CASE NOTES - CRIMINAL PROCEDURE, GRAND JURY, DUE PROCESS, RIGHT TO COUNSEL - WHEN A SUBSTANTIAL PURPOSE OF A GRAND JURY PROCEEDING IS TO QUESTION AN INDICTED DEFENDANT ... UNITED STATES V DOSS, 563 F.2D 265 (6TH CIR. 1977)

• NCJ Number: 55331
• Journal: University of Cincinnati Law Review Volume: 47 Issue: 1 Dated: (1978) Pages: 119-128
• Author(s): K W CARR
• Date Published: 1978
• Length: 10 pages
• Corporate Author: University of Cincinnati Law Review
• Publication Format: Article
• Language: English
• Country: United States of America

Annotation

THE DECISION IN UNITED STATES VERSUS DOSS (1977) IS EXAMINED REGARDING LEGAL PRECEDENT AND APPLICABILITY IN SITUATIONS WHERE A DEFENDANT IS QUESTIONED BY A GRAND JURY ABOUT THE CRIME FOR WHICH HE STANDS INDICTED.

Abstract

VINCENT DOSS WAS SUBPOENAED TO APPEAR BEFORE A GRAND JURY THAT EARLIER HAD ISSUED SEALED INDICTMENTS CHARGING HIM WITH DRUG AND COUNTERFEIT OFFENSES. WITHOUT TELLING DOSS HE WAS UNDER SEALED INDICTMENT FOR SPECIFIC CHARGES, THE PROSECUTOR QUESTIONED HIM ABOUT THE OFFENSES CHARGED IN THE INDICTMENTS AS WELL AS OTHER CRIMINAL ACTIVITIES. AN INDICTMENT ON FOUR COUNTS OF PERJURY RESULTED FROM SOME ANSWERS DOSS GAVE TO QUESTIONS THAT PERTAINED TO THE CHARGES FOR WHICH HE STOOD SECRETLY INDICTED, AND HE WAS CONVICTED ON TWO OF THOSE PERJURY COUNTS. ON APPEAL, A PANEL OF THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT REVERSED THE PERJURY CONVICTIONS ON THE GROUNDS THAT WHEN A SUBSTANTIAL PURPOSE OF THE GRAND JURY PROCEEDING IS TO QUESTION AN INDICTED DEFENDANT ABOUT THE CRIME FOR WHICH WHICH HE STANDS INDICTED, THE PROCEEDING VIOLATES THE DUE PROCESS CLAUSE OF THE FIFTH AMENDMENT. THE COURT RELIED ON LAWN (1953) IN RENDERING ITS DECISION. THE DISSENT DISAGREED THAT THE SUBSTANTIAL PURPOSE OF THE GRAND JURY PROCEEDING WAS TO QUESTION DOSS ABOUT THE OFFENSES FOR WHICH HE HAD BEEN INDICTED, AND EVEN IF SOME QUESTIONS STRAYED INTO THE SUBJECT MATTER OF THE SECRET INDICTMENTS, THE PROPER REMEDY WOULD BE TO EXCLUDE SUCH EVIDENCE FROM THE TRIAL ON THE SEALED INDICTMENTS RATHER THAN REVERSE THE PERJURY CONVICTIONS. WHILE THE DOSS CASE SHOWS THE INTENT OF THE COURT TO BALANCE THE BROAD INVESTIGATIVE POWERS OF A GRAND JURY WITH PROTECTION OF THE RIGHTS OF INDIVIDUALS BROUGHT BEFORE IT, THE MAJORITY FAILED TO DEFINE PRECISE CRITERIA FOR DETERMINING WHEN A GRAND JURY VIOLATES ITS GENERAL INVESTIGATIVE PURPOSES IN QUESTIONING A WITNESS ABOUT THE OFFENSES FOR WHICH HE HAS BEEN INDICTED. NONETHELESS, THE IMPACT OF DOSS IS LIKELY TO BE LIMITED BECAUSE PROSECUTORS RARELY CALL INDICTED DEFENDANTS AND COULD EVADE THE SUBSTANTIAL PURPOSE TEST BY DELAYING INDICTMENT UNTIL AFTER THE GRAND JURY QUESTIONING OF THE TARGET DEFENDANT, SHOULD HE BE CALLED TO TESTIFY. ALSO, IN LIGHT OF THE SUPREME COURT'S UNAMBIGUOUS CONDEMNATION OF PERJURY BERFORE GRAND JURIES, DOSS MAY BE SHORT-LIVED IN CASE LAW. (RCB)