GRAND JURY PRACTICE

Prof. Gerald H. Goldstein

St. Mary’s University

Advanced Criminal Law

TABLE OF CONTENTS

Part I: Grand Jury Practice

GRAND JURY PRACTICE ....................................................................................................... 1

THE GRAND JURY'S COMPOSITION .................................................................................... 2

MOTION TO QUASH GRAND JURY ...................................................................................... 2

ESTABLISHING A PRIMA FACIE SHOWING OF DISCRIMINATION ................................. 4

BURDEN THEN SHIFTS TO THE GOVERNMENT ........................................................................................ 5

IDENTIFIABLE GROUPS ................................................................................................................................ 6

African Americans: ....................................................................................................................................... 6

Women: ........................................................................................................................................................ 6

Young adults: ............................................................................................................................................... 6

Others:.......................................................................................................................................................... 7

SELECTION OF GRAND JURY FOREPERSON MAY ALSO CONSTITUTE SUCH A DEPRIVATION: ...................................... 7

STANDING TO COMPLAIN OF SYSTEMATIC EXCLUSION ....................................................................... 8

An evidentiary hearing must be provided:...................................................................................................... 9

TIMELINESS OF THE CHALLENGE .............................................................................................................. 9

PARTICULAR GRAND JUROR NEED NOT BE PRESENT AT EVERY SESSION TO VOTE

DEFENDANT TRUE BILL ...................................................................................................... 11

PRESENCE OF UNAUTHORIZED PERSONS ....................................................................... 11

REQUIREMENT TO PRESENT EXCULPATORY EVIDENCE............................................. 12

ABUSE OF GRAND JURY...................................................................................................... 12

SECRECY ................................................................................................................................ 13

FEDERAL: ......................................................................................................................................................13

GOVERNMENT USE OF GRAND JURY MATERIALS TO DETERMINE WHETHER TO PROCEED IN A

CIVIL ACTION ..........................................................................................................................................14

GOVERNMENT’S USE OF GRAND JURY INFORMATION TO PURSUE CRIMINAL INVESTIGATION

ELSEWHERE .............................................................................................................................................15

NO INTERLOCUTORY APPEAL FOR A VIOLATION OF THE RULE OF SECRECY ....... 16

FEDERAL: ......................................................................................................................................................16

STATE: ...........................................................................................................................................................16

FIRST AMENDMENT ISSUES AND THE RIGHT OF A GRAND JURY WITNESSES TO

THEIR OWN TESTIMONY ..................................................................................................... 17

RIGHT TO COPY OF TRANSCRIPT ...................................................................................... 18

RIGHT TO HAVE WITNESS' GRAND JURY TESTIMONY TRANSCRIBED ..................... 18

FEDERAL: ......................................................................................................................................................19

STATE: ...........................................................................................................................................................19

PROBLEMS REGARDING GRAND JURY SUBPOENAS ..................................................... 19

PLACE TO APPEAR .......................................................................................................................................19

SPECIFICITY IN SUBPOENA IS NOT REQUIRED ........................................................................................21

SERVICE OF GRAND JURY SUBPOENA ......................................................................................................21

WHO MAY BE SUBPOENAED?.....................................................................................................................21

"Targets” of Investigations ...........................................................................................................................22

Lawyers .......................................................................................................................................................22

WHERE GOVERNMENT REFUSES TO FOLLOW INTERNAL GUIDELINES........................................22

SUBPOENA DUCES TECUM: ITEMS SOUGHT MUST BE ADEQUATELY DESCRIBED ...........................23

"OPPRESSIVENESS", NOT "RELEVANCY", IS THE TEST ..........................................................................24

RULE 17 APPLICABLE IN PART TO GRAND JURY SUBPOENAS ..............................................................25

POST INDICTMENT GRAND JURY INVESTIGATION ....................................................... 25

THE GENERAL RULE: ........................................................................................................................................25

IMPERMISSIBLE TO EMPLOY THE NON-RECIPROCAL BENEFITS OF A GRAND JURY

INVESTIGATION FOR DISCOVERY AGAINST AN INDICTED DEFENDANT ...........................................27

STANDARD APPLIED ...................................................................................................................................28

INCIDENTAL USE OF INFORMATION OBTAINED THROUGH GRAND JURY IN PENDING TRIALS.....29

BY HOOK OR BY CROOK .............................................................................................................................30

THE FIFTH AMENDMENT AS APPLICABLE TO GRAND JURY PROCEEDINGS ........... 30

ANSWER NEED ONLY BE "ADVERSE" .......................................................................................................31

REQUIRING A WITNESS TO INVOKE PRIVILEGE BEFORE GRAND JURY ..............................................32

IT IS THE COMPELLED PRODUCTION WHICH IS PROTECTED BY THE PRIVILEGE .............................34

FIFTH AMENDMENT PRIVILEGE PROTECTS AGAINST COMPELLED PRODUCTION OF RECORDS OF

SOLE PROPRIETORSHIP ...............................................................................................................................35

SIZE OR DIVERSITY OF SOLE PROPRIETORSHIP NOT RELEVANT .................................................36

CUSTODIAN OF "CORPORATE RECORDS" HAS NO "ACT OF PRODUCTION" FIFTH AMENDMENT

PRIVILEGE .....................................................................................................................................................37

REQUIRED RECORDS ..............................................................................................................................39

MUST HAVE "JURISDICTION" OVER CORPORATION ..............................................................................39

iii

SOLE PROPRIETOR MAY RETAIN RIGHT TO INTERVENE AND PRECLUDE COMPELLED

PRODUCTION OF RECORDS FROM EMPLOYEE ........................................................................................40

GRAND JURY WITNESS: ...................................................................................................... 41

MATERIAL WITNESSES ...............................................................................................................................41

SANCTION AND APPEAL FOR CONTEMPT ....................................................................... 43

REFUSAL TO COMPLY .................................................................................................................................43

CONTEMPT POWER LIMITED......................................................................................................................43

ENTITLED TO "ONE BITE" THEORY ...........................................................................................................44

MOTION TO INTERVENE .............................................................................................................................44

INTERVENOR HAS RIGHT TO INTERLOCUTORY APPEAL ......................................................................47

"CONTENT" VS. "ACT OF PRODUCTION" ANALYSIS TO SUBPOENAS DUCES TECUM .......................48

EFFECT OF GUILTY PLEA ON ABILITY TO INVOKE FIFTH AMENDMENT PRIVILEGE

................................................................................................................................................. 50

IMMUNIZING GRAND JURY WITNESSES .......................................................................... 51

FEDERAL: ......................................................................................................................................................51

TEXAS: ...........................................................................................................................................................52

USE IMMUNITY STATUTE [28 U.S.C. § 6002] PROHIBITS USING COMPELLED TESTIMONY IN "ANY

RESPECT".......................................................................................................................................................52

CERTIFICATION OF EVIDENCE OBTAINED INDEPENDENTLY OF GRAND JURY TESTIMONY .........53

GRAND JURY HEARING COMPELLED TESTIMONY SHOULD NOT THEREAFTER INDICT THE

WITNESS ........................................................................................................................................................54

HEARING REQUIRED PRIOR TO ISSUANCE OF ORDER GRANTING IMMUNITY? ................................55

JUSTICE DEPARTMENT OFFICIAL MUST EXPRESSLY APPROVE GRANT OF IMMUNITY ..................56

DISTRICT COURT HAS DISCRETION TO DENY AN ORDER WHERE SAME WOULD INFRINGE UPON

CONSTITUTIONAL RIGHTS .........................................................................................................................57

FEAR OF FOREIGN PROSECUTION .............................................................................................................58

IMMUNITY STATEMENT EXPRESSLY EXEMPTS "FALSE STATEMENTS" PROSECUTION..................58

PRIOR STATEMENTS TO FEDERAL OFFICER ............................................................................................59

PRIOR INCONSISTENT STATEMENTS COULD BE USED TO PROVE INCONSISTENT TESTIMONY

BEFORE GRAND JURY WAS PERJUROUS: ................................................................................................60

THE IMMUNIZED WITNESS .........................................................................................................................60

SEALING OF PROSECUTION'S EVIDENCE PRIOR TO TAKING IMMUNIZED TESTIMONY ...................61

NOT SEEK INDICTMENT FROM SAME GRAND JURY HEARING THAT COMPELLED TESTIMONY ....61

RIGHT TO COUNSEL .....................................................................................................................................61

NO ADVERSE INFERENCE FROM EXERCISE OF RIGHT TO COUNSEL ...................................................61

CONSEQUENCES TO WITNESS OF COMPELLED TESTIMONY ................................................................61

GRAND JURY'S RIGHT NOT TO COMPEL TESTIMONY ............................................................................61

OTHER TESTIMONIAL PRIVILEGES APPLICABLE TO GRAND JURY PROCEEDINGS 62

ATTORNEY-CLIENT .....................................................................................................................................63

WHERE THE VERY EXISTENCE OF THE ATTORNEY-CLIENT RELATIONSHIP MIGHT BE

INCRIMINATING TO A CLIENT, SAME MAY UNDER LIMITED CIRCUMSTANCES BE PRIVILEGED

....................................................................................................................................................................63

COURTS AND COMMENTATORS OFTEN SEPARATE THE EXCEPTIONS INTO ONE OF THREE

CATEGORIES: ...........................................................................................................................................66

1. THE "LAST LINK EXCEPTION": ................................................................................................................ 66

2. THE "LEGAL ADVICE" EXCEPTION: ........................................................................................................ 66

3. THE CONFIDENTIAL COMMUNICATION EXCEPTION: ......................................................................... 67

CLIENT WITH PENDING CASE ...............................................................................................................67

TIMING IS EVERYTHING ........................................................................................................................68

DISCUSSIONS BETWEEN AN INDIVIDUAL AND "A LAWYER REPRESENTING ANOTHER IN A

MATTER OF COMMON INTEREST" ARE PRIVILEGED .......................................................................69

JOINT DEFENSE/REPRESENTATION......................................................................................................69

PRIVILEGE PROTECTS COMMUNICATIONS AT MEETING BETWEEN "PERSONS SUBJECT TO

POSSIBLE INDICTMENT" AND THEIR LAWYER ..................................................................................70

CRIME-FRAUD EXCEPTION ....................................................................................................................71

IN CAMERA EXAMINATION ...................................................................................................................73

MAY "PRIVILEGED COMMUNICATION" ITSELF BE CONSIDERED IN..............................................73

PRELIMINARY REQUIREMENT OF RELEVANCY ................................................................................73

PRELIMINARY REQUIREMENT OF NEED .............................................................................................74

ATTORNEY SELF-DEFENSE EXCEPTION ..............................................................................................75

GRANT OF IMMUNITY TO CLIENT DOES NOT DESTROY ATTORNEY-CLIENT PRIVILEGE .........75

STATE CHALLENGE OF ATTORNEY'S GRAND JURY SUBPOENA.....................................................75

CODE OF PROFESSIONAL RESPONSIBILITY .......................................................................................77

DISTINCT PRIVILEGE UNDER "WORK-PRODUCT DOCTRINE" .............................................................77

DOCTRINE PROTECTS ADVERSARY PROCESS ITSELF ....................................................................78

WORK-PRODUCT DOCTRINE BROADER THAN ATTORNEY-CLIENT PRIVILEGE ..........................78

DOCTRINE PROTECTS ATTORNEY NOT CLIENT ...............................................................................79

DOCTRINE APPLICABLE TO CRIMINAL PROCEEDINGS ....................................................................79

DOCTRINE APPLIES TO TESTIMONY RESPECTING A WITNESS' ORAL STATEMENTS TO AN

ATTORNEY PREPARING HIS CASE FOR TRIAL ...................................................................................79

CRIME-FRAUD EXCEPTION ....................................................................................................................80

CLIENT’S LOCATION MAY BE A PRIVILEGED COMMUNICATION ..................................................80

FIFTH AMENDMENT PRIVILEGE AGAINST COMPELLED PRODUCTION OF "PRIVATE PAPERS" .....81

FOREIGN LAW ..............................................................................................................................................82

MARITAL PRIVILEGES .................................................................................................................................82

[ADVERSE SPOUSAL TESTIMONY VS. MARITAL COMMUNICATIONS] ..........................................82

ADVERSE TESTIMONIAL PRIVILEGE VESTS IN TESTIFYING SPOUSE ............................................83

COVERS ACTS AND COMMUNICATIONS .............................................................................................83

NEED NOT BE CONFIDENTIAL ..............................................................................................................83

NO PRIVILEGE IF MARRIAGE DEFUNCT ..............................................................................................84

CRIMINAL ENTERPRISE EXCEPTION APPLIES ONLY TO "CONFIDENTIAL COMMUNICATIONS

PRIVILEGE" NOT "ADVERSE TESTIMONIAL PRIVILEGE" .................................................................84

TESTIMONY NEED NOT BE TECHNICALLY INCRIMINATING TO BE "ADVERSE" .........................84

CRUEL TRILEMMA ..................................................................................................................................85

ESTABLISHING PRIVILEGE BY IN CAMERA PROFFER ............................................................................85

FAMILY PRIVILEGE .....................................................................................................................................86

PSYCHOTHERAPIST-PATIENT PRIVILEGE................................................................................................87

RIGHT TO COUNSEL ............................................................................................................. 87

DEFENDANT'S GRAND JURY TESTIMONY ....................................................................... 89

GRAND JURY TRANSCRIPTS OF OTHER WITNESSES ..................................................... 90

REQUESTS FOR DOCUMENTS OBTAINED BY GRAND JURY ........................................ 91

POOR MEMORY ..................................................................................................................... 91

ELECTRONIC SURVEILLANCE ........................................................................................... 92

WHAT MATTERS MAY GRAND JURY INVESTIGATE? .................................................... 92

"INEFFECTIVE" BY DEFINITION ......................................................................................... 93

ADVICE OF “RIGHTS” OF GRAND JURY WITNESSES ..................................................... 93

GRAND JURY REFORMS ...................................................................................................... 94

GRAND JURY PRACTICE

The United States Constitution provides that:

“No person shall be held to answer for a capitol or otherwise infamous crime,

unless on a presentment or indictment of a grand jury”. U.S. Const. amend.

The purpose of the grand jury is to act as a bulwark to protect citizens from unwarranted

prosecution. In Re Grand Jury 01-4042, 286 F.3d 153, 159 (3

Cir. 2002). In reality,

because the Supreme Court has held the grand jury’s function is not only to investigate

whether crime has occurred, but also to assure itself that crime is not occurring, it has

become a powerful investigative body which affords citizens little protection. The

defendant has no right to appear before the grand jury and no right to counsel if he does

appear. Conn. v. Gabbert, 526 U.S. 286 (1999). Its proceedings are kept in secret and are

for the most part unreviewable. Thus the grand jury has become an often oppressive process

open to abuse.

Under the rules of Federal Criminal Procedure the Grand jury is comprised of a

group of 16-23 citizens before whom Federal prosecutors appear and present evidence. 18

U.S.C § 3321. This monograph addresses the limits and powers of the grand jury and the

rights and obligations of those who appear before it.

To the prosecutor, the grand jury, with its broad reaching authority, subpoena power

and cloak of secrecy is an invaluable investigative tool. Couple this with the executive's

power to compel production of records, documents and immunized testimony and it is no

wonder that with increasing frequency federal prosecutors and investigators are utilizing

the grand jury room for lengthy investigations of individuals and groups "targeted" for

indictment.

Proponents of grand jury reform or abolition, who had complained that the grand

jury served as a "rubber stamp" for the prosecutorial branch, now express the fear that this

process provides an overbearing, one-sided discovery device which is fraught with

potential for manipulation and abuse. In fact, the National Association of Criminal Defense

Lawyers, in conjunction with the Commission to reform the Federal Grand Jury, proposes

specific reforms discussed elsewhere in this paper.

To the defense lawyer, The Grand Jury, like its predecessor The Star Chamber, is

totally devoid of those minimal protections thought to be required to insure fairness. Even

in procedures to terminate a welfare recipient's benefits

, one has more rights that before

the grand jury. And for the "target" or "putative defendant" called before this inquisitorial

body there is no right to the presence of counsel, to cross-examine the witnesses, to present

witnesses on their own behalf, or even to remain silent if granted immunity.

“No judge presides to monitor the grand jury’s proceedings. It

deliberates in secret and may determine alone the course of its

inquiry. The grand jury may compel the production of evidence

or the testimony of witnesses as it considers appropriate, and

its operation generally is unrestrained by the technical

procedural and evidentiary rules governing the conduct of

criminal trials. It is a grand inquest, a body with powers of

investigation and inquisition, the scope of whose inquiries is

not to be limited narrowly by questions of propriety or

forecasts of the probable result of the investigation, or by

doubts whether any particular individual will be found

properly subject to an accusation of crime”.

United States v. Sells Engineering, 463 U.S. 418 (1983),

quoting United States v. Calandra, 414 U.S. 338 (1974).

Representation of witnesses called before such bodies presents the criminal

practitioner with unique problems and few solutions. What follows are brief discussions

of some of these problems and a few suggestions to help ease the pain.

THE GRAND JURY'S COMPOSITION

Perhaps the most fundamental objection raised regarding grand juries concerns

their composition and selection. Courts have uniformly recognized the right of a

defendant (as opposed to a mere grand jury witness) to raise the issues of grand jury

composition. See, e.g., Alexander v. Louisiana, 405 U.S. 625 (1972); Carter v. Jury

Commission, 396 U.S. 320 (1970). A successful challenge to a grand jury's composition

or selection is a particularly potent defense inasmuch as any indictment issued by an

improperly composed jury is considered invalid. Therefore, though such challenges are

rarely successful and often very difficult to maintain, they are worth considering.

MOTION TO QUASH GRAND JURY

See Goldberg v. Kelly, 397 US 254 (1970).

Systematic exclusion of an identifiable group from the Grand Jury constitutes a

denial of "due process" and equal protection. In the case of a "petit jury", the same

denies the accused his Sixth Amendment right to a jury comprised of a representative

cross-section of the community.

Coleman v. Alabama, 389 U.S. 22 (1967);

Jones v. Georgia, 389 U.S. 24 (1967) (burden upon state to explain disparity);

Sims v. Georgia, 389 U.S. 404 (1967);

Castaneda v. Partida, 430 U.S. 482 (1977) (three-prong test);

Vasquez v. Hillery, 474 U.S. 254 (1986).

Even though a fair trial cures many defects in the grand jury process, it does not

correct systematic underrepresentation of an identifiable group on the grand jury. U.S. v.

Mechanick, 475 U.S. 66 (1986) [Trial cures many defects but does not cure systematic

underrepresentation.]

"[The State] urges this Court to find that discrimination in the

grand jury amounted to harmless error in this case, claiming

that the evidence against respondent was overwhelming

and ...the [R]espondent's conviction after a fair trial, we are

told, purged any taint attributable to the indictment process.

Our acceptance of this theory would require abandonment of

more than a century of consistent precedent . . . .

[We are not], persuaded that discrimination in the grand jury

has no effect on the fairness of the criminal trials that result

from that grand jury's actions. The grand jury does not

determine only that probable cause exists to believe that a

defendant committed a crime, or that it does not. In the hands

of the grand jury lies the power to charge a greater offense or

a lesser offense; numerous counts or a single count; and

perhaps most significant of all, a capital offense or a

noncapital offense - all on the basis of the same facts.

Moreover, '[t]he grand jury is not bound to indict in every

case where a conviction can be obtained'. . . . Thus, even if a

grand jury's determination of probable cause is confirmed in

hindsight by a conviction on the indicted offense, that

confirmation in no way suggests that the discrimination did

not impermissibly infect the framing of the indictment and,

consequently, the nature or very existence of the proceedings

to come." Vasquez v. Hillery, 474 U.S. 254, 262-263 (1986).

ESTABLISHING A PRIMA FACIE SHOWING OF DISCRIMINATION

The party establishing the composition of a grand jury must make a prima facie

showing that the jury selection procedure systematically produces a group that is not

representative of a fair cross section of the community. See Jefferson v. Morgan, 962

F.2d 1185 (9

Cir. 1992). This showing can be made for as little as a year but requires

more than a showing that the defendant’s particular grand jury was under representative

of some identifiable group. Duren v. Missouri, 439 U.S 357, 366 (1979); U.S. v. Hyde,

448 F.2d (5

Cir. 1971).

The Supreme Court in Duren v. Missouri, 439 U.S. 357 (1979), identified the

elements of a prima facie violation of the fair cross section:

“[T]he defendant must show (1) that the group alleged to be

excluded is a “distinctive” group in the community; (2) that the

representation of this group in venires from which juries are

selected is not fair and reasonable in relation to the number of

such persons in the community; and (3) that this representation

is due to the systematic exclusion of the group in the jury-

selection process.”

