NCJ Number
49027
Journal
American Criminal Law Review Volume: 15 Issue: 4 Dated: (SPRING 1978) Pages: 293-306
Date Published
1978
Length
14 pages
Annotation
WAYS IN WHICH THE INVESTIGATIVE POWERS OF THE GRAND JURY WOULD BE LIMITED IF DEFENSE COUNSEL WERE PERMITTED IN THE GRAND JURY ROOM ARE DISCUSSED.
Abstract
ARGUMENTS IN FAVOR OF PERMITTING COUNSEL IN THE GRAND JURY ARE NOT BASED USUALLY ON CONSTITUTIONAL GROUNDS. INSTEAD, CLAIMS FOR COUNSEL MOST OFTEN ARISE IN INVESTIGATIONS INVOLVING BUSINESS CORPORATIONS, LABOR UNIONS, OTHER ASSOCIATIONS AND ORGANIZATIONS, WHITE COLLAR AND ORGANIZED CRIME, AND PUBLIC CORRUPTION. IN SUCH CASES, EVEN WITH COUNSEL NOT ALLOWED IN THE GRAND JURY, MULTIPLE REPRESENTATION OF GRAND JURY WITNESSES BY 'HOUSE COUNSEL' POSES A MAJOR OBSTACLE TO EFFECTIVE INVESTIGATION OF CRIMINAL CONSPIRACIES. TO ALLOW HOUSE COUNSEL IN THE GRAND JURY WOULD SIGNIFICANTLY EXACERBATE AN ALREADY SERIOUS PROBLEM. MULTIPLE REPRESENTATION AND ITS ATTENDANT ABUSES AND PROBLEMS ARE NOT THE ONLY GROUNDS FOR OBJECTION TO PERMITTING COUNSEL IN THE GRAND JURY. COUNSEL'S PRESENCE INEVITABLY WOULD MAKE THE GRAND JURY PROCESS AN ADVERSARY ONE, RATHER THAN AN EX PARTE INVESTIGATION AS IT SHOULD BE. SOME ARGUE FOR COUNSEL IN THE GRAND JURY AS A MEANS OF OFFSETTING ALLEGED ABUSE BY PROSECUTORS. HOWEVER, IF WITNESSES ARE ADVISED OF THEIR RIGHTS AND THE SUBJECT MATTER OF THE INQUIRY PRIOR TO TESTIFYING, IF TESTIMONY RECORDS ARE REQUIRED AND MADE AVAILABLE TO PERSONS INDICTED, AND IF WITNESSES MAY CONSULT WITH COUNSEL OUTSIDE THE GRAND JURY ROOM WHEN APPROPRIATE, THE NEED FOR COUNSEL TO PREVENT PROSECUTORIAL ABUSE DISAPPEARS. THESE AND OTHER ARGUMENTS SUPPORT THE CONCLUSION THAT THE POSSIBLE BENEFITS OF ALLOWING COUNSEL IN THE GRAND JURY, WEIGHED AGAINST THE CERTAIN COSTS, ARE NEGLIGIBLE TO NONEXISTENT. (LKM)