RIGHT TO COUNSEL
Although it is well established that a grand jury witness has no right to the “presence” of counsel before the grand jury. In re Groban, 352 U.S. 330 (1952), some confusion exists as to whether a grand jury witness has a right to confer with counsel sitting outside the grand jury room after each question or series of questions.
Many courts are of the opinion that “counsel may …sit outside of the grand jury room; and, at any and all times during questioning a witness may leave the room to consult with his attorney.
In re Taylor, 567 F.2d 1183, 1186 n.1 (2d Cir. 1977);
U.S. v. Mandujano, 425 U.S. 564, 581, 605-07 (1976);
U.S. v. Capaldo, 482 F.2d 821 (2d Cir. 1968), cert. denied, 394 U.S. 989 (1969);
In re Tierney, 465 F.2d 806, 810-11 (5th Cir. 1972) (indicating that while the court has “…the power to prevent a breakdown in the grand jury proceeding by frequent departures from the grand jury room for frivolous reasons and with intent to frustrate the proceedings, the witness does have a right to consult with counsel, suggesting “government counsel could facilitate the proceedings by making a set of questions available at one time to the witness so that they might be discussed as a group with counsel”).
Indeed, even the Supreme Court noted, albeit in dicta, that informing a grand jury witness “he could have the assistance of counsel, but that counsel could not be inside the grand jury room …[is] plainly a correct recital of the law”. U.S. v. Mandujano, 425 U.S. 564, 881 (1979).
See also Commonwealth v. McClosley, 277 A.2d 764, cert. denied, 404 U.S. 1000.
However, at least one court has suggested that a grand jury witness’ right to consult with counsel may only require that the witness be provided with an opportunity to consult with counsel prior to testifying; and that even that limited right to counsel is “undercut” and “minimal” where the grand jury witness has been granted immunity.
See In re Lowry, 713 F.2d 616 (11th Cir. 1983).
“Even had Lowry not been able to consult after he heard the questions it is unlikely that any right he had to counsel would have been violated here. Lowry and Jenking were fully aware of the subject of the grand jury’s probe and could easily have predicted and prepared for its inquiries in advance”. In re Lowry, 713 F.2d 616 (11th Cir. 1983).
“[Moreover], [w]here, as here, a grand jury witness is made immune from prosecution based on his testimony, the rationale for right to counsel is undercut, at best it appears that right becomes minimal at best.”
See also U.S. ex rel Buonoraba v. Commissioner, 316 F. Supp. 556 (S.D.N.Y. 1970).
The Eleventh Circuit’s opinion notwithstanding, a grand jury witness may need to consult with a lawyer concerning various other legal rights and privileges which are often highly technical. For example, a witness would need the advice of counsel to understand the prohibition against use or disclosures of evidence obtained as a result of electronic surveillance,
Gelbard v. U.S., 408 U.S. 41 (1972) (noting violations of First Amendment freedoms);
Bursey v. U.S., 466 F.2d 1059 (9th Cir. 1972) (noting unlawful search or seizure);
U.S. v. Calandra, 414 U.S. 338 (1974) (noting attorney-client privilege); Schwimmer v. U.S., 232 F.2d 855 (8th Cir. 1956) (noting marital privilege); Blau v. U.S., 340 U.S. 332 (1951);
and questions requiring a close analysis so as to avoid the very technical offense of perjury,
Bronston v. U.S., 409 U.S. 353 (1973).
The point is, the need for consultation with counsel is evident even after a witness is given immunity.
Nevertheless, the Courts seem to be increasingly more sensitive to the interruption created
by a grand jury witness’ repeated entry and exit from the grand jury room which prosecutors often claim is very disruptive of that body’s investigatory function. Both the Fifth and Eleventh Circuit Courts of Appeals have expressed their concern for the same.
In re Tierney, 465 F.2d 806, 810 (5th Cir. 1972) (stating that the court has “the power to prevent a breakdown in the grand jury proceedings by frequent departures from the grand jury room for frivolous reasons and with intent to frustrate the proceedings”).
In re Lowry, 713 F.2d 616, 617 (11th Cir. 1983) (stating, “…Lowry requested to recess to consult with his lawyer, the grand jury forewoman complained about the constant interruptions these consultations were creating…”).
Defense counsel, on the other hand, should insist on the witness’ right to consultation.