See also Atwell v. Blackburn, 800 F.2d 502 (5th Cir. 1986)

(stating defendant failed to prove members of group were

purposely excluded).

The prima facie test for an equal protection claim is nearly identical. The Supreme

Court in Castaneda v. Partida, 430 U.S. 482 (1977), explained the requirements for

proving an equal protection violation:

“The first step is to establish that the group is one that is a

recognizable, distinct class. . . . Next, the degree of under-

representation must be proved, by comparing the proportion of

the group in the total population to the proportion called to

serve as grand jurors, over a significant period of time. . . .

Finally, a selection procedure that is susceptible of abuse or is

not racially neutral supports the presumption of discrimination

raised by the statistical showing.” Id. at 494.

A sufficient statistical showing is made when an identifiable group is under

represented by over 10%. Id. at 495; U.S. ex rel Barksdale v. Blackburn, 610 F.2d 253,

268 (5th Cir. 1980); Bryant v. Wainwright, 686 F.2d 1373 (11th Cir. 1982) (noting

variance of 7.4 percentage points between general population of blacks in country and

black grand jurors held not to demonstrate discrimination in selection of grand jurors).

But see Gutierrez v. State, 954 S.W.2d 86, 88 (Tex.App. – San Antonio 1997), rev’d

on other grounds 979 S.W.2d 659 (Tex. Crim. App. 1998) (stating that 10.1 percent is not

a legally sufficient amount and does not justify a more stringent standard). U.S. v. Duran

de Amesquita, 582 F.Supp. 1326 (S.D. Fla. 1984) (holding that Hispanics are not a

distinct cognizable group, at least for purposes of meeting the Sixth Amendment requisite

of a jury comprised of a "fair cross-section" of the community).

BURDEN THEN SHIFTS TO THE GOVERNMENT

Once a "presumption of discrimination" is raised by such a "statistical showing"

the burden shifts to the prosecution to rebut the same.

"Once the defendant has shown substantial underrepresentation of his group, he has

made out a prima facia case of discriminatory purpose, and the burden shifts to the state

to rebut that case."

Castaneda v. Partida, 430 U.S. 482, 494 (1977);

Davis v. State, 374 S.W.2d 242, 242-44 (Tex.Cr.App. 1964);

Flores v. State, 783 S.W.2d 793, (Tex.App. – El Paso 1990).

The government must overcome the presumption that the grand jury was

composed unconstitutionally, and that the procedure “manifestly and primarily advances

a significant state interest”. Prosecutors may do so by showing they employed proper

procedures that produced the underrepresentation and that the procedures manifestly and

primarily advance a significant state interest

Protestations that racial bias played no part in the selection are insufficient to meet

this burden. Nor it is sufficient to claim that a particular group is similarly not available

for service.

Furthermore, when the excluded group is one to which stricter scrutiny applies

under equal protection analysis, then the government’s burden of proof and the quality

of its evidence must be greater to show underrepresentation was not intentional or

systematic.

Castaneda v. Partida, 430 U.S. 482, 498 n.136;

Alexander v. Louisiana, 405 U.S. 625 (1972);

Hernandez v. Texas, 347 U.S. 475 (1945);

IDENTIFIABLE GROUPS

The exclusion of invidious groups readily gives rise to a motion to dismiss. The

exclusion of other groups may also qualify.

African Americans:

The Fifth Circuit has held that a grand jury selection process violated a black

defendant's right to equal protection under the Fourteenth Amendment where no blacks

had served as grand jury foreman over a significant period of time. Johnson v. Puckett,

929 F.2d 1067 (5th Cir. 1991).

Women:

Systematic exclusion or exemption of females from petit jury service denies a

defendant's Fifth Amendment right to "due process" and Sixth Amendment right to a jury

comprised of a representative cross-section of his community.

Taylor v. Louisiana, 419 U.S. 522 (1975) (showing Louisiana statute exempted

women unless they volunteered);

Duren v. Missouri, 439 U.S. 357 (1979).

Young adults:

LaRoche v. Perin, 718 F.2d 500 (1st Cir. 1983) (noting unexplained "shortfall of

youth" on jury venire states a valid Sixth Amendment Claim under Duren v.

Missouri), but see Barber v. Ponte, 772 F.2d 982 (5th Cir. 1985) (“young adults”

not a sufficiently distinctive group to require proportionate representation in the

venire, overruling LaRoche);

Willis v. Zant, 720 F.2d 1212 (5th Cir. 1983), cert. denied, 104 S.Ct. 3548 (1984)

(remanding for hearing to determine whether underrepresentation of young adults

who "were reared and educated in a desegregated society" and who therefore

would "more easily understand and relate to ...a twenty-three year old black"

defendant stated a claim under Duren)

Others:

"Although, the distinctiveness of a group for Sixth Amendment purposes is a

question of fact", some groups would clearly not qualify as a matter of law.

Willis v. Zant, 720 F.2d 1212 (5th Cir. 1983) (stating "[f]or example, no

evidentiary hearing would be needed to determine that redheads or vegetarians are

not distinctive classes within the Sixth Amendment fair cross-section analysis.").

Carle v. United States, 705 A.2d 682, 683 ( D.C. Cir. Jan. 15, 1998) (holding ex-

felons not a distinctive group protected by fair-cross-section requirement).

Selection of grand jury foreperson may also constitute such a deprivation:

Guice v. Forenberry, 661 F.2d 496 (5th Cir. 1981) (en banc);

U.S. v. Perez-Hernandez, 672 F.2d 1380, 1386 (11th Cir. 1982).

See also Rose v. Mitchell, 443 U.S. 545, 551 n.4 (1979) (noting the court assumed,

without deciding that "discrimination with regard to the selection of only

the foreman requires that a subsequent conviction be set aside, just as if the

discrimination proved had tainted the selection of the entire jury venire").

But see U.S. v. Hobby, 702 F.2d 466, 740-41 (4th Cir. 1983), affirmed, Hobby v.

U.S., 104 S.Ct. 3093, 3096, 3097 (1984). The Court held that as to federal

grand jury forepersons:

"Given the ministerial nature of the position,

discrimination in the selection of one person

from among the members of a properly

constituted grand jury can have little, if indeed

any, appreciable effect upon the defendant's due

process right to fundamental fairness. Simply

stated, the role of the foreman of a federal grand

jury is not so significant to the administration of

justice that discrimination in the appointment of

that office impugns the fundamental fairness of

the process itself so as to undermine the integrity

of the indictment." U.S. v. Hobby, 468 U.S. 339,

346 (1984)

Cf U.S. v. Cronn, 559 F. Supp. 125 (N.D. Tex. 1982), affirmed on other grounds,

717 F.2d 164, 166 (5th Cir. 1983) (stating, "the position of a federal grand jury

foreman is not constitutionally significant" because his powers are merely

ministerial).

STANDING TO COMPLAIN OF SYSTEMATIC EXCLUSION

A defendant is not required to be a member of the class to complain of systematic

exclusion.

Campbell v. Louisiana, 523 U.S. 392 (1998).

“[A] white defendant has standing to raise equal protection

challenge to discrimination against black persons in the

selection of grand jurors.” Campbell v. Louisiana, 523 U.S.

392, 401 (1998).

Peters v. Kiff, 407 U.S. 493 (1972) (emphasizing white Anglo has standing to

complain of systematic exclusion of blacks). The Court recognized:

"the exclusion of a discernable class from jury service injures

not only those defendants who belong to the excluded class,

but other defendants as well, in that it destroys the possibility

that the jury will reflect a representative cross section of the

community". Peters v. Kiff, 407 U.S. 493, 500 (1972).

"Accordingly, we hold that whatever his race, a criminal

defendant has standing to challenge the system used to select

his grand or petit jury, on the ground that it arbitrarily excludes

from service the members of any race and thereby denies him

due process of law". (emphasis supplied). Peters v. Kiff, 407

U.S. 493, 504 (1972).

This principle also applies to the petit juries for purposes of a Batson challenge.

Citizens not a member of the offended class are entitled to make a Batson challenge to a

prosecutor's use of peremptory petit jury strikes against jurors not of the defendant’s race

or class under Batson v. Kentucky, 476 U.S. 79 (1986).

“The Court permitted white defendant to challenge the

systematic exclusion of black persons from grand and petit

juries. While Peters did not produce a single majority opinion,

six of the Justices agreed that racial discrimination in the jury

selection process cannot be tolerated and that the race of the

defendant has no relevance to his or her standing to raise the

claim." Powers v. Ohio, 499 U.S. 400, 408-409

(1991)(emphasis supplied).

Taylor v. Louisiana, 419 U.S. 522 (1975) (male has standing to complain of

systematic exclusion of women from petit jury);

Willis v. Zant, 720 F.2d 1212, 1217 (5th Cir. 1983) (Older African American male

had standing to complain about underrepresented young white jurors).

Defendant’s have an unqualified right to inspect the lists from which jurors are drawn in

order to raise such Constitutional challenges.

Test v. U.S., 95 S.Ct. 749 (1975).

See also 18 U.S.C. § 3500.

"The Government's ability to obtain pretrial discovery is a

function of statute or rule, see, e.g., FED. R. CRIM. PRO. Rule

16, which may not be enlarged through conversion of the

grand jury, an arm of the judiciary, into a tool of the

executive". REEF, REPRESENTATION OF WITNESSES BEFORE

FEDERAL GRAND JURIES (1978).

This is especially true, where, as here, there is no reciprocal discovery mechanism

available to the defendant to call and compel testimony from witnesses prior to trial.

Wardius v. Oregon, 412 U.S. 470 (1973).

In Wardius, the Supreme Court recognized the inherent disparity in resources

between even an affluent accused and his accuser, noting that the Fifth Amendment

"...does speak to the balance of forces between the accused and his accuser". Wardius,

412 U.S. 470, 472 (1973)

"[t]he [prosecution's] inherent information gathering

advantages suggest that if there is to be an imbalance in

discovery rights, it should work in the defendant's favor."

Wardius, 412 U.S. 470, 472 (1973).

STANDARD APPLIED

Most Courts have applied the test that a grand jury subpoena will be quashed only

"where the sole or principal purpose in further inquiry of appellants is to gather

information for the trial of "an indicted witness" (emphasis supplied).

Beverly v. U.S., 468 F.2d 732, 743 (5th Cir. 1972);

U.S. v. Doss, 563 F.2d 265, 267 (6th Cir. 1976).

And the burden is upon the subpoenaed witness to demonstrate that the "sole or

dominant purpose of seeking the evidence post indictment is to prepare for the pending

trial."

In re Grand Jury Proceedings (Johanson), 632 F.2d 1033, 1041 (3d Cir. 1980).

INCIDENTAL USE OF INFORMATION OBTAINED THROUGH GRAND JURY IN

PENDING TRIALS

Courts have indicated that so long as it is not the prosecutor's "sole or principle"

purpose in obtaining evidence through a grand jury, the evidence thereby obtained may

be incidentally used in a pending trial.

"It is firmly entrenched that once a defendant has been

indicted, a prosecutor may not use a grand jury's investigative

powers for the purpose of securing additional evidence

against the defendant for use in the upcoming trial.... But a

good faith inquiry into other charges within the scope of the

grand jury's lawful authority is not prohibited even if it

uncovers further evidence against an indicted person."

(emphasis supplied). In re Grand Jury Proceedings

(Johanson), 632 F.2d 1033, 1041 (3d Cir. 1980).

In U.S. v. Beasley, the Court stated:

"There is nothing improper about the government continuing

its investigation after an indictment is filed, with obvious

limitations, of course.... Similarly, prosecutorial agents may

not use the grand jury for the primary purpose of

strengthening its case on a pending indictment, or as a

substitute for discovery, although this may be an incidental

benefit." (emphasis supplied). U.S. v. Beasley, 550 F.2d 261

(5th Cir. 1977).

See also U.S. v. Briasch, 505 F.2d 139, 147 (7th Cir. 1974) (holding that "[t]he

government has every right to interrogate witnesses on subjects relevant to

a continuing grand jury investigation even when the evidence received may

also relate to a pending indictment");

U.S. v. Dyer, 722 F.2d 174 (5th Cir. 1983) (reasoning that "the requested

information was in connection with a new offense");

In re Grand Jury Proceedings, 632 F.2d 1033, 1042 (3d Cir. 1980)

(holding "investigation of other persons");

U.S. v. Ruppel, 666 F.2d 261, 268 (5th Cir. 1983)("discovering ...the

identity of ...alleged 'unknown persons'");

U.S. v. Sellaro, 514 F.2d 114, 121 (8th Cir. 1973)(stating, "the testimony

was taken in connection with the investigation of the “ . . . "activities of

other persons").

BY HOOK OR BY CROOK

On rather strained analysis, one court has permitted the prosecution to seize by

search warrant, subpoenaed documents in the possession of a witness who appeared with

them in his possession at a hearing on his motion to quash the subpoena. The court held

that an order denying a motion to quash is not an appealable order a motion for return of

property under Rule 41 will not lie where the property is in any "way tied to a criminal

prosecution ...against movant".

In re Grand Jury Proceedings (Uresti), 724 F.2d 1157 (5th Cir. 1984):

"Uresti had brought the subpoenaed documents to court that

morning, intending to refuse to deliver them to the grand jury

if his motion to quash was denied. While Uresti awaited his

grand jury appearance, and after the hearing of his motion to

quash was taken under advisement, a local Federal

Magistrate issued a search warrant for the documents sought

by the grand jury subpoena. The box of documents Uresti

brought to court that morning was seized pursuant to the

warrant as he waited in the grand jury witness room."

THE FIFTH AMENDMENT AS APPLICABLE TO GRAND JURY PROCEEDINGS

By far the most frequent issue encountered in the grand jury is the witness’s

assertion of his or her Fifth Amendment privilege against self-incrimination. The

Supreme Court has pointed out that the privilege "protects against any disclosures that

the witness reasonably believes could be used in a criminal prosecution or could lead to

other evidence that might be used".

Kastigar v. U.S., 406 U.S. 411, 445 (1972).

ANSWER NEED ONLY BE "ADVERSE"

The witness need not be guilty nor need the answer in fact incriminate the witness

in order for him or her to invoke the Fifth Amendment privilege.

In Hoffman v. U.S., 341 U.S. 479 (1951), the Court held:

"The privilege afforded not only extends to answers that

would in themselves support a conviction under a federal

criminal statute but likewise embraces those which would

furnish a link in the chain of evidence needed to prosecute

the claimant for a federal crime.... To sustain the privilege,

it need only be evident from the implications of the question,

in the setting in which it is asked, that a responsive answer to

the question or an explanation of why it cannot be answered

might be dangerous because injurious disclosure could

result." Hoffman v. U.S., 341 U.S. 479, 485 (1951).

Murphy v. Waterfront Commission, 378 U.S. 52, 94 (1964) (holding that "[The

Fifth Amendment] protects any disclosures which the witness may reasonably

apprehend could be used in a criminal prosecution or which could lead to other

evidence that might be so used");

Isaacs v. U.S., 256 F.2d 654 (8th Cir. 1958) (protesting of innocence does not bar

claim of privilege);

Slochower v. Bd. of Education of N.Y., 350 U.S. 551, 557-58 (stating, "as we

pointed out in Ullman, a witness may have a reasonable fear of prosecution and

yet be innocent of any wrongdoing. The privilege serves to protect the innocent

who otherwise might be embarrassed by ambiguous circumstances");

Ex Parte Butler, 522 S.W.2d 196, 198 (Tex.Sup.Ct. 1975).

"A witness need only show that an answer to the question is

likely to be hazardous to him." Ex Parte Butler, 522 S.W.2d

196, 198 (Tex.Sup.Ct. 1975).

U.S. v. Parente, 449 F. Supp. 905, 907 (D.Conn. 1978);

U.S. v. U.S. Currency, 626 F.2d 11, 15 (6th Cir. 1980).

"It is settled that 'a witness in a civil " . . . "'proceeding may

decline to answer questions when to do so would involve a

substantial risk of self-incrimination'."

Wehling v. Columbia Broadcasting Systems, 608 F.2d 1084, 1087 n.5 (5th Cir.

1979) (noting that a civil litigant can invoke the privilege against

self-incrimination whenever he "reasonably apprehends a risk of

self-incrimination, 'though no criminal charges are pending against him ...and

even if the risk of prosecution is remote'");

In re Corrugated Container Antitrust Litigation, 620 F.2d 1086 (5th Cir. 1980);

In re Folding Carton Anti-Trust Litigation, 609 F.2d 867 (7th Cir. 1979);

"[This determination does not depend] upon a judge's

prediction of the likelihood of prosecution. Rather, ...it is

only when there is but a fanciful possibility of prosecution

that a claim of Fifth Amendment privilege is not well taken....

When a witness can demonstrate any possibility of

prosecution which is more than fanciful he has demonstrated

a reasonable fear of prosecution sufficient to meet

constitutional muster."

However, compelling an accused to sign a consent form for the release of the

document from institutions holding them has been held not to fit within the act of

production doctrine.

U.S. v. Ghidoni, 732 F.2d 814, 816 (11th Cir. 1984);

In re Grand Jury Proceedings (Thier), 767 F.2d 1133, 1134 (5th Cir. 1985);

John Doe v. U.S., 487 U.S. 201, 108 S. Ct. 2341, 101 L.Ed.2d 184 (1988) (holding

that a grand jury target may be compelled to sign a consent form authorizing

foreign banks to disclose records where such consent is general in nature without

specifying or identifying the documents for acknowledging their existence).

REQUIRING A WITNESS TO INVOKE PRIVILEGE BEFORE GRAND JURY

A grand jury witness may be compelled to invoke his or her Fifth Amendment

privilege before a grand jury.

U.S. v. Washington, 431 U.S. 181, 191 (1977);

Appeal of Angiulo, 579 F.2d 104, 106-07 (1st Cir. 1978);

U.S. v. Wolfson, 405 F.2d 779, 784-85 (2d Cir. 1968), cert. denied, 394 U.S. 940

(1969).

However, counsel might argue that the same considerations apply which

prohibits calling a witness before a petit jury for the sole purpose of invoking his or

her privilege against self-incrimination. The almost universal prohibition is based

upon judicial concern that a petit jury will consider such assertion as admission of guilt.

U.S. v. Beecham, 582 F.2d 898, 908 (5th Cir. 1978), cert. denied 440 U.S. 920

(1979);

U.S. v. Lacouture, 495 F.2d 1237, 1240 (5th Cir. 1974);

U.S. v. Johnson, 488 F.2d 1206, 1211 (1st Cir. 1973), cert. denied, 419 U.S. 1053,

95 S. Ct. 631, 42 L.Ed.2d 648 (1974);

Bowles v. U.S., 439 F.2d 536, 542 (D.C. Cir. 1970) (en banc), cert. denied, 401

U.S. 995, 91 S.Ct. 1240, 28 L.Ed.2d 533 (1971);

U.S. v. Roberts, 503 F.2d 598, 600 (9th Cir. 1974), cert. denied, 419 U.S. 1113

(1975);

Horner v. State, 508 S.W.2d 371 (Tex.Cr.App. 1974);

U.S. v. Lyons, 703 F.2d 815 (5th Cir. 1983).

"It is, of course, 'impermissibly prejudicial for the

government to attempt to influence the jury by calling a

witness it knows will invoke the fifth amendment'." ABA

Project on Standards for Criminal Justice, U.S. ATTORNEYS

MANUAL, § 9-11.261 (June 1984); NEB. REV. STAT. ANN., §

29-14111(9); N.M. STAT. ANN., § 31-6-12(b).

The privilege is personal and, generally, may not be asserted vicariously on behalf

of another or on behalf of a partnership or collective group.

Hale v. Henkel, 201 U.S. 43 (1906);

Wilson v. U.S., 221 U.S. 361 (1911) (regarding a corporation);

U.S. v. White, 322 U.S. 694 (1944) (regarding a collective group);

Bellis v. U.S., 417 U.S. 85 (1974).

Likewise, non-testimonial evidence is not protected by the Fifth Amendment even

without a grant of immunity.

South Dakota v. Neville, 459 U.S. 553, 564 (1983) (compelling production of

voice exemplars not Fifth Amendment violation);

U.S. v. Dionisio, 410 U.S. 1, 5 (1973) (using voice exemplars);

Gilbert v. California, 388 U.S. 263 (1967) (using handwriting exemplars).

IT IS THE COMPELLED PRODUCTION WHICH IS PROTECTED BY THE

PRIVILEGE

The act of production doctrine extends the Fifth Amendment privilege to

documents; however, because of the testimonial component involved in an act of

production, the testimonial component can be described as the witness' assurance, that

the articles produced are the ones demanded. By producing them, the person is, in

essence, vouching for them.

