Procedural Issues
Journal article by Robert Johnston, Richard S. Julie, Tobias Zimmerman; American Criminal Law Review, Vol. 36, 1999
Journal Article Excerpt
Procedural issues by Robert Johnston , Richard S. Julie , Tobias Zimmerman I. INTRODUCTION This Article discusses criminal procedure issues that are particularly relevant to white collar crime litigation.(1) Section II discusses the initiation of white collar criminal prosecutions. Section III examines issues arising from parallel civil and criminal proceedings. Finally, Section IV addresses issues related to attorney representation raised during white collar crime litigation. II. INITIATION OF PROSECUTION A prosecutor has broad discretion to determine whether and how to charge a defendant. In United States v. Batchelder,(2) the Supreme Court held that a prosecutor may charge a defendant under either of two overlapping statutes whose penalties are not equally severe(3) unless a defendant can show that the more lenient statute clearly manifests an intent to repeal the more severe statute,(4) and so long as the prosecutor does not unconstitutionally discriminate between classes of defendants in choosing which statute to apply.(5) A prosecutor has unfettered discretion to decide not to bring a case.(6) Part A of this Section describes grand jury processes, with emphasis on the judicial standard for dismissing indictments tainted by grand jury error. Part B discusses document production issues. A. The Grand Jury The Fifth Amendment mandates that "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury."(7) Therefore, a grand jury indictment is a necessary precursor to the prosecution of any federal felony.(8) A grand jury reviews all information related to an investigation until "it has identified an offense or has satisfied itself that none has occurred."(9) A grand jury does not adjudicate guilt or innocence;(10) instead, it determines whether probable cause to believe that a crime has been committed exists.(11) Acting as both a "shield" and "sword," the grand jury protects the accused from unfounded criminal prosecutions and assists the government in investigating crimes.(12) Defenses or objections based on defects in the indictment must be presented prior to trial, unless the challenge is based on the indictment's failure to establish jurisdiction or to charge a crime.(13) Due to a court's extreme reluctance to dismiss an indictment,(14) a defendant seeking dismissal is confronted with several obstacles: grand jury secrecy rules,(15) limited discovery allowed to defendants,(16) absence of the safeguards afforded at trial,(17) the government's power to reindict once an indictment is dismissed,(18) and the application of the harmless error rule to errors occurring during grand jury proceedings.(19) Furthermore, a guilty verdict at subsequent trial,(20) or a guilty plea,(21) generally may be used to establish that any error in the grand jury proceedings was harmless. The rest of this Part describes: (1) the standard of review used to determine whether error in grand jury proceedings warrants the dismissal of an indictment; and (2) prosecutorial misconduct. 1. Standard of Review for Grand Jury Error In Bank of Nova Scotia v. United States,(22) the Supreme Court reaffirmed that the "harmless error rule" generally governs error in grand jury proceedings.(23) The Court drew a narrow exception to this rule, finding that the harmless error rule does not apply where "fundamental errors" occur in grand jury proceedings. An error is "fundamental" when "the structural protections of the grand jury have been so compromised as to render the proceedings fundamentally unfair, allowing the presumption of prejudice."(24) Fundamental errors include race based(25) and sex based(26) selection of grand jurors. Errors such as the violation of grand jury secrecy requirements(27) and the government's improper introduction of evidence(28) are not deemed fundamental. If a fundamental error is found, the court may dismiss the indictment without a "particular assessment" of the harm caused because prejudice is presumed.(29) 2. Prosecutorial Misconduct Prosecutorial misconduct "denote[s] situations in which the prosecutor engages in improper behavior usually to gain an unfair advantage over the accused or otherwise to prejudice the ... grand jury."(30) In limited circumstances, to remedy prosecutorial misconduct, a court may dismiss an indictment, suppress grand jury testimony, quash subpoenas, discipline the prosecution, and impose other, similar sanctions.(31) Forms of prosecutorial misconduct include violations of grand jury procedural rules,(32) violations of a target's due process rights,(33) interference with the attorney-client relationship,(34) and other prejudicial conduct.(35)The Supreme Court, in United States v. Williams,(36) severely limited the ability of the courts to respond to prosecutorial misconduct with the dismissal of an indictment. Williams held that courts may not use their supervisory powers to "prescrib[e] ... standards of prosecutorial conduct in the first instance."(37) Supervisory power may be used to dismiss an indictment where misconduct "amounts ... |
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