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ABUSE OF GRAND JURY

The knowing presentation of perjured testimony in order to secure a conviction violates due process. Miller v. Pate, 386 U.S. 1 (1967) [deliberate misrepresentation at trial]; Napue v. Illinois, 360 U.S. 264 (1959) [witness testified falsely he did not have a deal which the prosecutor did not correct]; U.S. v. Anderson, 574 F.2d 1347 (5th Cir. 1978) [false testimony cannot be used to support a conviction]; U.S. v. Martinez- Mercado, 888 F.2d 1484 (5th Cir. 1989) [presentation of evidence which the prosecution knows is false sets out a due process violation].

 

Several Circuits have reversed the defendant’s convictions based upon presentation of perjured testimony before the grand jury where the prosecutor was aware of the perjured testimony. Dismissal is necessary to protect the integrity of the judicial process. See

U.S. v. Basurto, 497 F.2d 781 (9th Cir. 1974); U.S. v. Giorgi, 840 F.2d 1022 (1st Cir. 1988); U.S. v. Page, 808 F.2d 723 (10th Cir. 1987); U.S. v. Thibideau, 671 F.2d 75 (2nd

Cir. 1982). The Fifth Circuit has also stated that it will dismiss an indictment with prejudice if the government conduct rises to the level of deliberate misconduct or even gross negligence. See U.S. v. Fulmer, 722 F.2d 1192 (5th Cir. 1983); U.S. v. Campagnulo, 592 F.2d 852 (5th Cir. 1979). If the indictment was obtained by the presentation of testimony the prosecutor knew to be perjured, the court should reverse the conviction. See U.S. v. Baskes, 433 F.Supp. 799, 804-807 (N.D. Ill. 197)[ cited with approval in U.S. v. Campagnuolo, 592 F.2d 852, 865 (5th Cir. 1979)

 

Recently, several courts have raised questions regarding the use and/or abuse of the federal grand jury process by Independent Counsel In the investigation of whether President Clinton committed perjury in a civil deposition concerning his sexual relationship with Monica Lewinsky the Office of Independent Counsel apparently leaked secret information about the investigation to the press. In re: Sealed Case No: 99-3091, 192 F.3d 995 (D.C. Cir. 1999).

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