In re Grand Jury Subpoena (Kent), 646 F.2d 963, 968 (5th Cir. 1981);

U.S. v. Doe, U.S. v. Doe, 465 U.S. 605, 104 S.Ct. 1237, 79 L.Ed. 552 (1984).

Craib v. Bulmash, 243 Cal. Rptr. 567, 198 Cal.App.3d 20 (Cal.App. 2 Dist. 1988),

review granted, 246 Cal. Rptr. 5, 752 P.2d 443 (Cal. 1988) (stating Fifth

Amendment privilege against self-incrimination applies where trustee of a

personal, family trust was subpoenaed to produce time and payroll records, since

the trust was not "an organized collective entity").

In re Grand Jury Proceedings (Vargas), 727 F.2d 941, 946 (1Oth Cir. 1984).

See also In re Katz, 623 F.2d 122, 126 (2d Cir. 1980);

In re Grand Jury Subpoena Duces Tecum Dated June 13, 1983, 722 F.2d

981, 987 (2d Cir. 1983);

U.S. v. Fox, 721 F.2d 32, 36 (2d Cir. 1983).

As the Fifth Circuit noted in In re Grand Jury Subpoena (Kent), 646 F.2d 963

(5th Cir. 1981):

"The prevailing justification for the fifth amendment's

application to documentary subpoenas is the 'implicit

authentication' rationale ...the testimonial component

involved in compliance with an order for production of

documents 'is the witness' assurance, compelled as an

incident of the process, that the articles produced are the ones

demanded.... 'A defendant is protected from producing his

documents in response to a subpoena duces tecum, for his

production of them in court would be his voucher of their

genuineness.' There would then be 'testimonial

compulsion'." In re Grand Jury Subpoena (Kent), 646 F.2d

963, 968 (5th Cir. 1981).

It is the communicative inferences that may be drawn from the

production of the requested documents include the existence of the

documents, possession of the documents, and the belief that the documents

produced are the ones requested. U.S. v. Hubbell, 530 U.S. 27, 36 (2000).

When these inferences are testimonial and incriminating, the Fifth

Amendment privilege against self-incrimination attaches. Whether a

subpoena implicates the Fifth Amendment depends on “the facts and

circumstances of particular cases or classes thereof.” Id. The critical inquiry

is whether the government can show it had such “prior knowledge of either

the existence or the whereabouts” of the produced documents, that their

existence and location is a “foregone conclusion.” Fisher v. United States,

425 U.S. at 411 (1976); Hubbell, 530 U.S. at 43-45.

FIFTH AMENDMENT PRIVILEGE PROTECTS AGAINST COMPELLED

PRODUCTION OF RECORDS OF SOLE PROPRIETORSHIP

While there is no Fifth Amendment privilege as to corporations . . .

See Wilson v. U.S., 221 U.S. 361 (1911);

U.S. v. White, 322 U.S. 694 (1944) [labor union], or as to partnerships,

Bellis v. U.S., 417 U.S. 85, 88 (1974);

U.S. v. Alderson, 646 F.2d 421 (9th Cir. 1981),

. . . "[t]he privilege applies to the business records of the sole

proprietor". Bellis v. U.S., 417 U.S. at 87-88;

Blair v. City of Chicago., 201 U.S. 431 (1906);

In re Grand Jury Proceedings (McCoy), 601 F.2d 162 (5th Cir. 1979);

In re Oswalt, 607 F.2d 645 (5th Cir. 1979);

In re Grand Jury (Calluggi), 597 F.2d 851, 859 (3d Cir. 1979);

In re Grand Jury Subpoena (Kent), 646 F.2d 963, 968 (5th Cir. 1981);

Matter of Grand Jury Empanelled March 29, 1980, 680 F.2d 327, 332 (3d Cir.

1982);

I.C.C. v. Gould, 629 F.2d 847, 859 (3d Cir. 1980);

U.S. v. Doe, 465 U.S. 605, 104 S.Ct. 1237, 79 L.Ed. 552 (1984).

"The Fifth Amendment protection applicable to a sole

proprietor's business records is the same as the protection

applicable to the records of an individual. ...[a] sole

proprietor's Fifth Amendment privilege against

self-incrimination protects the ...records of the proprietorship

from compelled production in response to a grand jury

subpoena to a sole proprietor." In re Grand Jury Subpoena

(Kent), 646 F.2d 963, 968 (5

Cir. 1981).

The Supreme Court affirmed a lower court holding that compulsory production of

a sole proprietorship's business records is protected by the Fifth Amendment:

"[t]he business records of a sole Proprietorship are no

different from the individual owner's personal records.... The

turning over of the subpoenaed documents to the grand jury

would admit their existence and authenticity. Accordingly,

respondent was entitled to assert his Fifth Amendment

privilege rather than produce the subpoenaed documents."

U.S. v. Doe, 456 U.S. 605, 608, 104 S.Ct. 1237, 79 L.Ed. 552

(1984).

Furthermore, the district court has held that a passport is protected by the Fifth

Amendment. In Re Candiotti, 729 F. Supp. 840 (S.D. Fla. 1990).

SIZE OR DIVERSITY OF SOLE PROPRIETORSHIP NOT RELEVANT

It "is also clear that ...the Fifth Amendment may be invoked by a sole proprietor

regardless of the magnitude of his business", "the size of the organization,"

See Matter of Grand Jury Impaneled March 19, 1980, 680 F.2d 327, 330 (3d Cir.

1982);

or its "longevity."

See Matter of Grand Jury Impanelled, 597 F.2d 851, 859 (3d Cir. 1979);

U.S. v. Doe, 465 U.S. 605, 104 S.Ct. 1237, 79 L.Ed.2d 552 (1984) (holding Fifth

Amendment applicable to preclude compelled production of records from "several

sole proprietorships" maintained by one individual).

The Supreme Court has stated that forcing a defendant to produce the business

document himself automatically authenticates the documents and proves possession, thus

relieving the government of the burden of authenticating the document and proving that

the document was in the defendant’s possession.. U.S. v. Doe, 465 U.S. 605, 613, 104

S.Ct. 1237, 79 L.Ed.2d 552 (1984).

"Although the contents of a document may not be privileged,

the act of producing the document may be. U.S. v. Doe, 465

U.S. 605, 612, 104 S.Ct. 1237, 79 L.Ed.2d 552 (1984) A

government subpoena compels the holder of the document to

perform an act that may have testimonial aspects and an

incriminating effect. As we noted in Fisher.

Compliance with the subpoena tacitly concedes the

existence of the papers demanded and their possession or

control by the taxpayer. It also would indicate the taxpayer's

belief that the papers are those described in the subpoena."

U.S. v. Doe, 465 U.S. 605, 612, 104 S.Ct. 1237, 79 L.Ed.2d 552 (1984).

At least one court has applied the "Act of Production" Doctrine to a professional

corporation's records.

In re Grand Jury Matters, 745 F.2d 834 (4th Cir. 1984).

CUSTODIAN OF "CORPORATE RECORDS" HAS NO "ACT OF PRODUCTION"

FIFTH AMENDMENT PRIVILEGE

However, the Supreme Court holds that a corporate representative [the company

president] may not interpose his own Fifth Amendment privilege to refuse compelled

production of corporate records, even though the "act of production" might be personally

incriminating. Braswell v. U.S., 487 U.S. 99, 108 S. Ct. 2284, 101 L.Ed.2d 98 (1988).

"We note further that recognizing a Fifth Amendment privilege on behalf of

the records custodians of collective entities would have a detrimental impact

on the Government's efforts to prosecute 'white-collar crime', one of the most

serious problems confronting law enforcement authorities. 'The greater

portion of evidence of wrongdoing by an organization or its representatives

is usually found in the official records and documents of that organization.

Were the cloak of the privilege to be thrown around these impersonal records

and documents, effective enforcement of many federal and state laws would

be impossible.”

Braswell v. U.S., 487 U.S. 99, 115 (1988) (relying on U.S. v. White, 322

U.S. 694, 700 (1944)).

“ If custodians could assert a privilege, authorities would be stymied not

only in their enforcement efforts against those individuals but also in their

prosecutions of organizations." Braswell v. U.S., 487 U.S. 99, 116 (1988).

See also In re Grand Jury Impaneled March 17, 1987, 836 F.2d 150 (3d Cir. 1987)

(holding that a contrary ruling would provide an easy means for corporation

suspected of criminal activity to place their documents beyond a grand jury's

reach).

But see Braswell v. U.S., 487 U.S. at 117 n.11, which states:

“We reject the limitation on the evidentiary use of the custodian’s

act of production is the equivalent of constructive use immunity

barred under our decision in [U.S. v. Doe, 465 U.S. 605, 616-17,

104 S. Ct. 1237, 79 L.Ed.2d 552 (1984)]. Rather, the limitation

is a necessary concomitant of the notion that a corporate custodian

acts as an agent and not an individual when he produces corporate

records in response to a subpoena addressed to him in his representative

capacity. We leave open the question whether the agency rationale

supports compelling a custodian to produce corporate records

when the custodian is able to establish, by showing for example

that he is the sole employee and officer of the corporation, that

the jury would inevitably conclude that he produced the records.”

The "act of production" doctrine, which precludes compelling an individual from

producing records where that very act may have incrimination aspects, see Fisher; Doe;

Braswell, has not eliminated the "required records" exception to the privilege.

REQUIRED RECORDS

Such protection from compelled production of records of a sole proprietorship does

not extend to "required records" [e.g. records required by law to be kept in order that there

may be suitable information as to matters subject to the Government regulation].

Shapiro v. U.S., 335 U.S. 1 (1948);

Davis v. U.S., 328 U.S. 582 (1946);

In re Grand Jury Proceedings (McCoy), 601 F.2d 162 (5th Cir. 1979).

So long as such records have "public aspects".

Grosso v. U.S., 390 U.S. 62 (1968);

Spevach v. Klein, 385 U.S. 511 (1967).

But the "required records" exception does not operate where the subpoena is utilized

as a pretext to investigate a group suspected of criminal activity unrelated to the

governmental purpose of requiring the maintenance of those records or the regulation of

that industry, then such compulsion may constitute an abuse of the Grand Jury.

Albertson v. Subversion Activities Control Board, 382 U.S. 70 (1965);

In re Grand Jury Proceeding (McCoy), 601 F.2d 162 (5th Cir. 1979).

U.S. v. Lehman, 887 F.2d 1328, 1333 (7th Cir. 1989) (stating "[i]f the

Supreme Court in its landmark Fifth Amendment cases intended to disarm

many of the regulatory enactments of the federal government, it would have

addressed the question directly.").

MUST HAVE "JURISDICTION" OVER CORPORATION

A grand jury may not subpoena corporate records of a corporation not subject to the

jurisdiction of the district court empanelling that grand jury.

In re Sealed Cases, 832 F.2d 1268 (D.C. Cir. 1987) (holding that even though the

court had jurisdiction over the "custodian" of those corporate records).

SOLE PROPRIETOR MAY RETAIN RIGHT TO INTERVENE AND PRECLUDE

COMPELLED PRODUCTION OF RECORDS FROM EMPLOYEE

A sole proprietor may intervene to prevent an employee from producing records.

Couch v. U.S., 409 U.S. 322, 333 (1973);

In re Grand Jury Proceedings (Clinton Manges), 745 F.2d 1250, 1251 (9th Cir.

1984);

In re Grand Jury (Kent), 646 F.2d 963, 968-9 (5th Cir. 1981) (granting subpoena

to "comptroller" of sole proprietorship quashed).

"The Government argues that access of an employee is all that

is required. Hence, says the government, because Allen or

some other employee could authenticate the records [the sole

proprietor's] testimonial compulsion is not implicated. That

position, however, would swallow the privilege. Persons

conducting business as sole proprietorships, under the

government's contended-for-rule, would lose the privilege

before the grand jury the moment they hired any employee

whose functions would require access to records."

"The government insists on its right to use [employees]

subpoena as a vehicle to obtain [the employer's] records,

thereby circumventing Kent's exercise of his Fifth Amendment

privilege. That reach, however, has been foreclosed. In Couch

v. United States, 409 U.S. 322, 333, 93 S.Ct. 611, 618, 34

L.Ed.2d 548 (1973), as in Fisher v. U.S., 425 U.S. 391 (1976),

the Court was careful, in upholding a summons for records of

which the accused had given up all possession, to distinguish

situations 'where constructive possession is so clear or the

relinquishment of possession is so temporary and insignificant

as to leave the personal compulsions upon the accused

substantially intact'.

When the subpoena was served on Allen, she was the

comptroller of Kent Oil. Although Kent hired employees to

assist in the operation of his business, he never relinquished

control of the records to any employee. That Allen had access

to the records is irrelevant, for mere access is not possession,

custody or control. Whether Kent be viewed as having clearly

retained constructive possession, or as having relinquished

possession to the temporary and insignificant extent necessary

to enable his employees to perform their functions, delivery of

his records in response to the Allen subpoena would 'leave the

personal compulsions upon [him] substantially intact'. Couch

v. United States, 409 U.S. 322, 333 (1973). To hold that

service on Allen meant an absence of personal compulsion

upon Kent, would thus be to honor form over substance and to

render meaningless Kent's Fifth Amendment privilege." In re

Grand Jury (Kent), 646 F.2d 963, 968-69 (5th Cir. 1981).

But see In re Grand Jury (Colluggi), 597 F.2d 851 (3d Cir. 1979) (bookkeeper).

Not so if custody of records has been relinquished to another, non-employee off the

employer's premises.

Couch v. U.S., 409 U.S. 322 (1973) (accountant);

Fisher v. U.S., 425 U.S. 391 (1976) (attorney).

GRAND JURY WITNESS:

MATERIAL WITNESSES

18 USC§ 3144 allows for the detention of a material witness: a person who is

material in a criminal proceeding whose presence is impracticable to secure by subpoena.

Under these circumstances the witness may be arrested on a showing of probable cause to

believe both elements above exist. Although a court has held that a grand jury constitutes

a criminal proceeding for which a material witness warrant may issue, In the matter of the

Petition of Bacon v. US, 449 F.2d 933 (9

Cir. 1971). However, the district court for the

Southern District of New York departed from the ninth circuit’s analysis in Bacon and held

that the detainment of a material witness under 18 U.S.C. § 3144 does not apply to grand

jury proceedings. US v.Awadallah, 202 F.Supp.2d 55 (S.D.N.Y. 2002) [September 11

detainee].

The District Court found that the language of 18 U.S.C. § 3144 specifically the phrase

“criminal proceeding” did not include a grand jury proceeding. US v. Awadallah, 202

F.Supp 2d 55, 62 (S.D. N.Y. 2002). The language of the statute, according to the District

Court, was meant for an adversarial proceeding, which is not the case in a grand jury. US

v. Awadallah, 202 F.Supp 2d 55, 62 (S.D.N.Y. 2002). Furthermore, since it is up to a

judge to decide if a witness is a material witness, it is difficult for a judge to make that

determination in a grand jury proceeding, which is secret. US v. Awadallah, 202 F. Supp

2d 55, 63 (S.D. N.Y. 2002). Finally, the factors listed in 18 U.S.C §3142 that the judge

must take into account when determining if a witness is material or not

, are only relevant

if an offense might have been committed or not. US v. Awadallah, 202 F.Supp 2d 55, 65

(S.D. N.Y. 2002).

However, in In Re the Application of the United States for a Material Witness

Warrant, 213 F.Supp. 2d 287 (S.D. N.Y. July, 2002), the District Court declined to

follow U.S. v. Awadallah, and relied on Bacon v. United States, 449 F.2d 933 (9

Cir.

1971) in reaching its decision that 3144 did apply to grand jury witnesses. In Re the

Application of the United States for a Material Witness Warrant, 213 F.Supp. 2d 287

(S.D. N.Y. July, 2002). The District Court deemed that “[T]he relevant language in what

is now section 3144 was interpreted in Bacon to include grand jury witnesses, and that

language was reenacted as part of the current statute. A well recognized canon of statutory

construction requires that a court deem congress both to have been aware of such existing

appellate authority, and to have intended reenacted language to mean what that authority

said it meant”

. In Re the Application of the United States for a Material Witness

Warrant, 213 F.Supp. 2d 287 (S.D. N.Y. July, 2002). Furthermore, the district Court

reasoned that a judge could determine the materiality of a witness, “based on the

representation of the prosecutor…[or] sealed submissions” and that the difficulty of

determining materiality was not necessarily easier in a grand jury context than in a trial.

In Re the Application of the United States for a Material Witness Warrant, 213 F.Supp.

2d 287 (S.D. N.Y. July, 2002).

Although U.S. v. Awadallah was subsequently reversed in the Second Circuit, 349 F.3d 42

(2d Cir. 2003), the Second Circuit has seemingly softened its stance, recognizing that

material witness warrants are capable of being abused, and that consequently the Fourth

1) The nature and circumstances of the offense charged…2) the weight of the evidence against the person; 3) the

history and characteristics of the person; 4) the nature and seriousness of the danger to any person …that would be

posed by the person’s release. 18 U.S.C § 3141.

In regard to legislative history, the Court found that there was “direct evidence that a relevant Congressional

committee, and anyone who read its report, was aware of Bacon’s holding, and also that the new statute would apply

to grand jury proceedings. [S.Rep. No. 98-225, at 28, n.88 (1983).]” In Re the Application of the United States for a

Material Witness Warrant,__F.Supp. 2d_ (S.D. N.Y. July, 2002).

Amendment governs their issuance. Simon v. City of N.Y., 893 F.3d 83, 97 (2d Cir. 2018)

(“Any warrant must be executed in reasonable conformity with its terms – a rule so integral

to Fourth Amendment doctrine that we are untroubled that no case has previously applied

it to a material witness warrant. See, e.g. Matias, 836 F.2d at 747; O’Rourke, 875 F.2d at

1474-75”).

SANCTION AND APPEAL FOR CONTEMPT

Refusal to comply with a court order to testify pursuant to a grand jury subpoena may result

in an order of confinement under Title 28 U.S.C. § 1826(a). In the event of such

confinement, the statute requires an expedited appeal that must be heard within 30 days of

filing of the notice of appeal. However, where the "contemnor" remains at liberty during

pendency of his or her appeal, this expedited procedure is not applicable.

In re Sealed Case, 829 F.2d 189 (D.C. Cir. 1987);

In re Witness Before Special October Grand Jury, 722 F.2d 349, 353 (7th Cir. 1983);

In re Grand Jury Proceedings Re: Larson, 785 F.2d 629, 631 n.4 (8th Cir. 1986);

In re Weiss, 703 F.2d 653, 660 n.6 (2d Cir. 1983).

REFUSAL TO COMPLY

Under limited circumstances, a witness may refuse to comply without suffering contempt

where "compliance could cause irreparable injury, because appellate courts cannot always

'unring the bell' once the information has been released.”

Maness v. Meyers, 419 U.S. 449, 460 (1975);

Gelbard v. U.S., 408 U.S. 41 (1972);

In re Grand Jury Proceedings (McCoy), 601 F.2d 162, 169 (5th Cir. 1979) (stating, "if an

order 'requires an irreversible and permanent surrender of a constitutional right, it cannot

be enforced by the contempt power").

CONTEMPT POWER LIMITED

The First Circuit has held that a federal district court's contempt power to levy daily fines

against non-cooperative witnesses continues no longer than the end of the grand jury's term.

In re Grand Jury Proceedings (Caucus Distributors, Inc.), 871 F.2d 156 (1st Cir. 1989).

The court reasoned that since such a rule already existed for incarceration under 28 U.S.C.

§1826(a) (2), practical considerations mandated the same rule for fines. In re Grand Jury

Proceedings, 871 F.2d 156 (1st Cir. 1989) (holding grand jury's work, and therefore, the

district court's coercive power to enable the grand jury to do its work, ends with life of

grand jury). The "civil fine meter," however, can begin anew with the beginning of a

successor grand jury's term. In re Grand Jury Proceedings, 871 F.2d 156 (1st Cir. 1989).

ENTITLED TO "ONE BITE" THEORY

A witness should be entitled to have the court decide the applicability of the claimed

privilege and an opportunity to answer if same is held inapplicable.

U.S. Ex Rel Berry v. Monahan, 681 F. Supp. 490, 498 (N.D. Ill. 1988) (stating that if a

witness invokes his Fifth Amendment privilege against self-incrimination, the trial court

must first rule the witness' Fifth Amendment privilege inapplicable and afford the witness

another opportunity to answer, before holding the witness in contempt).

