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Tuesday, September 13, 2005

The Grand Jury: Forcing People to Help Prosecutors and to Pay for It Too

Grandjury1_2Should private citizens be forced, against their will, to subsidize and assist the state in its prosecutorial function?  This is basically what happens when people are summoned to testify before grand juries or are picked for grand jury duty.  I've previously written an extensive critique of the grand jury, with a focus on its subpoena powers.  An article today in the Washington Post describes the debilitating costs grand jury witnesses must often pay in attorneys' fees:

Sympathy can be hard to come by for White House officials who are summoned to appear before a grand jury.

Those whose identities remain a secret suffer in silence, discouraged from reaching out to their closest friends for help. Those whose names leak into the public domain become lightning rods for rumor, suspicion and innuendo, as politicians, commentators and journalists try to divine a meaning behind each summons. . . .

But while the politics of every appearance is picked over in minute detail, there is also a human story to each summons that often goes unexplored.

Witnesses face stress, uncertainty and -- worst of all -- crippling lawyer's fees that can take years to pay off. And as prosecutors cast their net ever wider, inexperienced staffers with few financial assets are increasingly facing the emotional and financial burden of grand jury testimony. . . .

When government aides are summoned to testify, the government often doesn’t pay the attorney bills (or only pays a fraction of them):

The two former Clinton aides said that the financial burden was crippling. Like many others, these White House officials had to pay their own legal bills, and these can run into the hundreds of thousands of dollars. Some may qualify for a partial reimbursement from the Justice Department, but this usually covers a fraction of the outlay and can take as long as seven years to be paid out. White House aides are even barred from receiving free legal assistance.

"We spent our time on Capitol Hill, and none of us had any assets. It's a scary thing. Lots of people rented apartments, had no assets to their name," said the former Clinton staffer. "If you have a career in public service, you're being paid well under $100,000 a year, and you have student loans; you become paralyzed financially."

Lattimore said that he had to turn to his parents, who loaned him money to cover his legal fees. Lattimore's lawyer, Adam S. Hoffinger, said that the bill for representing someone in a grand jury investigation is usually large. "A white-collar grand jury investigation in D.C. or New York could cost a witness between $10,000 and $100,000, assuming no trial and no criminal exposure," he wrote in an e-mail. . . .

This is another strike against the grand jury, which is a tool to assist prosecutors that I believe sometimes amounts to an end-run around other criminal procedure rules.  Witnesses should not bear these extensive costs to assist the state in its prosecutorial efforts.  Many of these witnesses are not suspects -- they are just ordinary people who happen to have some knowledge about a matter under investigation. 

Grand jurors must also bear a tremendous burden.  Grand juries last for months, and are tremendously disruptive to people’s lives.  Being a grand juror can have a devastating impact on small business owners.  Grand jurors may also be forced to bear significant costs in transportation and child care.  So witnesses and grand jurors must bear great cost and sacrifice because they are conscripted into assisting the state in prosecuting its cases.  Grand jurors are basically a tool used by prosecutors to collect evidence in cases (grand juries basically do whatever the prosecutor wants).  For these reasons – and for the reasons in my previous post about grand juries – I wonder whether it’s time to end grand juries or greatly curtail their use.  (Of course, there are constitutional issues that might limit to some extent how far grand juries can be curtailed). 

Posted by Daniel Solove on September 13, 2005 at 02:52 PM in Criminal Law, Daniel Solove, Information and Technology | Permalink


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Dan Solove has an interesting post at PrawsBlawg noting one of the major injustices of modern grand jury practice and procedure: if you're innocent, expect to pay $10,000 to $100,000 in legal fees. Check it out. You can read our previous posts touching... [Read More]

Tracked on Sep 13, 2005 3:37:21 PM


Hi - I came here from a Washington Post article link because the article did not answer an important (to me) question raised in my mind by the article. Why does a witness before a Grand Jury need to spend tens of thousands of dollars to hire a lawyer?

Posted by: Russell Dominique | Sep 19, 2005 3:19:54 PM

Daniel -- How often a Grand Jury meets is defined in the local rules. I can say that our local rules states that that they will meet *ONCE* a month unless there is a critical reason. And depending on the district the GJ may be told they don't need to come in. So at worse I've heard of a GJ being called in about 30 times in a 18 month period. That breaks down into little over 2 times a month. Which is still a far less of a burden then requiring to take a month out of your life in one sitting for a Petty trial.

So you seem to taking the worse aspect and applying it nationally. I really hate when people do that since it makes things worse than they really are. What you posted may apply to Washington DC District Court, but that doesn't mean it applies to the 90+ other districts out there.

Posted by: mouring | Sep 15, 2005 9:26:40 AM

Aaron -- I agree that prosecutors do a lot of screening on the cases they bring. But my argument has nothing to do with this. In jurisdictions that do not use grand juries, prosecutors proceed with the "information." And in these jurisdictions, prosecutors still operate with restraint. So I completely agree that prosecutors do a lot of vetting before bringing a case. This happens with or without grand juries. My argument is about the use of grand juries rather than the process of proceeding by information (sans grand jury), which occurs in many states.

