited executive privilege; grand jury report may name unindicted conspirators).

Peck v. Mitchell, 419 F.2d 575 (6th Cir. 1970) (no indictment without acquiescence of prosecutor).

Pittsburgh Plate Glass Company v. United States, 360 U.S. 395 (1957) (grand jury secrecy-need showing of "particularized need" to examine grand jury evidence).

Rex v. Shaftsbury, November 24, 1681, State Trials, Vol. III at 415 (2d Ed 1730) famous "Earl of Shaftsbury Case"-standing for proposition of independence of grand jury).

Rogers v. United States, 340 U.S. 367 (1951) (Fifth Amendment privilege-can be waived by answering some questions).

Shapiro v. United States, 335 U.S. 1 (1948) (dictum-transactional immunity is constitutional minimum).

Shillitani v. United States, 384 U.S. 364 (1966) (duration of civil contempt is life of grand jury-reiterative contempt is permissible).

Silverthorne Lumber Company v. United States, 251 U.S. 385 (1920) (exclusionary rule "fruit of poisonous tree"-voids validity of grand jury subpoena for evidence).

Smith v. United States, 360 U.S. 1 (1959) (defendant can waive right to be prosecuted by indictment).

Stewart v. United States, 440 F.2d 954 (9th Cir. 1971), rev'd sub. nom. Kastigar v. United States, 406 U.S. 441 (1972) (“use immunity" statute). Ullman v. United States, 350 U.S. 422 (1956) (dictum-statute authorizing transactional immunity is constitutional).

United States ex ret McCann v. Thompson, 144 F.2d 604 (2d Cir. 1914) cert. denied, 323 U.S. 790 (1944) ("potential defendant" has no right to appear before grand jury).

United States v. Arcuri, 282 F. Supp. 347 (E. D. NY 1968), aff'd 405 F.2d 691 (2d Cir. 1968), cert. denied 395 U.S. 913 (1968) (deliberate use of hearsay or inadmissible evidence to secure indictment should not be allowed).

United States v. Basurto, 497 F.2d 781 (9th Cir. 1974) (indictment based on perjured testimony, if material-invalid).

United States v. Blanton, 77 F. Supp. 812 (E. D. Mo. 1948) (grand jury witness has no right to counsel).

United States v. Blue. 384 U.S. 251 (1966) (not challenge indictment on grounds it is based on illegally obtained or incompetent evidence).

United States v. Briggs, 514 F.2d 794 (5th Cir. 1975) (discusses problem of stigmatization of those named as unindicted co-conspirators-expungement ordered).

United States v. Calandra, 414 U.S. 338 (1974) (exclusionary rule not apply to grand jury proceedings; dictum-standard of proof for indictment—“probability of guilt").

United States v. Corrallo, 413 F.2d 1306 (2d Cir. 1989) (discusses practice of allowing grand jury witness to leave room to talk to counsel).

United States v. Cox, 342 F.2d 167 (5th Cir. 1965), cert. denied, 381 U.S. 935 (1965) (defines "protective" and "investigatory" functions of grand jury; prosecution can, in his discretion, preclude indictment and prosecution by refusing to sign indictment).

United States v. Daniels, 461 F.2d 1076 (5th Cir. 1972) (no right to counsel in grand jury room).

United States v. Dionisio, 410 U.S. 1 (1973) (compelled production of grand jury evidence not need showing of probable cause; order for voice exemplar not violate privilege against self-incrimination).

United States v. Doe (Popkin), 460 F.2d 328 (1st Cir. 1972), stay refused sub. nom. Popkin v. United States, 409 U.S. 1002 (1972). (Pentagon Papers Casescholar's privilege-contempt).

United States v. Estepa, 471 F.2d 1132 (2d Cir. 1972) (prosecution should not mislead grand jury into believing direct evidence heard when is receiving hearsay).

United States v. Fortunato, 402 F.2d 79 (2d Cir. 1966) (can compel grand jury witness to testify-even if he indicates he will invoke privilege against selfincrimination).

United States v. Gelbard, 443 F.2d 837 (9th Cir. 1972), aff'd; Gelbard v. United States, 408 U.S. 41 (1972) (wiretap statute provides defense to questions and contempt based on illegal wiretapping).

United States v. George, 444 F.2d 310 (6th Cir. 1971) (can compel grand jury testimony of witness after indicted-different purpose; no right to counsel in grand jury room).

United States v. Girgenti, 197 F.2d 216 (3d Cir. 1952) (not necessary to show linkage of grand jury questions, or crime, to locus of grand jury inquiry). United States v. Henderson, 406 F. Supp. 417 (D. Del. 1975) (prosecution after grant of use immunity).

United States v. Hodge, 496 F.2d 87 (5th Cir. 1974). (If better evidence available, hearsay should not be used.)

United States v. Jacobs, 532 F.2d 87 (2d Cir. 1976) (lack of warnings to "potential defendant"-requires suppression of testimony-as exercise of supervisory power).

United States v. Johnson, 319 U.S. 503 (1943) (grand jury not limited to investigation of only crimes; discussion of need for and benefits of grand jury secrecy).

