Periodically, an idea is suggested that would permit defense attorneys inside federal grand juries. This would be a mistake.
Our Constitution generally requires a grand jury indictment in cases of "capital or otherwise infamous" crimes. This grand jury concept was a carryover from England and broadly used by the colonists. It was considered to be a "shield" to the individual from oppression.It was in its origins, as it is now, a group of ordinary citizens, not bound by the rules of evidence, who were pledged to use neither favoritism nor prejudice in their fact-finding capacity. Importantly, the hearing was not adversarial but merely a means to determine if there was sufficient evidence to put one on trial. Indeed, if there was a trial, the defendant would receive the full due process of law, including a lawyer.
In 1919, the U.S. Supreme Court aptly described the grand jury as a "grand inquest, a body of 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."
As an arm of the court, the federal grand jury has traditionally been led by a foreman, chosen from among the members, and by an assistant U.S. attorney. The latter, as the legal representative of "the people," assists in questioning the witnesses.
Keep in mind, the federal prosecutor has a unique role, one far different from defense counsel. The interest of the United States and hence, its representative in a criminal case, is "not that it shall win a case but that justice shall be done."
Though the prosecutor "may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to bring about a wrongful conviction as it is to use every legitimate means to bring about a just one."
In other words, his job is to do justice no matter the outcome, whereas the defendant's attorney must protect only his client's interest.
The two key elements of a federal grand jury proceeding, non-adversarial setting and secrecy, would be thwarted were a defense attorney permitted within the jury room.
The non-adversarial work of the 23 jurists would be greatly hampered and possibly even blocked by this defense attorney, who is bound to zealously advocate for his or her client by legal and ethical obligations. Injection of defense counsel directly into this proceeding would turn on its head law that has served us well for more than 200 years and for no compelling reason.
Remember, the witness's legal counsel is allowed to remain just outside the room, available to consult fully with the client at any time!
The secrecy element of a grand jury is also more at risk when additional people are allowed inside the hearing. As inevitable controversy would arise (limited only by the resourcefulness of the attorney), grand jury testimony and possibly personal matters relating to the jurors and witnesses would be divulged as part of public filings by counsel in courthouses across the country.
Grand jury proceedings must continue to be secret to protect the privacy rights of those who were brought to testify. Whether to main-tain the reputation of an individual wrongfully investigated or to ensure his safety from intimidation and physical harm, secrecy has always been a necessary requirement of the process.
If the real concern for this issue being raised now is the Independent Counsel law, then let's work together to remedy that and leave our grand jury system alone.