The Hyde Amendment and Prosecutorial Investigation: The Promise of Protection for Criminal Defendants

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INTRODUCTION

Kermit Bunn appeared before a federal grand jury in response to a subpoena requiring him to certify the authenticity of corporate documents. (1) He refused to take the oath on the grounds that the prosecutor was not licensed to practice in that state. After this refusal, Bunn added, "I have legal paperwork on all of you [grand jurors]. You need to go get legal counsel." The court reporter recorded these comments, and the district court charged Bunn with contempt for threatening the grand jury. The court issued an order to show cause based on the transcript of the grand jury proceedings and the foreman's testimony that the grand jury members perceived the comments as a threat. Bunn moved for discovery and requested the tape recording of the grand jury proceedings. Although the government did not object, it failed to produce the tape and ultimately dismissed the charges, determining that the statement on the tape was too vague to prove contempt beyond a reasonable doubt.

Though not the most egregious example of prosecutorial misconduct, this case nonetheless illustrates the lack of standards governing the conduct of investigations by federal prosecutors made prior to their charging decisions as well as the lack of guidance about the extent to which federal prosecutors should review evidence on hand or reasonably available before bringing charges. (2) Because federal prosecutors have considerable involvement in the pre-charging investigation and virtual free reign over the charging decision, (3) it is reasonable to expect that they adhere to some basic principles in conducting these investigations and in deciding what and whom to charge. (4) However, under existing standards set by the United States Constitution, the United States Department of Justice ("DOJ"), federal ethics rules, and the courts, federal prosecutors have very broad and vague guidelines to help them conduct their pre-charging investigation and exercise their charging discretion. (5) Furthermore, the enforcement of these standards by the courts, state disciplinary authorities, and the Office of Professional Responsibility (DOJ's internal review board) is minimal and generally lenient. (6)

In 1997, Congress enacted the "Hyde Amendment," purportedly in an effort to minimize prosecutorial abuse of power in the charging decision by creating a financial remedy for victims of egregious prosecutorial action. (7) The Hyde Amendment allows prevailing criminal defendants with private counsel to collect "a reasonable attorney's fee and other litigation expenses, where the court finds that the position of the United States was vexatious, frivolous, or in bad faith." (8) Current judicial interpretation of the Hyde Amendment standard raises the question of whether the courts' decisions interpreting the law will add to the standard of conduct for prosecutors established by pre-existing laws, regulations, and internal guidelines. Commentators are also interested in the extent to which the Hyde Amendment effectively deters prosecutors by introducing financial considerations to the charging decision.

Part I of this Comment describes federal prosecutors' broad charging discretion and the resulting potential for abuse. This Part then examines and critiques the standard of conduct set for federal prosecutors by the United States Constitution, the courts, the DOJ, and ethics rules. Finally, this Part reviews and assesses the various enforcement mechanisms used to insure compliance with the standards of conduct set by these various sources. Part II discusses how current interpretations of the Hyde Amendment have failed to establish a standard of conduct for federal prosecutors different from that established by pre-existing laws, internal regulations, and ethics rules. This Part then considers the effectiveness of the Hyde Amendment as a deterrent mechanism and analyzes the Hyde Amendment's success as a remedy for prevailing criminal defendants. …