lecture 2

Question 1

grand jury history

Answer 1

• assize of clarendon (King Henry II)
• king’s investigative groups took testimonies & reported to king

Question 2

grand jury basic info

Answer 2

• 16-23 people (not everyday, not always 23)
• role in investigation and charging
  – investigate through 2 subpoenas
  – grand jurors may not know what subpoena is for
• rule of secrecy - nothing reaches public
• non-adversarial in nature - no judge or defense lawyer

Question 3

grand jury subpoenas

Answer 3

subpoena duces tecum: subpoena for stuff
subpoena ad testificandum: subpoena for people

Question 4

grand jury burden of proof

Answer 4

probable cause

Question 5

2 kinds of grand juries

Answer 5

regular grand jury
- 18-month period for ‘regular cases’
- come in 1x a week
special grand jury
- called together for one case
- can be used for 24 months

Question 6

functions of the grand jury

Answer 6

• compel evidence & testimony
• psychological pressure
• immunity to obtain testimony (not common in gj)
• maintain public confidence in community assessment

Question 7

transactional immunity

Answer 7

person won’t get in trouble for anything they say/do in connection with the case
rare immunity that needs DOJ approval

Question 8

use immunity

Answer 8

person is granted immunity for truthful answer to narrow question, but can be punished for anything else
- common outside grand jury, co-operators want it
in use immunity, derivative use is a prosecutor’s loophole

Question 9

administrative subpoena

Answer 9

an alternative to grand jury subpoenas that are not as effective, since ignoring them comes with no punishment
located in offices that have administrative subpoena authority

Question 10

Blair vs. United States

Answer 10

asserted that nobody can challenge the authority of the grand jury to investigate
- GJ can’t call in series of witnesses who were asked to lie
- judge has minimal supervisory authority over prosecutor & GJ

Question 11

GJ: broad scope of investigation

Answer 11

• no exculpatory evidence need be provided
• hearsay permissible
• exclusionary rule does not apply (except for illegal wiretap)
• separate sovereign doctrine (double jeopardy distinction)
• miranda warnings not necessary
• privilege still in play

Question 12

target

grand jury

Answer 12

person you want to charge ‘principal defendant’
never subpoenaed because of 5th amendment right
won’t testify

Question 13

subject

grand jury

Answer 13

person who may have involvement/knowledge of crime but it is unclear
they may get charged later

Question 14

witness

grand jury

Answer 14

person who saw the crime, much less connected
not often put on grand jury

Question 15

GJ: who testifies

Answer 15

• typically have agents coming in to avoid jancks complications
• exceptions are people who may die soon so their testimony is preserved
• people who may spin the story may be asked to tesitfy to lock their answers

Question 16

forthwith subpoena

Answer 16

an immediate subpoena for stuff to ensure the stuff is not destroyed
acts like a search warrant, but without probable cause and judges don’t like that it abuses the subpoena process
useful for those with history of destroying/single items

Question 17

subordination of perjury

Answer 17

prosecutor putting someone on the stand they know are lying testify to that lie

Question 18

5th and 6th amendment - grand jury

Answer 18

5th - individuals and corporations are not treated similarly
6th - GJ is not ‘critical stage’ so counsel right is not constitutionally given
- DOJ requires prosecution provide right to a lawyer before going into GJ ‘fairness right’

Question 19

GJ panel switches

Answer 19

when one GJ expires and a new one comes in, prosecutor only has to share enough to establish PC that target(s) committed crime(s)

Question 20

overbroad subpoenas

Answer 20

burdensome to those subpoenaed, typically squashed

Question 21

questioning in grand jury

Answer 21

• leading question ok
• trying to lock-in some testimonies

Question 22

perjury in the grand jury

Answer 22

• requires oath, otherwise just obstruction
• materiality (importance of lie)
• knowledge of falsity, or confusion, mistake, or faulty memory
• entrapment

Question 23

conspiracy

Answer 23

agreement between 2 or more people to do something illegal
- don’t need to do illegal or know it’s illegal
overt acts - “acts in furtherance of the agreement to do something”
- can be a crime in and of itself (substantive offense)
easy to prove, commonly charged

Question 24

obstruction of justice

definition

Answer 24

“whoever corruptly or by threats of force…endeavors to influence, intimidate, or impede…the due administration of justice”

Question 25

US v. Fischer (2024)

Answer 25

guardrails around the use of the statute for obstruction
‘prosecutors have to prove that the defendants impaired the availability or integrity for use in an official proceeding of records, documents, objects or other things used in an office proceeding, or attempted to do so’
affected jan. 6 obstruction-based cases