Criminal Procedure: Grand Jury Law and Practice
This course will explore the inner-workings of federal grand jury practice and the modern grand jury's critical role in the criminal justice system. With an emphasis on practice, we will discuss the roles of prosecutors in presenting evidence to grand juries and of defense counsel in representing "witnesses," "subjects," and "targets" of grand jury investigations. One class session will be devoted to a panel discussion concerning the merits of recent calls for grand jury reform (in the post-9/11 era), which would include revisions to the USA PATRIOT ACT, permitting defense counsel to attend grand jury sessions; requiring the government to disclose exculpatory evidence to the grand jury; and applying the exclusionary rule to grand jury proceedings. Several current or former Justice Department prosecutors and leading criminal defense attorneys are expected to participate in this debate.
Specific topics to be examined include the history of grand juries, including the English antecedents of the modern grand jury; grand jury operation and secrecy; the contours of grand jury subpoena power, and the rights, privileges, and obligations of grand jury witnesses (including Fifth Amendment issues and conflicts between assertions of Executive Privilege and the grand jury's right to "every man's evidence"); effective -- and ethical -- advocacy in a grand jury investigation; roles of the prosecutor and defense lawyer; grand jury independence; grand jury reform; "process violations," such as perjury, contempt, and obstruction of justice; and parallel civil and criminal proceedings.
In addition to cases and articles, classes will use materials from real-life high-profile grand jury investigations to highlight various points and perspectives, from that of the prosecution to the defense to third party witnesses to the press. Students will come away from the course with an understanding of the history and statutory and constitutional framework behind the grand jury, as well as exposure to the practical strategies involved in grand jury investigations and varying perspectives on questions of grand jury reform.