to Reform the Federal Grand Jury
with the prosecutor and there will be some discussion both about his sta- tus and about the nature of his prospective testimony. If his lawyer advises him to assert his privilege against self-incrimination, and the prosecutor does not immunize him, it is difficult to see what added harm is created by permitting the witness’lawyer to be in the grand jury room. If the witness is advised to testify without asserting his privilege, there is some risk that he will be less candid if his employer’s representative is present, but I question whether the risk is measurably greater than it is with the lawyer outside the grand jury room, since, if the witness’tes- timony is helpful to the government, that fact will probably become evi- dent to the lawyer in fairly short order. If the government decides to immunize the witness, it has already announced that it considers him a potential witness against his employer, and has laid a firm basis for the [judicial] disqualification of [house] counsel. 23 Nor will our other proposed reforms disrupt the grand jury proceedings. Our proposals would not shift suppression and/or dismissal hearings back to the grand jury stage of proceedings. Rather, any suppression or dismissal motion would be made as one of several post-indictment, but pre-trial, matters. The Supreme Court has not spoken against the policy changes we advo- cate. True, in the early 1970s, in United States v. Calandra , the Supreme Court ruled that the judicially created exclusionary rule does not apply in grand jury pro- ceedings. However, neither Calandra nor any other Supreme Court decision regarding the courts’limited inherent powers to address grand jury impropriety by prosecutors addresses the policy decision, exclusively reserved to Congress, as to the advisability of re-calibrated, statutory safeguards for the individual or business called before the modern federal grand jury. Evidence illegally obtained by electronic surveillance is, in fact, specifi- cally excluded by statute from use in the federal grand jury. 24 In 1974, the Calandra Court felt it could confidently state that, “for the most part, a prosecu- tor would be unlikely to request an indictment where a conviction would not be obtained.” 25 Today, however, in the wake of a recent explosion in the number of federal prosecutors — with the accompanying “problems of quality control” iden- tified by conservative jurists like Richard Posner and Alex Kozinski, among many others — that sort of confidence is called into serious question. 26 With approxi- mately four times the number of federal prosecutors, exercising vastly expanded powers over the citizenry in investigation and prosecution of manifold more fed- eral criminal offenses, this belief is highly debatable. At least now, sound policy dictates that there simply should be no basis for a prosecutor to even consider uti- lizing in the grand jury evidence he or she believes to be unlawfully obtained. If the federal grand jury is to serve its historical function of being shield as well as sword, the integrity of the process must be maintained. The fact that the Supreme Court has decided it does not possess the inherent power to supervise the federal grand jury is no argument against legislation excluding unconstitutionally obtained evidence from the process. In order to actually effectuate this sound principle, the federal courts must be congressionally empowered to dismiss, with or without prejudice, an indict- ment obtained through the grand jury in violation of this basic rule.
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