I find your 75% or 66% indictment rates a bit hard to believe, but I don't have the stats, so without good stats, we're just trading speculation.

Many of the above comments still don't address the problem of the tremendous burdens that the grand jury system places on jurors and witnesses. Why should they bear the costs? Why not society as a whole?

MJ -- The Fifth Amendment only has very limited applicability in the grand jury context when it comes to documents. For a great article about how far the Fifth Amendment protections have been whittled away, see Chris Slobogin, Subpoenas and Privacy, 54 De Paul L. Rev. 805 (2005). I have a link to it in my previous Balkinization post. That's not to say that the Fifth Amendment provides no protection, but it doesn't provide a lot. Documents that can't be obtained from the suspect directly often can be obtained from others. The Fifth Amendment is also much more limited than the Fourth, since the Fifth applies only when the documents are incriminating to oneself. But many folks who are subpoenaed to provide documents to the grand jury are not suspects, and the documents they are required to bring are not self-incriminating. Anyway, the current post is about the costs of grand juries -- the earlier Balkinization post sets forth my argument about the Fourth Amendment in much more detail.

Turning back to the cost issue, even if you believe that the grand jury does serve a really important function and is superior to the alternative information process, why should jurors and witnesses bear such a great burden? Of course, I know that it is impossible to eliminate all burdens, but why should such significant costs be put upon citizens who happen to be unlucky enough to draw grand jury duty or be subpoenaed by one? Why not make society adequately reimburse these individuals for their sacrifices?

Posted by: Daniel Solove | Sep 14, 2005 3:02:14 PM

As a former prosecutor from a large metropolitan area, who spent the bulk of my career in front of GJs, I can tell you that the "ham sandwich" canard is just that--a canard. First, in many jurisdictions, indictments are secured after a judge has made a probable cause determination. Second, in jurisidiction (like mine) where the GJ is the primary method of determining reasonable cause, there has already been at least four levels of supervisory review before the case hits a jury room. GJs are made up of individuals--individuals with ideas, questions, concerns, and, in my particular neck of the woods, a healthy skepticism regarding the police and police intrusions. Finally, you do a grave disservice to the presenting prosecutor, who serves a vital screening function as well--if I didn't believe in a case, I didn't present it. Period.

As for that 90% rate--ridiculous. Closer to 75%. And that's just for finding any level of crime. Felonies, about 2 out of 3. Think about this--if you were on a grand jury, with the hassle and disruption it causes, would you feel particularly kindly towards your local prosecutor?

I didn't think so.

Posted by: Aaron | Sep 14, 2005 2:38:13 PM

Also, the "end run" of a grand jury around the 4th Amendment is specifically provided for by the 5th Amendment.

Posted by: MJ | Sep 14, 2005 1:39:05 PM


I'm sure that the 90% stat that you offer (at least in my experience) is accurate, but that doesn't prove anything. Probable cause is a very low bar to jump over, See Pringle v. Maryland in 2004. I'll bet that the numbers are very close to or above 90% where cases go before a magistrate or judge for preliminary hearings to determine probable cause. That doesn't make judges or grand juries arms of the prosecution, it simply demonstrates that probable cause easily exists in the overwhelming majority of all cases.

As to your concerns that a grand jury can access information via subpoena that a prosecutor couldn't get to on his/her own, you are again misunderstanding the preliminary nature of a GJ. How could a higher standard be applied to citizens who don't have a police force at their disposal to investigate matters? Without subpoena powers, the GJ could not access the evidence it feels it needs to make that independent determination as to whether felony charges can be filed. Make no mistake about it, I have seen dozens of cases where our office has had to tell irrate police officers that yes, we want to go forward with the case, but the GJ shot us down. That's pretty independent: the prosecutor's office and the police department want to take a matter to court, but can only do so if ordinary citizens give them the green light.

Posted by: MJ | Sep 14, 2005 1:35:52 PM

Obviously, I can't speak for all jurisdictions; I speak in generalities. I wonder what the indictment rates are -- the ratio between cases where grand juries indict versus those in which they don't indict. My guess is that grand juries indict at a very high percentage -- over 90% -- but perhaps I'm wrong. I simply don't know the numbers, but from everything I've read and heard, a grand jury refusing to indict when the prosecutor wants the grand jury to indict is a very rare occurrence.

Posted by: Daniel Solove | Sep 14, 2005 12:39:27 PM

I would encourage you to speak with more prosecutors, especially prosecutors from very large jurisdictions and ones who have dealt with crime lab and DNA fiascos. Our grand juries, and the judges that empanel them, don't want anyone to think that they are an arm of the prosecutor. Sometimes, that independence can even result in investigations into prosecutors' actions. No prosecutors have been indicted, I might add. But, I hope that this example illustrates that, at least in this jurisdiction, "ham sandwich" grand juries are joked about, but it's not the truth.

