Abuse of the Grand Jury Process

• Pages: 287-312

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CHAPTER 14

ABUSE OF THE GRAND JURY PROCESS

The grand jury, expressly referenced in the Fifth Amendment as a

protection against government persecution, is responsible for

investigating crime and determining whether there is probable cause to

believe a crime has been committed.1 Because the grand jury is

primarily inquisitional rather than adversarial, its investigative powers

are largely unfettered, and courts apply a presumption of regularity2 to its

proceedings, which are cloaked in secrecy.3 As this Chapter explains,

claims of grand jury abuse rarely succeed, given the general rule that an

indictment returned by a legally constituted and unbiased grand jury, if

valid on its face, is enough to call for trial of the charge on the merits.4

1. United States v. Calandra, 414 U.S. 338, 343 (1974) (grand jury’s

responsibilities include determination of whether there is probable cause

to believe a crime has been committed and protection of citizens against

unfounded criminal persecutions); Branzburg v. Hayes, 408 U.S. 665,

686-87 (1972) (same).

2. United States v. Johnson, 319 U.S. 503, 512-13 (1943) (a grand jury

proceeding is accorded a presumption of regularity, which generally may

be dispelled only upon particularized proof of irregularities in grand jury

process); United States v. Alvarado, 840 F.3d 184, 189-90 (4th Cir. 2016)

(recognizing that district courts should refrain from intervening in grand

jury process absent compelling evidence of grand jury abuse).

3. See In re Impounded, 241 F.3d 308, 316 (3d Cir. 2001) (“The

institutional independence and secrecy of the grand jury has been a

hallmark of criminal indictments for over three centuries.”); see also

Stern v. United States Dist. Ct. for D. Mass., 21 4 F.3d 4, 16 (1st Cir.

2000) (rejecting a local rule that required and set stringent standards for

subpoenas); In re Grand Jury Proc., 142 F.3d 1416, 1423 (11 th Cir. 1998)

(finding no effective relief for claim that attorney’s subpoenaed testimony

before grand jury influenced its decision to indict, due to secrecy of grand

jury proceedings and fact that grand jurors could not be questioned

regarding whether they relied on attorney’s testimony). The press is not

entitled, even under the First Amendment, to access grand jury

proceedings. See, e.g., In re Motions of Dow Jones & Co., 142 F.3d 496,

499 (D.C. Cir. 1998).

4. Costello v. United States, 350 U.S. 359, 363 (1956) (holding that a court

may not look behind an indictment to determine if evidence upon which

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As the Supreme Court has cautioned, any contrary rule “would saddle a

grand jury with mini-trials and preliminary showings [that] would

assuredly impede its investigation and frustrate the public’s interest in

the fair and expeditious administration of the criminal laws.”5 Courts

will dismiss an indictment only for the most flagrant prosecutorial

misconduct, such as willful presentation of perjured testimony.

A. Judicial Scrutiny of Claims of Prosecutorial Misconduct Before

the Grand Jury

Because of the grand jury’s broad investigative powers to determine

the existence of probable cause, and its institutional separateness from

the courts, the Supreme Court has narrowly confined the district courts’

ability to invoke their supervisory powers to dismiss an indictment for

prosecutorial misconduct.6

prosecutors based it was incompetent, inadmissible, or insufficient); see

also Kaley v. United States, 571 U.S. 320, 328 (2014) (finding an

indictment fair upon its face and returned by a properly constituted grand

jury conclusively determines existence of probable cause to believe

defendant perpetrated offence alleged); Calandra, 414 U.S. at 344-45

(affirming that an indictment valid on its face is not subject to challenge

on the ground that the grand jury acted on basis of inadequate or

incompetent evidence); Fierro v. Smith, 741 F. App’x 558, 562-63 (10th

Cir. 2018 ) (finding that an indictment valid on its face is not subject to

challenge on ground that grand jury acted on basis of information

obtained in violation of a defendant’s Fifth Amendment privilege against

self-incrimination).

5. United States v. Dionisio, 410 U.S. 1, 17 ( 1973).

6. See, e.g., United States v. Williams, 504 U.S. 36, 49-50 (1992)

(expressing reluctance to invoke judicial supervisory power as a basis for

prescribing modes of grand jury procedure); see also United States v.

Perez, 246 F. App’x 140, 143-45 (3d Cir. 2007) (no abuse when grand

jury considered allegedly prejudicial rumors about target); United States

v. Gomez, 237 F.3d 238, 241 (3d Cir. 2000) (declining to exercise

supervisory powers to require government to advise a witness before a

grand jury of his right to remain silent and that his statements can be used

against him).