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S. 2289 (105th): Grand Jury Reform Act of 1998

The text of the bill below is as of Jul 10, 1998 (Introduced).

S 2289 IS


2d Session

S. 2289

To amend the Federal Rules of Criminal Procedure, relating to grand jury proceedings, and for other purposes.


July 10, 1998

Mr. BUMPERS introduced the following bill; which was read twice and referred to the Committee on the Judiciary


To amend the Federal Rules of Criminal Procedure, relating to grand jury proceedings, and for other purposes.

    Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,


    This Act may be cited as the ‘Grand Jury Reform Act of 1998’.


    (a) IN GENERAL- Rule 6 of the Federal Rules of Criminal Procedure is amended--

      (1) in subdivision (a), by adding at the end the following:

      ‘(3) INSTRUCTION ON RIGHTS, RESPONSIBILITIES, AND DUTIES- Upon impaneling a grand jury, the court shall instruct and charge the grand jury on the rights, responsibilities, and duties of the grand jury under this rule, including--

        ‘(A) the duty to inquire into criminal offenses that are alleged to have been committed within the jurisdiction;

        ‘(B) the right to call and interrogate witnesses;

        ‘(C) the right to request production of a book, paper, document, or other object, including exculpatory evidence;

        ‘(D) the necessity of finding credible evidence of each material element of the crime charged before returning a true bill;

        ‘(E) the right to request that the attorney for the government draft indictments for charges other than those originally requested by that attorney;

        ‘(F) the obligation of secrecy under subdivision (e)(2); and

        ‘(G) such other rights, responsibilities, and duties as the court determines to be appropriate.’;

      (2) in subdivision (d), by inserting ‘and counsel for that witness (as provided in subdivision (i))’ after ‘under examination’;

      (3) in subdivision (e)(2), by adding at the end the following: ‘The court shall have the authority to investigate any violation of this paragraph, including the authority to appoint counsel to investigate and report to the court regarding any such violation.’; and

      (4) by adding at the end the following:

    ‘(h) NOTICE TO WITNESSES- Upon service of any subpoena requiring any witness to testify or produce information at any proceeding before a grand jury impaneled before a district court, the witness shall be given adequate and reasonable notice of--

      ‘(1) his or her right to counsel, as provided in subdivision (i);

      ‘(2) his or her privilege against self-incrimination;

      ‘(3) the subject matter of the grand jury investigation;

      ‘(4) whether his or her own conduct is under investigation by the grand jury;

      ‘(5) the criminal statute, the violation of which is under consideration by the grand jury, if such statute is known at the time of issuance of the subpoena;

      ‘(6) his or her rights regarding immunity; and

      ‘(7) any other rights and privileges which the court deems necessary or appropriate.


      ‘(1) IN GENERAL-

        ‘(A) RIGHT OF ASSISTANCE- Each witness subpoenaed to appear and testify before a grand jury in a district court, or to produce books, papers, documents, or other objects before that grand jury, shall be allowed the assistance of counsel during such time as the witness is questioned in the grand jury room.

        ‘(B) RETENTION OR APPOINTMENT- Counsel for a witness described in subparagraph (A)--

          ‘(i) may be retained by the witness; or

          ‘(ii) in the case of a witness who is determined by the court to be financially unable to obtain counsel, shall be appointed as provided in section 3006A of title 18, United States Code.

      ‘(2) POWERS AND DUTIES OF COUNSEL- A counsel retained by or appointed for a witness under paragraph (1)--

        ‘(A) shall be allowed to be present in the grand jury room only during the questioning of the witness and only to advise the witness; and

        ‘(B) shall not be permitted to address any grand juror, or otherwise participate in the proceedings before the grand jury.


        ‘(A) IN GENERAL- If the court determines that counsel retained by or appointed for a witness under this subdivision has violated paragraph (2), or that such action is necessary to ensure that the activities of the grand jury are not unduly delayed or impeded, the court may remove the counsel and either appoint new counsel or order the witness to obtain new counsel.

        ‘(B) NO EFFECT ON OTHER SANCTIONS- Nothing in this paragraph shall be construed to affect the contempt powers of the court or the power of the court to impose other appropriate sanctions.

    ‘(j) EXCULPATORY EVIDENCE- An attorney for the government shall disclose to the grand jury any substantial evidence of which that attorney has knowledge that directly negates the guilt of the accused. Failure to disclose such evidence may be the basis for a motion to dismiss the indictment, if the court determines that the evidence might reasonably be expected to lead the grand jury not to indict.


      ‘(1) IN GENERAL- Subject to paragraph (2), not later than 10 days before trial (unless the court shall for good cause determine otherwise), and after the return of an indictment or the filing of any information, a defendant shall, upon request, and as the court determines to be reasonable, be entitled to examine and duplicate a transcript or electronic recording of--

        ‘(A) the grand jury testimony of all witnesses to be called at trial;

        ‘(B) all statements relating to the defendant’s case made to the grand jury by the court, the attorney for the government, or a special attorney;

        ‘(C) all grand jury testimony or evidence which in any manner could be considered exculpatory; and

        ‘(D) all other grand jury testimony or evidence that is determined by the court to be material to the defense.

      ‘(2) EXCEPTION- The court may refuse to allow a defendant to examine and duplicate a transcript or electronic recording of any testimony, statement, or evidence described in paragraph (1), if the court determines that such examination or duplication would endanger any witness.’.

    (b) CONFORMING AMENDMENTS- Section 3500(e) of title 18, United States Code, is amended--

      (1) in paragraph (1), by adding ‘or’ at the end;

      (2) in paragraph (2), by striking ‘, or’ and inserting a period; and

      (3) by striking paragraph (3).