Posted by: JPC | Sep 14, 2005 12:19:58 PM

Mouring -- Some federal grand juries can last up to 18 months. Granted, they meet only once a week or so, but it still is an amazing sacrifice to require people to give up a day per week for over a year! Regarding petit juries, trials can last a long time, but trials over one month are relatively rare. Unlike the grand jury, I think the petit jury is very important, but I think that petit jurors are undercompensated. The juror pay isn't even minimum wage.

MJ -- In my earlier grand jury post, I objected to the fact that prosecutors can obtain evidence via grand juries that they ordinarily would be unable to obtain without a warrant supported by probable cause. If the government wants to obtain some of my documents from my home, the police would in most cases need a warrant supported by probable cause to obtain them. But with the grand jury, a prosecutor can get these documents simply by having the grand jury issue a subpoena. I view this as an end-run around the Fourth Amendment's warrant and probable cause requirements. The Supreme Court has ruled otherwise in Dionisio (discussed in the earlier post on grand juries I link to in this post), but I find this opinion to be weak and unconvincing.

As for how independent-minded grand juries are, the prosecutors I spoke with have never had instances of grand juries rebuffing them on anything. There's a famous quip that prosecutors can get a grand jury to indict a ham sandwich -- and there's a reason for why this quip has become so popular.

Posted by: Daniel Solove | Sep 14, 2005 11:55:47 AM

I agree with MJ. As someone who works closely with federal level GJ. I can also add that GJ like Petty Juries are paid milage and parking. The hardship in most cases are less than a long Petty trial (which I've seen go on for an upward of almost two months). In the case of the trial, the jurior is taken away from his work for an extended period of time. Where GJ only means once to twice a month depending on the District Court's Jury Plan.

Posted by: Mouring | Sep 14, 2005 10:48:14 AM

Anyone who thinks that the GJ is an arm of the prosecution has never had to present cases to one. GJ's figure out pretty quickly that they have a considerable amount of leeway as to what they will or will not indict. I work in the GJ section of a major city prosecutor's office and can tell you that we simply will not put a case before the GJ that has not been vetted by at least three attorneys at various supervisory levels and usually, but not always, before a judge or magistrate judge for probable cause. Even so, there are still instances in which a GJ will simply not indict even those cases where they don't feel there is strong evidence supporting probable cause. Again, anyone who has put cases before GJ will tell you that it's no cake walk.

As to the GJ's ability to subpoena evidence based on less than probable cause:
A GJ investigation is an entirely preliminary investigation, one in which the GJ is attempting to determine whether or not there IS probable cause to bring charges. It's perplexing to me as to how lawyers can then expect that a GJ should have to determine that probable cause exists before they can attempt to secure evidence to determine if probable cause exists.

Posted by: MJ | Sep 14, 2005 7:56:39 AM

This last comment by JPC is somewhat reassuring, but as a federal govt worker who has seen the power that the govt can bring to bear, it does not mitigate, one iota, my fear of being dragged into the legal system in this country.

Posted by: Ralph | Sep 14, 2005 7:39:45 AM

I prosecute in Texas. Our grand jurors are volunteers and, at least in my jurisdiction, we don't have huge bills amassed in grand jury presentations. Our cases are normally filed and arraigned before a grand jury hears them. The cases are screened for probable cause at the intake level, magistrate level and trial court level typically before the grand jurors have their say. The cases at the time of grand jury presentation, however, have been vetted more completely by the prosecutors and defense attorneys. Appearances are generally made by defendants who choose to air out their defenses in front of grand jurors. That normally involves their testimony and any supporting documents, not in depth investigations lasting for months on end. Those happen, but they are few and far between. But, even then, the defendants are not called on to provide information. The documents and expert testimony is typcially provided by experts paid by the state during the investigation or banks or other institutions involved. Our grand jurors also don't feel like they have to agree with us. They will send us out even on seemingly routine matters if they have questions. I regret that so many people have the impression grand juries and prosecutions function the way described in the original post. But, many jurisdictions handle prosecutions and grand juries very, very differently.

On the DNA issue, the production of DNA is nontestimonial, according to the courts. So, DNA is compelled in certain cases by law and is normally gathered before the charges are presented to intake.

Posted by: JPC | Sep 13, 2005 5:20:58 PM

I am not sure I see a limiting principle to your argument. Many persons disagree rather fundamentally with a whole range of government policies or practices; yet we do not generally allow persons to opt out of generally applicable practices.

Posted by: John Stuart | Sep 13, 2005 3:37:10 PM

Great post. I did the motion work in one case which went as such:
Police: We think you did x-crime.
Suspect: No, I didn't.
Police: Give us your DNA.
Suspect: No way.
Prosecutor: Come on down to the grand jury.
Grand Jury: Give us your DNA.
Suspect's Lawyer: No. You don't have probable cause.
Judge: Probable cause? Hahahaha. Didn't anyone tell you that when it comes to the grand jury, probable cause is dead!

This is not an exceptional case, but it's an extraordinary what a blatant end-run around the Constitution the grand jury has become. Worse is that grand juries need not be instructed that they have the power to nullify. Thus, what was supposed to be a bulwark against overzealous prosecutors has become become a path through the suspect's rights.

Posted by: Mike | Sep 13, 2005 3:12:10 PM

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