Misuse of the Grand Jury: Forcing a Putative Defendant to Appear and Plead the Fifth Amendment

• Publication year: 2004
• Citation: Vol. 28 No. 02

SEATTLE UNIVERSITY LAW REVIEWVolume 28, No. 2WINTER 2005

Misuse of the Grand Jury: Forcing a Putative Defendant to Appear and Plead the Fifth Amendment

Aaron M. Clemens(fn*)

I. Introduction

In this article, I consider the propriety of an indictment of a person who was subpoenaed to testify before a grand jury at which the person invoked the Fifth Amendment privilege against self-incrimination on any questions relevant to the investigation and where the government knew that this person would assert the privilege. In Part I, I explore the prosecutor's power to secure evidence and present it the grand jury. In Part II, I describe how the Fifth Amendment's privilege against self-incrimination limits the prosecutor's power to secure evidence and present it to the grand jury. In Part III, I apply the privilege to a situation where a prosecutor knows that the person will invoke the privilege and refuse to testify, yet still forces the person to exercise her privilege in front of the grand jury which later indicts her.

I conclude that because of the inherent prejudice, if a person informed the government of her intent to invoke her Fifth Amendment privilege, then any indictment handed down by a grand jury that personally observed this person invoke this privilege must be dismissed. A contrary rule undermines the Fifth Amendment privilege by allowing a prosecutor to force a person to invoke the privilege in front of the grand jury, thus raising the presumption of guilt in the grand jurors' minds while concomitantly presenting an unnecessary opportunity for prosecutorial harassment, imposing an unnecessary burden on the witness and potentially causing unnecessary embarrassment, all while wasting grand jurors' time.(fn1)

If a person raises these issues and eventually brings her case to the United States Supreme Court, the Court may approve of the dismissal of such an indictment, without prejudice, to deter the government from such actions in the future.

II. The Power to Subpoena to a Grand Jury

A. The Federal Grand Jury Serves As an Arm of the Prosecutor

Federal prosecutors can issue subpoenas at their discretion.(fn2) Rule 17 of the Federal Rules of Criminal Procedure guides the prosecutor during the subpoena process.(fn3) Under Rule 17, a subpoena may order any person to testify under oath at a certain time and place.(fn4) Prosecutors issue these orders by filling out blank subpoenas already signed by the court.(fn5) Prosecutors are empowered to issue subpoenas by their connection to a federal grand jury.(fn6) The grand jury has been defined as the following:A jury of inquiry who are summoned and returned by the sheriff to each session of the criminal courts, and whose duty is to receive complaints and accusations in criminal cases, hear the evidence adduced on the part of the state, and find bills of indictment in cases where they are satisfied a trial ought to be had... . This is called a "grand jury" because it comprises a greater number of jurors than the ordinary trial jury or "petit jury." At common law, a grand jury consisted of not less than 12 nor more than 23 men... . If the grand jury determines that probable cause [to indict] does not exist, it returns a "no bill." It is an accusatory body and its function does not include a determination of guilt.(fn7)

The prosecutor, who must be duly appointed,(fn8) is not supposed to usurp the power of the grand jury when subpoenaing people to a grand jury.(fn9) The grand jury is composed in a regulated manner to meet constitutional requirements.(fn10) Courts often note that the government cannot use the grand jury solely as a discovery device.(fn11) But the prosecutor's power over the grand jury is great enough that the United States Court of Appeals for the Third Circuit described grand juries as "for all practical purposes an investigative and prosecutorial arm of the executive branch of government."(fn12) Similarly, in United States v. Kleen Laundry and Cleaners, Inc.,(fn13) the court noted that "the grand jury's independence in the criminal justice system has declined with the increasing complexity of crime and the growth of the role of prosecutors, professional police, and investigative forces."(fn14) The Kleen court explained that Assistant United States Attorneys now are the ones who gather the evidence for the grand jury, call and examine witnesses, present documents, explain the law, sum up the evidence, and request an indictment.(fn15) The court also noted that "the conduct of the prosecutor in obtaining an indictment is virtually unreviewable,"(fn16) and upheld the prosecutor's action by rejecting the argument that "the use of the power on behalf of, but without direction from, a grand jury results in an invalid indictment which should be dismissed and in illegally obtained evidence which should be suppressed."(fn17) Citing numerous cases(fn18) and the language of Rule 17,(fn19) the Kleen court held that the prosecutor had the power to independently issue subpoenas.(fn20)

