The presence of counsel has a definitely positive effect. Prosecutors who have worked under both the new and old laws strongly prefer the new. Not only does the new law speed the process by eliminating the walk outside the room on every question, but it also reduces the number of questions requiring conferences. The educational process, which of necessity accompanies having counsel in the grand jury room, promotes a better understanding of the grand jury within the bar. The more the processes are known, the less is the aura of mystery surrounding the grand jury. When the mystery leaves, so does much of the fear and dis- trust of the institution. The demand for abolition of the grand jury will decrease in direct proportion to the number of counsel who attend grand jury sessions with their clients. 20
Experiences in other states where counsel is permitted in the grand jury
room appear to have been similarly successful. 21
The state grand jury in New York is also similar in many respects to the model we suggest. There, the rules of evidence for grand jury proceedings are vir- tually identical to those which govern trials. Targets have the right to testify on their own behalf and can recommend specific witnesses to the grand jury. 22 Exam- ination of reported decisions in New York, as well as the collective experience of Commission members from New York, reveals that procedures there have not led to the kind of inefficient mini-trials hypothesized by opponents of reform. With respect to the claim that the proposal will allow control of witnesses in organized crime and drug cases, the case has not been made by critics of reform that state experiences have demonstrated that lawyers for witnesses have suborned perjury or obstructed the witness’s truthful and complete grand jury testimony. The reform proposal of permitting counsel for witnesses in the grand jury room certainly should not be rejected on the basis of what is, at best, a speculative claim. Further, should any such obstructionism actually emerge in any case, our pro- posal has made provision for its prompt and forceful correction by the supervising court. Our proposal is plain that the federal court with jurisdiction over the relevant grand jury shall enjoy a specific congressionally-authorized power (that is, not the inherent judicial power rejected by the Williams Court) — to remove, or otherwise sanction, an obstructionist lawyer. See Recommended Reform Right One, supra. To the extent that some critics express concern about witness counsel in the grand jury lending itself to increased breaches of secrecy by “house counsel” to a business or organized crime organization, this can also be addressed through the courts’attorney removal and other sanctioning powers. Moreover, realistically, in- house counsel can get this information anyway, albeit perhaps a less-than-entirely- accurate rendition. This is true of the objection to allowing witnesses access to the transcripts of their testimony, as well. Any potential for these reforms to increase breaches of secrecy is not an appreciable risk. As Watergate prosecutor, now White House Counsel, Charles Ruff has well explained: In the typical grand jury investigation into the activities of any hierar- chically structured organization, a witness from the lower or middle lev- els represented by counsel hired by his superiors [the entity], will meet
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