Grand Juries

Question 1

what are the 2 main functions of a GJ

Answer 1

sword: investigative tool for prosecutors
shield: serves as screening function against unhinged prosecutors

Question 2

do rules of evidence apply

Answer 2

no

Question 3

does the prosecutor have to show exculpatory evidence to GJ

Answer 3

no

Question 4

what is the rationale for GJ secrecy

Answer 4

protects witnesses
protects ∆s who don’t get charged
fosters candid deliberation
avoids risk of ∆ finding out and fleeing/destroying evidence

Question 5

what are some criticisms for GJ secrecy

Answer 5

hard to asses prosecutor’s zeal, what charges are presented, compliance with rules

lots of criticism in police misconduct caes

Question 6

does a subpoena to come read off a script count as an unreasonable seizure

Answer 6

no

Question 7

what subpoenas can GJ issue

Answer 7

for testimony and for documents

Question 8

what are the limits on a GJ

Answer 8

1. can’t force witness to testify against self
2. can’t require the witness to produce incriminating evidence
3. be so sweeping in its terms as to be unreasonable
4. can’t compel disclosure of privileged info

Question 9

what is the test for a motion to quash

Answer 9

GJ subpoena can be quashed if
1. privileged info
2. it’s incredibly burdensome

Question 10

who does the motion to quash test favor

Answer 10

the government, because they’re just trying to establish probable cause and we don’t want to hinder that

Question 11

what does the 5th amendment privilege against self incrimination apply to

Answer 11

can invoke for
1. any plainly incriminating statement (did you steal the safe?)
2. any statement that could furnish a link in the chain (were you at the bank on Monday?)

Question 12

what is the fisher rule regarding the 5th and documents?

Answer 12

5th usually doesn’t apply to documents created before the issuance of the subpoena – because the government didn’t compel you to be dumb and write incriminating stuff down

Question 13

what is the exception to the fisher rule

Answer 13

act of production privilege

Question 14

what is the act of production privilege

Answer 14

applies when the government doesn’t already know about the exist of a document in the possession of a specific person and the production of the document confirms the
1. existence
2. authenticity
3. custody of the document

Defendant isn’t required to help investigate himself!

Question 15

what is the most common kind of immunity

Answer 15

use - government is giving immunity for certain testimony/ docs you give them. they can’t use those against you, but still disfavors ∆ because they could just independently collect other evidence against you