The Subpoena To Testify
Significance. A major investigative advantage of the grand jury is its use of the subpoena ad testificandum, a court order directing a person to appear and testify before the grand jury. If the police wish to take a person into custody for questioning, they must have the probable cause required by the Fourth Amendment to justify the seizure of a person. Even then, the person has no duty to answer police questions. Moreover, if the person does answer and lies, his lying will not constitute a crime in most jurisdictions. If the prosecution, on the other hand, wishes to question a person before the grand jury, it may simply utilize the subpoena to testify, which avoids all of these obstacles. A subpoena to testify can be obtained without a showing of probable cause and, in general, without even a lesser showing that the person subpoenaed is likely to have relevant information. The compulsion of a subpoena to testify has long been held not to fall within the Fourth Amendment, since it does not involve taking a person into custody. Moreover, as various courts have noted, the grand jury (or the prosecutor acting on its behalf ) may utilize subpoena authority on no more substantial grounds than "tips" or rumors. This enables the grand jury to serve as "a grand inquest, a body with powers of investigation and inquisition, the scope of whose inquiries is not limited narrowly by questions of propriety or forecasts of the probable result of the investigation" (Blair v. United States, 250 U.S. 273, 282 (1919)).
Unlike the person questioned by a police officer, the subpoenaed witness is compelled to answer questions before the grand jury unless the witness can claim an evidentiary privilege, such as the marital privilege or the privilege against self-incrimination. If the witness refuses to testify without such legal justification, the witness will be held in contempt and subjected to incarceration. Ordinarily, the recalcitrant witness will be held in "civil contempt," which means the witness will be released when willing to testify, or if unwilling, when the grand jury term ends. Criminal contempt is available if the grand jury no longer has need for the witness' testimony, and it commonly carries a jail term of several months to a few years. If the witness testifies and fails to tell the truth, the witness may be prosecuted for perjury since the testimony is given under oath. Here the potential prison term is substantially longer.
Safeguards. The granting of subpoena authority to grand juries rests, in part, on the premise that extensive safeguards are available to prevent misuse of that authority. Judicial discussions of subpoena authority frequently note, for example, that the grand jury witness retains the same evidentiary privileges that would be available to a witness at trial. In particular, a witness who may be involved in a criminal enterprise can always exercise the privilege against self-incrimination, refusing to respond whenever his answer might provide "a link in the chain of evidence needed to prosecute" (Hoffman v. United States, 341 U.S. 479, 486 (1951)). Indeed, if the witness is a potential target for indictment, the prosecutor may be required to inform the witness specifically, before he gives testimony, of his right to claim the privilege.
Courts also have stressed that the grand jury itself provides protection against misuse of the subpoena power. The grand jurors, it is noted "have no axes to grind and are not charged personally with the administration of the law" ( Justice Black's dissent, U.S. 330, 346–347 (1957)). If questioning or other prosecutorial tactics offend their sense of justice, they may direct the prosecutor to discontinue (seeking the assistance of the court, if necessary). A final safeguard is the supervisory authority of the court issuing the subpoena. As the Supreme Court has noted, that court has the continuing obligation, if other safeguards fail, to prevent "the transformation of the grand jury into an instrument of oppression" (United States v. Dionisio, 410 U.S. 1, 12 (1973)).
Right to counsel. A primary legal reform urged by critics of grand jury investigations is the increased availability of counsel for witnesses. Because the witness is not an "accused" person (even if the target of the investigation), the Sixth Amendment right to counsel does not apply. Only a few jurisdictions have provisions requiring appointment of counsel to assist witnesses who are indigent. Even if a witness has counsel, the witness in most jurisdictions cannot have counsel accompany him before the grand jury. These jurisdictions view the presence of the witness' counsel before the grand jury as disruptive and inconsistent with grand jury secrecy. They will, however, permit the witness to interrupt his testimony and leave the grand jury room for the purpose of consulting with counsel just outside the grand jury room. Counsel for witnesses claim that this practice is not adequate, because witnesses do not always realize that they need legal advice in responding to a particular question. Moreover, witnesses often are fearful that they will appear to have "something to hide" if they too frequently leave the room to consult with counsel. Roughly twenty states do permit witnesses to be assisted by counsel within the grand jury room. These jurisdictions strictly limit the lawyer to giving advice to the witness, thereby seeking to prevent counsel from turning the grand jury examination into an adversary proceeding by making arguments to the grand jury.
Subpoena duces tecum. The subpoena duces tecum (a court order directing a person to bring with him specified items in his possession) gives the grand jury the capacity to obtain physical evidence in a manner very similar to its capacity to obtain testimony. This subpoena is used primarily to obtain business records and other documents in investigations of white-collar crimes. However, it has also been used to require a suspect to provide such identification evidence as fingerprints or handwriting samples. A subpoena duces tecum, in contrast to a search warrant, does not require a showing of probable cause. Although the subpoena does direct the subpoenaed person to search his files and bring forth specified documents, it does not authorize the police or prosecutor themselves to search the premises for those files. The only Fourth Amendment limitation imposed upon the subpoena duces tecum relates to its breadth. A subpoena may not encompass such a wide range of material as to impose an unreasonable burden on the subpoenaed party.
The safeguards applicable to the subpoena ad testificandum also apply to the subpoena duces tecum. However, the privilege against self-incrimination is far less likely to apply to a subpoena duces tecum. The privilege extends only to individuals, and therefore cannot be raised, to subpoenas requiring production of documents belonging to corporations or similar entities, notwithstanding potential incrimination to the persons who authored or possessed the documents. Moreover, even with respect to personal records, the privilege tends to be limited to private documents personally prepared by the subpoenaed individual. Since the writing of the previously prepared document was not itself compelled, the only compelled testimonial element occurs in the acknowledgments that may be inherent in the act of productions—that is, acknowledging that the document exists, that it is possessed by the person presenting it, and that it is the document described in the subpoena. Where the document is not private and personally prepared, compelling those acknowledgments often will not be viewed as seeking testimony because existence, possession, and the document's authenticity already will be known as "foregone conclusions." As the privilege extends only to testimonial disclosures, it also has no applicability to subpoenas requiring production of fingerprints or similar identification evidence.
Immunity grants. Perhaps the most significant advantage of the grand jury investigation is the availability of the immunity grant. An immunity grant is a court order that, in effect, supplants the witness' self incrimination privilege. Since the privilege prohibits compelling a witness to give testimony that may be used against him in a criminal case, the privilege can be rendered inapplicable by precluding such use of the witness' compelled testimony. An immunity grant does exactly that. It directs the witness to testify and protects him against use of his testimony in any subsequent criminal prosecution.
The Supreme Court has held that to be effective, the immunity grant must guarantee against further use of both the witness's testimony and any evidence derived from that testimony (Kastigar v. United States, 406 U.S. 441 (1972)). Moreover, if a subsequent prosecution is brought, the prosecution bears the burden of establishing that all of its evidence was derived from a source independent of the immunized testimony. As a practical matter, unless the prosecution had a fully prepared case before the witness was granted immunity, it will be most difficult to prosecute successfully for a criminal activity discussed in immunized testimony. Many states simply grant the witness what is commonly called "transactional immunity." They bar any prosecution for a transaction discussed in the immunized testimony, without regard to the possible independent source of the prosecutor's evidence.
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