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Government urges Congress to leave grand jury system alone

jury
 

WASHINGTON (CNN) -- The federal grand jury system is fine the way it is and reform proposals currently being floated would "severely damage" it and undermine the criminal justice process, the U.S. Department of Justice told a congressional panel Thursday.

"If it ain't broke, don't fix it. It is our strong belief that the system is not broke," James K. Robinson, assistant attorney general in the criminal division, told the House Judiciary Committee's Subcommittee on the Constitution.

The House panel convened the hearing to learn more about grand juries to determine if future legislation is needed to reform the system.

  FULLTEXT
NACDL report on federal grand juries (published May 18, 2000)
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The subcommittee is chaired by Charles Canady, R-Florida. Canady was unable to attend the hearing because of other House business. Subcommittee members Mel Watt, D-North Carolina, and Asa Hutchinson, R-Arkansas, conducted the hearing.

Robinson and Loretta E. Lynch, the U.S. attorney for the Eastern District of New York, said preserving the secrecy of grand jury proceedings is crucial to ensuring that witnesses speak truthfully and make full disclosures about the matter at hand.

Secrecy is especially important in cases involving terrorism, civil rights, narcotics and other serious crimes, Lynch said.

Witnesses in such cases usually are willing to talk freely because they know their testimony will not be made public, she said.

The two Justice Department officials said the reform proposal that troubles them the most is the one that would allow defense counsel to be present during the secret proceedings.

They said the presence of defense lawyers would prevent the witnesses from speaking freely and raises the specter of grand jury information being passed on to other potential witnesses by the lawyers.

The attorneys could also use the information to coach future witnesses, they said.

The Fifth Amendment says serious criminal charges must be subjected to grand jury review, according to the written testimony presented by Andrew D. Leipold, a University of Illinois law professor who also testified in person at the hearing.

The system has remained unchanged since the beginnings of the republic and was imported into the U.S. criminal justice system from Great Britain, Duke University Law professor Sara Sun Beale testified. There have been calls for reforms for more than 100 years, the experts said.

The dissenting view

The National Association of Criminal Defense Lawyers is at the forefront of the latest set of reform proposals.

The group, which did not testify during the Thursday hearing, released a report in May listing 10 proposals for grand jury reform, key among them the witness' right to have counsel present during grand jury proceedings.

The group's objections are rooted in its view that the present grand jury system allows prosecutors to ride roughshod over the constitutional rights of witnesses.

Raj Purohit, the group's legal affairs director, said after the hearing that grand juries pretty much "rubber stamp" the prosecutors' cases.

The Justice Department said in written testimony to the House panel that grand juries return indictments in 99 percent of the cases presented to them. Each year, according to the testimony, between 850 and 1,360 grand juries are convened to hear about 25,000 cases.

Purohit said the high indictment rate raises the question of whether witnesses are treated in a constitutionally fair manner.

"You've got to ensure that the defendant has some rights. How can you ensure that when there is no counsel there?" he said.

He said the U.S. criminal justice system is geared toward protecting the rights of the individual, not the state. The grand jury system, he charged, protects the state's rights.

He also noted that if President Clinton, a lawyer, was allowed to have his lawyer present during his videotaped grand jury testimony over the Monica Lewinsky matter, average Americans should also have the same right.

Another key reform proposal in the group's report would require prosecutors to disclose to grand juries any evidence proving that the witness in question may not have committed the crime, Purohit said.

Prosecutors are not required currently to divulge such evidence if they have it, which results in wrong indictment with no one except the prosecutor the wiser, he said.

The NACDL's proposals mirror those put forth by the American Bar Association 20 years ago, he added.

How the grand jury system operates

Grand juries do not decide whether the person is innocent or guilty; they determine whether there is enough information to indict someone, meaning they are fact-finding bodies. Many states use grand juries also, though the rules and procedures differ from state to state.

Grand juries are secret, and the testimony is always protected, except in limited circumstances where prosecutorial misconduct is alleged.

Only prosecuting attorneys are present during the proceedings, which are conducted without a judge present. Prosecutors present information and witnesses to the panel, which has between 16 and 23 members.

Federal prosecutors must convince grand juries to issue indictments in all felony cases.



RELATED STORIES:
Study suggests changes in federal grand jury rules
July 3, 2000
Proposed changes to federal grand jury rules
July 3, 2000

RELATED SITES:
U.S. House Committee on the Judiciary
National Association of Criminal Defense Lawyers


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