Crim Pro II Outline
The Investigating Grand Jury
1. 5th Amendment Grand Jury Clause – “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia when in actual service in the time of war or public danger”
a. Notes: an otherwise infamous crime is a serious crime which is synonymous with felony, therefore no GJ indictment for misdemeanors, and not incorporated to the states (only part).
2. Two major functions of grand jury
a. Investigative
b. Screening
3. 4th Amendment Challenges Cases
a. Boyd v. US
i. Subpoena is not a physical search and seizure – demand you to do the search and seizure
ii. Mere evidence rule – government is not entitled to mere evidence through any form of compelled production
1. Government was entitled to contraband, stolen property, and instrumentalities to commit a crime
2. Mere evidence rule was eroded over time and finally specifically rejected in Warden v. Hayden – could not challenge search warrant or subpoena because it was seeking mere evidence
b. Andresen v. Maryland
i. If police are trying to seize a document it is a 4th Amendment issue
ii. It is not compelling production so it is not 5th Amendment issue
iii. Cannot use 5th Amendment to prevent what the 4th Amendment allows
c. Ask if it is reasonable
4. The Overbreadth Doctrine
a. Hale v. Henkel
i. Overbreadth doctrine retained
1. If a subpoena is deemed to be broad to the point that it interferes with the conduct of the business is it reasonable/unreasonable
2. Show reasonable particularity, duration, and relevance
b. US v. Miller
i. Grand jury wants third party (bank) to turn over documentation about defendant/suspect
ii. Suspect takes the risk by voluntarily giving the information to someone else
5. Compelling Testimony
a. Rule 6 – Grand Jury
i. Between 16 and 23 members
ii. Vote of 12 (regardless of number of members) in order to issue a true bill of indictment
b. US v. Dionisio
i. No reasonable expectation of privacy in the sound of your voice – voluntarily exposed to the public
c. 5th Amendment only kicks in if the incrimination is testimonial – revealing physical features (such as quality of voice) are outside the scope of the 5th Amendment
d. Kelly
i. Court of Appeals said this was circumventing police function so imposed requirement on grand jury of reasonable suspicion – same requirement as the police
ii. Not a 4th Amendment reasoning but part of the court’s supervisory power over grand jury
1. Number of states, including Missouri, have authorized prosecutorial subpoenas – lacking the full force of 4th Amendment restraints applicable to police; only needs to be a reason why the evidence sought in the subpoena is relevant to the case
a. Missouri – statute is subpoena for documents, not testimony; no evidentiary standard
6. Objections to the investigation
a. US v. Calandra
i. Grand jury wants to collect testimony from an individual based on an illegal search and seizure of the police
ii. Marginal or incremental deterrence theory – deterrence we need we already have with trials so no need to apply further
b. US v. R. Enterprises
i. Court of appeals relied on Nixon trial standards of relevant, admissible, and specific which was rejected by the Supreme Court
ii. New Standard – no reasonable possibility that the materials will produce information relevant to the general subject of the grand jury’s investigation
1. Very high standard – possible for anyone to come up with a logical stream of connections
c. Schofield
i. Minimum showing of relevancy required – Is whatever the grand jury wants relevant to the investigation of an offense falling within its jurisdiction?
d. Challenge subpoenas
i. You are allowed to challenge a subpoena where what the prosecutor seeks has no reasonable possibility of relevance to the grand jury’s investigation based on R. Enterprises and Rule 17
ii. Branzburg v. Hayes – 1st Amendment
1. Use balancing test
2. A reporter does not have a 1st Amendment privilege to refuse to reveal confidential sources
e. Grand jury misuse is possible – grand jury is not permitted to exercise authority in abusing or harassing manner, sole or primary purpose
i. Use grand jury primarily to get evidence for a civil action
ii. Use grand jury to prepare for trial
iii. Use grand jury to further separate investigations by the police
iv. General standard of harassment – things the grand jury is demanding or wants go outside permissible limits
f. There may be standing issues with third-party subpoenas
7. Grand Jury Testimony
a. Subpoena ad testificandum
i. Compel persons to appear before the grand jury and give testimony
b. General rules
i. Grand jury does not have the power to override the 5th Amendment – nor shall be compelled in any criminal case to be a witness against himself
ii. Can raise 5th Amendment at congressional hearing, on tax return, or civil proceeding
1. If what you are compelled to answer could harm you in a subsequent criminal proceeding you are within the realm of the 5th Amendment – Counselman v. Hitchcock
c. Hoffman v. US
i. Would the direct answer in and of itself be evidence in a criminal activity?
ii. Link in the chain – if it is a piece of information that may lead you to another link that eventually leads to 5th Amendment compelled incrimination
1. It is possible for chain to have a lot of links that connection dissipates
d. Ohio v. Reiner
i. Nothing special about people who claim innocence and the 5th Amendment – they are not excluded from raising the claim of privilege
e. Separate sovereigns
i. Murphy v. Waterfront Comm.
1. All parties are subject to the restraints of the 5th Amendment
2. Reject sep
testify on television., read about his testimony in front of grand jury., etc. and therefore they had their memories refreshed. The Ct. found that the govt. made derivative use of the testimony by having better witnesses as a result of watching Col. North’s testimony.
ii. This violated Kastigar
d. Background-the 5th only protects against oral information? no it also protects against subpoenaed information. It protects you from having to incriminate yourself in writing or any other way
9. Act of Production Doctrine
a. Subpoean Duces Tecum – this is a subpeona requiring production of specified documents.
i. This relates to and raises issues of self-incrimination
ii. The test is whether the communication itself explicitly or implicitly relates a factual assertion or discloses information
b. Act of production immunity – grants immunity to the act of producing and NOT the contents, courts read it very narrowly, so at trial the prosecution cannot say that he produced it in front of Grand Jury, but the witness may not lie either.
c. United States v. Doe I – Doe had his business records subpoenaed. He challenged this, claiming that production of the records violated the 5th amendment privilege against self-incrimination. The production of such records does present an aspect of coercion, and forced production can, therefore violate the 5th Amendment.
i. Records voluntarily made are not protected under the 5th, but the production of them may be.
d. United States v. Doe II
i. D refuses to sign document that would release bank information, written consent to release information, if in existence, is not testimonial and thus can be compelled without violating the freedom against self-incrimination. The release does not acknowledge the existence of any records, nor that the D possesses any records, and it does not authenticate any records.
e. Handwriting samples are not assertions, physical characteristic rather than mental.
f. Rule from Doe: GENERALLY VOLUNTARY EVIDENCE IS NOT PRIVILEGED BY THE FIFTH AMENDMENT
i. EXCEPTIONS: While the contents themselves of the voluntarily produced documents are not privileged under the 5th, the PRODUCTION of the evidence may be privileged if the act of production by the person shows implicitly (producing documents may be incriminating in three situations):
1. That the evidence exists
