I Need It…

(Grand Jury Testimony)

By Wayne C. Fricke; Oct 1998

     The Grand Jury is an institution "deeply rooted in Anglo-American history".  United States v. Calandra, 414 U.S. 338, 342, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974).               The Grand Jury's responsibilities include determination of probable cause and the protection of citizens against unfounded criminal prosecutions.  414 U.S. at 343, 94 S.Ct. at 617.  To ensure that it may adequately discharge its public responsibility, the Grand Jury's investigative power must be broad.  Branzburg v. Hayes, 408 U.S. 665, 700, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972).

     Historically, courts will not interfere with the presentation of evidence before the Grand Jury.  For instance, the government has no obligation to present exculpatory evidence before the Grand Jury.  See United States v. Williams, 504 U.S. 36, 50-56, 112 S.Ct. 1735, 1744-46, 118 L.Ed.2d 352 (1992).  Nor, is the government precluded from presenting evidence that may be subject to suppression because of illegal searches.  See United States v. Calandra, supra.  See United States v. Estacio, 64 F.3d 477, 481 (9th Cir. 1995).

     However, although the court's role as an overseer of the Grand Jury is limited and it may not exercise any power in a way which encroaches upon the prerogatives of the prosecutor and Grand Jury, the court has some power to dismiss an indictment in order to "protect the integrity of the judicial process... from unfair or improper prosecutorial conduct."  See United States v. Samango, 607 F.2d 877, 881 (9th Cir. 1979), (citing United States v. Chanen, 549 F.2d 1306, 1309 (1977)). As such, dismissal of an Indictment may be required where the Grand Jury is deceived in some significant way. When dismissal is sought for non-constitutional error, the court has adopted the following standard:

... dismissal is appropriate only "if it's established that the violation substantially influenced the Grand Jury's decision to indict" or if there is "grave doubt" that the decision to indict was free from substantial influence of such violation.

Bank of Nova Scotia v. United States, 487 U.S. 250, 256, 108 S.Ct. 2369, 101 L.Ed.2d 278 (1980).

     Conduct which may be characterized as transgressing a defendant's right to fundamental fairness, including an attempt by the government to "unfairly sway the Grand Jury... [or a] pervasive attempt to charge without cause or to undermine the defense may impact a jury's ability to exercise an independent judgment and lead to a dismissal of the Indictment."  See United States v. Lopez-Gutierrez, 83 F.3d 1235, 1245 (10th Cir. 1996), (citing United States v. Taylor, 798 F.2d 1337, 1340 (10th Cir. 1986)); United States v. Kilpatrick, 821 F.2d 1456, 1466 (10th Cir. 1987).  It is a prerequisite that the defendant show prejudice before the court may dismiss the Indictment.  See Bank of Nova Scotia v. United States, 487 U.S. 250, 108 S.Ct. 2369, 101 L.Ed.2d 278 (1988).

     Generally, one does not immediately have access to Grand Jury testimony.  However, Fed.R.Crim.Proc. 6(e)(3)(c)(ii) permits disclosure of Grand Jury transcripts upon a showing that grounds may exist for a motion to dismiss the Indictment.  See also United States v. Fowlie, 24 F.3d 1059, 1065-66 (1994).  At a minimum, if there is a showing that grounds may exist for a motion to dismiss the court should conduct an ex parte examination of the transcripts.  Id.  The defendant need only show "a particularized need" for the requested materials.  See United State v. Bennett, 702 F.2d 833, 836 (9th Cir. 1983), (citing Pittsburgh Plate Glass, Co. v. United States, 360 U.S. 395, 400, 79 S.Ct. 1237, 1241, 3 L.Ed.2d 1323 (1959)).

     And although, as noted above, some intentional misconduct upon the conduct of the government may be required, an earlier Ninth Circuit case seems to indicate that even unintentional conduct can lead to disclosure and ultimately dismissal of an Indictment.  See United States v. Samango, supra.  According to dicta in Samango, so long as the Grand Jury is deceived, even negligently, dismissal may be appropriate.  Thus, if you have grounds to believe your client has been indicted based on erroneous testimony, you should move for disclosure of the testimony under Fed R. Crim. Proc. 6(e)(3)(c)(ii). Subsequently, you may be able to gain access to all testimony so that a motion to dismiss can be made, as the court will need to address all Grand Jury testimony in order to address the validity of the Indictment.

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