NCJ Number
14993
Journal
Chicago-Kent Law Review Volume: 51 Issue: 1 Dated: (SUMMER 1974) Pages: 212-226
Date Published
1974
Length
15 pages
Annotation
REVIEW OF THE 1974 SUPREME COURT DECISION HOLDING THAT ILLEGALLY OBTAINED EVIDENCE CAN BE USED BY A GRAND JURY WITHOUT VIOLATION OF CONSTITUTIONAL RIGHTS.
Abstract
THE AUTHOR BRIEFLY EXAMINES THE HISTORY AND FUNCTION OF THE GRAND JURY SYSTEM AS WELL AS THE AIMS AND APPLICATIONS OF THE EXCLUSIONARY RULE. HE CONCLUDES THAT THOSE WHO ARE ALARMED AT THE CALANDRA OPINION, INCLUDING THE AUTHORS OF THE DISSENT, MAY BE INTERPRETING THE DECISION MORE BROADLY THAN THE HOLDING WARRANTS. IT IS NOT AN ENCROACHMENT ON THE EXISTING EXCLUSIONARY RULE. THE COURT IN CALANDRA HAS ENGAGED IN A BALANCING PROCESS WEIGHING THE IMPORTANCE OF MAINTAINING THE GRAND JURY SYSTEM FREE FROM TECHNICAL ENCUMBRANCES WHICH COULD SERIOUSLY IMPEDE ITS FUNCTION, AND THE ADDITIONAL DETERRENT EFFECT TO BE GAINED BY EXTENDING THE RULE OVER AND ABOVE THAT ALREADY ACHIEVED BY EXCLUDING THE EVIDENCE AT TRIAL. JUST AS IT EARLIER REFUSED TO MAKE THE EXCLUSIONARY RULE RETROSPECTIVE OR TO EXTEND IT BEYOND THE ACTUAL TRIAL OF THE VICTIM OF THE ILLEGAL CONDUCT, THE COURT NOW DECLINES TO BROADEN THE RULE TO COVER GRAND JURY PROCEEDINGS. THIS DECISION WILL NOT SIGNIFICANTLY ALTER THE SITUATION OF ONE SUBPOENAED TO TESTIFY BEFORE A GRAND JURY. THE FIFTH AMENDMENT PRIVILEGE AGAINST SELFINCRIMINATION, AS WELL AS THE OTHER TESTIMONIAL PRIVILEGES TRADITIONALLY RECOGNIZED BY THE SUPREME COURT REMAIN INTACT. THE COURT HAS MADE NO ATTEMPT TO INTERFERE WITH THEIR APPLICATION. ONCE GRANTED IMMUNITY, OF COURSE, THE WITNESS WILL HAVE TO ANSWER VIRTUALLY ALL QUESTIONS ASKED OF HIM UNLESS THEY INVOLVE A RECOGNIZED CONFIDENTIAL RELATIONSHIP, OR ARE BASED ON ILLEGAL WIRETAPPING OR ELECTRONIC EAVESDROPPING. HOWEVER, THE GRANT OF IMMUNITY WOULD PRECLUDE THE USE OF THIS EVIDENCE AGAINST THE WITNESS IN ANY SUBSEQUENT CRIMINAL PROSECUTION. EVIDENCE GAINED IN THIS MANNER COULD BE USED AGAINST OTHER DEFENDANTS WHO MAY BE IMPLICATED BY THE WITNESS' TESTIMONY, BUT THIS DOES NOT CHANGE THE LAW. (AUTHOR ABSTRACT)