NCJ Number
52409
Journal
Missouri Law Review Volume: 43 Issue: 4 Dated: (FALL 1978) Pages: 714-733
Date Published
1978
Length
20 pages
Annotation
THE SIGNIFICANCE OF THE SUPREME COURT'S REASSERTION OF THE RULE THAT A WITNESS' COUNSEL MAY NOT APPEAR BEFORE THE GRAND JURY WITH THE WITNESS IS ASSESSED.
Abstract
THE INDICTING GRAND JURY HAS BROAD INVESTIGATIVE POWERS. IT MAY CONSIDER AND ACT UPON TIPS, RUMORS, EVIDENCE OFFERED BY THE PROSECUTION, AND THE PERSONAL KNOWLEDGE OF JURORS. ONE ASPECT OF THIS INVESTIGATIVE AUTHORITY IS THE POWER TO SUBPOENA WITNESSES WHO CAN BE COMPELLED TO TESTIFY OR PRODUCE DOCUMENTS. THE GRAND JURY'S SUBPOENA POWER IS NOT, HOWEVER, UNLIMITED; IT MAY CONSIDER INCOMPETENT EVIDENCE BUT IT MAY NOT ITSELF VIOLATE A VALID PRIVILEGE ESTABLISHED BY THE CONSTITUTION, STATUTES, OR COMMON LAW. BECAUSE OF ITS INVESTIGATIVE RATHER THAN ADJUDICATIVE PURPOSE, THE INDICTING GRAND JURY IS NOT BOUND BY PROCEDURAL AND EVIDENTIARY RULES GOVERNING THE CONDUCT OF CRIMINAL TRIALS. A SIGNIFICANT RIGHT DENIED WITNESSES APPEARING BEFORE THE GRAND JURY IS THE RIGHT TO COUNSEL. UNDER THE SIXTH AMENDMENT TO THE CONSTITUTION, THE ACCUSED HAS A RIGHT TO COUNSEL. IT HAS BEEN HELD THAT A GRAND JURY PROCEEDING IS NOT ADVERSARY OR ADJUDICATORY IN NATURE AND IS NOT A CRIMINAL PROCEEDING; THEREFORE, THE SIXTH AMENDMENT DOES NOT APPLY TO GRAND JURY WITNESSES. THE DENIAL OF COUNSEL, HOWEVER, IS NOT CONSISTENT WITH THE GOAL OF PROTECTING INDIVIDUALS FROM ILL-FOUNDED INDICTMENTS, GIVEN THE NATURE OF THE RELATIONSHIP BETWEEN THE PROSECUTION AND THE GRAND JURY. REQUIREMENTS REGARDING THE ISSUANCE OF SUBPOENAS AND PRINCIPLES OF THE FOURTH AMENDMENT DEFER TO THE TRADITIONAL INVESTIGATIVE FUNCTION OF THE GRAND JURY WHILE RECOGNIZING THE FACT THAT GRAND JURY POWERS ARE SUSCEPTIBLE TO PROSECUTORIAL ABUSE. THE SUPREME COURT HAS FURTHER RESTRICTED THE FOURTH AMENDMENT PROTECTION OF A WITNESS FACING THE GRAND JURY BY STIPULATING THAT THE EXCLUSIONARY RULE IS NOT APPLICABLE IN GRAND JURY PROCEEDINGS. IT IS THE FIFTH AMENDMENT PRIVILEGE AGAINST SELF-INCRIMINATION THAT IS ASSOCIATED MOST OFTEN WITH A WITNESS APPEARING BEFORE THE GRAND JURY. THE SOURCE OF MUCH CRITICISM OF THE GRAND JURY LIES IN THE RESTRICTION OF CONSTITUTIONAL RIGHTS AND PRIVILEGES OF WITNESSES IN THE FACE OF EXPANDED PROSECUTORIAL INFLUENCE ON THE GRAND JURY PROCESS. (DEP)