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NCJRS Abstract

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NCJ Number: 78521 Find in a Library
Title: Putative Defendant in a Federal Grand Jury Investigation
Journal: Cleveland State Law Review  Volume:29  Issue:1  Dated:(1980)  Pages:61-80
Author(s): E F Marek
Date Published: 1980
Page Count: 20
Format: Article
Language: English
Country: United States of America
Annotation: This article examines substantive and procedural considerations arising in connection with the representation of a putative defendant or a subpoenaed witness who may become exposed to criminal charges or contempt in the course of a grand jury investigation.
Abstract: Following an overview of the grand jury's functions and the prosecutor's influence in these proceedings, this article discusses fifth amendment problems which arise because the grand jury setting limits access to information concerning the investigation and prohibits the presence of counsel inside the grand jury room as well as assertion of the privilege against self-incrimination prior to questioning. A putative defendant can avoid a grand jury appearance by using the Department of Justice's (DOJ) grand jury guidelines which prohibit a Federal prosecutor from calling a witness upon receiving a written notice from the witness and counsel stating the intention to exercise a valid fifth amendment refusal to testify. According to Supreme Court decisions and DOJ guidelines, illegally obtained evidence can be used against grand jury witnesses whose constitutional rights have not been violated. A constitutional violation may exist, however, when the questioned evidence has been the subject of separate proceedings in either Federal or State courts, and counsel can request the prosecutor to refrain from presenting this evidence to a grand jury to support an indictment against a putative defendant. Because the grand jury hearing is not an adversary proceeding, prosecutors should present any available exonerating evidence as well as incriminating evidence in the interests of fairness. Controversies over the types of evidence that can be considered sufficiently exculpatory to require presentation to the grand jury are explored, including the decision in Brady v. Maryland and cases where grand jury indictments have been dismissed in the postindictment context because exculpatory material was not introduced. Procedures to force a prosecutor to present exculpatory evidence to a grand jury prior to its vote on indictment are outlined. Appellate review of lower court orders made in connection with a grand jury proceeding are limited primarily to civil contempt judgments. Given this situation, judicial intervention in a grand jury proceeding to protect the interests of a putative defendant or witness is preferably obtained at the district court level. Over 80 footnotes are included.
Index Term(s): Defense counsel; Defense preparation; Grand juries; Investigative powers; Rights of the accused; Witnesses
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