Grand Jury Abuse: the Remedy After Mechanik and Kilpatrick
| Publication year | 1988 |
| Pages | 647 |
| Citation | Vol. 17 No. 4 Pg. 647 |
1988, April, Pg. 647. Grand Jury Abuse: The Remedy After Mechanik and Kilpatrick
Judge Learned Hand long ago recognized the dangers inherent in an unsupervised grand jury. However, two recent decisions, one in the U.S. Supreme Court(fn2) and the other in the U.S. Court of Appeals for the Tenth Circuit,(fn3) suggest that the courts are in the process of abandoning any meaningful supervisory role over grand juries. This article discusses remedies available and changes in practice which must be explored in light of these two decisions.
The grand jury has a dual role. On one hand, it serves as an investigative body to determine whether there is probable cause to support an indictment. In theory, at least, the other equally important role is
to serve the invaluable function in our society of standing between the accuser and the accused . . . to determine whether a charge is founded upon reason or dictated by an intimidating power or by malice and personal ill will.(fn4)
Given these functions, the courts have long recognized their power to supervise grand juries and the prosecutors who conduct the grand jury proceedings. Providing a framework for this supervision, the Federal Rules of Criminal Procedure contain many provisions which govern the conduct of grand jury proceedings. For instance, Rule 6(d) governs who may be present in the grand jury. Rule 6(e)(2) imposes the rule of secrecy, while 6(e)(3) delineates exceptions to that rule.
Courts have traditionally recognized their power to remedy a violation of these rules or to correct prosecutorial misconduct before the grand jury. Indictments have been ordered dismissed due to the presence of unauthorized persons in the grand jury(fn5) and for a violation of the rule of secrecy.(fn6) Similarly, courts have dismissed indictments to cure prosecutorial abuse of the grand jury, relying both on constitutional grounds---citing the Fifth Amendment due process or grand jury clauses---and on the general supervisory powers of the judiciary.(fn7)
While many courts employ a per se dismissal rule for all but the most minor violations of the clear dictates of Rules 6(d) and 6(e), the remedy of dismissal has been used more sparingly to correct prosecutorial misconduct.(fn8) The question now posed is whether any meaningful remedy exists for grand jury abuse.
In United States v. Mechanik,(fn9) the defendants were convicted of drug-related offenses and conspiracy. During trial, the defendants learned for the first time that Rule 6(d) had been violated when two law enforcement officers testified in tandem. The U.S. Court of Appeals for the Fourth Circuit reversed the conspiracy convictions and dismissed that charge.(fn10)
The U.S. Supreme Court reversed the dismissal order and held that the petit jury's guilty verdict rendered any violation of Rule 6(d) harmless error. While acknowledging that dismissal remained an appropriate remedy if the violation had been brought to the attention of the trial court before trial, Justice Rehnquist rejected the Fourth Circuit's view that such a violation required automatic dismissal as a remedy. Rather, the Court appeared to substitute an automatic rule of harmless error:
The error involving Rule 6(d) in these cases had the theoretical potential to affect the grand jury's determination whether to indict these particular defendants for the offenses with which they were charged. But the petit jury's subsequent guilty verdict not only means that there was probable cause to...
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