CHAPTER 1 - Overview of Grand Jury Procedure
Introduction
Witness visited by federal investigative agencies
Subpoena
First attorney-witness meeting
Consultation with more than one grand jury witness
Cooperative legal work
Whether to testify
Motions prior to first appearance before the grand jury
First appearance before the grand jury
Immunity hearing
Second appearance before the grand jury
Motion to show cause and contempt hearing
Third appearance before the grand jury: the testifying witness
Motion to vacate contempt
Reiterated contempt
Criminal contempt
CHAPTER 2 - SubpoEna
General considerations
Nature and power of subpoenas
Decision to issue a subpoena
Issuance of subpoenas under the Federal Rules
Formal requirements
Continued subpoenas and subsequent appearances
Witness fees and travel expenses
Material witness warrants
Motions to Quash or Modify Subpoena
Motions to quash
Form of relief
Appeal of order denying motion to quash or modify
Checklist of possible challenges to subpoenas
Competence of witness
Lack of jurisdiction venue
Grand jury?s term has expired
Substantive challenges
Subpoena Duces Tecum
General considerations
Fourth Amendment challenges
Substantive
Court test of validity of claim of privilege
Computer information
CHAPTER 3 - INJUNCTION AND INTERVENTION
Injunctions
Protective orders
Intervention
Intervention and injunction against abuse of the grand jury function
CHAPTER 4 - SELECTION AND COMPOSITION OF THE GRAND JURY
General federal statutory scheme
Standing of a witness to challenge the composition of the grand jury
Cognizable classes
Selection of grand jury foreperson
When to make the motion
Making a prima facie showing of discrimination
CHAPTER 5 - STATUTORY AND CASE-LAW FRAMEWORK OF FEDERAL GRAND JURIES
Two types of grand jury
Regular grand juries
Special grand juries
National Commission in Individual Rights
Judicial supervision of grand juries
RICO
Attorney general appointment of independent counsel
CHAPTER 6 - APPEARANCE BEFORE THE GRAND JURY
Witness has no right to challenge the constitutionality of the statute under which the grand jury is conducting its investigation
Scope of the grand jury investigation
When the witness is also the target
Right to counsel during the grand jury proceeding
Witness?s right to take notes
Instructions to the grand jury
Continuances
Refusal to take the oath
Right to disclosure of government informers
Right to disclosure of prior statements made to the FBI or other government agencies
Evidentiary objections
CHAPTER 7 - FIRST AMENDMENT
Application of First Amendment principles to grand jury proceedings
Procedure for raising First Amendment objections
Freedom of speech and association
Freedom of the press
Scholar?s privilege
Right to petition for redress of grievances
Freedom of religion
CHAPTER 8 - FIFTH AMENDMENT AND IMMUNITY
Introduction
Scope of the privilege against self-incrimination
Applicability of the privilege to grand jury proceedings
The Fifth Amendment
What questions are "incriminating"
Risks protected against by the privilege
Exceptions to application of the privilege
Waiver of the privilege
Procedure for assertion of the Fifth Amendment privilege
Subpoena of a potential defendant
Must the witness be warned of the right to assert the privilege?
Immunity
In general
Use immunity
Subsequent prosecution of a witness who testified under use immunity
Reasons for granting immunity
CHAPTER 9 - FOURTH AMENDMENT AND ELECTRONIC SURVEILLANCE
Historical summary of electronic surveillance cases and statutes
Procedure for invoking a claim of electronic surveillance under U.S.C. ? 3504
Right of witness to raise electronic surveillance under Gelbard
Nature and adequacy of claims under 18 U.S.C. ? 3504
Timing of claims under 18 U.S.C. ? 3504
Adequacy of the government?s denial or admission of illegal surveillance; disclosure
Hearing of legality of surveillance and standing to object
Hearing on taint
Remedy
Surveillance of counsel
Third party intervenor challenges
Foreign intelligence surveillance
CHAPTER 10 - TESTIMONIAL PRIVILEGES
General Considerations
Statutory and case law sources of privileges
The Attorney-Client Privilege
Assertion of privilege; waiver
Procedure for asserting attorney-client privilege
Making a prima facie showing that communication is privileged
Corporate officers, corporate counsel, and privilege
Disclosure of name or identity of client
Communications to third parties in the course of legal representation
Communications in furtherance of a crime or fraud
Protection of attorney?s work product
Do the client?s documents come within the privilege if they are turned over to the attorney?