MOTION TO INTERVENE

A non-witness should be allowed to intervene where the production of documents or

testimony by the witness would substantially affect the non-witnesses' ability to assert his

privilege as to the materials or matters sought. FED. R. Civ. PRO. Rule 24(a) allows

intervention "when (s)he claims an interest relating to the property or transaction and (s)he

is so situated that the disposition of the action may as a practical matter impair or impede

his [or her] ability to protect the interest, unless the [individual's] interest is adequately

represented by existing parties".

Consequently, a non-witness should be allowed to intervene where the production of

documents or testimony by the witness would substantially affect the non-witness' ability

to assert privilege as to the materials or matters sought.

Perlman v. U.S., 247 U.S. 7, 13 (1918);

U.S. v. Cuthbertson, 651 F.2d 189, 193-94 (3d Cir. 1981);

U.S. v. R.M.I. Co., 599 F.2d 1183, 1186-87 (3d Cir. 1979);

Gravel v. U.S., 408 U.S. 606, 608 n.1 (1972);

In re Grand Jury Investigation (Intervenor A), 587 F.2d 589 (3d Cir. 1978);

In re Grand Jury Proceedings (Fine), 641 F.2d 199, 201-02 (5th Cir. 1981);

In re Grand Jury Investigation of Ocean Transportation, 604 F.2d 672, 673-74 (D.C.

Cir.), cert. denied, 444 U.S. 915 (1979);

In re Katz, 623 F.2d 122 (2nd Cir. 1980);

In re Grand Jury Proceeding (Freeman), 708 F.2d 1571 (11th Cir. 1983).

"In Perlman v. United States, 247 U.S. 7 (1918), the Court held that the owner of exhibits

could intervene in a criminal grand jury Proceeding to object to their disclosure on a ground

of privilege, even when the exhibits were in the possession of a third party. Moreover, the

Court held that the order denying intervention and privilege was collaterally final for

purposes of appeal." See U.S. v. R.M.I., 599 F.2d 1183, 1186 (3d Cir. 1979).

Accordingly, legislators have been held to have the right to intervene where their legislative

assistants have been subpoenaed.

Gravel v. U.S., 408 U.S. 606 (1972);

In re Grand Jury Proceedings, 563 F.2d 577 (3d Cir. 1977);

or Clerks of their office or branch;

In re Grand Jury Investigation (Eilberg), 587 F.2d 589 (3d Cir. 1978).

See also U.S. v. Doe (Ellsberg), 455 F.2d 1270 (1st Cir. 1972);

Application of Caldwell, 311 F. Supp. 358 (N.D. Cal. 1970), rev.’d on other grounds, 434

F.2d 1081 (9th Cir. 1970).

Likewise, where the attorney-client privilege is at stake, courts have uniformly permitted

the intervener/client to step in and protect his attorney-client relationship since while it is

the attorney's obligation to do so unless the privilege is waived, it is in fact the client's

privilege.

In re Grand Jury Proceedings (Fine), 641 F.2d 199, 201-2 (5th Cir. 1981);

In re Grand Jury Proceedings (Katz), 623 F.2d 122 (2d Cir. 1980);

In re Grand Jury Proceedings (FMC Corp.), 604 F.2d 798 (3d Cir. 1979);

In re Grand Jury Proceedings (Freeman), 708 F.2d 1571, 1574-75 (11th Cir. 1983).

Clients have also been allowed to intervene to protect the "work-product privilege".

In re Grand Jury Proceedings (FMC Corp.), 604 F.2d 798, 801-02 (3d Cir. 1979);

Appeal of Hughes, 633 F.2d 282, 285-86 (3d Cir. 1980);

In re Grand Jury Proceedings (John Doe), 575 F. Supp. 197 (N.D. Ohio, 1983).

Similarly, intervention by third parties has been be allowed to assert and protect the

following:

The rights of an employer of a subpoenaed witness, In re Grand Jury (Schmidt), 619

F.2d 1022 (3d Cir. 1980), the "adverse spousal privilege", In re Grand Jury Matter, 673

F.2d 688, 692 (3d Cir. 1982),"News reporter's privilege", U.S. v. Cuthbertson, 651 F.2d

189, 193 (3d Cir. 1981), corporation's confidential records, U.S. v. R.M.I., 599 F.2d 1183,

1186-7 (3d Cir. 1979), State v. Illinois v. Sarbaugh, 552 F.2d 768 (7th Cir. 1977), and

grand jury transcripts, U.S. v. Armco Steel Co., 458 F.Supp. 784, 788 (W.D. Mo. 1978),

U.S. v Feeney, 641 F.2d 821, 824 (10th Cir. 1981).

"We have held that a third party may intervene 'to challenge production of subpoenaed

documents on the ground of privilege and may appeal from an order granting less

protection than that claimed'." U.S. v. Cuthbertson, 651 F.2d 189, 193 (3d Cir. 1981).

Intervention has also been permitted to allow third parties to assert their Fifth Amendment

claims with respect to subpoenaed documents and testimony.

U.S. v. Jones, 630 F.2d 1073, 1076 (5th Cir. 1980);

In re Grand Jury (Kent), 646 F.2d 963 (5th Cir. 1981) (by implication);

In re Grand Jury Subpoena Duces Tecum, 342 F. Supp. 709, 710 (D. Md. 1972)

(combining with attorney-client privilege);

Couch v. U.S., 409 U.S. 322, 327 (1973);

Perlman v. U.S., 247 U.S. 7, 12 (1918).

The problem is that the Intervener has a "more direct interest in preventing the compelled

production of the records sought by the grand jury than [the individual] to whom the

subpoena was directed".

In re Grand Jury Proceedings (Fine), 641 F.2d at 202 (5th Cir. 1981);

Perlman v. U.S., 247 U.S. 7 (1918).

See also In re Grand Jury Subpoena (Kent), 646 F.2d 963, 968-69 (5th Cir. 1981).

The subpoenaed party, to avoid contempt, may choose to violate the privilege and provide

the information, thereby depriving the real party in interest of a protected right, or any

opportunity to have judicial review of his asserted privilege. It "...is unlikely that a third

party, even an employee, would risk a contempt citation in order to provide ...immediate

review" of another's privilege.

In re Grand Jury (Schmidt), 619 F.2d 1022, 1024-25 (3d Cir. 1980).

Courts have regularly recognized the implicit fairness in allowing intervention in such

situations:

In re Grand Jury Proceedings (Subpoena Duces Tecum "A"), 563 F.2d 577 (3d Cir.

1977).

"Reasoning pragmatically ...a witness will not usually undergo the penalties of contempt

in order to preserve someone else's privilege".

However, the Fifth Circuit has held that a "target" of a grand jury investigation is not

entitled to notification that subpoenas have been issued to third parties in order that the

"target" might intervene to protect his or her interest.

Securities and Exchange Commission v. O'Brien, 467 U.S. 735, 104 S. Ct. 2720, 81

L.Ed.2d 615 (1984).

INTERVENOR HAS RIGHT TO INTERLOCUTORY APPEAL

The intervening client is entitled to appeal an order directing his attorney to testify prior to

requiring the attorney's testimony or holding him in contempt:

In re Grand Jury Proceedings in Matter in Fine, 641 F.2d 199, 201 (5th Cir. 1981).

"Although we cannot say that attorneys in general are more or less likely to submit to a

contempt citation rather than violate a client's confidence, we can say without reservation

that some significant number of client-intervenors might find themselves denied all

meaningful appeal by attorneys unwilling to make such a sacrifice. That serious

consequence is enough to justify a holding that a client-intervenor may appeal an order

compelling testimony from the client's attorney.... If the price of protecting the right of

appeal of client-intervenors is an occasional frivolous appeal for the sake of delay, we will

process such appeals with all the expediency their posture merits. The issues of fact and

law related to attorney-client privilege are rarely complex and may be disposed of without

oral argument in nearly all cases."

In re Grand Jury Proceedings in Matter of Freeman, 708 F.2d 1571, 1575 (11th Cir.

1983).

"All that is required, after the attorney-witness or the client-intervenor pleads the existence

of an attorney-client privilege, is a reasonable opportunity to be heard and prompt appellate

review if the court orders the attorney to testify."

In re Grand Jury Proceedings, 563 F.2d 577, 580 (3d Cir. 1977);

In re Grand Jury Proceedings (Clinton Manges), 745 F.2d 1250, 1251 (9th Cir. 1984).

Interestingly, the intervenor's interlocutory appeal has been held to be a civil appeal

"governed by the ...60 day notice requirement of FED. R. APP. PRO. 4(2)", rather than the

10 day requirement for criminal appeals under Rule 4(b), with its accelerated consideration

for incarcerated witnesses.

But see U.S. v. Larouche Campaign, 829 F.2d 250 (1st Cir. 1987) (noting immediate

appeal not permitted when abuses in grand jury process were such that post conviction

relief was probably not foreclosed).

"CONTENT" VS. "ACT OF PRODUCTION" ANALYSIS TO SUBPOENAS DUCES

TECUM

There has been a noticeable shift in historical Fifth Amendment analysis concerning the

“content oriented" inquiry of Boyd v. U.S. in Boyd v. U.S., 116 U.S. 616 (1886) (the Court

focused upon whether the subpoenaed papers were "private" or "personal" in nature. And

today, the Court questions whether ordering the individual to produce the documents

amounts to a compelled testimonial act).

In re Grand Jury Subpoenas Duces Tecum dated June 13, 1983, 722 F.2d 981, 984-86

(2d Cir. 1983);

In re Kave, 760 F.2d 343 (1st Cir. 1985).

Recognizing this shift in emphasis some courts had rejected the Government's argument

that the "act of production doctrine" does not apply to the compelled production of

corporate records.

"The district court [chose] to accept the government's position that the Fisher act of

production doctrine simply does not apply to corporate records. We believe that the district

court erred in rejecting this contention out of hand solely on the ground that corporate

documents were demanded by the subpoena. Under the Fisher standard is not the potential

incriminating nature and contents of the documents subpoenaed but whether their mere

production would itself tend to incriminate the possessor." In re Grand Jury Subpoena

Duces Tecum Dated June 13, 1983, 722 F.2d 981, 986 (2d Cir. 1983).

See also In re Grand Jury Matters, 745 F.2d 834 (4th Cir. 1984) (applying "act of

production" doctrine to a professional corporation’s records).

Other courts have continued to apply a "content" oriented approach looking to whether the

records are "personal" or "business" in nature.

U.S. v. Meeks, 719 F.2d 809, 811 (5th Cir. 1983).

"It is well established that individuals issued a summons to supply business records cannot

claim a privilege against self incrimination as against furnishing such records." Id.

In re Steinberg, 837 F.2d 527, 530 (1st Cir. 1988) (holding that “In a prosecution for

conspiracy to obstruct grand jury investigation, the Fifth Amendment privilege against self

incrimination was held not to extend to compelled production of ‘records of a regularly

conducted activity’, rather only to records containing ‘personal entry’”).

If the "act of production doctrine" applies to one type of otherwise unprivileged document

at least one court had held that. “ . . . it can as well apply to corporate records":

"For the purpose of determining the extent to which a natural person may invoke his Fifth

Amendment privilege under Fisher, the fact that the subpoenaed documents in his

possession were prepared by a corporation is not directly relevant. The Fisher doctrine

simply does not turn on either content or authorship of the documents, of possession that

are controlling. Couch v. U.S., 409 U.S. 322, 327 (1973). If, as the Supreme Court

indicated in Fisher, the act of production doctrine applies to one type of otherwise

unprivileged document (accountant's work papers) it can apply as well to corporate records

in an individual's possession." In re Grand Jury Subpoena Duces Tecum, 727 F.2d 981,

986 (2d Cir. 1983) (noting that the question of the "act of production" doctrine's

applicability may turn on whether the corporate officer or custodian is subpoenaed in his

or her "individual" or representative capacity).

"There would rarely be any dispute over possession [of corporate records] when the person

subpoenaed is required to respond in his representative capacity. In producing records as

an officer of the company he would not be attesting to his personal possession by them but

to their existence and possession by the corporation, which is not entitled to claim a Fifth

Amendment privilege with respect to them."

In re Grand Jury Proceedings (Vargas), 727 F.2d 941, 946 (10th Cir. 1984).

"While Doe clearly recognizes that the production of personal papers may be a testimonial

act protected by the Fifth Amendment, that case does not involve papers held by one in a

representative capacity . . . As the Supreme Court made clear in Fisher v. United States,

425 U.S. 391, 413 (1976), even though the production of papers held in a representative

capacity may be a testimonial act, such production is not protected by the Fifth

Amendment."

Where the act of producing may be incriminating to the subpoenaed corporate officer or

custodian an alternative would be to allow the corporate or business partnership to select

another to produce and verify the records who is not so encumbered.

See U.S. v. Kordel, 397 U.S. 1, 8-9 (1970).

And while one federal court of appeals consistently requires collective entities faced with

a subpoena duces tecum to appoint a custodian to produce the documents,

In re Two Grand Jury Subpoenas Duces Tecum, 769 F.2d 52 (2d Cir. 1985);

In re Grand Jury Subpoenas Issued to 13 Corporations, 775 F.2d 43 (2d Cir. 1985).

the sole practitioner need not do so.

(Under Seal) v. U.S., 634 F. Supp. 732 (E.D. N.Y. 1986).

EFFECT OF GUILTY PLEA ON ABILITY TO INVOKE FIFTH AMENDMENT

PRIVILEGE

Those who Plead Guilty or Those Convicted:

The Supreme Court has held that "[c]itizens generally are not constitutionally immune from

grand jury subpoenas". Branzburg v. Hayes, 408 U.S. 665, 682, 33 L.Ed.2d 626 (1972).

And at least one district court has held that ". . . everyone, including those who have plead

guilty, must testify when subpoenaed to do so before a grand jury unless privileged

otherwise". In re Grand Jury Investigation, 681 F. Supp. 1113 (E.D. N.C. 1988) (holding

that a defendant's guilty plea did not give him ability to avoid grand jury subpoena; no

government agreement to such).

However, in absence of immunity, a guilty plea does not necessarily waive a later assertion

of the Fifth Amendment.

U.S. v. Lyons, 731 F.2d 243 (5th Cir. 1983) (stating a guilty plea to state charges did not

waive Fifth Amendment in Federal Court):

"Ms. Cook's plea waived only the privilege with respect to state charges to which she

pleaded guilty.... So long as Ms. Cook could be charged with other crimes because of her

participation in the events in question, she could still assert her privilege against

self-incrimination." U.S. v. Lyons, 731 F.2d at 243 n. 2.

U.S. v. Kahn, 728 F.2d 676, 680 (5th Cir. 1984);

U.S. v. Gloria, 494 F.2d 477, 480 (5th Cir.), cert. denied, 419 U.S. 995 (1974);

U.S. v. Barham, 625 F.2d 1221, 1225 (5th Cir.), cert. denied, 450 U.S. 1002 (1980);

In re Bryan, 645 F.2d 331, 333 (5th Cir. 1981).

"[Ilf the witness is still subject to other crimes which he[r] testimony might tend to reveal,

the privilege remains."

IMMUNIZING GRAND JURY WITNESSES

Even where a witness asserts a valid Fifth Amendment privilege, the prosecution may

nevertheless seek to compel their testimony by granting the witness immunity.

FEDERAL:

Where a witness asserts his or her Fifth Amendment privilege, Title 18 U.S.C. §§ 6002 &

6003 provides for a grant of "use" as opposed to transactional immunity thereby

compelling the witnesses' testimony over any claim of Fifth Amendment privilege.

Under "transactional" immunity, prosecution of the witness would be precluded for any

criminal conduct or transactions about which the witness gave testimony. See 10 U.S.C. §

2514 (repealed (1974)).

"Use" immunity, on the other hand, prohibits only the "use in any respect, either direct or

indirect, of the compelled testimony". And while the government has a "substantial" and

heavy burden of showing it has made no such "use” of any compelled testimony, it is

otherwise free to prosecute the witness. 18 U.S.C. § 6002.

Kastigar v. U.S., 406 U.S. 441, 461 (1972).

Zicarelli v. New Jersey Commission, 406 U.S. 472 (1972);

U.S. v. Dorman, 359 F. Supp. 684 (D.C. N.Y. 1973); reversed on other grounds by 491

F.2d 473;

U.S. v. Hampton, 775 F.2d 1479 (11th Cir. 1985) (holding that government failed to

establish an independent source for each link in the investigative chain leading to

indictment and therefore defendant was entitled to dismissal).

The continued viability of what had been described as "pocket immunity" or "informal

immunity", accomplished by informal agreement has been put in question.

U.S. v. Doe, 465 U.S. 605, 104 S.Ct. 1237, 79 L.Ed.2d 552 (1984);

U.S. v. Kilpatrick, 594 F. Supp. 1324 (D. Colo. 1984); reversed by 821 F.2d 1456

U.S. v. Skalsky, 857 F.2d 172 (3d Cir. 1988) (stating an "informal immunity” agreement

was not a grant of full use and derivative use testimony but merely agreement not to

prosecute; breached by witness' misleading testimony).

TEXAS:

While Texas has no general statutory scheme for conferring immunity upon a witness, it

has been held that only the prosecution and court have the authority to grant the judicially

created creature:

State v. Huff, 491 S.W.2d 216, 221 (Tex.Civ.App.--Amarillo, 1973);

Tischmacker v. State, 176 S.W.2d 188 (Tex.Cr.App. 1946).

USE IMMUNITY STATUTE [28 U.S.C. § 6002] PROHIBITS USING COMPELLED

TESTIMONY IN "ANY RESPECT"

Section 6002 "prohibits the prosecutorial authorities from using the compelled testimony

in any respect" except a prosecution for perjury, giving false statement, or otherwise failing

to comply with the compulsion order.

Kastigar v. U.S., 406 U.S. 441, 453 (1972);

U.S. v. Patrick, 542 F.2d 381 (7th Cir. 1976);

Goldberg v. U.S., 472 F.2d 513, 516 (2d Cir. 1973) (noting that the government's "burden

of showing that it is not using the compelled testimony (or any information directly or

indirectly derived from such testimony or other information) in 'any respect' will be

substantial").

But see U.S. v. Crowson, 828 F.2d 1427 (9th Cir. 1987) (holding that the

Government is not prevented from use of substantive immunized testimony through

previous independent sources).

CAVEAT: Use immunity can be lost if the defendant will not cooperate.

U.S. v. Doe, 671 F. Supp. 205 (E.D.N.Y. 1987).

Cf. U.S. v. Henderson, 406 F. Supp. 417, 421-27 (D. Del. 1975).

CERTIFICATION OF EVIDENCE OBTAINED INDEPENDENTLY OF GRAND JURY

TESTIMONY

Since section 6002's "use-of-immunity" protects a witness against even direct "use" of any

compelled testimony, including any evidence come at by exploitation of that compelled

testimony, some courts have indicated the Government should be required to itemize and

certify

any, independent evidence the Government has compiled prior to compelling any

testimony. This procedure will insure the integrity of such process and prevent exploitation

of the compelled testimony in violation of 18 U.S.C. § 6002.

Goldberg v. U.S., 472 F.2d 513, 516 n.5 (2d Cir. 1973).

In the alternative, a request might be made for such certification to be submitted to the Court

in camera to be sealed and made a part of the record in order to afford a meaningful appellate

review. See US v. Henderson, 406 F. Supp 417 (D. Del. 1975). The Court noted:

"[t]he government [has] submitted to the court an envelope

containing copies of certain evidence of violations of federal law

by Henderson. The government requested the court to receive and

seal this envelope so as to preserve a record of its possession of

this evidence prior to Henderson's testimony....”

This prophylactic procedure was suggested in Note, Standards for Exclusion in Immunity Cases

After Kastigar and Zicarelli, 82 YALE L.J. 171, 182 (1977) and endorsed in Goldberg v. US, 472

F.2d 513, 516 (1973).

See also Note, Standards for Exclusion in Immunity Cases after Kastigar and

Zicarelli, 82 YALE L.J. 171 (1972); see also 86 HARV. L. REV. 187-89 (1972):

"[w]e would think that prosecutors, both in their own interest and in fairness to the

defendant, would do well to consider the certification of evidence available prior to the

compulsion of testimony." Goldberg v. U.S., 472 F.2d 513 (2d Cir. 1973).

Courts have noted that "[i]f the government has any thought of one day prosecuting [a

grand jury] witnesses, the requested certification [of presently existing evidence

implicating the witnesses] would certainly aid it in establishing its burden of demonstrating

that no use had been made" or derivative use was made of the compelled testimony".

In re Grusse, 402 F. Supp. 1232, 1237 (D. Conn. 1975) (noting that the "government today

elected to file, under seal, the evidence presently available against the [grand jury]

witnesses");

In re Weir, 377 F. Supp. 919, 924 (S.D. Cal. 1974).

