NCJ Number
46091
Journal
American Bar Association Journal Volume: 64 Dated: (MARCH 1978) Pages: 337-340
Date Published
1978
Length
4 pages
Annotation
A BRIEF REVIEW OF AMERICAN BAR ASSOCIATION (ABA) PROPOSALS FOR GRAND JURY REFORM IS PRESENTED; THE MAJOR FOCUS IS A PROPOSAL THAT WOULD ALLOW WITNESS COUNSEL IN GRAND JURY ROOMS.
Abstract
GRAND JURY PROCEEDINGS REPRESENT A STAGE OF THE CRIMINAL JUSTICE PROCESS WHICH HAS ESCAPED DUE PROCESS SCRUTINY. CRITICS HAVE CHARGED THAT THE GRAND JURY HAS RADICALLY DEPARTED FROM ITS CONSTITUTIONAL FUNCTION OF PROTECTING CITIZENS FROM UNWARRANTED PROSECUTION AND HAS BECOME INSTEAD A PROSECUTORIAL TOOL DEVOID OF DUE PROCESS. IN LIGHT OF THIS CONTROVERSY, THE AMERICAN BAR ASSOCIATION (ABA) HAS DEVELOPED A COMPREHENSIVE SET OF RECOMMENDED REFORMS WHICH RETAIN THE GRAND JURY WHILE ENSURING FAIRNESS. THE 25 LEGISLATIVE PRINCIPLES ESPOUSED BY THE ABA WOULD PERMIT COUNSEL TO ACCOMPANY THE WITNESS INTO THE GRAND JURY ROOM, PROHIBIT THE NAMING OF UNINDICTED COCONSPIRATORS, ALLOW TRANSACTIONAL IMMUNITY, REQUIRE JUDICIAL REVIEW OF JURY REPORTS, PROTECT WITNESSES FROM HARASSMENT, REQUIRE RECORDING OF PROCEEDINGS, AND IN MOST CASES PERMIT THE TARGET OF INVESTIGATION TO TESTIFY. THE PROPOSAL PERMITTING WITNESS COUNSEL IN THE GRAND JURY ROOM IS CENTRAL TO THE ENTIRE LEGISLATIVE PACKAGE, AND IS THE MOST HOTLY DEBATED OF THE RECOMMENDATIONS; IT HAS BEEN OPPOSED BY ATTORNEY GENERAL GRIFFIN BELL. THE AMERICAN LAW INSTITUTE HAS SUPPORTED COUNSEL FOR WITNESSES, AND 11 STATES ALREADY ALLOW COUNSEL TO ACCOMPANY THE WITNESS BEFORE THE GRAND JURY. THE WITNESS BEFORE A GRAND JURY IS POORLY PROTECTED FROM POSSIBLE SELF-INCRIMINATION OR UNINTENTIONAL WAIVER OF RIGHTS. IF WITNESSES REFUSE TO TESTIFY AFTER RECEIVING IMMUNITY THEY ARE SUBJECT TO IMPRISONMENT WITHOUT TRIAL. IN A MAJORITY OF STATES, THE WITNESS MUST OBTAIN PERMISSION TO LEAVE THE JURY ROOM TO CONSULT HIS ATTORNEY, A PRACTICE WHICH IS BOTH INEFFECTIVE IN PROTECTING THE WITNESS AND INEFFICIENT. FURTHER, CONSULTING THE ATTORNEY MAY LATER BE USED AS RELEVANT TO PERJURY CHARGES, AND A LIMIT MAY BE SET ON HOW FREQUENTLY THE WITNESS LEAVES TO CONSULT THE ATTORNEY. ALTHOUGH OPPONENTS OF THE PROPOSAL ASSERT THAT THE PRESENCE OF COUNSEL WILL INTERRUPT PROCEEDINGS AND POSSIBLY GIVE THE PROCEEDINGS AN ADVERSARIAL NATURE, ABA PROPOSALS LIMIT COUNSELS' ROLE TO ONE OF ADVISING ONLY, AND STATES WHICH PERMIT COUNSEL IN THE GRAND JURY ROOM HAVE REPORTED NO SUCH DIFFICULTIES. IT IS CONCLUDED THAT ALTHOUGH THE GRAND JURY HAS A LONG TRADITION, IT IS NOT SACROSANCT AND IS IN NEED OF REFORM. (JAP)