FEDERAL GRAND JURY
4. A target or subject of a grand jury investigation shall have the right to testify before the grand jury. Prosecutors shall notify such targets or subjects of their opportunity to testify, unless notification may result in flight, endanger other persons or obstruct justice, or unless the prosecutor is unable to notify said persons with reasonable dili- gence. A target or subject of the grand jury may also submit to the court, to be made available to the foreperson, an offer, in writing, to provide information or evidence to the grand jury.
In its 1977 Report recommending this proposal, the ABA stated:
This principle is intended to insure that individuals are given the opportunity to testi- fy on their own behalf prior to being indicted. This is an essential ingredient in a fair- ly functioning grand jury — and criminal justice — system. Without it, the grand jury’s essential function of arriving at an accurate indictment is undermined because the jurors may be denied certain evidence. In fact, it is already the rule in New York that a defendant on notice of a state grand jury investigation has an absolute right to testify before the panel if he chooses and may also rec- ommend specific witnesses to the grand jury. 34 Drawing upon this New York model, our Recommended Reform Right Four proposes that a federal prosecutor be required to take all reasonable steps to notify a prospective defendant of his right to testify. The reasonableness touchstone of the proposal recognizes that, in some instances: (1) the prosecutor will truly be unable to locate such persons; or (2) notification may result in the person’s fleeing, endangering witnesses or other persons or obstructing justice. In these extraordinary instances, notification of the right to testify would not be required (as it would be unreasonable). This measure should also include a specific provision permitting judi- cial dismissal of an indictment, with or without prejudice, for a failure to comply which does not fall within the reasonableness exceptions of the reform. The second part of the proposal — that a target or subject may make available to the foreper- son, through the court, an offer in writing to offer information to the federal grand jury — also insures that the grand jury receives all the relevant information it needs to actually make an informed decision on an indictment. There is no requirement that the foreperson accept the prof- fered information. Rather, the foreperson is simply made aware of its existence and afforded the choice as to whether it is relevant and helpful to the work of the grand jurors. Still, we well recognize that the foreperson could feel inhibited from accepting the proffered information or evidence by the prosecutor’s influence over the grand jury. Thus, a refusal to hear evi- dence proposed by the target or subject should provide the court grounds, in its sound discretion, to dismiss a resulting indictment with or without prejudice. 35 5. Witnesses should have the right to receive a transcript of their federal grand jury tes- timony. A number of well-reasoned opinions have held that a witness has a presumptive right to obtain a transcript of his own federal grand jury testimony. 36 Notwithstanding this, federal courts still rou- tinely deny motions by witness to obtain transcripts of their own grand jury testimony.
12
H H H
Made with FlippingBook Online document maker