Moreover, courts have indicated "that any future prosecution [of a grand jury witness who

has given compelled testimony] is limited to the evidence so certified".

In re Weir, 377 F. Supp. 919, 924 (S.D. Cal. 1974).

Even the "indirect use" of an immunized witness' compelled grand jury testimony in

obtaining an indictment, should warrant its dismissal.

U.S. v. McDaniel, 352 F. Supp. 585 (N.D. 1972), aff'd., 482 F.2d 305, 312 (8th Cir. 1973);

U.S. v. Dornau, 359 F. Supp. 584, 687 (S.D. N.Y. 1973), rev'd. on other grounds, 491 F.2d

473 (2nd Cir. 1973).

See also New Jersey v. Portash, 440 U.S. 450 (1979) (prohibiting the use of such

compelled testimony even for impeachment).

Contra U.S. v. Henderson, 406 F. Supp. 417, 421-27 (D. Del. 1975).

GRAND JURY HEARING COMPELLED TESTIMONY SHOULD NOT

THEREAFTER INDICT THE WITNESS

Accordingly, the prosecution should not seek an indictment of a witness before the same

grand jury that heard his or her compelled testimony,

U.S. v. Hinton, 543 F.2d 1002, 1011 (2d Cir. 1976);

Goldberg v. U.S., 474 F.2d 513, 516 n.5 (2d Cir. 1973);

given "consideration of the immunized testimony by that jury is a virtual certainty",

U.S. v. Hinton, 543 F.2d 1002, 1008 (2

Cir. 1976)

in violation of the mandate of Kastigar v. U.S., 406 U.S. 441 (1972).

To allow otherwise, violates a witness' constitutionally protected rights to "due process"

and "fundamental fairness" guaranteed under the Fifth Amendment. Furthermore, the

Canons of Ethics would be contravened [A.B.A. Standards for Criminal Justice Relating to

the Prosecution Function. Quality and Scope of Evidence before the Grand Juries, Section

3.6(d)].”

However, see U.S. v. Zielezinski, 740 F.2d 727 (9th Cir. 1984), where the Court held that

such prohibition is not constitutionally mandated. Nonetheless, where an immunized

witness has been indicted by the same grand jury before which (s)he testified, the

Government has an affirmative duty to establish its independent source for the evidence

upon which it claims the indictment rests.

US v. Zielezinski, 740 F.2d 727 (9th Cir. 1984).

The grant of immunity also expressly exempts perjury. It follows that courts have refused

to apply the prohibition where the immunized testimony used by the grand jury is that

which forms the basis for the indictment for perjury before the grand jury.

U.S. v. Pisani, 590 F. Supp. 1326 (S.D. N.Y. 1984).

See also U.S. v. Garrett, 797 F.2d 656 (8th Cir. 1986) (stating a Defendant's challenge

to indictment returned by grand jury against defendant who had testified under a grant of

immunity before same grand jury was proper).

HEARING REQUIRED PRIOR TO ISSUANCE OF ORDER GRANTING IMMUNITY?

Some courts have required a hearing conducted by the court from which immunity has

been sought prior to the grant of immunity.

In re Evans, 452 F.2d 1239 (D.C. Cir. 1971), cert. denied, 408 U.S. 930 (1972);

In re Vericker, 446 F.2d 244 (2d Cir. 1971);

U.S. v. DiMauro, 441 F.2d 428 (8th Cir. 1971);

In re Bart, 304 F.2d 631 (D.C. Cir. 1962);

In re Tierney, 465 F.2d 806 (5th Cir. 1972);

In re Grand Jury Investigation (Frank), 317 F. Supp. 792, 796 (E.D. Pa. 1970).

"[Tlhe witness is entitled to notice and must be given an opportunity to be heard before

being compelled to testify." In re Bart, 304 F.2d at 637.

Contra U.S. v. Weinberg, 439 F.2d 743 (9th Cir. 1971);

But see U.S. v. Alter, 482 F.2d 1016 (9th Cir. 1973) (holding where the Ninth Circuit

more recently held that the notice provisions of FED. R. CRIM. PRO. Rule 6 must be

followed in connection with contempt proceedings and by analogy to grant of immunity as

well).

JUSTICE DEPARTMENT OFFICIAL MUST EXPRESSLY APPROVE GRANT OF

IMMUNITY

Title 18 U.S.C. § 6002(b) expressly requires that approval for a grant of immunity be given

by "the Attorney General, the Deputy Attorney General" or a "designated Assistant

Attorney General".

Under a similar requirement of the Federal Wiretap Statute [18 U.S.C. § 2516(1)], the

Supreme Court in U.S. v. Giordano held that such power must be specifically delegated.

U.S. v. Giordano, 416 U.S. 505 (1974). But, how specific Congress must be is a different

matter. Amendments to the wiretap statute since Giordano was decided have

acknowledged the legitimacy of delegating the power to authorize wiretaps to

nonpolitically accountable officials such as assistant attorneys general or deputy assistant

attorneys general. U.S. v. Anderson, 39 F.3d 331, 340 (D.C. Cir. 1994), overruled on other

grounds by Richardson v. United States, 526 U.S. 813, 816 (1999).

See U.S. v. Acon, 513 F.2d 513 (3d Cir. 1975).

"Here the matter of delegation is expressly addressed ...and the power of the Attorney

General in this respect is specifically limited to delegating his authority to 'any Assistant

Attorney General'.... Congress does not always contemplate that the duties assigned to the

Attorney General may be freely read delegated.... [W]e think [the statute] fairly read, was

intended to limit the power to authorize to the Attorney General himself " . . . "and to any

Assistant Attorney General he might designate." U.S. v. Giordano,416 U.S 505, 514

(1974).

Like the wiretap statute, the "matter of delegation is expressly addressed" in the immunity

statute [18 U.S.C. § 6003(b)] and therefore should be similarly limited.

DISTRICT COURT HAS DISCRETION TO DENY AN ORDER WHERE SAME

WOULD INFRINGE UPON CONSTITUTIONAL RIGHTS

While the Court may have no discretion to deny an order [for immunity] on the ground that

the "public interest does not warrant it", In re Lochiatto, 497 F.2d 803, 804 n.2 (1st Cir.

1974); In re Kilgo, 484 F.2d 1215 (4th Cir. 1975); U.S. v. Leyva, 513 F.2d 774, 776 (5th

Cir.1975); it does have authority to consider whether the grant of immunity would pass

Constitutional muster.

In re Baldinger, 356 F. Supp. 153 (C.D. Cal. 1973);

Matter of Doe, 410 F. Supp. 1163 (E.D. Mich. 1976).

See also Legislative History of H.R. 11157 and H.R. 12041.

"The Court's duties in granting the requested [immunity] order are largely ministerial and

when an order is properly requested the judge has no discretion to deny it.... However, the

court may exercise its discretion in denying an immunity order in the face of a violation of

a witness' constitutional rights." (emphasis supplied). Matter of Doe, 410 F. Supp.1163,

1165 (E.D. Mich. 1976).

Additionally, the Court "plays a general supervisory role in the fair administration of

justice".

The legislative history of the Federal Immunity of Witnesses Act [with identical form and

language as 18 U.S.C. § 6002] reflects that said legislation could not preclude judicial review to

insure there is no "...overreaching in the process of immunizing somebody ...as a matter of due

process hearings on H.R. 11157 and H.R. 12041, Cong., 1st Sess., at 1972.

Matter of Doe, 410 F. Supp. 1163, 1165 (E.D. Mich. 1976);

U.S. v. Rodman, 519 F.2d 1058, 1060 (5th Cir. 1975).

And retains "a residuum of supervisory power and a responsibility to curb its improper

use".

Matter of Doe, 410 F. Supp. At 1165;

U.S. v. Dionisio, 410 U.S. 1, 9 (1973);

Branzburg v. Hayes, 408 U.S. 665, 688 (1972) (stating that "the powers of the grand jury

are not unlimited and are subject to the supervision of a judge");

FEAR OF FOREIGN PROSECUTION

Grant of immunity under § 6002 is not an adequate substitute for the protection offered by

the Fifth Amendment, where the witness has a real and substantial fear of foreign

prosecution.

This issue was expressly left open in Zicarello v. New Jersey State Commission of

Investigation, 406 U.S. 472, 480-81 (1972).

U.S. v. Yanagita, 552 F.2d 940, 946 (2d Cir. 1977).

IMMUNITY STATEMENT EXPRESSLY EXEMPTS "FALSE STATEMENTS"

PROSECUTION

Making a false statement to a federal officer is an offense under 18 U.S.C. section 1001.

See U.S. v. Bedore, 455 F.2d 1109, 1110-1111 (9th Cir. 1972);

U.S. v. Adler, 380 F.2d 917, 922 (2nd Cir.), cert. denied, 389 U.S. 1006 (1967);

Neely v. U.S., 300 F.2d 67, 71-2 (9th Cir.), cert. denied, 369 U.S. 864 (1962).

Title 18 U.S.C. § 6002 expressly provides an exception from immunity not only for perjury

during the course of the testimony compelled by the immunity order but for "giving a false

statement" as well.

"No testimony or other information compelled under the order (or any information directly

or indirectly derived from such testimony or other information) may be used against the

witness in any criminal case, except a prosecution for perjury, giving a false statement, or

otherwise failing to comply with the order". (emphasis supplied). 18 U.S.C. section 6002.

PRIOR STATEMENTS TO FEDERAL OFFICER

Where the witness has given previous statements to federal agents with regard to the very

subject matter under investigation by the grand jury several courts have indicated that a

grant of immunity under § 6002 will afford no protection from prosecution for "false

statements' under § 1001 [in the event the grand jury testimony is inconsistent with those

prior statements].

In re Baldinger, 356 F. Supp. 153 (C.D. Cal. 1973) (holding that the "false statements"

exception to § 6002 immunity allows the Government to use compelled Grand Jury

testimony as evidence against the witness in a prosecution for violating the "false

statement" statute (18 U.S.C. § 1001) where the witness' compelled grand jury testimony

differs or is inconsistent with prior statements to federal officers).

U.S. v. Hoffman, 260 F. Supp. 566, 567 (M.D. Pa. 1966).

"The proposed order in this case would violate the Fifth Amendment rights of the witness.

Section 1001 provides for a prosecution for oral statements, which are false. In order to

obtain a conviction [the witness's] statements before a grand jury could be used in evidence

against her. Her compelled testimony given under oath and truthful could be used in a

prosecution for making statements contrary to her Grand Jury testimony.

Kastigar [406 U.S. 441 (1972)] held that the Fifth Amendment privilege against self -

incrimination is violated if the government uses the compelled testimony to prosecute the

witness for a past criminal offense. Under the exception to use immunity contained in the

proposed order in this case, if the court grants the order compelling [the witness] to testify,

the government may use her testimony before the grand jury to prosecute her for having

made false statements to the F.B.I. Agents. This is because, under the exception, the grand

of immunity does not apply to a prosecution for '...giving a false statement'....

In the context of this case, the immunity order that the government would have the court

grant would do exactly what the Supreme Court held that it must not do. It would allow

the Government to use the compelled testimony to prove that the witness may be guilty of

having made false statements at a prior point in time, and it would ...lead to the infliction

of criminal penalties for prior conduct of the witness.

Thus for the very reasons that the court in Kastigar held the use immunity statute on its

face to be Constitutional, this Court must hold that granting the proposed immunity order

in this case would violate the witness' Fifth Amendment rights." In re Baldinger, 356 F.

Supp. 153 (C.D. Cal. 1973).

While several courts have held to the contrary,

U.S. v. Alter, 482 F.2d 1016 (9th Cir. 1973);

In re Grand Jury Proceedings, 509 F.2d 1134 (5th Cir. 1975);

Application of Senate Select Committee on Presidential Campaign Activities, 361 F.

Supp. 1282 (D.D. Col. 1973),

the Supreme Court has refused to adopt such a position with respect to later

non-immunized statements. New Jersey v. Portash, 440 U.S. 450, 99 S.Ct. 1292 (1979).

"We express no view as to whether possibly truthful immunized testimony may be used in

a subsequent false declarations prosecution premised on an inconsistency between the

testimony and later non-immunized, testimony." New Jersey v. Portash, 440 U.S. 450 at

n.9.

See also U.S. v. Apfelbaum, 445 U.S. 115 (1980).

PRIOR INCONSISTENT STATEMENTS COULD BE USED TO PROVE

INCONSISTENT TESTIMONY BEFORE GRAND JURY WAS PERJUROUS:

Likewise, a prior statement to a federal officer, if inconsistent, could be used in a perjury

prosecution in the event a grand jury believes the prior statements over the compelled

testimony before the grand jury. 18 U.S.C. § 6002 (exempting "perjury" before the grand

jury from the scope of the protection provided by the Federal "use immunity" statute).

But see In re Grand Jury Proceedings (Greentree), 644 F.2d 348 (5th Cir. 1981).

THE IMMUNIZED WITNESS

In an attempt to "educate" the grand jurors of their independent role, and to protect the

immunized witness against the direct or indirect use of their testimony, their attorney may

wish to request the following prior to any appearance before the grand jury.

SEALING OF PROSECUTION'S EVIDENCE PRIOR TO TAKING IMMUNIZED

TESTIMONY

1. That any and all evidence the prosecution has accumulated be itemized and sealed

by the court prior to any testimony by the witness in order to insure that no "use" is made

of the immunized witness' testimony against that witness. See Order in Appendix.

NOT SEEK INDICTMENT FROM SAME GRAND JURY HEARING THAT

COMPELLED TESTIMONY

2. That the Government be instructed not to seek an indictment of the immunized

witness before the same grand jury before whom compelled testimony is sought, as such a

grand jury would be hard pressed not to "use" such testimony in its considerations.

RIGHT TO COUNSEL

3. That while the grand jury witness may not have a constitutional right to counsel

during testimony inside the grand jury room, the grand jury may direct same or hear from

counsel in order to insure fairness to the witness during such proceedings.

NO ADVERSE INFERENCE FROM EXERCISE OF RIGHT TO COUNSEL

4. That a grand jury witness has a right to consult counsel outside the grand jury room

after each question is impounded but prior to any answer and that no adverse inference

whatsoever should be taken from the exercise of that right to counsel, and that the

awkwardness and time consuming nature necessitated by such procedure is required by the

rules governing such proceedings, not by the witness.

CONSEQUENCES TO WITNESS OF COMPELLED TESTIMONY

5. That as a consequence of refusing to answer questions, a witness who has been

granted immunity may be held by the District Court to be in contempt of the grand jury

and be sentenced or required to serve a period of time in jail.

GRAND JURY'S RIGHT NOT TO COMPEL TESTIMONY

6. That just as the grand jury has a right to inquire of person's having knowledge of

matters pertinent to an investigation, the grand jury also has a right not to require a witness

called by them to testify or go to jail for contempt. Especially where such evidence is

available elsewhere or prior statements by the witness to Government agents taking part in

said investigation indicate a lack of knowledge as to the specific incriminating matters

under consideration.

OTHER TESTIMONIAL PRIVILEGES APPLICABLE TO GRAND JURY

PROCEEDINGS

Privileges, such as the marital and attorney-client privileges, apply in grand jury

proceedings. See FED. R. EVID. Rule 501; 2 LOUISELL, FEDERAL EVIDENCE § 218

at 631. While a grand jury "may consider incompetent evidence, ...it may not itself violate

a valid privilege, whether established by the Constitution, statutes, or the common law".

U.S. v. Calandra, 414 U.S. 338, 346 (1974).

This is important because "use" immunity under section 6002 is coextensive with the

witness' Fifth Amendment privilege. Kastigar v. U.S., 406 U.S. 441 (1972). That is, the

compulsion only removes one's protection under the Fifth Amendment, it does not preclude

assertion of other valid privileges which may be applicable.

“Courts, commentators, and government lawyers have long recognized a government

attorney-client privilege in several contexts.” In Re Bruce Lindsey, Nos. 98-3060, 98-

3062, and 98-3072, 1998 WL 418780 (July 27, 1998) (stating that much of the litigation in

this area stems from the Freedom of Information Act, exemption 5).

See 5 U.S.C. section 552(b)(5)(1994)

“Intra-agency memorandums or letters which would not

be available by law to a party other than an agency in litigation

with the agency are excused from mandatory disclosure with

the public.”

However, See In Re Sealed Case, No. 98-3069, 1998 WL 370584 (D.C. Cir. July 7,

1998) (affirming the District Court’s opinion that Secret Service agents do not hold a

privilege and may be compelled to testify before a grand jury); In Re Sealed Case, No. 98-

3069, 1998 WL 394652 (July 16, 1998) (holding that the Department of Justice was not

entitled to a stay postponing the testimony of secret service officers before grand jury).

Regarding grand jury subpoenas, courts have required invocation of the attorney-client

privilege on a document-by-document basis. In re Grand Jury Subpoena, 831 F.2d 225

(11th Cir. 1987).

ATTORNEY-CLIENT

WHERE THE VERY EXISTENCE OF THE ATTORNEY-CLIENT RELATIONSHIP

MIGHT BE INCRIMINATING TO A CLIENT, SAME MAY UNDER LIMITED

CIRCUMSTANCES BE PRIVILEGED

While generally the identity and information concerning the fee arrangement between an

attorney and his client is not privileged,

Frank v. Tomlinson, 351 F.2d 384 (5th Cir. 1965), cert. denied, 382 U.S. 1028 (1966);

U.S. v. Finley, 434 F.2d 596 (5th Cir. 1970);

In re Michaelson, 511 F.2d 882, 889 (9th Cir. 1975);

Colton v. U.S., 306 F.2d 633, 638 (2d Cir. 1962);

In re Osterhoudt, 722 F.2d 591, 592 (9th Cir. 1983);

In re Shargel, 742 F.2d 61, 64 (2d Cir. 1984);

In the Matter of Witness Before the Special March 1980 Grand Jury, 729 F.2d 489 (7th

Cir. 1984).

an exception has been made where the very existence of the attorney-client relationship

might be incriminating in the very matter in which advise has been sought.

In re Semel, 411 F.2d 195, 197 (3d Cir. 1969) (stating, "[A]n exception is made for cases

where the existence of the attorney-client relationship might be incriminating to a client");

In re Grand Jury Proceedings (Jones), 517 F.2d 666 (5th Cir. 1975);

In re Grand Jury Subpoena for Attorneys Representing Criminal Defendant, Reyes-

Requena, 913 F.2d 1118 (5th Cir. 1990).

But see In re Grand Jury Proceedings (Pavlick), 680 F.2d 1026, 1028-29 (5th Cir.

1982);

In re Grand Jury Proceedings (Damore), 689 F.2d 1351, 1352 (11th Cir. 1982);

In re Grand Jury Proceedings (Slaughter), 694 F.2d 1258 (4th Cir. 1982).

The Seventh Circuit has held that the identity of a person paying legal fees to represent a

defendant is protected by the attorney-client privilege under certain circumstances. Matter

of Grand Jury Proceeding (Cherney), 898 F.2d 565, 568 (7th Cir. 1990).

The Eleventh Circuit has now limited the applicability of this exception to the general rule

requiring disclosure of the client's identity and fee, to situations where that disclosure

would supply the "last link in an existing chain of incriminating evidence likely to lead to

the client's indictment".

In re Slaughter, 694 F.2d 1258, 1259 (11th Cir. 1982) (describing same as a "limited and

rarely available 'exception ...involv[ing] situations where the disclosure of free information

would give the identity of a previously undisclosed client/suspect").

In re Grand Jury Proceedings (Pavlick), 680 F.2d 1026 (5th Cir. 1982).

"In [our Jones] holding, we expressly noted that our decision rested on the peculiar facts

of that case.... Among those 'peculiar facts' was that the six attorneys drawn before the

grand jury in Jones represented a generous portion of the criminal law bar of the lower Rio

Grande Valley area, and the project was a rather broad attempt to canvass that portion for

information detrimental to certain of its clients: that each had paid an attorney or attorneys

amounts greater than this reported gross income during the year of payment. This and

other features distinguish Jones from our case, including that the identity sought here was

by no means the last link in any chain of inculpatory events or transactions, rather the

contrary." In re Grand Jury Proceedings (Pavlick), 680 F.2d at 1027.

Furthermore, the Fifth Circuit, at least intimates such "conspiratorial agreement" by the

clients to prospectively provide counsel for those arrested, may be inferred from "custom

or a prior course of conduct toward other apprehendees". In re Grand Jury Proceedings

(Pavlick), 680 F.2d 1026, 1029 (5th Cir. 1981).

