to Reform the Federal Grand Jury
Criticisms of Federal Grand Jury Reform Proposals
The critique of our grand jury reform proposals is largely encapsulated in oppo- sition to the right to counsel in the grand jury room. First, opponents claim that the presence of counsel will transform the grand jury proceeding into an adver- sarial situation. This runs counter to the historic function of the grand jury and turns it, in effect, into another trial. Second, opponents argue that such reform will make the system of justice less efficient by encumbering the process with additional procedures. These concerns mirror the critiques of other federal grand jury reform pro- posals. For example, the U.S. Supreme Court in the Calandra case of the early 1970s, stated: Permitting witnesses to invoke the exclusionary rule before a grand jury would precipitate adjudication of issues hitherto reserved for the trial on the merits and would delay and disrupt grand jury proceedings. Suppression hearings would halt the orderly progress of an investigation and might necessitate extended litigation of issues only tangentially related to the grand jury’s primary objective. The probable result would be “protracted interruption of grand jury proceedings,” effectively trans- forming them into preliminary trials on the merits. In some cases the delay might be fatal to the enforcement of criminal law. 18 Fear of delay and of turning federal grand jury proceedings into a “pre- liminary trial” are both cited as reasons for not extending the exclusionary rule to grand jury proceedings. 19 A third objection raised against counsel in the grand jury room is that it allows for the control of witnesses in corporate and organized crime cases, and high-level drug cases. The fear is that the subject of the investigation would con- trol the selection of counsel for the witnesses, and that the witnesses’testimony would be less forthcoming with such counsel in the grand jury room.
Response to Criticisms
We think the critics fail to adequately appreciate the positive practical experiences of states which have implemented a number of these same reforms. Particularly notable in this respect are Colorado and New York. In Colorado, for example, if a Miranda -like warning is not given to a wit- ness before testimony, the witness cannot be prosecuted as a result of any infor- mation presented to the state grand jury.The warning includes an advisory as to the right to counsel. Defense counsel are allowed in the grand jury, but can only act as advisors, as would be the case under our proposal. According to H. Jeffrey Bayles, a former Denver chief deputy district attorney, the presence of counsel has not disrupted or impeded the functions of the grand jury. In fact, the oppo- site has been true. He explains:
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