The Fifth Amendment provides that an individual cannot be held to answer a felony offense unless the grand jury has rendered indictment or presentment on the charges. (1) The allure of this amendment is that it "presupposes an investigative body `acting independently of either prosecuting attorney or judge' whose mission is to clear the innocent, no less than to bring to trial those who may be guilty." (2) It is intended as a "bulwark" against an overly aggressive government and its monopolization of force. (3)
However, these fundamental principles were not followed by the Supreme Court in United States v. Williams, (4) in which it held that prosecutors have no duty to present substantial exculpatory evidence that opposes a finding of probable cause in grand jury proceedings. The result was to ignore the mandate that the grand jury be both informed and independent. This Note will argue that Williams impinges on the grand jury's historical role of shielding criminal defendants by allowing indictment in a context strongly biased in favor of the prosecution.
Part I of this Note examines decisions and policies imposing a prosecutorial duty to disclose exculpatory evidence to the grand jury. These decisions were followed by the Williams Court's rejection of this obligation. Part II discusses the grand jury process and current procedural implications after an indictment is returned. Part III explains the repercussions for criminal defendants after indictment, whether the indictment is properly based on probable cause or returned without consideration of evidence that would counter such a finding: the stigma of indictment; plea bargaining; possibilities for disclosure of exculpatory evidence; and, the corresponding implications and risks associated with criminal trial. Finally, Part IV offers a solution to the Williams' dilemma: an amendment to Rule 6 of the Federal Rules of Criminal Procedure to require prosecutorial presentation of substantial exculpatory evidence that would oppose a finding of probable cause and allow dismissal of the indictment.
I. EXCULPATORY EVIDENCE IN THE GRAND JURY CONTEXT
A. Requiring Disclosure
An earlier holding foreshadowed Williams' arguments in the Tenth Circuit. In United States v. Page, (5) the defendant had appealed on several grounds, including that his indictment must be dismissed because the prosecution failed to present exculpatory evidence to the grand jury. (6) The Tenth Circuit followed several circuits that had imposed upon the prosecutor a duty to present exculpatory evidence (7) and declined to follow the decisions of several other circuits that found no such duty was owed. (8) While the court declined to impose an obligation upon the prosecution to "ferret out and present every bit of potentially exculpatory evidence," it did hold that the prosecution must present to the grand jury any "substantial exculpatory evidence [discovered] in the course of an investigation." (9) The Page court used its supervisory power to adopt the rule that "although a prosecutor need not present all conceivably exculpatory evidence to the grand jury, it must present evidence that clearly negates guilt." (10) The court applied its newly articulated rule to the case before it, but declined to order dismissal of Page's indictment because it found that the checks and tax returns at issue were not clearly exculpatory. (11)
United States v. Phillips Petroleum Co. (12) sheds more light on the justifications for the Page rule. The Phillips Petroleum court dismissed the defendant's indictment as violative of due process, finding that prosecutors are under a legal and ethical obligation to present exculpatory evidence in their possession to the grand jury so that it can make an independent judgment of probable cause. (13) In addition to the constitutional violation, the court found that dismissal for prosecutorial abuse of the grand jury proceedings was a proper exercise of supervisory power over the grand jury. …