"...where the government makes a prima facie showing that an agreement to furnish legal

assistance was part of a conspiracy, the crime or fraud exception applies to deny a privilege

to the identity of him who foots the bill -and this even though he be a client of the attorney

and the attorney unaware of the improper arrangement. Such an agreement, of course, need

only be an effective one, need not be express, and might in a proper case be found to arise

even from a custom or a prior course of conduct toward other apprehendees." In re Grand

Jury Proceedings (Pavlick), 680 F.2d at 1029.

In 1990, the Fifth Circuit took this trend one step further, all but overruling the Jones

exception. Citing The Return of the Pink Panther, the Court held that Jones only applies

where the payment of the fee is coupled with confidential attorney-client communications,

which would necessarily be revealed if the fee arrangement were disclosed.

"Jones is not unlike the actor Peter Sellers' famous character Inspector Clouseau: it has

been misunderstood because it invited misunderstanding. We conclude that a proper

reading of Jones followed by Pavlick demonstrates that those cases did not fashion "a last

link" or "affirmative link" attorney-client privilege independent of the privileged

communications between an attorney and his client. Thus, "the last link" or "affirmative

link" language in these cases did not significantly amend the normal scope of the attorney-

client privilege, nor is it applicable to the case before us . . .

[D]espite the opinion's frequent references to the potentially incriminating nature of the

testimony sought from the attorneys, Jones does not seem to rest on that fact apart from

its necessary, simultaneous revelation of confidential communications.” In re Grand Jury

subpoena for Reyes-Requena, 913 F.2d 1118, 1124 (5th Cir. 1990) (Reyes-Requena I).

The Court also held that in order to receive Jones Protection, the attorney must first

demonstrate that the fees were either paid by the client, or by a third party who is also a

client. The problem with the Reyes-Requena approach is that the rule swallows the

exception. That is, confidential communications between clients and their attorneys have

always been protected. Thus, an "exception" which continues to protect those

communications when they are coupled with a fee agreement would not seem to be an

exception at all, but rather a mechanical application of the general rule. What was unique

about the Jones exception was that it protected from disclosure not only confidential

communications, but also the existence of the attorney-client relationship itself.

In a later, closely connected case, the Fifth Circuit reopened the Jones umbrella. In re

Grand Jury Subpoena for Attorney Representing Criminal Defendant Reyes-Requena,

926 F.2d 1423 (5th Cir. 1991) (Reyes-Requena II). The defendant's attorney submitted

affidavits in camera demonstrating that Intervenor, the anonymous third party fee payer,

had indeed sought legal advice on Intervenor's own behalf, in conjunction with the payment

of Reyes-Requena's fee. The Court intimated that the "inextricable intertwining" of the fee

payer's identity with "confidential communications" might be easier to demonstrate than it

would at first appear:

"The government is not credible when it asserts that it sought only the fact of intervenor’s

identify rather than confidential communications. The government admits that it sought

Intervenor's identity because DeGeurin was representing a man of meager means caught

while serving in a lower echelon role in a drug trafficking operation of substantial

proportion. The government clearly sought Intervenor's identity in hopes of broadening

their investigation, which was limited to Reyes-Requena, by adding more charges against

Reyes-Requena and by obtaining more defendants to charge in a conspiracy. In these

circumstances, the government cannot credibly argue that it seeks merely neutral facts."

926 F.2d at 1432.

COURTS AND COMMENTATORS OFTEN SEPARATE THE EXCEPTIONS INTO

ONE OF THREE CATEGORIES:

1. THE "LAST LINK EXCEPTION":

Attorney-client privilege applies to a client's identity and fee arrangements only where

disclosure of same would supply the "last link" in an existing chain of incriminating

evidence likely to lead to the client's indictment".

In re Grand Jury Proceedings (Pavlick), 680 F.2d 1026, 1027 (5th Cir. 1982);

In re Grand Jury Proceedings for Attorney Representing Criminal Defendant, Reyes-

Requena, 724 F. Supp. 458, 464 (S.D. Tex. 1989)

Rejected by U.S. v. Liebman, 742 F.2d 807, 810, n. 2 (3d Cir. 1984);

In re Shargel, 742 F.2d 61, 62-3 (2d Cir. 1984);

In re Witness Before Special March 1980 Grand Jury, 729 F.2d 489, 491-95 (7th Cir.

1984);

In re Grand Jury Investigation No. 83-2-35, 723 F.2d 447, 454 (6th Cir. 1983).

"LAST LINK" RESURRECTED AND EXHUMED

At least one Federal District Court has recently found that the amount of fees paid to

defense counsel were protected from disclosure by the attorney-client privilege, on the

ground that such information, based upon the limited fact situation presented by that case,

constituted Pavlick's "last link" of incriminating evidence. There the focus of the

investigation was upon the defendants' financial resources, and abundance of cash from

unexplained sources in a RICO investigation. In re Douglas Willams, 717 F. Supp. 1502

(S.D. Fla. 1989).

2. THE "LEGAL ADVICE" EXCEPTION:

The exception to required disclosure of a client's identity and fee arrangements applies only

where the disclosure of such information would implicate the client in the very matter for

which he sought advice.

In re Grand Jury Investigation, 723 F.2d 447, 452 (6th Cir. 1983);

U.S. v. Strahl, 590 F.2d 10, 12 (1st Cir. 1978);

In re Grand Jury (Harvey), 676 F.2d 1005, 1009, vacated on other grounds, 697 F.2d 112

(4th Cir. 1982) (en banc).

3. THE CONFIDENTIAL COMMUNICATION EXCEPTION:

Exception applies only where disclosure of client's identity and fee arrangements would

reveal "the substance of confidential professional communications" between attorney and

client.

In re Grand Jury Proceedings (Osterhoudt), 722 F.2d 591, 594 (9th Cir. 1983).

Some courts have combined or confused these theories.

See In re Grand Jury Proceedings (John Doe), Misc. No. XP (D.R.I., Jan. 7, 1985);

In re Grand Jury Investigation, 723 F.2d 447, 452 (6th Cir. 1983);

In re Grand Jury Subpoena Duces Tecum (Margen), 695 F.2d 363, 365 (9th Cir. 1982).

CLIENT WITH PENDING CASE

In one recent case the court held that calling an attorney before a grand jury to testify

regarding his fee arrangements with a client he represents in "cases pending for trial"

violates the client's Sixth Amendment right to counsel.

In re Grand Jury Matters, 593 F. Supp. 103, 107 (D.N.H.), affirmed, 751 F.2d 13, 17 (1st

Cir. 1984) (noting "the importance that the federal constitution places upon the right to

counsel in criminal prosecutions" and that "in these circumstances ...the timing of the

subpoenas unduly and unnecessarily burdens that right").

"The actions of the U.S. Attorney are without doubt harassing, show minuscule perception

of the untoward results not only to those who practice criminal law, but those in the general

practice of law.... The use of the phrase chilling effect upon the role of an attorney engaged

in criminal defense work by being served a subpoena in circumstances such as this is mild.

To permit it would have an arctic effect with the non-salutary purpose of freezing criminal

defense attorneys into inanimate ice flows, bereft of the succor of constitutional

safeguards." In re grand Jury Matters, 593 F. Supp. 103, 107 (D. N.H.), aff’d, 751 F.2d

13 (1st Cir. 1984).

See also In re Grand Jury Subpoena Duces Tecum Dated Jan. 2, 1985 (Payden),

767 F.2d 26 (2d Cir. 1985).

"The law is settled in this circuit and elsewhere that '[i]t is improper to "utilize a Grand

Jury for the sole or dominating purpose of preparing an already pending indictment for

trial,' United States v. Dardi, 330 F.2d 316, 336 (2d Cir.), cert. denied, 379 U.S. 845, 85

S.Ct. 40, 13 L.Ed.2d 50 (1964). See 8 J. MOORE, MOORE’S FEDERAL PRACTICE §

6.04(5) at 6-86 (1984).

But see In re Grand Jury Subpoena Served Upon John Doe, Esq. (Slotnick), 781

F.2d 238 (2d Cir. 1986).

"The Sixth Amendment protects Colombo's right to be free from unduly burdensome

interruption of his counsel's trial preparation and protects him from any unnecessary or

arbitrary disqualification of his counsel. Assessment of whether the subpoena is

unreasonable or burdensome can be determined under Rule 17(c). While involuntary

disqualification of counsel may prevent an accused from retaining counsel of his choice,

courts have the power and duty to disqualify counsel where the public interest in

maintaining the integrity of the judicial system outweighs the accused's constitutional right.

...And, as with the pre-indictment claim, the possibility of disqualification is not a basis

for declining to enforce the subpoena; it is an issue for the trial judge if disqualification

should arise." In re Grand Jury Subpoena Served Upon John Doe, Esq. (Slotnick), 781

F.2d 238 (2d Cir. 1986).

TIMING IS EVERYTHING

When a lawyer and his/her client are called before the same grand jury, the subpoena's

timing is key.

"In the instant case, the Government has subpoenaed a defense attorney during the

pendency of indictment proceedings. The subpoena here impinges upon the attorney-client

relationship and, by diverting attention from the preparation of the client's defense, severely

hinders the attorney's effectiveness in representing him. Accordingly, apart from the issue

of privilege, the Court would quash the subpoena given the timing of, and circumstances

surrounding, its issuance." In Re Grand Jury for Attorney, Reyes-Requena, 729 F. Supp.

458 (S.D. Tex. 1989), rev'd and remanded as moot.

However, the Fifth Circuit recognized that the "oppressive timing" of a subpoena may

require the district court to quash the subpoena." In Re Grand Jury Subpoena for Attorney,

Reyes-Requena, 913 F.2d 1118, 1122 (5th Cir. 1990).

DISCUSSIONS BETWEEN AN INDIVIDUAL AND "A LAWYER REPRESENTING

ANOTHER IN A MATTER OF COMMON INTEREST" ARE PRIVILEGED

Recognizing that the privilege rules promulgated by the Supreme Court "remain of

considerable utility as standards", the United States District Court for the Eastern District

of New York noted that the attorney-client privilege would attach to prevent disclosure of

communications by an individual "to a lawyer representing another in a matter of common

interest".

U.S. v. Mackey, 405 F. Supp. 854, 858 (E.D. N.Y. 1975).

However, disclosures to third parties who do not have a common interest with the client

waives the privilege.

Oak Industries v. Zenith Industries, 532 N.E.2d 298 (Ill. 1988).

"Sharing confidential information with a third party who had a 'common legal interest' does

not waive the attorney-client privilege. The key consideration is that the nature of the

interest be identical, not similar, and be legal, not solely commercial." Oak Industries v.

Zenith Industries, 532 N.E.2d 298 (Ill. 1988).

JOINT DEFENSE/REPRESENTATION

The "sharing of information between counsel for parties having common interest should

not destroy the work product privilege".

See In Re Auclair, 961 F.2d 65, 70 (5

Cir. 1992).

“It necessarily follows that when more than one person

seeks consultation with an attorney on a matter of common

interest, the parties and the attorney may reasonably presume

that the parties are seeking representation of a joint matter . . .

[as such] communication is protected by attorney-client

privilege . . . .” In Re Auclair, 961 F.2d at 70.

Duplan Corporation v. Deering Milliben, Inc., 397 F. Supp. 1146, 1172 (D.S.C. 1974);

Continental Oil Company v. U.S., 330 F.2d 347 (9th Cir. 1964);

Hunydee v. U.S., 355 F.2d 183, 185 (9th Cir. 1965);

Hyd Const. Co. v. Coehring Co., 455 F.2d 337 (5th Cir. 1972);

U.S. v. McPartlin, 595 F.2d 1321 (7th Cir.), cert. denied, 444 U.S. 833 (1979) (covering

communications with attorney for common interest party in joint effort);

In re Grand Jury Subpoena, 406 F. Supp. 381 (S.D.N.Y. 1975);

In re LTV Securities Litigation, 89 F.R.D. 595, 604 (N.D. Tex. 1981).

"An examination of the few cases dealing directly with the question of privilege based upon

the attorney-client relationship would seem to indicate that persons represented by different

attorneys but conducting a 'joint defense' may pool information without waiving this

privilege." Transmirra Products Corp. v. Monsanto Chemical Co., 26 F.R.D. 572, 576-77

(S.D.N.Y. 1960).

This privilege applies to all attorneys and all clients who share confidential information.

Wilson P. Abraham Copstruction Corp. v. Armco Steel Corp, 559 F.2d 250 (5th Cir. 1977).

Indeed, the main purpose for-the creation of the attorney-client privilege is to allow just

such communications to be made in the interest of establishing a legal defense".

Duplan Corporation v. Deering Milliben, Inc., 397 F. Supp. 1146, 1172 (D.S.C. 1974).

PRIVILEGE PROTECTS COMMUNICATIONS AT MEETING BETWEEN "PERSONS

SUBJECT TO POSSIBLE INDICTMENT" AND THEIR LAWYER

It is well recognized that the privilege protects communications "[w]here two or more

persons who are subject to possible indictment in connection with the same transactions

make confidential statements to their attorneys".

Hunydee v. U.S., 355 F.2d 183, 185 (9th Cir. 1965).

"How well could a joint defense proceed in the light of each co-defendant's knowledge that

any one of the others might trade resultant disclosures to third parties as the price of his

own exoneration...?" In re Grand Jury Subpoena, 406 F.Supp. 381 (S.D. N.Y. 1975).

And such "privilege belongs to each and all of the clients and should not be viewed to have

been waived without the consent of all of them". Chahoon v. Commonwealth, 62 Va.

1036, 142 (Va. 1871).

CRIME-FRAUD EXCEPTION

The attorney-client privilege has generally been held inapplicable where advice is sought

to assist, further, or induce a crime.

U.S. v. Berry, 627 F.2d 193 (9th Cir. 1980);

U.S. v. Aldridge, 484 F.2d 655 (7th Cir. 1973);

U.S. v. Freidman, 445 F.2d 1076 (9th Cir. 1971);

Garner v. Wolfinbarger, 430 F.2d 1093 (5th Cir. 1970).

But see BP Alaska Exploration, Inc. v. Superior Court, 245 Cal.Rptr. 682, 199 Cal.

App.3d 1240 (Cal.App. 5 Dist. 1988) (holding under California state law, crime fraud

exception to attorney-client privilege does not apply to documents containing attorney

work-product).

This exception has been held to render the attorney-client privilege inapplicable even

where the attorney is unaware of any ongoing criminal or fraudulent purpose on the part of

the client.

U.S. v. Hodge and Zwieg, 548 F.2d 1347 (9th Cir. 197);

In re Grand Jury Proceedings in the Matter of Fine, 641 F.2d 199 (5th Cir. 1981);

U.S. v. Pavlick, 680 F.2d 1026, 1028 (5th Cir. 1982) (en banc);

In re Grand Jury Proceedings (Damore), 689 F.2d 135 (11th Cir. 1982).

But see State v. Robinson, 537 So.2d 1128 (Fla. App. [2d Dist.] 1979) (stating the

very unlawful nature of the defendant's conduct gave rise to the conclusion that it must

have been undertaken in reliance on the confidential marital communication privilege).

The "crime-fraud" exception to the attorney-client privilege applies, exposing the client's

communications with his or her attorney, even though the "crime" or "fraud" is that of the

law firm, unrelated to the client.

In re Impounded Case (Law Firm), 879 F.2d 124 (3d Cir. 1989).

The Government bears the burden of demonstrating the existence of the crime or fraud and

that the communications were made with respect to, in furtherance of, or to induce the

illegal acts involved.

Clark v. U.S., 289 U.S. 1, 15 (1933);

Matter of Walsh, 623 F.2d 489 (7th Cir. 1980);

In re Grand Jury Proceedings in the Matter of Fine, 641 F.2d 199 (5th Cir. 1981);

U.S. v. Friedman, 445 F.2d 1076, 1086 (9th Cir. 1971).

The standard has been held to be a "prima facie showing that [the attorney] was retained in

order to promote intended or continuing criminal or fraudulent activity".

In re Grand Jury Proceedings (Pavlick), 680 F.2d 1026 (5th Cir. 1982) (en banc);

In re Grand Jury Proceedings (Damore), 689 F.2d 1351, 1352 (11

Cir. 1982) (stating

"[t]his Court is not bound by Pavlick . . . but we approve its reasoning").

At the very least, the Government must be able to demonstrate a connection between the

attorney's services sought by this client and the criminal enterprise.

In re Grand Jury Proceedings (Fine), 641 F.2d 199, 204 (5th Cir. 1981).

A strong suspicious appearance that the attorney's services are somehow connected with

the crime or fraud is insufficient to destroy the attorney-client privilege.

In re Grand Jury Proceedings (Fine), 641 F.2d 199 (5th Cir. 1981);

In re Grand Jury Proceedings (Lawson), 600 F.2d 215, 218-19 (9th Cir. 1979).

"As a matter of law, these ...facts alone are inadequate to serve as the basis for a prima

facie showing that [advice was sought] to further a criminal enterprise. These facts may

support a strong suspicion, which is often enough for police and prosecutors, but it is not

enough for courts." In re Grand Jury Proceedings, 600 F.2d 215, 218-9 (9th Cir. 1979).

In re Grand Jury Proceedings (Fine), 641 F.2d 199, 204 (5th Cir. 1981).

However, the Fifth Circuit, at least intimates such "conspiratorial agreement" by the clients

to prospectively provided counsel may be inferred from "custom or a prior course of

conduct toward other apprehendees".

In re Grand Jury Proceedings (Pavlick), 680 F.2d 1026 (5th Cir. 1981).

" 'where the government takes a prima facie showing that an agreement to furnish legal

assistance was part of a conspiracy, the crime or fraud exception applies to deny a privilege

to the identity of him who foots the bill and this even though he be a client of the attorney

and the attorney unaware of the improper arrangement. Such an agreement, of course, need

only be an effective one, need not be express, and might in a proper case be found to arise

even from a custom or a prior course of conduct toward other apprehendees." In re Grand

Jury Proceedings (Pavlick), 680 F.2d at 1029.

One circuit has even held that carrying the name and address of a criminal defense attorney

when arrested is circumstantial evidence of consciousness of guilt.

U.S. v. Tille, 729 F.2d 615 (9th Cir. 1984).

IN CAMERA EXAMINATION

MAY "PRIVILEGED COMMUNICATION" ITSELF BE CONSIDERED IN

DETERMINING ITS OWN ADMISSIBILITY?

The United States Supreme Court recently addressed the issue of whether a court may

consider the privileged material itself in determining whether it is admissibility in U.S. v.

Zolin, 491 U.S. 554, 109 S. Ct. 2619, 105 L.Ed.2d 469 (1989). The Court held that an "in

camera review may be used to determine whether allegedly privileged attorney-client

communications fall within the crime-fraud exception ...however ...before a district court

may engage in “in camera” review at the request of the party opposing the privilege, that

party must present evidence sufficient to support a reasonable belief that established

showing ...may be met by using any relevant evidence, lawfully obtained, privileged."

Zolin, 491 U.S. 554, 109 S.Ct. 2619, 105 L.Ed. 2d 469 (1989) (emphasis supplied).

See In re Grand Jury Proceedings, 867 F.2d 539 (9th Cir. 1989) (holding an in camera

inspection available for attorney-client privilege and work product privilege; target of

grand jury subpoena need not be alerted to inspection).

PRELIMINARY REQUIREMENT OF RELEVANCY

While some circuits require a preliminary showing of the relevancy of any testimony

regarding such matters,

In re Grand Jury Proceedings (Schofield, II), 507 F.2d 963 (3d Cir.), cert. denied, 421

U.S. 1015 (1975) (stating subpoenaed items are required to be (1) relevant to an

investigation, (2) property within the grand jury's jurisdiction, and (3) not sought primarily

for another purpose);

In re Grand Jury Subpoena (Legal Services Center), 615 F. Supp. 958, 963 (D.C. Mass.

1985).

others have not required such a showing as a prerequisite to compelling counsel's testimony.

U.S. v. Guerrero, 567 F.2d 281 (5th Cir. 1978);

In re Grand Jury Proceedings, 694 F.2d 1258 (11th Cir. 1982);

In re Grand Jury Subpoena (Battle), 748 F.2d 327, 330 (6th Cir. 1984).

PRELIMINARY REQUIREMENT OF NEED

In addition to a "relevancy" requirement the Fourth Circuit has required a showing that

there exists "an important need for the information sought".

In re Special Grand Jury (Harvey), 676 F.2d 1005, 1011 (4

Cir. 1982).

The prosecution must address two inquiries when making a showing of need:

(1) Is the information sought necessary or important to the grand jury investigation?

and

(2) Is the subpoenaed attorney the best or only source for the information? Supra, In re

Special Grand Jury (Harvey), 676 F.2d at 1011 n.6.