United States v. Lardieri, 506 F.2d 319 (3d Cir. 1974) (no requirement of warning witness that he has right to recant).

United States v. Leibowitz, 420 F.2d 39 (2d Cir. 1969) (deliberate misleading of grand jury into believing evidence not hearsay or high probability of non-indictment if only direct evidence used may be basis for dismissal). United States v. Leighton, 265 F. Supp. 27 (S.D. NY 1967) (discusses practice of allowing witness to leave grand jury room to discuss questions with counsel). United States v. Levya, 513 F.2d 774 (5th Cir. 1975) (role of judge-ministerial and non-discretionary-as to granting of immunity).

United States v. Mandujano, 396 F.2d 1050 (D.C. Cir. 1974), rev'd, -U.S.-, 96 S. Ct. 1768 (1976) (lack of adequate notice of rights, even if required, still no defense to prosecution for perjury before grand jury).

United States v. Mara, 410 U.S. 19 (1973) (Fourth Amendment and grand jury subpoenas-probably cause need not be shown).

United States v. One Oldsmobile Sedan, 167 F.2d 404 (7th Cir. 1948) (prosecution may submit case to second grand jury-to investigate and secure indictment).

United States v. Polizzi, 323 F. Supp. 222 (C.D. Cal. 1971), rev'd on other grounds, 430 F.2d 880 (9th Cir. 1971) (no requirement of minimum time between subpoena and appearance-three days sufficient as "reasonable time"). United States v. Proctor and Gamble, 356 U.S. 677 (1958) (details bases for grand jury secrecy-sets limits on discovery of grand jury testimony). United States v. Price, 474 F.2d 1227 (9th Cir. 1973) (request to record grand jury proceedings should ordinarily be granted).

United States v. Remington, 208 F.2d 567, 573 (2d Cir. 1953), cert. denied 347 U.S. 913 (1954) (dissenting opinion of Judge Learned Hand-discusses possible abuse of grand jury).

United States v. Ryan, 402 U.S. 530 (1971) (order denying motion to quash grand jury subpoena-interlocutory and non-appealable).

United States v. Scully, 225 F.2d 113 (2d Cir. 1955), cert. denied 350 U.S. 897 (1955) (grand jury witness-no right to warnings; witness-no right to present own evidence).

United States v. Smyth, 104 F. Supp. 283 (N.D. Cal. 1952) (details standard that grand jury is to use to determine if there is sufficient evidence to indict). United States v. Socony-Vacuum Oil Company, 310 U.S. 150 (1944) (disclosure of grand jury evidence-only permitted to serve ends of justice—after grand jury functions ended; can use grand jury testimony to refresh witnesses recollection).

United States v. Sweig, 441 F.2d 114 (2d Cir. 1971), cert. denied 403 U.S. 932 (1971) (subpoena of witness by grand jury-after indictment returned). United States v. Thompson, 251 U.S. 407 (1920) (prosecutor can send case to another grand jury after indictment refused by earlier grand jury). United States v. Thoreson, 428 F.2d 654 (9th Cir. 1970) (request for recordation of grand jury proceedings should ordinarily be granted).

United States v. Umans, 368 F.2d 723 (2d Cir. 1966), cert. granted; 386 U.S. 94 (1967), cert. dismissed as improvidently granted, 389 U.S. 80 (1967) (criticizes use of hearsay to secure indictment).

United States v. United States District Court, 238 F.2d 73 (4th Cir. 1956) cert. denied 352 U.S. 981 (1957) (prosecutor may disclose grand jury proceedings to other governmental officers).

United States v. Weinberg, 439 F.2d 743 (9th Cir. 1971). (“Tucson Grand Jury”— recalcitrant witness and contempt; prosecutor need not show nexus between witness and subject under grand jury investigation; First Amendment not absolute privilege to preclude contempt for refusal to answer grand jury questions)

United States v. Winter, 348 F.2d 204 (2d Cir. 1965), cert. denied 382 U.S. 995 (1965) (Fifth Amendment privilege only defense to grand jury questions-not preclude calling witness before grand jury).

Washington v. United States, 328 A.2d 98 (D.C. Ct. App. 1975), cert. granted (right of witness to warnings before testifying).

Wood v. Georgia, 370 U.S. 375 (1962) (discusses role of grand jury as security against prosecution).

Zivarelli v. New Jersey, 406 U.S. 472 (1972) ("use" immunity statute is constitutional).

