Effect of Irregularities

Effect of Irregularities

The preceding sections described a lawful grand jury: who sits on it, who may be in the room, what must be recorded, how many jurors must concur, and what stays secret. Departures from those rules do occur, and a defendant who proves one then faces the question that matters in practice, which is whether the indictment survives. The answer depends on the kind of defect, because courts sort grand jury irregularities into three tiers and attach a different showing to each. The first tier bars any look behind the indictment at the evidence, the second requires proof that a violation affected the decision to indict, and the third dispenses with that proof for a small group of structural defects.¹

The first tier covers attacks on the evidence the grand jury considered. An indictment returned by a legally constituted and unbiased grand jury is enough to call for a trial on the merits if it is valid on its face, and a court will not test whether the evidence behind it was sufficient or admissible.² That rule came from Costello, a case about hearsay, and it has been read broadly enough that in Calandra v. United States the Court allowed a grand jury to consider illegally obtained evidence.³ The reason is a division of labor between the two juries. The grand jury decides only whether a trial is necessary, and the trial is where the defendant receives strict observance of every rule designed to produce a fair verdict, so a court that reexamined the grand jury's evidence would add interminable delay and no assurance of a fair trial.⁴ Because courts stay out, the screening function rests on the grand jury's own judgment, and the majority view is that the screen works poorly in practice, since grand juries rarely refuse to indict.⁵

The second tier covers violations of the grand jury rules and prosecutorial misconduct that the law itself forbids. A prosecutor who presents more than one witness to the grand jury at the same time, which Rule 6(d)(1) prohibits and which the defendant alleged in Bank of Nova Scotia v. United States, or who knowingly presents false evidence, has broken a legally compelled standard.⁶ Courts enforce those standards but cannot add standards of their own, so in United States v. Williams the Court refused to dismiss an indictment because the prosecutor withheld known exculpatory evidence that no statute, rule, or constitutional provision required the prosecutor to present.⁷ Even a proven violation does not end the inquiry. Dismissal is appropriate only if the violation substantially influenced the grand jury's decision to indict or leaves grave doubt that the decision was free of that influence.⁸ The prejudice requirement keeps minor irregularities from voiding indictments the grand jury would have returned anyway, and it is a demanding one, because secrecy and the preliminary showing needed to obtain a transcript make it rare for a defendant to link a violation to the vote.⁹

The third tier is the narrow exception to the prejudice requirement. A few structural defects need no showing of prejudice, and the leading example is selection of grand jurors in a racially discriminatory manner.¹⁰ The reasoning follows from what such a defect corrupts. A rule violation during a session affects a particular decision whose causes a court can try to trace, whereas discriminatory selection taints the body that makes every decision, so no court can say what an untainted grand jury would have done. Constitutional flaws in the composition of the grand jury may therefore invalidate a conviction even though the trial jury was lawfully constituted and guilt was proved beyond a reasonable doubt, as Vasquez v. Hillery held.¹¹ The cost to the government is a new presentation: a timely, well-founded objection lets the trial court void the indictment and send the prosecutor back to a lawfully constituted grand jury.¹²

The sorting question comes first on any problem that describes a grand jury irregularity. If the complaint is that the grand jury heard weak, hearsay, or unlawfully obtained evidence, the inquiry ends at the first tier and the indictment stands. If the complaint is a broken rule or misconduct the law forbids, the next question is whether the violation affected the decision to indict, and the common error is to treat any proven rule violation as grounds for dismissal. Only a defect in how the grand jury was constituted, chiefly discriminatory selection, skips the prejudice question. The sections below take the tiers in that order, beginning with the bar on reviewing evidence.

No Review of Evidence

The first tier of irregularities, an attack on the evidence the grand jury heard, has the most settled answer, and it comes from Costello v. United States. Costello was indicted for tax evasion and moved to examine the grand jury minutes and to dismiss the indictment on the ground that the grand jury had not considered enough competent evidence. Both motions were denied, and at trial the government called 144 witnesses. Cross-examination revealed that only three people had testified before the grand jury, all of them government agents, so Costello renewed the motion, arguing that this information confirmed the grand jury had lacked competent evidence. The trial court denied it again, Costello was convicted, and the Supreme Court rejected his Fifth Amendment claim.¹⁵

The Court gave one reason from history and one from practical cost. English grand jurors were not bound by rigid procedural or evidentiary rules, could act on information they found satisfactory, including their own knowledge, and sat free from control by the Crown or the judges, and early American decisions likewise held that a court could not revise the grand jury's judgment about the evidence.¹⁶ On cost, if indictments could be attacked for inadequate or incompetent evidence, defendants could demand a kind of preliminary trial over what the grand jury heard, and the delay would be great.¹⁷ That second reason rests on a division of labor between the two juries. The grand jury decides only whether a trial is necessary, and the trial is where the defendant is entitled to strict observance of every rule designed to produce a fair verdict, so a second round of evidentiary fighting before trial would add delay without adding any assurance of fairness. The Court isolated a single principle to control this and later challenges: "An indictment returned by a legally constituted and unbiased grand jury, like an information drawn by the prosecutor, if valid on its face, is enough to call for a trial of the charge on the merits."¹⁸ An indictment is valid on its face when the document itself properly charges an offense, without any look at the evidence behind it.