See also In re Grand Jury Subpoena (Legal Services Center), 615 F. Supp. 958, 963

(D.C. Mass. 1985);

In the Matter of Joseph Nackson, Esq., 534 A.2d 65 (N.J.App. 1987) (Stern, J.) (finding

that the attorney-client privilege and coinciding need for confidentiality presented issues

of Constitutional dimensions directly involving the right to effective assistance of counsel).

"[W]hen there are less intrusive means for obtaining information necessary to return an

indictment against the client of an attorney, those means must be pursued to avoid any

infringement on the cherished Sixth Amendment and State Constitutional right to

counsel . . . ." Id.

But see In re Grand Jury Subpoena Served Upon John Doe, Esq., 781 F.2d 238 (en

banc) overturning a panel decision, In re Grand Jury Proceedings (Doe), 759 F.2d 968

(2d Cir. 1985) (noting panel had imposed requirements of a particularized need and the

information's unavailability from a non-attorney source).

ATTORNEY SELF-DEFENSE EXCEPTION

This exception "includes the attorney's right to disclose confidential attorney-client

communications where and to the extent necessary in defense of a civil charge of

wrongdoing asserted by a third party, i.e. not the client". In re National Mortgage Equity

Corp. Mortgage Pool Certificates Securities Litigation, 857 F.2d 1238 (9

Cir. 1988)

(stating law firm and client charged with fraud arising out of client's business activities).

GRANT OF IMMUNITY TO CLIENT DOES NOT DESTROY ATTORNEY-CLIENT

PRIVILEGE

Since the policies underlying the attorney-client privilege go beyond merely the client's

Fifth Amendment privilege against self-incrimination [i.e. to encourage frank discussions

between client and counsel], the privilege should not be destroyed by any grant of

immunity to the client.

U.S. v. Pappadio, 346 F.2d 5 (2d Cir. 1965), vacated on other grounds by Shillitani v.

United States, 384 U.S. 364, 365 (1966).

But see In re Witness Before the Grand Jury, 631 F. Supp. 32 (E.D. Wis. 1985)

(stating privilege not a basis for client's refusal to testify in grand jury investigation of his

attorney).

Further, for the same reason that a grand jury who hears a witness' immunized testimony

should not be able to indict; a grand jury that hears incompetent testimony may not itself

violate a valid privilege.

U.S. v. Garrett, 797 F.2d 656 (8th Cir. 1986);

U.S. v. Beery, 678 F.2d 856, 859-60 (10th Cir. 1982), cert. denied, 471 U.S. 1066, 105

S.Ct. 2142 (1985);

U.S. v. Helstoski, 635 F.2d 200, 203-05 (3d Cir. 1980).

STATE CHALLENGE OF ATTORNEY'S GRAND JURY SUBPOENA

In Texas, an attorney is incompetent to testify as to any fact which came to his knowledge

by reason of the attorney-client relationship. However, the attorney has been required by

one federal court to assert the attorney-client privilege on a document by document basis.

In re Grand Jury Subpoena, 831 F.2d 225 (11th Cir. 1987).

TEX. CODE CRIM. PRO. Art. 38.10 provides in part:

"All Other Competent Witness.

All other persons ...whatever may be the relationship between the defendant and witness,

are competent to testify, except that an attorney at law shall not disclose a communication

made to him by his client during the existence of that relationship, nor disclose any other

fact which came to the knowledge of such attorney by reason of such relationship."

(emphasis added).

"A client has a privilege to prevent the lawyer or the lawyer's representative from disclosing

any other fact which came to the knowledge of the lawyer or the lawyer's representative by

reason of the attorney client relationship."

Courts in Texas have applied this principle, holding that knowledge of an attorney as to the

location of a Deed of Trust relevant to a criminal trial was privileged in a criminal trial.

Downing v. State, 136 SW 471 (Tex.Cr.App. 1911).

Texas Courts have held that the payment and amount of attorney's fees is within the

proscription prohibiting such testimony.

Holden v. State, 71 SW 600 (Tex.Cr.App. 1903).

"Appellant ...excepted to the action of the court, requiring M.C. Cullen, an attorney at law,

and who had previously represented defendant in this case as her counsel and attorney, to

testify that when defendant employed him she gave him $10 as a fee. She paid him two $5

bills. This was objected to on the ground that it was a privileged communication between

attorney and client. The court overruled this objection, and witness was compelled to

testify.... This testimony should not have been admitted. There was no dispute as to the

relation of attorney and client, and the evidence introduced was in fact transpiring by virtue

of that employment.... And it has been expressly held that it does not matter whether the

information has been derived from a client's words, actions, or personal appearance."

Holden v. State, 71 SW 600, 601 (Tex.Cr.App. 1903).

This rule, has been codified in the Goldstein privilege at Art 38.38 of the Texas Code of

Criminal Procedure.

Evidence that a person has contacted or retained an attorney is not

admissible on the issue of whether the person committed a criminal offense

in a criminal case, neither the judge nor the attorney representing the state may comment

o n the fact that the defendant has contacted an attorney in the case

Cf. Braesfield v. State, 600 S.W.2d 288, 295 (Tex.Cr.App. 1980) (holding that there the

attorney had given no incriminating testimony, and that testimony relating to the "fact" that

the witness' client was in a particular city was "harmless" since several others had testified

to same).

CODE OF PROFESSIONAL RESPONSIBILITY

In Massachusetts the local rule of professional conduct was amended in 1997 to impose a

requirement on the prosecutor seeking to subpoena an attorney for information regarding

a past or present client. The local rule (3.8(f)) stated that a prosecutor could only seek out

the information concerning an attorney’s client if the information was essential and could

not be obtained anywhere else, and court approval was obtained. See Stern v. District

Court for District of Massachusetts, 214. F.3d 4, 8 (1

Cir. 2000). However, the 1

Circuit in Stern held that rule 3.8(f) altered the grand jury’s historic role, by placing it under

overly intrusive court supervision, curbing its broad investigative powers, reversing the

presumption of validity given to grand jury subpoenas, undermining secrecy of the

proceedings and creating procedural delays. Stern v. District Court for District of

Massachusetts, 214 F.3d 4, 16 (1

Cir. 2000).

See generally US Court upholds ruling on lawyers: subpoenas seeking information on

clients need judicial approval, BOSTON GLOBE, Nov. 3, 1987, at 26.

DISTINCT PRIVILEGE UNDER "WORK-PRODUCT DOCTRINE"

The "work-product doctrine" precludes compelled disclosure of notes, work product,

witness statements and interviews conducted by an attorney preparing for trial, or the

adversary proceeding. This is the rare circumstance of the presidential pardon process, a

district court held that the attorney’s work papers used to prepare a pardon application were

not protected by the work product doctrine. The court reasoned that in such circumstances

the lawyers were acting as lobbyists who had no adversary and thus the work product did

not apply. The lawyers were not acting as legal counsel or providing legal advice in the

traditional sense. In Re Grand Jury Subpoena date March 9, 2002, M-11-189 (D.C.), 179

F.Supp.2d 270 ( S.D. N.Y. 2001)

In Hickman v. Taylor, the Supreme Court recognized that for an attorney to faithfully

perform his duties in protecting the rights and interests of his client it is essential that the

lawyer work with a degree of privacy, free from unnecessary intrusion by opposing parties

and their counsel. Hickman v. Taylor, 329 U.S. 495, 507 (1947).

See also F.T.C. v. Grolier, Inc., 103 S. Ct. 2209 (1983).

An attorney must be entitled to adequately prepare his case by interviewing relevant

witness.

Hickman v. Taylor, 329 U.S. 495, 510, 511 (1947);

Kent Corp. v. N.L.R.B., 530 F.2d 612 (5th Cir. 1976);

U.S. v. Nobles, 422 U.S. 225 (1975);

Upjohn v. U.S., 101 S. Ct. 677 (1981).

WORK PRODUCT DOCTRINE PROTECTS ADVERSARY PROCESS ITSELF

The doctrine focuses upon the integrity of the adversary process itself, safeguarding the

vigorous representation of a client's cause from the debilitating effects by counsel.

U.S. v. American Tel. & Tel. Co., 642 F.2d 1285 (D.C. Cir. 1980);

Hercules v. Exxon Corp., 434 F. Supp. 136 (D. Del. 1977).

WORK-PRODUCT DOCTRINE BROADER THAN ATTORNEY-CLIENT

PRIVILEGE

"Work-product doctrine" is broader than the "attorney-client privilege" in that the

communication may be immune from disclosure as work product even though it was not

made to the attorney by his or her client.

Diversified Industries, Inc. v. Meredith, 572 F.2d 596 (8th Cir. 1977);

In re Grand Jury Proceedings, 473 F.2d 840 (8th Cir. 1973) (stating even if not

communicated in confidence).

See also Notes of Advisory Committee to 1970 Amendments to FED. R. CRIM. PRO.

Rule 26.

DOCTRINE PROTECTS ATTORNEY NOT CLIENT

Unlike the attorney-client privilege

, the "work-product doctrine" is designed to protect the

attorney, not the client.

In re Grand Jury Proceedings, 601 F.2d 162 (5th Cir. 1979);

First Wisc. Mortgage v. First Wisc. Corp., 86 F.R.D. 160 (E.D. Wis. 1980).

DOCTRINE APPLICABLE TO CRIMINAL PROCEEDINGS

As one commentator has noted, "[i]n criminal litigation, the role of the doctrine in insuring

the proper functioning of the judicial system is even more vital than in the civil area",

U.S. v. Nobles, 422 U.S. 225, 238 (1975);

In re Special Sept. 1978 Grand Jury, 640 F.2d 49 (7th Cir. 1980), reflecting both Fifth

and Sixth Amendment concerns;

Matter of Rosenblum, 401 F. Supp. 807 (S.D.N.Y. 1975).

DOCTRINE APPLIES TO TESTIMONY RESPECTING A WITNESS' ORAL

STATEMENTS TO AN ATTORNEY PREPARING HIS CASE FOR TRIAL

In addition to the documents and “tangible things" specifically set out in FED. R. CRIM.

PRO. Rule 26 the "work-product doctrine" is applicable to protect against disclosure of oral

statement made by a witness to an attorney in anticipation of litigation.

Hickman v. Taylor, 329 U.S 495, 512 (1947);

Phoenix Nat. Corp. v. Bowater United King Paper, 98 F.R.D. 669 (N.D. Ga. 1980);

Ford v. Phillips Electrical Instruments Co., 82 F.R.D. 359 (E.D. Pa. 1979);

In re Anthracite Coal Antitrust Litigation, 81 F.R.D. 516, 522 (M.D. Pa. 1979);

Upjohn v. U.S., 101 S. Ct. 677 (1981).

"But as to oral statements made by witnesses [to an attorney] ...we do not believe that any

The "attorney-client privilege" belongs to the client, not his attorney. US v. Juarez, 573 F.2d

267 (5th Cir. 1978); Hett v. US, 353 F.2d 761 (9th Cir. 1965); US v. Hankins, 581 F.2d 431 (5th

Cir. 1978).

showing of necessity can be made under the circumstances of this case so as to justify

production.” Hickman v. Taylor, 329 U.S. 495, 512-13 (1947) (noting that to require an

attorney to testify or respect what witnesses have told him would cause the standards of

the profession to suffer).

In fact, the Jenks Act [18 U.S.C. § 3500] as well as FED. R. CRIM. PRO. Rule 26 which

provide for disclosure of a witness' written or recorded statement, expressly excludes

summarized notes of a witness interview.

In re Grand Jury Proceedings, 473 F.2d 840, 848 (8th Cir. 1973);

In re Grand Jury Investigation, 412 F. Supp. 943, 949 (E.D. Pa. 1976);

In re Grand Jury Subpoena, 599 F.2d 504, 511-512 (2d Cir. 1979).

CRIME-FRAUD EXCEPTION

To apply, the party raising the exception must show prima facie that a crime or fraud exists,

and that there is a relationship between the work product sought and the alleged crime or

fraud. Pandick, Inc. v. Rooney, F.2d (Ill. 1988).

CLIENT’S LOCATION MAY BE A PRIVILEGED COMMUNICATION

With regard to whether the client’s location is a communication covered by attorney-client

privilege, the answer appears to be the proverbial “that depends.” For example, in Matter

of Grand Jury Subpoenas Served Upon Field, 408 F. Supp. 1169 (S.D.N.Y. 1976), the

Court noted that:

“In this Court’s view, a determination of whether the client’s

whereabouts must be disclosed will depend on an analysis

of the facts of the case and the nature of the communication.”

Matter of Grand Jury Subpoenas Served Upon Field, 408 F. Supp. 1169, 1172-73 (S.D.

N.Y. 1976).

The Field court went on to hold that there the:

“ . . . attorneys learned of [the client’s] whereabouts precisely

because he sought their advice with respect to that matter. The

Court concludes that on the facts of the case, the residence and

whereabouts of [the client] were communicated to these attorneys

in confidence, as an incident to the obtaining of legal advice and

as part of an attorney-client relationship. Therefore, this is a

Communication within the scope of the privilege.” Matter of Grand Jury

Subpoenas Served Upon Field, 408 F. Supp. 1169, 1172-73 (S.D. N.Y. 1976).

Again, in In Re Stolar, the Court held that:

“During the course of that conversation [with his lawyer],

Shepard gave the attorney his telephone number. As part of the

attorney-client discussions which thereafter took place. Sheppard

also disclosed his home address . . . . The Court is of the

opinion that the information sought was communicated to the

attorney confidentially and solely for the purpose of receiving

legal advice. Under the circumstances, Shepard had a legitimate

basis to expect that such information disclosed to his attorney

would not be revealed.” In Re Stolar, 397 F. Supp. 520, 524

(S.D. N.Y. 1975).

But see Sullivan v. Carrigan, 10 F.R.Serv.3d 431 (E.D. Pa. 1988) (holding that a

client’s whereabouts did not “go to the heart of the legal advice sought”).

FIFTH AMENDMENT PRIVILEGE AGAINST COMPELLED PRODUCTION OF

"PRIVATE PAPERS"

While the content of voluntarily prepared business records is not privileged, U.S. v. Doe,

465 U.S. 605 (1984); Fisher v. U.S., 425 U.S. 391 (1976), the privilege may apply to the

act of producing them.

"A government subpoena compels the holder of the document to perform an act that may

have testimonial aspects and an incriminating effect." U.S. v. Doe, 465 U.S. 605, 612

(1984).

In re Grand Jury Subpoena Duces Tecum, 754 F.2d 918 (11th Cir. 1985).

"[tlhe Fifth Amendment .--does not alone preclude production by an attorney of documents

concerning his client. See Fisher, 425 U.S. at 396-97; Couch v. United States, 409 U.S.

322, 328 (1973); however, ...if under the circumstances the attorney client privilege is

also implicated, the Fifth Amendment can operate to provide a basis for quashing a

subpoena of certain types of materials . . .

'when the client himself would be privileged from production of the document, either as a

party to common law . . . or as exempt from self-incrimination . . . .'"

If a subpoena compels production by a collective entity, one circuit requires that it appoint

a custodian to produce the documents.

In re Two Grand Jury Subpoenas Duces Tecum, 769 F.2d (2d Cir. 1985);

In re Grand Jury Subpoenas Issued to 13 Corporations, 775 F.2d 43 (2d Cir. 1985).

But, the sole practitioner need not do so.

(Under Seal) v. U.S., No. 86-883 (E.D. N.Y. 1986).

However, compelling an accused to sign a consent form has been held not to fall within

the act of production doctrine.

U.S. v. Ghidoni, 732 F.2d 814, 816 (11th Cir. 1984);

In re Grand Jury Proceedings (Thier), 767 F.2d 1133, 1134 (5th Cir. 1985).

FOREIGN LAW

Even where foreign law provides "a broader privilege for the attorney-client relationship

than is found in American Law", and even though foreign counsel may be subjected to

sanctions for violation of that privilege, same does not prevent enforcement of a federal

grand jury subpoena. In re Grand Jury Proceedings (Bowl), 694 F.2d 1256 (11th Cir.

1982).

See also In re Bank of Nova Scotia, 186 F.2d 817 (11th Cir. 1984).

And an immunized witness may only refuse to answer on the grounds that the answer might

incriminate him or her under foreign law where a foreign prosecution is pending or

imminent.

In re Grand Jury Proceedings (Chevrier), 748 F.2d 100 (2d Cir. 1984).

MARITAL PRIVILEGES

[ADVERSE SPOUSAL TESTIMONY VS. MARITAL COMMUNICATIONS]

The so-called marital or spousal privilege could be said to encompass two distinct

protections: the "privilege against adverse spousal testimony" which is separate and apart

from "...the independent rule protecting confidential marital communications".

Trammel v. U.S., 445 U.S. 40 (1980);

In re Grand Jury Proceedings (Hermann), 664 F.2d 423 (5th Cir. 1981);

U.S. v. Burton, 631 F.2d 280, 281-82 (4th Cir. 1980);

U.S. v. Cameron, 556 F.2d 752, 755 (5th Cir. 1977);

U.S. v. Mendoza, 574 F.2d 1373, 1379 (5th Cir. 1979);

U.S. v. Entreben, 624 F.2d 597, 598 (5th Cir.), reh. denied, 629 F.2d 1350 (1980).

"This Court previously has held "that conversations between husband and wife about

crimes in which they are jointly participating when the conversations occur are not marital

communications for the purpose of the marital privilege, and thus do not fall within the

privilege's protection of confidential marital communications." U.S. v. Entreben, 624 F.2d

597, 598 (5th Cir. 1980).

ADVERSE TESTIMONIAL PRIVILEGE VESTS IN TESTIFYING SPOUSE

The privilege against adverse spousal testimony belongs to the witness spouse. Trammel

v. U.S., 445 U.S. 40, 53 (1980).

"We conclude that the existing rule should be modified so that the witness spouse alone

has a privilege to refuse to testify adversely; the witness may be neither compelled to testify

nor foreclosed from testifying."

COVERS ACTS AND COMMUNICATIONS

The privilege against adverse spousal testimony ". . .is invoked, not to exclude private

marital communications, but rather to exclude evidence of criminal acts and of

communications". Trammel v. U.S., 445 U.S. 40, 51 (1980). Unlike the attorney-client,

physician-patient, or priest-penitent privileges, the privilege against adverse spousal

testimony "is not limited to confidential communications". Trammel v. U.S., 445 U.S. at

51.

See State v. Robinson, 376 S.E.2d 606 (W.Va. 1988) (noting that defendant's actions,

allegedly growing marijuana in wife's presence, were subject to marital privilege).

NEED NOT BE CONFIDENTIAL

While the "confidential marital communications privilege" protects only "communications

between the spouses" rather than "objective facts,"

U.S. v. Cameron, 556 F.2d 752, 756 (5th Cir. 1977);

Percira v. U.S., 347 U.S. 1 (1954).

. . . the "privilege against adverse spousal testimony" covers both "criminal acts and of

communications made in the presence of third persons". Trammel v. U.S., 445 U.S. at 51.

NO PRIVILEGE IF MARRIAGE DEFUNCT

A defendant cannot use the privilege to keep an ex-spouse or an estranged spouse from

testifying.

U.S. v. Roberson, 859 F.2d 1376 (9th Cir. 1988) (holding that privilege is inapplicable to

communication that occurred two months after defendant had filed for divorce and moved

out).

CRIMINAL ENTERPRISE EXCEPTION APPLIES ONLY TO "CONFIDENTIAL

COMMUNICATIONS PRIVILEGE" NOT "ADVERSE TESTIMONIAL PRIVILEGE"

The so-called "criminal enterprise exception", which excludes from protection

"conversations between husband and wife about crimes in which they are jointly

participating when the conversations occurs", applies only to the privilege's "protection of

confidential marital communications". U.S. v. Mendoza, 574 F.2d 1373, 1381 (5th Cir.

1979); U.S. v. Entreben,, 624 F.2d 597, 598 (5th Cir.), reh. denied, 629 F.2d 1350 (1980).

Thus, contrary to the rule with respect to the "confidential marital communications

privilege", even where "the spouses have been partners in crime" and the witness spouse

"was allegedly involved in the criminal acts of her husband", the "privilege against adverse

spousal testimony" is not abrogated and same constitutes "no exception to the privilege".

Appeal of Malfitano, 633 F.2d 276, 277-80 (3d Cir. 1980) (noting well-reasoned

discussion).

TESTIMONY NEED NOT BE TECHNICALLY INCRIMINATING TO BE

"ADVERSE"

In order for the witness to invoke the "adverse spousal testimony" privilege the inquiry

need only indirectly inculpate the non-testifying spouse.

