NCJ Number
61681
Journal
American University Law Review Volume: 28 Issue: 3 Dated: (SPRING 1979) Pages: 363-393
Date Published
1979
Length
31 pages
Annotation
THE RATIONALE FOR REQUIRING PROTECTIVE WARNINGS PRIOR TO CUSTODIAL INTERROGATION, AND THE NEED FOR SIMILAR WARNINGS FOR GRAND JURY WITNESSES IS EXAMINED, WITH DISCUSSION OF THE FUNCTION OF THE GRAND JURY.
Abstract
ALTHOUGH THE U.S. SUPREME COURT HAS RECOGNIZED THAT THE FIFTH AMENDMENT PRIVILEGE AGAINST SELF-INCRIMINATION EXTENDS TO GRAND JURY WITNESSES, THE COURT'S HOLDINGS HAVE ERODED THE PROTECTION. FOR EXAMPLE, A WITNESS WHO IS GRANTED USE IMMUNITY CAN BE FORCED TO PROVIDE INCRIMINATING EVIDENCE. FURTHERMORE, UNINDICTED SUBJECTS OF GRAND JURY INVESTIGATIONS CAN BE COMPELLED TO TESTIFY WITHOUT BEING WARNED OF THEIR STATUS. THE COURT MAINTAINS THAT IN ORDER TO FULFILL ITS HISTORIC FUNCTION AS AN INVESTIGATIVE BODY, THE GRAND JURY MUST NOT BE HAMPERED BY TECHNICAL, PROCEDURAL, OR EVIDENTIARY RESTRAINTS. HOWEVER, AN EXAMINATION OF GRAND JURY HISTORY REVEALS THAT THE COURT'S RATIONALE FOR DENYING PROCEDURAL PROTECTION TO WITNESSES IS NOT LONGER VALID. IN ORDER TO PRESERVE THE ACCUSATORIAL SYSTEM, THE GRAND JURY WITNESS MUST BE ABLE TO EXERCISE EFFECTIVELY THE PRIVILEGE AGAINST SELF-INCRIMINATION. THE BROAD LANGUAGE OF THE MIRANDA DECISION INDICATES THAT PROTECTIVE WARNINGS ARE REQUIRED NOT ONLY WHEN INTERROGATION IS CUSTODIAL, BUT WHENEVER 'INHERENTLY COMPELLING PRESSURES . . . WORK TO UNDERMINE THE INDIVIDUAL'S WILL TO RESIST AND COMPEL HIM TO SPEAK.' THE MANNER IN WHICH A GRAND JURY IS CONDUCTED, IS THE CATALYST FOR COERCION AND ABUSE. THE PROVISION OF WARNINGS FOR WITNESSES WILL STRIKE A BALANCE BETWEEN THE INQUISITORIAL ASPECTS OF THE GRAND JURY AND THE ACCUSATORIAL SYSTEM OF JUSTICE. FOOTNOTES ARE PROVIDED. (TWK)