Because the principle rests on the grand jury's freedom to act on imperfect evidence and not on any finding that hearsay is reliable, courts apply it far beyond hearsay. Virtually any challenge to the sufficiency or admissibility of the evidence presented to the grand jury is rejected on a motion to dismiss.¹⁹ That reach matches how the grand jury operates, since the Federal Rules of Evidence do not apply before it and the jurors may consider evidence that would be inadmissible at trial.²⁰ The standard the jurors apply in federal court is probable cause to believe the accused committed the crime charged, and the no-review rule means no judge rechecks whether the jurors had enough to meet it.²¹ An indictment resting entirely on hearsay therefore stands.²² Justice Burton, concurring in Costello, would have quashed an indictment when the grand jury had no substantial or rationally persuasive evidence before it, because such an empty indictment robs the Fifth Amendment of much of its protective value, but the broad rule is the one courts apply.²³

The same reasoning covers evidence the police obtained unconstitutionally. In Lawn v. United States the defendant could not attack the indictment on the ground that the grand jury considered unconstitutionally obtained evidence, because, as United States v. Blue recognized, the defendant has an adequate remedy in challenging that evidence if the government offers it at trial.²⁴ United States v. Calandra pushed the point to the grand jury witness, who could not refuse to answer questions drawn from an unlawful search of the witness's premises. The majority weighed the speculative and minimal deterrence of police misconduct that an objection might produce against the damage to the effective and expeditious work of the grand jury, and the second consideration prevailed.²⁵ A defendant who moves to dismiss because the grand jury heard hearsay and evidence the defendant says was illegally seized therefore loses, and the remedy is exclusion of that evidence at trial.

A different complaint reaches the same result. United States v. Williams held that a federal district court cannot dismiss an indictment because the prosecutor failed to present known exculpatory evidence, meaning evidence that tends to show the accused is innocent.²⁶ The reasoning turns on supervisory power, the authority courts use to police procedure in matters before them. Courts may use it to enforce legally compelled standards of prosecutorial conduct before the grand jury, such as those found in statutes, the Federal Rules of Criminal Procedure, or the Constitution, but they may not use it to prescribe new standards in the first instance, because the grand jury is an institution separate from the courts.²⁷ A mandatory duty to present exculpatory evidence would also turn an accusatory body into an adjudicatory one, since the grand jury sits only to assess whether there is an adequate basis for a charge and hears the prosecutor's side. It would give a target a way to steer the process as well, by delivering favorable material to the prosecutor, who would then have to pass it along.²⁸ The Justice Manual does instruct a prosecutor who is personally aware of substantial evidence that directly negates a subject's guilt to present or disclose it to the grand jury, but a violation of that internal policy leads to a referral to the Office of Professional Responsibility and not to dismissal.²⁹ A familiar duty runs the other way at trial, where Brady v. Maryland held that the prosecution's suppression of evidence favorable to the accused violates due process when the evidence is material to guilt or punishment, whatever the prosecutor's good or bad faith.³⁰ The two rules coexist because the trial decides guilt and the grand jury decides only whether to accuse.

The rule is easy to overread, so it helps to mark what it leaves intact at trial. The grand jury may rely on material the trial court would later exclude, and the defendant's protection arrives when the government tries to use that material before the trial jury. Grand jury testimony shows the point. Crawford v. Washington held that testimonial hearsay cannot be admitted against the accused unless the declarant is unavailable and the accused had a prior opportunity for cross-examination, and it listed prior testimony before a grand jury as testimonial.³¹ The accused has no chance to cross-examine anyone at the grand jury, so that testimony is inadmissible against the accused at trial if the witness is unavailable, however reliable it may be.³² A statement can therefore support the indictment and still be barred from the trial, which is the arrangement the division of labor between the two juries contemplates.