In re Grand Jury (Malfitano), 633 F.2d 276, 180 (3d Cir. 1980);

U.S. v. Armstrong, 476 F.2d 313, 315-16 (5th Cir. 1973);

In re Grand Jury Matter, 673 F.2d 688 (3d Cir. 1982).

CRUEL TRILEMMA

As one court noted:

"A witness before a grand jury should not be compelled to choose among perjury, contempt,

or disloyalty to a spouse". In re Grand Jury Investigation, 603 F.2d 786, 789 (9th Cir.

1979).

ESTABLISHING PRIVILEGE BY IN CAMERA PROFFER

The appropriate procedure for establishing a privilege may be in camera, ex parte, proffer

to the court outside the presence of Counsel for the Government, in order that one not be

required to waive his or her privilege in their effort to assert same.

U.S. v. Kampiles, 609 F.2d 1233, 1248 (7th Cir. 1979);

U.S. v. Brown, 539 F.2d 467, 470 (5th Cir. 1976);

U.S. v. Bocra, 623 F.2d 281, 285 (3d Cir. 1980);

In Re Investigation (Lynchburg), 563 F.2d 652, 654 (1977).

"In response to the Government's Motion to disqualify the two attorneys [for conflict of

interest], the court examined five of the witnesses . . . in camera and ex parte, at

Appellant's [the criminal defendant's] request. It sealed the record . . . also at appellant's

request." Id.

The Supreme Court has indicated that it is the "duty of the District Court to treat ...material

as presumptively privileged upon receiving a claim of privilege" and then to order "an in

camera examination" of that material in order to ascertain the validity of the claim and

provide for a meaningful appellate review:

"Upon receiving a claim of privilege ...it became the further duty of the District Court to

treat the subpoenaed material as presumptively privileged and to require the Special

Prosecutor to demonstrate that the prejudicial material was essential to the justice of the

[pending criminal] case ...here the District Court treated the material as presumptively

privileged, proceeded to find that the Special Prosecutor had made a sufficient showing to

rebut the presumption, and ordered an in-camera examination of the subpoenaed material."

(Emphasis supplied) U.S. v. Nixon, at 713-14.

FAMILY PRIVILEGE

Case law recognizing a parent-child privilege:

In re Grand Jury Proceedings (Greenberg), 11 Fed.R.Ev.Serv. 579 (D.C. Conn. 1982)

(noting mother's refusal to disclose confidential communications with daughter);

People v. Fitzgerald, 422 N.Y.2d 309, 313 (1979);

Application of A&M, 403 N.Y.2d 375 (1978).

"The parent-child privilege did not develop because as a practical matter it was little needed.

The catalyst for the aggressive lawmaking of Agosto was a new law enforcement tactic

implemented by federal prosecutors and investigators in Nevada . . . The problem then,

was to substantiate legally the existence of a privilege for which there has never been

explicit authority. Yet, the very absence of such explicit authority appears to be testimony

to the pervasiveness and depth of our society's conviction that the parent-child bond should

be free from state intrusion." Kandoian, The Parent-Child Privilege and the Parent-Child

Crime: Observations on State v. DeLong and In re Agosto, 36 MAINE L. REV. 59, 83

(1984).

Cases refusing to recognize a parent-child privilege:

Recent attention has been focused on the lack of a parent-child privilege which the

specter of Monica Lewinski’s mother being called to testify before the grand jury about

private conversations her daughter had with her concerning intimate relations with the

President of the United States. The D.C. district court declined to recognize a parent child

privilege and compelled the testimony. This unseemly conduct by the independent counsel

has lead to grass roots efforts to establish the parent child privilege. David Savage, Legacy

of a Scandal, Presidency and the People: Impeachment case puts in doubt. L.A.

Times, Feb, 13, 1999; Harvey Silvergate, Zippergate Update: Monica’s Reading List.

The Boston Pheonix, April 3, 1998; Investigating the President: The Newsletter with

Jim Lehrer Transcript, Feb. 10, 1998.

In Re Grand Jury, 103 F.3d 1140, 1146-47 (3d Cir. 1997) (denying parent-child privilege

stating that no state within the Third Circuit has recognized such a privilege).

Port v. Heard, 764 F.2d 423 (5th Cir. 1985);

In re Kinoy, 326 F. Supp. 400 (1970);

U.S. v. Penn, 647 F.2d 876 (9th Cir. 1980) (noting 5-4 decision, the court narrowly rejected

a derivative claim of parent-child privilege);

In re Grand Jury Proceedings (Starr), 647 F.2d 511 (5th Cir. 1981);

United States ex rel. Riley v. Franzen, 653 F.2d 1153 (7th Cir. 1981) (dicta);

U.S. v. Jones, 683 F.2d 817 (4th Cir. 1982) (rejecting privilege on grounds there was no

showing that the testimony would be "adverse" to the parent);

In re Matthews, 714 F.2d 223 (2d Cir. 1983) (holding no "in law" privilege).

PSYCHOTHERAPIST-PATIENT PRIVILEGE

The New Jersey District Court has recognized a psychotherapist patient privilege

protecting confidential communications of psychotherapy patients in federal grand jury

investigations. In re Grand Jury Subpoena, 710 F. Supp. 99 (D.N.J. 1989) (following a

Sixth Circuit decision, disagreeing with the Eleventh Circuit)

RIGHT TO COUNSEL

Although it is well established that a grand jury witness has no right to the "presence" of

counsel before the grand jury. In re Groban, 352 U.S. 330 (1952), some confusion exists

as to whether a grand jury witness has a right to confer with counsel sitting outside the

grand jury room after each question or series of questions.

Many courts are of the opinion that "counsel may ...sit outside of the grand jury room; and,

at any and all times during questioning a witness may leave the room to consult with his

attorney.

In re Taylor, 567 F.2d 1183, 1186 n.1 (2d Cir. 1977);

U.S. v. Mandujano, 425 U.S. 564, 581, 605-07 (1976);

U.S. v. Capaldo, 482 F.2d 821 (2d Cir. 1968), cert. denied, 394 U.S. 989 (1969);

In re Tierney, 465 F.2d 806, 810-11 (5th Cir. 1972) (indicating that while the court has

"...the power to prevent a breakdown in the grand jury proceeding by frequent departures

from the grand jury room for frivolous reasons and with intent to frustrate the proceedings,

the witness does have a right to consult with counsel, suggesting "government counsel

could facilitate the proceedings by making a set of questions available at one time to the

witness so that they might be discussed as a group with counsel").

Indeed, even the Supreme Court noted, albeit in dicta, that informing a grand jury witness

"he could have the assistance of counsel, but that counsel could not be inside the grand jury

room ...[is] plainly a correct recital of the law". U.S. v. Mandujano, 425 U.S. 564, 881

(1979).

See also Commonwealth v. McClosley, 277 A.2d 764, cert. denied, 404 U.S. 1000.

However, at least one court has suggested that a grand jury witness' right to consult with

counsel may only require that the witness be provided with an opportunity to consult with

counsel prior to testifying; and that even that limited right to counsel is "undercut" and

"minimal" where the grand jury witness has been granted immunity.

See In re Lowry, 713 F.2d 616 (11th Cir. 1983).

"Even had Lowry not been able to consult after he heard the questions it is unlikely that

any right he had to counsel would have been violated here. Lowry and Jenking were fully

aware of the subject of the grand jury's probe and could easily have predicted and prepared

for its inquiries in advance". In re Lowry, 713 F.2d 616 (11th Cir. 1983).

"[Moreover], [w]here, as here, a grand jury witness is made immune from prosecution

based on his testimony, the rationale for right to counsel is undercut, at best it appears that

right becomes minimal at best."

See also U.S. ex rel Buonoraba v. Commissioner, 316 F. Supp. 556 (S.D.N.Y. 1970).

The Eleventh Circuit's opinion notwithstanding, a grand jury witness may need to consult

with a lawyer concerning various other legal rights and privileges which are often highly

technical. For example, a witness would need the advice of counsel to understand the

prohibition against use or disclosures of evidence obtained as a result of electronic

surveillance,

Gelbard v. U.S., 408 U.S. 41 (1972) (noting violations of First Amendment freedoms);

Bursey v. U.S., 466 F.2d 1059 (9th Cir. 1972) (noting unlawful search or seizure);

U.S. v. Calandra, 414 U.S. 338 (1974) (noting attorney-client privilege);

Schwimmer v. U.S., 232 F.2d 855 (8th Cir. 1956) (noting marital privilege);

Blau v. U.S., 340 U.S. 332 (1951);

and questions requiring a close analysis so as to avoid the very technical offense of perjury,

Bronston v. U.S., 409 U.S. 353 (1973).

The point is, the need for consultation with counsel is evident even after a witness is given

immunity.

Nevertheless, the Courts seem to be increasingly more sensitive to the interruption created

by a grand jury witness' repeated entry and exit from the grand jury room which prosecutors

often claim is very disruptive of that body's investigatory function. Both the Fifth and

Eleventh Circuit Courts of Appeals have expressed their concern for the same.

In re Tierney, 465 F.2d 806, 810 (5th Cir. 1972) (stating that the court has "the power to

prevent a breakdown in the grand jury proceedings by frequent departures from the grand

jury room for frivolous reasons and with intent to frustrate the proceedings").

In re Lowry, 713 F.2d 616, 617 (11th Cir. 1983) (stating, "...Lowry requested to recess to

consult with his lawyer, the grand jury forewoman complained about the constant

interruptions these consultations were creating...").

Defense counsel, on the other hand, should insist on the witness' right to consultation.

DEFENDANT'S GRAND JURY TESTIMONY

Any "recorded testimony of the defendant before a grand jury which relates to the offense

charged" is discoverable under Rule 16(a)(1)(A).

a. Secrecy.

Under FED. R. CRIM. PRO. Rule 6(e), the policy of grand jury secrecy does not apply to

any witness and therefore there is no impediment to disclosure of the defendant's own

testimony. Dennis v. United States, 384 U.S. 855, 86 S.Ct. 1840, 16 L.2d 953 (1966).

See also Butterworth v. Smith, 110 S.Ct 1376, 108 L.Ed.2d 572, 110 S.Ct. 1376 (1990)

(stating that any proscription of post investigation disclosure by a witness of his own

testimony is violative of the First Amendment).

b. Relevancy.

Many courts do not even require a showing of need or relevance in interpreting this rule.

See, e.g., United States v. United Concrete Pipe Corp., 41 F.R.D. 538 (N.D. Tex. 1966);

In re Sealed Motion, 880 F.2d 1367 (D.C. Cir. 1989) (holding grand jury witness has right

to transcript of his or her own grand jury testimony without any showing of "particularized

need", noting that even if such a showing were required, providing a witness a transcript

of his or her own testimony would provide that witness with some protection against future

perjury charges).

c. Recordation.

Recordation of all grand jury proceedings including statements made by prosecution is now

required by FED. R. CRIM. PRO. Rule 6(e)(1).

d. Corporate Officers:

Rule 16(a)(1)(A) also adopts a broad interpretation of the discovery of grand jury testimony

of corporate officers or employees where the corporation is a defendant. However, it is

interesting to note that this is one of the only provisions of the Rule which requires a motion

directly to the court, a point not discussed in the Advisory Committee note, although the

note does intimate that testimony of such corporate officers or other officials is now

"discoverable as statements of the defendant." FED. R. CRIM. PRO. Rule 16 Advisory

Committee Note 1974.

GRAND JURY TRANSCRIPTS OF OTHER WITNESSES

RULE 16(A)(3) provides as follows: "[e]xcept as provided in Rule 6 and subdivision

(a)(1)(A) of this rule, these rules do not relate to discovery or inspection of recorded

proceedings of a grand jury.”

a. Defendant's Testimony.

Rule 16(a)(1)(A) provides for mandatory disclosure of a defendant's own grand jury

testimony which relates to the offense charged.

(1) Corporate Defendant.

Corporate defendants are entitled to inspect any testimony given by its officers, direct

agents, and employees before the grand jury U.S. v. Tobin packing Co., Inc., 362 F.Supp.

1127 (N.D.N.Y. 1973); U. S. v. Bally Mfg. Corp., 345 F.Supp. 410 (E.D. La. 1972). The

test used to determine whether the grand jury witness was a representative of the

corporation is the same test as set out in Rule 16(a)(1)(A). U.S. v. White Ready-Mix

Concrete Co., 449 F.Supp. 808 (N.D. Ohio, 1978).

b. Witness Testimony.

Brady v. Maryland may require disclosure of exculpatory grand jury testimony of a

government witness, but Brady imposes no time limits on such disclosure that are

inconsistent with the Jencks Act. U. S. v. Campagnola, 592 F.2d 852 (5th Cir. 1979);

United States v. Eisenberg, 469 F.2d 156 (8th Cir. 1972).

c. Rule 6(e) Discovery.

FED. R. CRIM. PRO. Rule 6(e)(2) provides generally for secrecy of grand jury proceedings.

One exception for defense discovery appears in Rule 6(E)(ii)"The court may authorize

disclosure--at a time, in a manner, and subject to any other conditions that it directs--of a grand-

jury matter:…at the request of a defendant who shows that a ground may exist to dismiss the

indictment because of a matter that occurred before the grand jury;”

(1) Particularized Need.

A "strong showing of a particularized need" is required to justify pre-trial disclosure of

grand jury testimony. Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395, 79 S. Ct.

1237 , reh. denied, 361 US 855 (1959); United States v. Rubin, 559 F.2d 975, reh. denied,

564 F.2d 98, 572 F.2d 320 (5th Cir. 1977), vacated, 439 U.S. 810, 99 S.Ct. 67 (1978), on

remand, 591 F.2d 278 (1979); United States v. Harbin, 585 F.2d 904 (8th Cir. 1978)

(alleging that the transcript might reveal a ground on which to dismiss the indictment and

could be used in cross-examination was insufficient).

(a) Examples of Need:

(i) To establish a double jeopardy defense when a Los Angeles grand jury transcript

was requested by a Texas defendant, U. S. v. Hughes, 413 F.2d 1233 (5th Cir. 1969).

(ii) To enable counsel to investigate well-documented suspicions of jury-tampering.

United States v. Moton, 582 F.2d 654 (2d Cir. 1978), on remand, 463 F. Supp. 49 (S.D.N.Y.

1979).

REQUESTS FOR DOCUMENTS OBTAINED BY GRAND JURY

Requests for grand jury documents may evoke different, and less exacting, considerations

than requests for transcripts of grand jury testimony.

In re Grand Jury Proceedings, Miller Brewing Co., 687 F.2d 1079 (7th Cir. 1982); Cf. In

re U.S., 398 F.3d 615, 619 (7

Cir. 2005).

POOR MEMORY

Answers such as "I don't know" or "I don't recall" constitute answers and are, therefore,

not contemptuous,

In re Michael, 326 U.S. 224 (1945);

Ex Parte Hudgins, 249 U.S. 379 (1914);

Brown v. U.S., 356 U.S. 148, 185 (1958) (providing a perjurious answer is not contempt

where they can be shown to be false they may form the basis for a perjury prosecution);

Gebhard v. U.S., 422 U.S. 281 (9th Cir. 1970);

U.S. v. Nicolletti, 310 F.2d 359 (7th Cir. 1962), cert. denied, 372 U.S. 942 (1963);

U.S. v. Sweig, 441 F.2d 114 (2d Cir. 1971).

In re Investigating Grand Jury of Chester County, Pennsylvania (Lees), No. 197 Misc.

1987 (Pa. S.Ct. July 27, 1988) (responding that one does not remember constitutes

testimony-the remedy, if the judge supervising the grand jury is convinced that the

answer is not a truthful one, is an indictment for perjury, not contempt), or obstruction of

justice [18 U.S.C. §§ 1503 & 1505].

See U.S. v. Alo, 439 F.2d 751 (2d Cir. 1971);

U.S. v. Cohn, 452 F.2d 881 (2d Cir. 1971).

See also In re Grand Jury Proceedings, 539 F.2d 382 (5th Cir. 1976) (stating that

there is no right to competency hearing where witness claims inability to recall).

ELECTRONIC SURVEILLANCE

While a witness may not refuse to answer a question solely because it is based upon fruits

of an illegal search, U.S. v. Calandra, 414 U.S. 338 (1974), he would have "just cause"

within the meaning of the contempt statutes to refuse to answer a question based upon

illegal electronic surveillance.

18 U.S.C. § 2515;

Gelbard v. U.S., 408 U.S. 41 (1972);

In re Grand Jury Proceedings (Hermann), 664 F.2d 423 (5th Cir. Unit B, 1981).

Upon the mere "allegation that the grand jury questioning is prompted by illegal wiretaps,

the government is required to make an adequate denial". In re Brummitt, 613 F.2d 62, 65

(5th Cir. 1980). And an evidentiary hearing should be conducted to determine the

sufficiency of the government's response, where a "specific" claim is made.

Beverly v. U.S., 468 F.2d 732, 744 (5th Cir. 1972) (noting preferred practice).

WHAT MATTERS MAY GRAND JURY INVESTIGATE?

Federal grand juries have exceedingly broad investigative powers.

Blair v. U.S., 250 U.S. 273 (1919);

Branzburg v. Hayes, 408 U.S. 665 (1972);

U.S. v. Dionisio, 410 U.S. 1 (1973);

In re Grand Jury Proceedings, 558 F.2d 1177 (5th Cir. 1977).

In some states (e.g. Texas), a grand jury only has authority to investigate crimes allegedly

occurring within the county in which it is impaneled or other crimes specifically authorized

to be prosecuted in a foreign county by statute.

Rodgers v. County of Taylor, 368 S.W.2d 794, 796-7 (Tex. App.--Eastland, 1963);

Rodriguez v. State, 918 S.W.2d 34, 36 (Tex. App.—Corpus Christi 1996).

See also U.S. v. Standard Oil Company, 316 F.2d 884 (7th Cir. 1963);

U.S. v. Chin Lim Mow, 12 F.R.D. 433 (N.D. Cal. 1952);

Application of Iaconi, 120 F. Supp. 589 (D. Mass. 1954).

"INEFFECTIVE" BY DEFINITION

Whatever its geographical boundaries, the grand jury poses an almost insurmountable

obstacle in the path of the attorney charged with "effectively" representing a summoned

citizen. Like a visitor to the land of Oz, the criminal defense lawyer has neither a key to

the kingdom nor green goggles to peer within.

As the opinion in In re Grand Jury Proceedings (Lowry) suggests, many courts seem to

equate "advise of counsel" with "obstruction of justice". In re Grand Jury Proceedings

(Lowry), 713 F.2d 616 (11th Cir. 1983). Given the proliferation of perjury indictments

against "targeted" witnesses compelled to testify before such "tribunals" the criminal

defense bar should voice its refusal to tolerate such intolerance.

ADVICE OF “RIGHTS” OF GRAND JURY WITNESSES

The following material is quoted from the United States Department of Justice, United

States Attorney’s Manuel, §9-11.150.

“It is the policy of the Department of Justice to advice a grand jury witness of his or her

rights if such witness is a “target” or “subject” of a grand jury investigation.

A “target” is a person as to whom the prosecutor or the grand jury has substantial evidence

linking him or her to the commission of a crime and who, in the judgment of the prosecutor,

is a putative defendant.

A “subject” of an investigation is a person whose conduct is within the scope of the grand

jury’s investigation.”

Advice of Rights

The grand jury is conducting an investigation of possible violations of federal criminal laws

involving: (State here the general subject matter of inquiry...)

You may refuse to answer any question if a truthful answer to the question would incriminate you.

Anything you say may be used against you by the grand jury or in a

subsequent legal proceeding.

If you have retained counsel, the grand jury will permit you a

reasonable opportunity to step outside the grand jury room to consult

with counsel if you do so desire.

Grand Jury Reforms

The National Association of Criminal Defense Lawyers, along

with the Commission to reform the Federal Grand Jury, proposes the

following reforms that hopefully might make the Grand Jury process

more just:

1. A grand jury witness who does not have immunity

shall be accompanied by his lawyer.

2. A prosecutor shall not knowingly fail to

disclose to the grand jury information that

exculpates the defendant.

3. Prosecutor shall not present constitutionally

inadmissible evidence to the grand jury.

4. A target or subject of a grand jury shall be given

the opportunity to testify before a grand jury.

5. A witness should have the right to receive a transcript of his/her

grand jury testimony.

6. The grand jury shall not name an person as an

unindicted co conspirator in an indictment.

7. Subjects or targets called before the grand jury

who do not have immunity shall be given a Miranda

warning.

8. Subpoenas for grand jury witnesses shall be issues at least

72 hours before the date of appearance.

9. Grand jurors shall be given instruction for the record

regarding their duties as grand jurors and the power

they hold.

10. A prosecutor shall not call before the grand jury

a subject or target who has invoked the constitutional

privilege against self incrimination.