FEDERAL GRAND JURY
Grand jurors cannot exercise their historic powers of independence without meaningful jury instructions regarding their duties and powers as grand jurors, including the power to reject, as well as accept, the prosecutor’s request for charges. Grand jurors, additionally, are entitled to receive instructions regarding the elements of the charges they are to con- sider. All instructions, as well as any statements made to grand jurors by prosecutors regarding the charges or the persons who are being investigated, must be on the record, so that the court, upon a proper showing by the parties, is able to properly supervise the fairness and integrity of the grand jury process. 42 10. No prosecutor shall call before the federal grand jury any subject or target who has stated personally or through his attorney that he intends to invoke the con- stitutional privilege against self-incrimination. The federal prosecutor may, however, seek a grant of immunity or contest the right of the witness to assert the privilege against self-incrimination. In such a case, the prosecutor shall file under seal any motion to compel the testimony of a witness who has indicated his refusal to testify in reliance upon his privilege against self-incrimination and any wit- ness may file under seal any motion relating to or seeking to exercise or protect his right to refuse to testify. All proceedings held on such motions filed under seal shall be con- ducted in camera unless the witness requests a public hearing. The only purpose for calling before the grand jury a witness who has indicated that he intends to invoke his right against self-incrimination is to harass or intimidate the wit- ness, unless the prosecutor has obtained a grant of immunity. This principle is reflected in part in the ABA Standards relating to prosecution func- tion, Standard 3-3.6 which reads as follows: (e) the prosecutor should not compel the appearance of a witness before the grand jury whose activities are the subject of the inquiry if the witness states in advance that, if called, he or she will exercise the constitutional privilege not to testify, unless the prosecutor intends to seek a grant of immunity according to law. This principle also appears in amendments to the U.S. Attorneys Manual adopted by the Department of Justice in December 1977, which directs: “if a written communication from a target, signed by him and his attorney, states that they will assert the Fifth Amendment, the witness should generally be excused from testifying unless there are reasons which strongly compel his personal assertion of that right before the grand jury.” We do not believe the Department’s position that only targets should be excused provides suf- ficient protection against abuse and urge that, except in the circumstances identified, no wit- ness who asserts in writing that she or he intends to take the Fifth Amendment should be com- pelled to do so before the federal grand jury. N
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