FEDERAL GRAND JURY
Answering critics of this reform, the second part of our proposal permits the federal prose- cutor to disclose the names of unindicted co-conspirators in response to an appropriate request by defense counsel. This will afford prosecutors the opportunity, assuming evidentiary requirements are met, of introducing co-conspirator statements at trial. At the same time, it prevents the unfair branding of a citizen unindicted as well as the undue ambushing at trial of a citizen defendant. 7. All non- immunized subjects or targets called before a federal grand jury shall be given a Miranda warning by the prosecutor before being questioned. Federal prosecutors routinely tell witnesses they are not “targets” to get them to answer questions without counsel before the grand jury, only later to indict them after they have helplessly incrimi- nated themselves. This problem can be curbed by requiring the brief issuance of a Miranda -type warning to grand jury subjects or targets. If one is called before the grand jury for more than one appearance, she should be given a fresh set of warnings before the start of questioning at each additional appearance. Waiver of the rights can be made quickly and orally, as long as they are transcribed or recorded as part of the grand jury proceedings. See also Recommended Reform Right Nine, infra. Such a reform is only fair. Complex and important legal issues face any subject or target before the grand jury. This is especially daunting for the typical, lay subject or target.An appear- ance before the grand jury may subject an individual to the grave danger of self-incrimination. The subject or target may inadvertently lose his right to claim the privilege against self-incrimination by operation of the waiver doctrine. 8. All subpoenas for witnesses called before a federal grand jury shall be issued at least 72 hours before the date of appearance, not to include weekends and holidays, unless good cause is shown for an exemption. This reform would prohibit the ambushing of witnesses by federal prosecutors who serve forthwith subpoenas at the 11th hour. All too frequently, there is no good reason for this lack of notice to the subject of the subpoena. The prosecutor is simply seeking to gain an undue advantage over the sur- prised, unprepared, and less likely to be counseled, witness. The proposal makes specific provision for the true emergency situation, in which at least 72 hours’notice is not reasonably possible. 9. The federal grand jurors shall be given meaningful jury instructions, on the record, regarding their duties and powers as grand jurors, and the charges they are to con- sider. All instructions, recommendations and commentary to grand jurors by the prosecution shall be recorded and shall be made available to the accused after an indictment, during pre-trial discovery, and the court shall have discretion to dismiss an indictment, with or without prejudice, in the event of prosecutorial impropriety reflected in the transcript.
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