APPENDIX 5

LIBRARY OF CONGRESS STUDIES

The Federal Grand Jury

(By Charles Doyle, Legislative Attorney, American Law Division)

An obituary of the English grand jury might read: "Born in 1166 to increase accusations of crime, lived to be termed the palladium of justice, and died in 1933 of inutility on a wave of economy." Eliff, "Notes on the Abolition of the English Grand Jury", 29 Journal of Criminal Law and Criminology 3 (1938–39). Most commentators identify the issuance of the Assize of Clarendon by Henry II in 1166 as the origin of the English grand jury, making references to earlier similar institutions in ancient Greece, Rome, Scandinavia, Normandy and among the Saxons. At the Assize of Clarendon and the later Assize of Northampton (1176), accusation of crime was by the oath of "twelve knights of the hundred or, if there are no knights, by the oath of twelve free and lawful men, and by the oath of four men from each township of the hundred ***" Provisions from Assize of Northampton cited in 1 Stephen, A History of the Criminal Law of

1 Stephen. A History of the Criminal Law of England 251-52 (1883); 1 Holdsworth. History of English Law 147-48 (1903); Stubbs, Select Charters and Other Illustrations of English Constitutional History 143 (6th Ed. 1888) 2 Pollack & Maitland, History of English Law 642 (2d ed. 1923); Plucknett, A Concise History of the Common Law 112 (5th ed. 1956) Schwartz, "Demythologizing the Historie Role of the Grand Jury" 10 American Criminal Law Review 701, 703 (1972) Boudin, "The Federal Grand Jury" 61 Georgetown Law Journal 1 (1972); see also articles cited in "Bibliography of the Grand Jury-History" 10 American Criminal Law Review 867 (1972).

England 251 (1883); those for the Assize of Clarendon were similar, 1 Holdsworth, History of English Law 147 (1903). This was the same method used to compile the Domesday Book." Accusation by the grand jury was followed by one of the forms of trial then in use, either ordeal or compurgation."

With the development of the petit injury, the size of the grand jury panel expanded generally to twenty-three members, twelve of whom were required to concur to indict. As Blackstone observed, "But to find a bill [of indictment] there must at least twelve of the jury agree: for so tender is the law of England of the lives of the subjects, that no man can be convicted at the suit of the kind of any capital offence, unless by the unanimous voice of twenty-four of his equals and neighbours; that is, by twelve at least of the grand jury, in the first place, assenting to the accusation; and afterwards, by the whole petit jury, or twelve more, finding him guilty upon his trial." 4 Blackstone's Commentaries 27 (New ed. 1813), see also, 2 Hale's Pleas of the Crown 161 (1st Am. ed. 1847). By the time of the landmark case of the Earl of Shaftesbury Trial, 8 Howard State Trials 759 (1681), the grand jury had developed most of present characteristics. Accusations of felons took the form either of presentments returned upon the personal knowledge of the grand jurors or of indictments returned upon the vote of a bill of indictment presented to the grand jury by the Crown. Witnesses were heard in private, but the King's counsel was generally present. The grand jury also issued reports critical of the King's officials or recommending improvement in some general condition such as the highways or jails of the county. For a general discussion see, Edwards, The Grand Jury (1906); Calkins, "Grand Jury Secrecy" 63 Michigan Law Review 1103 (1955); Kuh, “The Grand Jury 'Presentment': Foul Blow of Fair Play?" 55 Columbia Law Review 1103 (1955). In the Earl of Shaftesbury Trial the grand jury resisted strong pressure from the Crown to examine witness in public and return an indictment. Grand juries had already been established in the American colonies by the time of the Earl of Shaftesbury Trial. They generally adopted the system used in the mother country, although in the New England colonies the grand jury panel was usually elected at town meeting rather than selected by the sheriff of the county. In later years the colonists found the independence of colonial grand juries an especially effective protection against enforcement of unpopular tax and customs laws by the Crown. See Younger, The People's Panel: The Grand Jury in the United States, 1634-1941 (1963) for a detailed discussion of the history of the American grand jury system. With this background it is not surprising that the Fifth Amendment to the United States Constitution states that, "No person shall be held to answer for a captial or otherwise infamous crime, unless on a presentment or indictment of a grand jury . . . .”

As an individual institution, the grand jury probably has not changed a great deal since it was first brought here from England. However, the other governmental bodies with which it must work have undergone radical transformation. Colonial America knew nothing of massive urban areas, of organized police departments, or of the labyrinth of state and federal criminal laws. Thus, while the grand jury has not changed significantly its environment is very different. Few grand juries sitting in a highly populated urban area are likely from their experience and the knowledge of their members to have probable cause to believe that a crime has been committed and that accused committed it, therefore, "presentments" in the traditional sense are unlikely. Given the wide authority vested in various law enforcement agencies, only special kinds of cases are likely to be investigated initially by the grand jury.

In order to fully appreciate the federal grand jury system it is necessary to understand the relationship between the grand jury and the court, and between the grand jury and the attorney for the United States:

"A great deal of information of value to the King could be obtained by compelling the inhabitants of a small community to answer questions, to inform against evil-doers, to disclose mysterious crimes, and to tell of their suspicions. Here we come to royal rights which are not matters of property or custom, but rather possible sources of jurisdiction, and therefore of profit. An inquisition, vill by vill, had established the enormous tax-return called Domesday Book but the inquiry into crime and criminals was also a matter of deep concern to the Crown not merely as a matter of public policy but also a source of revenue for criminal jurisdiction with its fines and forfeitures was always lucrative."

"By this means the transition was effected, and in the Assize of Clarendon (1166) we find the establishment of a definite system of inquisitions as part of the machinery of criminal justice which have come down to our day as grand juries." Plucknett, supra at

112.

3 Trial by battle was only used in criminal cases initiated by "appeal of felony" where the defendant and his accuser fought to determine the validity of the charge.