FEDERAL GRAND JURY H Bill of Rights H
1. A witness before the grand jury who has not received immunity shall have the right to be accompanied by counsel in his or her appearance before the grand jury. Such coun- sel shall be allowed to be present in the grand jury room only during the questioning of the witness and shall be allowed to advise the witness. Such counsel shall not be per- mitted to address the grand jurors, stop the proceedings, object to questions, stop the witness from answering a question, nor otherwise take an active part in proceedings before the grand jury. The court shall have the power to remove from the grand jury room, or otherwise sanction counsel for conduct inconsistent with this principle. Presently, a witness — including a target or subject of investigation — who appears before a fed- eral grand jury is not entitled to counsel inside the grand jury room. The witness must request per- mission from the grand jury to consult outside the grand jury room with counsel. Nowhere else in the criminal justice process is a person who desires counsel denied the right to have counsel at his side as he is questioned. Exclusion of counsel is unfair to the witness. A key aspect of our criminal justice system is the ability to consult with counsel. Significant legal risks confront the grand jury witness, such as the danger of self-incrimination, contempt or perjury. Also, privileges such as attorney-client priv- ilege may inadvertently be waived. Often, the witness appears for hours. In the intimidating atmos- phere of the grand jury, the witness may have difficulty remembering his attorney’s instructions and may be too frightened to request a halt in the proceedings so he can consult with counsel outside the grand jury room. As the 1977 ABA Report on grand jury reform stated: “Requiring a witness who needs advice of counsel to consult his attorney outside the grand jury room door is awkward and prejudicial. It unnecessarily prolongs the grand jury proceeding and places the witness in an unfavorable light before the grand jurors.” Former Watergate Special Prosecutor (now White House Counsel) Charles Ruff testified before Congress in the 1970s to the same effect, in favor of the reform proposal: “Most prosecutors would admit that they count on the burden of leaving the room to dissuade the witness from asserting his right to counsel .” 29 This reform will actually be less disruptive of grand jury proceedings than the current prac- tice of stopping the proceedings so that the witness can leave the grand jury room. The proposal precludes counsel from addressing the grand jurors or participating in the proceedings. It simply provides that if the witness wishes to consult with her lawyer, she gets to speak with counsel before answering the question. This is eminently fair, and can help prevent injustice to the witness appear- ing before the federal grand jury without disrupting the proceedings. 2. No prosecutor shall knowingly fail to disclose to the federal grand jury evidence in the prosecutor’s possession which exonerates the target or subject of the offense. Such disclosure obligations shall not include an obligation to disclose matters that affect credibility such as prior inconsistent statements or Giglio materials.
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