The bar reaches only attacks on the quality of the evidence. It leaves open an attack on how the prosecutor obtained the indictment, and false evidence is the clearest example. A prosecutor may not knowingly present false evidence to a grand jury, and an indictment based on perjury may be quashed.³³ The objection survives the no-review rule because it concerns the prosecutor breaking a standard the law itself imposes, which is the territory of the next section, and says nothing about whether the evidence was sufficient or competent. The same logic explains the knowledge requirement. That the grand jury heard testimony that later proved false is not grounds for dismissal unless the prosecutor knew or was reckless as to the falsity and failed to correct it.³⁴ Without that state of mind, nothing the prosecutor did bent the grand jury's decision, and the grand jury merely acted on imperfect evidence, which the no-review rule permits. An indictment supported only in part by perjured testimony also probably withstands scrutiny if probable cause existed once the perjured proof is set aside.³⁵

On an exam, the error to avoid is treating testimony that merely turned out to be false as the same thing as a prosecutor's knowing use of falsehood. Weak evidence, hearsay, illegally seized evidence, and unpresented exculpatory evidence all end at the Costello bar, and the indictment stands. Knowing or reckless use of false testimony, and the violation of a legally compelled grand jury rule, move on to the question of prejudice taken up in the next section.

Rule Violations and Prejudice

A complaint about how the prosecutor handled the grand jury, as distinct from what the grand jury heard, opens with a threshold question: which standard did the prosecutor break? In United States v. Williams the Court generally withheld any power to prescribe new standards of grand jury conduct, because the grand jury is an institution separate from the courts, and it limited a federal court's supervisory power to enforcing standards that a statute, the Federal Rules of Criminal Procedure, or the Constitution compels.³⁸ Rule 6 supplies the clearest enforceable standards. Rule 6(d)(1) permits only attorneys for the government, the witness being questioned, interpreters when needed, and a court reporter or recording operator to be present while the grand jury is in session.³⁹ A prosecutor who puts two witnesses before the grand jury at the same time therefore breaks the rule, since only the witness under questioning may be in the room. Conduct outside the few clear rules, such as inflammatory remarks about a target or expressions of personal opinion about guilt, largely falls outside what a court may enforce by dismissing an indictment.⁴⁰

Once a genuine violation is shown, a second question decides the motion. In Bank of Nova Scotia v. United States the defendant alleged that the prosecutor had presented more than one witness to the grand jury at once, a Rule 6(d)(1) violation, and had tried to influence an expert witness's testimony improperly.⁴¹ The Court held that showing a violation of the grand jury process does not by itself entitle the defendant to relief, because the defendant must also show prejudice.⁴² Its test is that “dismissal of the indictment is appropriate only if it is established that the violation substantially influenced the grand jury’s decision to indict, or if there is grave doubt that the decision to indict was free from the substantial influence of such violation.”⁴³ Put plainly, the violation must be tied to the decision to indict. The first alternative asks whether the violation influenced the vote in a substantial way. The second reaches a defendant who cannot prove influence directly, because it supports dismissal when a court cannot say with confidence that the vote was free of the violation.

The standard separates two defendants whose complaints look alike. A defendant who shows that improper conduct before the grand jury substantially influenced the vote, or leaves grave doubt about it, obtains dismissal.⁴⁴ A defendant who proves that two witnesses were questioned together in violation of Rule 6(d)(1) but cannot connect that to the decision to indict receives no relief under Bank of Nova Scotia, and the indictment stands.⁴⁵

Each half of this arrangement has its own reason. The prejudice requirement exists because of when the motion arrives: the indictment has already been returned and the case is ready for trial, so dismissal sends the government back to a new grand jury. If the violation did not change what the grand jurors decided, that cost buys nothing, since the rules exist to protect the grand jury's independent judgment about whether to accuse. Relief therefore follows the violations that actually compromised that judgment. The difficulty of meeting the standard has a separate cause, which is secrecy. Misconduct before the grand jury seldom happens in front of the target or a friendly witness, so it usually surfaces only after indictment, through pretrial discovery or a review of the grand jury testimony of trial witnesses.⁴⁶ If those sources strongly suggest impropriety, the defense can move under Rule 6(e)(3)(E)(ii) for disclosure of the transcript on a showing that a ground may exist to dismiss the indictment because of a matter that occurred before the grand jury, a preliminary showing that is fairly rigorous, although the district court may also review the transcript itself on its own initiative.⁴⁷ Even with a transcript in hand, the defendant must link the violation to the vote, so it will be a rare case in which prejudice can be demonstrated even though a violation is shown.⁴⁸

Some violations fail the test for a reason that needs no transcript. The Court found that the Rule 6(e) secrecy violations raised in Bank of Nova Scotia, disclosing grand jury matter to third parties and imposing secrecy obligations on witnesses, were harmless because they could not have affected the charging decision.⁴⁹ Misconduct unrelated to how the case was presented to the grand jury almost always fails the test for that reason. Rule 6(e)(1) writes the same logic into the recording requirement: proceedings other than deliberations and voting must be recorded, but the validity of a prosecution is not affected by an unintentional failure to make a recording.⁵⁰ A missing recording reveals nothing about what moved the grand jurors, so the rule does not let it undo the indictment. One qualification remains unsettled. Bank of Nova Scotia involved no constitutional error by the prosecutor, so a constitutional violation before the grand jury arguably calls for the stricter harmless-error standard associated with Chapman v. California, under which dismissal follows unless the court is convinced beyond a reasonable doubt that the error did not contribute to the decision to indict.⁵¹

