Beware the Grand Jury

My colleague and friend Orin Kerr (law, GW) pronounced yesterday “Federal Grand Jury Enforcement Day” because of the imprisonment of journalist Judith Miller for failing to comply with a grand jury subpoena for the sources who leaked Valerie Plame’s name and because of the imprisonment of rapper Lil’ Kim for giving false testimony to a grand jury. So I thought I’d take this opportunity to talk about the grand jury. I don’t plan to celebrate the grand jury; instead, I aim to attack it. My comments in this post will focus on the grand jury in general, not the Miller or Lil’ Kim cases.

Look more closely at a grand jury and you see quite an unusual feature of the criminal justice system. Grand juries operate in secret. They work with the prosecutor; they hear witnesses; and there is no judge in the room. Normal rules of evidence don’t apply. Grand juries wield enormous power. They can issue subpoenas (which are written by prosecutors) to require witnesses to come forward and testify or to produce books, papers, documents, or other things. Shrouded in secrecy and fortified with enormous power, the grand jury a kind of American version of the Star Chamber, or perhaps more aptly put, a Starr Chamber.

Ironically, grand juries are provided for in the Bill of Rights. Pursuant to Amendment V: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury.” It is ironic that grand juries are contained in provisions about rights, because today grand juries are largely the tool of prosecutors. There’s the famous quip that a “prosecutor can get a grand jury to indict a ham sandwich.” And that might be putting it too mildly – it applies to any sandwich, not just ham. A grand jury is one of the shiniest tools in the prosecutor’s tool shed. With rights like these who needs an Ashcroft?

Grand jury subpoena power, in the words of Orin Kerr, is “tremendously broad.” Grand juries may subpoena documents or evidence without a showing of probable cause. United States v. R Enterprises, Inc., 498 U.S. 292 (1991) provides the standard, which is really not much of a standard at all: “[W]e concluded that where, as here, a subpoena is challenged on relevancy grounds, the motion to quash must be denied unless the district court determines that there is no reasonable possibility that the category of materials the Government seeks will produce information relevant to the general subject of the grand jury’s investigation.” Id. at 301. If a prosecutor can’t satisfy this standard, she might as well hang it up.

Failure to comply with a grand jury subpoena finally gets a judge involved – to find people in contempt and imprison them for up to 18 months. For an excellent article on subpoenas in general, including grand jury ones, see Christopher Slobogin, Subpoenas and Privacy, 54 De Paul L. Rev. 805 (2005).

I find the grand jury’s subpoena powers to be very troubling. Although the grand jury was envisioned as a check on the prosecutor, this is not how these juries function today. They are allies. And that’s the problem. With the grand jury’s subpoena power, prosecutors can obtain a treasure chest of private information from numerous witnesses, including testimony and documents. Why conduct a search or seizure when you can just use a subpoena?

In United States v. Dionisio, 410 U.S. 1 (1973), the Court rejected a Fourth Amendment challenge to a grand jury subpoena:

It is clear that a subpoena to appear before a grand jury is not a 'seizure' in the Fourth Amendment sense, even though that summons may be inconvenient or burdensome. . . .

The compulsion exerted by a grand jury subpoena differs from the seizure effected by an arrest or even an investigative 'stop' in more than civic obligation. For, as Judge Friendly wrote for the Court of Appeals for the Second Circuit: “The latter is abrupt, is effected with force or the threat of it and often in demeaning circumstances, and, in the case of arrest, results in a record involving social stigma. A subpoena is served in the same manner as other legal process; it involves no stigma whatever; if the time for appearance is inconvenient, this can generally be altered; and it remains at all times under the control and supervision of a court.”

Thus the Court of Appeals for the Seventh Circuit correctly recognized in a case subsequent to the one now before us, that a 'grand jury subpoena to testify is not that kind of governmental intrusion on privacy against which the Fourth Amendment affords protection once the Fifth Amendment is satisfied.'

Dionisio is a very problematic case. It has allowed the grand jury subpoena to be an end-run around the Fourth Amendment. If the government wants to obtain papers and documents in my home, it must usually first get a search warrant. That requires probable cause. Search warrants come with a lot of protection. But with a grand jury, the prosecutor can just use it to subpoena the papers and documents. There’s no probable cause, just that ridiculously broad relevancy test of R Enterprises.

The fact that a grand jury subpoena “involves no stigma whatever” and is not “inconvenient” doesn’t get to the real nub of the issue. And there’s little “control and supervision of a court.” Given the fact that grand juries have become but a tool of the prosecutor, they should not be given the power to subpoena outside of ordinary Fourth Amendment standards. Grand juries are far too powerful; it is time that their power be reined in.