Constitutional Rights of Witnesses Before the Grand Jury

• Jurisdiction: Maryland

IX. Constitutional rights of witnesses before the grand jury

Grand jury witnesses have fewer constitutional rights than defendants at trial in a criminal case. Grand jury witnesses lack standing to challenge the authority of the grand jury because they are mere witnesses. Blair v. United States, 250 U.S. 273, 279 (1919).

A. Fourth Amendment protection against unreasonable searches and seizures

Without a warrant, without probable cause, and without reasonable suspicion, the prosecutor may subpoena a witness to appear before the grand jury and produce documents. A grand jury subpoena is not a seizure under the Fourth Amendment. United States v. Dionisio, 410 U.S. 1, 9-10 (1973) (must provide voice exemplar); United States v. Mara, 410 U.S. 19, 21-22 (1973) (must provide handwriting exemplar). A subpoena duces tecum is limited by the due process requirement of particularity and the requirement for a reasonable timeframe. In Hale v. Henkel, 201 U.S. 43, 65 (1906), the Supreme Court held:

[T]he grand jury may proceed, either upon their own knowledge or upon the examination of witnesses, to inquire for themselves whether a crime cognizable by the court has been committed; that the result of their investigations may be subsequently embodied in an indictment, and that, in communing witnesses, it is quite sufficient to apprise them of the names of the parties with respect to whom they will be called to testify, without indicating the nature of the charge against them.

Id. at 65 (overruled on other grounds in Murphy, 378 U.S. 52).

B. Fifth Amendment privilege against compelled self-incrimination

1. When is there a right not to answer questions?

A grand jury witness may not refuse to appear before the grand jury. Thus, an individual subpoenaed to testify is a compellable witness. The witness may assert the Fifth Amendment privilege against compelled self-incrimination on a question-by-question basis, unless the witness is granted "use and derivative use" immunity. The threat of incrimination must be real and appreciable to assert the privilege against compelled self-incrimination. In Hoffman v. United States, 341 U.S. 479 (1951), the Supreme Court stated:

The privilege afforded not only extends to answers that would in themselves support a conviction under a federal criminal statute but likewise embraces those which would furnish a link in the chain of evidence need to prosecute the claimant for a federal crime. But this protection must be confined to instances where the witness has reasonable cause to apprehend danger from a direct answer.

Id. at 486 (internal citations omitted)).

In Maryland, if a witness testifies before the grand jury, without a grant of immunity, the witness may invoke the privilege against compelled self-incrimination as to any or all questions. If the witness testifies pursuant to a grant of immunity, the witness may assert the privilege against compelled self-incrimination only as to questions that are outside the scope of the immunity. See Williams v. State, 110 Md. App. 1, 35-36 (1996); Mitchell v. United States, 526 U.S. 314, 321-22 (1999); Rogers v. United States, 340 U.S. 367, 372 (1951); Johnson v. United States, 318 U.S. 189, 195 (1943); Caminetti v. United States, 242 U.S. 470, 493-94 (1917); Brown v. Walker, 161 U.S. 591, 597 (1896); Chesapeake Club v. State, 63 Md. 446, 457 (1885). Accord Choi v. State, 316 Md. 529, 545 (1989); Shifflett v. State, 245 Md. 169, 173 (1967); Journigan v. State, 223 Md. 405, 411-12 (1960), cert. denied, 365 U.S. 853 (1961); Midgett v. State, 223 Md. 282, 289 (1960), cert. denied, 365 U.S. 853 (1961); Adams, Nelson, & Timanus v. State, 200 Md. 133, 144 (1952); Raymond v. State ex. rel. Younkins, 195 Md. 126, 129-30 (1950); Davis v. State, 189 Md. 640, 644-45 (1948); Shanks v. State, 185 Md. 437, 444 (1945); Doye v. State, 16 Md. App. 511, 522, cert. denied, 268 Md. 747 (1973).

2. When is there a right not to produce documents?

In United States v. White, 322 U.S. 694, 695 (1944), a grand jury was convened to investigate irregularities in a federal construction project. A subpoena duces tecum for union records relating to the construction was served on the president of the unincorporated union. The president refused to comply and was held in contempt. Id. at 696. The Supreme Court held:

Since the privilege against self-incrimination is a purely personal one, it cannot be utilized by or on behalf of any organization, such as a corporation. Moreover, the papers and effects which the privilege protects must be the private property of the person claiming the privilege, or at least in the possession in a purely personal capacity. But individuals, when acting as representatives of a collective group, cannot be said to be exercising their personal rights and duties or to be entitled to their purely personal privileges. Rather they assume the rights, duties and privileges of the artificial entity or association of which they are agents or officers and they are bound by its obligations. In their official capacity, therefore, they have no privilege against self-incrimination. And the official records and documents of the organization that are held by them in a representative rather than in a personal capacity cannot be the subject of the personal privilege against self-incrimination, even though production of the papers might tend to incriminate them personally. Such records and papers are not the private records of the individual members or officers of the organization. Usually, if not always, they are open to inspection by the members and this right may be enforced on appropriate occasions by available legal procedures. They therefore embody no element of personal privacy and carry with them no claim of personal privilege.

Id. at 699-700 (internal citations omitted). See Couch v. United States, 409 U.S. 322, 327-29 (1973); Davis v. United States, 328 U.S. 582 (1946); Dreir v. United States, 221 U.S. 394, 400 (1911); Baltimore & Ohio Railroad Co. v. Interstate Commerce Comm'n, 221 U.S. 612, 622-23 (1911). The privilege cannot be asserted even after the entity in question ceases to exist. Wheeler v. United States, 226 U.S. 478, 490 (1913) (no privilege even though the corporation dissolved); Grant v. United States, 227 U.S. 74, 79-80 (1913).

Thus, when documents are held by a representative of a "collective entity," such as a corporation, collective entitypartnership, LLC, LLP, union, unincorporated business, religious organization, social club, government agency, etc., the privilege cannot be invoked on behalf of the individual holding those record in a "representative capacity." McPhaul v. United States, 364 U.S. 372, 380 (1960); Curcio v. United States, 354 U.S. 118, 122 (1957); Rogers v. United States, 340 U.S. 367, 371-72 (1951); United States v. Fleischman, 339 U.S. 349, 357-58 (1950).

In Bellis v. United States, 417 U.S. 85 (1974), the Supreme Court defined a "collective entity" as "an organization which is recognized as an independent entity apart from its individual members." Id. at 92. In Bellis, the defendant was a partner in a then-dissolved three-lawyer partnership. The defendant was called before a grand jury and directed to produce financial records of the partnership. The defendant refused to comply and was held...