Timing can end a rule-violation claim as well. In United States v. Mechanik the defense learned during trial of a Rule 6(d) violation, the presence of multiple witnesses before the grand jury, and the trial court postponed the challenge to the indictment until the trial ended.⁵² After the defendants were convicted, the Supreme Court treated the issue as moot, reasoning that even if the violation might have influenced the finding of probable cause, the guilty verdict of the petit jury, the ordinary trial jury, showed both probable cause and guilt beyond a reasonable doubt, and so rendered any error in the charging decision harmless.⁵³ The logic follows from the grand jury's task, which is only to decide whether a trial is warranted. Once a trial jury has found more than the grand jury was asked to find, redoing the grand jury step would accomplish nothing. Lower federal courts disagree about how broadly Mechanik reaches, so a defendant does best to raise the violation before trial, a subject taken up with the pretrial-motion rules later in this chapter.⁵⁴

The usual error on an exam is stopping once a violation is proved, when the violation only opens the question of prejudice. Presenting two witnesses together or trying to influence an expert each describes a departure from procedure, and a departure wins dismissal only when it is tied to the decision to indict.

Structural Errors

The prejudice requirement from the previous section has one narrow exception. A defect in how the grand jury was constituted, meaning who was allowed to sit in the body that accuses, can invalidate the indictment without any showing that the defect changed the vote, and the most notable example is selection of grand jurors in a racially discriminatory manner.⁵⁶ Ordinary rule violations, such as presenting two witnesses at once, concern what the prosecutor did inside the grand jury room, and they ask whether that conduct moved the decision to indict. A structural error concerns the identity of the decision-maker itself, which is why it is treated so differently.

The constitutional footing for the exception is equal protection. A state need not use a grand jury at all, since the Fifth Amendment's grand jury requirement has not been applied to the states, but a state that chooses to use one may not run it in a way that denies equal protection.⁵⁷ An indictment is therefore open to constitutional challenge when the grand jury selection procedure operated to discriminate on racial grounds, and the prohibition reaches deliberate and systematic exclusion because of race, class, gender, or national origin.⁵⁸ These are the same objections that fall within the composition challenges taught earlier, since courts recognize two proper grounds for attacking a grand jury's composition: a juror who lacked the statutory qualifications, and a selection process that violated constitutional standards, usually discrimination based on a suspect classification such as race or gender.⁵⁹

Two decisions show how far the exception reaches. In Rose v. Mitchell the Court treated racial discrimination in grand jury selection as a wrong that “strikes at the fundamental values of our judicial system and our society as a whole,” and it allowed the challenge on appeal or postconviction review even though a fairly selected trial jury had convicted.⁶⁰ In Vasquez v. Hillery the Court confirmed that a constitutional infirmity in the composition of a grand jury may invalidate a conviction although the trial jury was legally constituted and guilt was established beyond a reasonable doubt.⁶¹

The reason for dispensing with prejudice follows from what a grand jury is empowered to do. The usual prejudice test asks whether the same grand jurors would have voted the same way without the violation, and a court can answer that question for a misstep in the room. It cannot answer it for a discriminatory selection process, because the defect changes who the jurors are, and no one can reconstruct what a differently composed body would have done. Vasquez makes the point concrete: even though a conviction shows that the evidence was sufficient to indict, a grand jury of a different racial composition may have been willing to exercise its power to “charge a lesser offense than the evidence might support.”⁶² The trial verdict says nothing about the charging judgment that a properly constituted grand jury might have made. That explains why the guilty verdict which made the multiple-witness violation harmless in the previous section does not cure this defect.

The contrast with Bank of Nova Scotia is the whole lesson. There the defendant proved a genuine Rule 6(d)(1) violation and still had to connect it to the decision to indict, because the harm of a misstep in the room can be measured by asking whether it moved the vote.⁶³ A defendant who proves racially discriminatory selection faces no such burden, because the harm lies in the legitimacy of the body itself.

The error to avoid on an exam is assuming a fair trial cures any grand jury defect. For ordinary rule violations that assumption often holds, but it fails for discriminatory selection. Two limits keep the exception narrow. It relieves the defendant only of proving prejudice, and a composition objection ordinarily must still be raised when the defendant is brought to trial rather than for the first time on appeal, a timing point developed with the pretrial-motion rules later in this chapter.⁶⁴ It also attaches to defects in how the grand jury was constituted, so prosecutorial misconduct remains under the substantial-influence standard.⁶⁵