Other rights of the client that attorney may assert
Other Privileges
Marital privilege
Physician-patient privilege
Clergy-communicant privilege
Accountant-client privilege
Parent-child privilege
News gatherer-source privilege
Speech and debate clause of the constitution
Presidential, deliberative, and other governmental privileges
Law enforcement investigatory privilege
Miscellaneous privileges
CHAPTER 11 - GRAND JURY SECRECY
Case law
Federal Rule of Criminal Procedure 6(e)
Witnesses have no obligation to maintain secrecy
Witness?s right to a transcript
Secrecy provision cannot be used to deny witness an adequate contempt hearing
Leaks to the press by government officials
Parallel civil proceedings
Disclosure of state confidential investigative materials
Scholarly research of grand jury materials
CHAPTER 12 - ABUSE OF THE GRAND JURY PROCESS
Remedies
Situs of investigation
Abuse of the subpoena power
Use of the grand jury to harass or intimidate a witness
Questioning to coerce perjury or contempt
Interference with the right to counsel
Use of subpoena duces tecum to conduct warrantless search
CHAPTER 13 - PROSECUTORIAL MISCONDUCT
Theories of judicial responsibility
Standards of prosecutorial misconduct
Forms of misconduct
Remedies
CHAPTER 14 - CONTEMPT
Civil Contempt
Federal statute
Procedure
Contempt hearing
Penalty imposed
Sentence
Purging contempt
Reiterated contempt: questioning before a second grand jury
Bail and appeal
Criminal Contempt
Federal statute
Elements of the offense
Civil contempt should be considered before criminal contempt is used
Procedure
Contempt trial
Penalty imposed
Parole; sentencing guidelines
Civil and criminal contempt for a single refusal to testify
Reiterated contempt: questioning before a second grand jury
CHAPTER 15 - PERJURY, FALSE STATEMENTS, AND RELATED OFFENSES
Perjury (18 U.S.C. ? 1621)
False declarations (18 U.S.C. ? 1623)
False statements (18 U.S.C. ? 1001)
Subornation of perjury (18 U.S.C. ? 1622)
Liability as accessory or conspirator
Implications for grand jury practice
Collateral consequences
CHAPTER 16 - OBSTRUCTION OF JUSTICE AND OTHER OFFENSES
Statutory framework for obstruction of justice offenses
Influencing or injuring officers or jurors (18 U.S.C. ? 1503)
Influencing a juror by writing (18 U.S.C. ? 1504)
Obstruction of criminal investigations (18 U.S.C. ? 1510)
Miscellaneous provisions of chapter 73
Accessorial and other indirect liability
CHAPTER 17 - POST-CONTEMPT REMEDIES
Bail and appeal
Bail
Stay
Procedure for application for bail and/or stay
Appeal procedure
Appeal decided on basis of bail papers
Motion to Vacate the Contempt Order; the Grumbles Motion
General principles
CHAPTER 18 - CONTEMPT PRISONERS
Status of a civil contemnor
Place of confinement
Processing and booking procedures
Conditions on incarceration
Confrontations with the FBI
Special considerations for women
APPENDIX A Sample Pleadings
APPENDIX B ABA Prosecution Function Standards
APPENDIX C Sample Correspondence Between the Government and a Cooperating Witness
APPENDIX D Justice Department Guidelines for Government Attorneys
APPENDIX E Rule 6 of the Federal Rules of Criminal Procedure, as amended February 1, 1994
APPENDIX F ABA Standards for Criminal Justice: Discovery (Third Edition)?Selections Relating to Disclosure of Witnesses, Testimony, and Tangible Evidence
APPENDIX G United States Department of Justice Policy on Searching Premises of Attorneys WhoAre Subject to Investigations
GLOSSARY
TABLE OF CASES
INDEX
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