The prosecutor's power to use a grand jury was viewed expansively in United States v. Santucci(fn21) where the United States Court of Appeals for the Seventh Circuit upheld a prosecutor's subpoena of suspects to a non-existent grand jury.(fn22) The Santucci court claimed that "[t]he defendants are themselves in part responsible for the absence of grand jury involvement" and noted that the defendants could have tried to appear before this imaginary grand jury.(fn23) Perhaps pointing to the futility of a defendant's appearance at an empty grand jury room before an imaginary grand jury, the court explained that "[e]ven if a grand jury had not been sitting at that time the subpoenas could have been continued."(fn24) In sum, case law makes it clear that "[a]lthough grand jury subpoenas are occasionally discussed as if they were the instrumentalities of the grand jury, they are in fact almost universally instrumentalities of the United States Attorney's office or of some other investigative or prosecutorial department of the executive branch."(fn25) Furthermore, "[w]hile there are some limits on the investigative powers of the grand jury, there are few if any other forums in which a governmental body has such relatively unregulated power to compel other persons to divulge information or present evidence."(fn26)

The grand jury has evolved to become an instrumentality of the prosecutor. Notably, the grand jury is not "subject to the direction of the court's directions and orders with respect to the exercise of its essential functions."(fn27) The prosecutor has ultimate power to guide the grand jury subpoena and indictment processes. This is an awesome power for the following three reasons: (1) A grand jury investigation may be triggered by tips or rumors heard by prosecutors;(fn28) (2) a grand jury investigation cannot be enjoined;(fn29) and (3) the grand jury's right to inquire into possible offenses is unrestrained by technical or evidentiary rules.(fn30) For these reasons, the danger is that in the hands of an unsavory or overzealous prosecutor,(fn31) abuses of the grand jury may occur.

B. The Court Will Punish Failure to Comply with a Subpoena

If a person refuses to comply with a lawful subpoena, the government can seek contempt charges.(fn32) Only a court has the authority to punish a failure to comply with a subpoena;(fn33) however, through a citizen's duty to help the government enforce the laws, the prosecutor who sought a subpoena can assist the court in bringing contempt charges.(fn34)

Two types of contempt charges can be imposed against someone who fails to comply with a subpoena: civil and criminal, each with a different aim. A contempt charge is civil or criminal based "on the 'character and purpose' of the sanction involved."(fn35) A contempt proceeding is civil if the sanction "is remedial, and for the benefit of the complainant,"(fn36) and this "benefit" can accrue indefinitely.(fn37) A contempt proceeding is criminal if the sentence is "punitive, to vindicate the authority of the court."(fn38) With civil contempt charges a person is only punished until he complies with a subpoena or until the grand jury has been discharged.(fn39) But with criminal contempt, punishment can be imposed long after a person has complied with a subpoena.(fn40) Lying to the court in response to a subpoena exposes a person to potential criminal perjury charges(fn41) as well as further criminal contempt charges.(fn42)

When a witness refuses to comply with a subpoena directing him to answer questions before a federal grand jury, even after receiving immunity from the court, this act is seen as criminal contempt, not civil, and therefore requires full criminal process(fn43) including notice of the charges, a hearing,(fn44) and trial by jury.(fn45) However, courts will not punish failure to comply with a subpoena that impermissibly orders a person to appear in the United States Attorney's office for interrogation.(fn46) Similarly, a subpoena is unenforceable if it compels attendance at an unauthorized proceeding.(fn47) Additionally, a prosecutor must not threaten to use the court's contempt power to force cooperation with an allegedly voluntary proceeding,(fn48) nor take advantage of inherently coercive circumstances.(fn49)

Although a federal prosecutor has the power to proceed with actions that arguably usurp the grand jury's power, the...