Archive for January, 2009

SCOTUS on the unique power of Grand Jurors

Posted in Uncategorized on January 26, 2009 by naturalborncitizen


My recent post concerning the 5th Amendment right of we the people to use the “presentment” power to investigate criminal activity on our own volition to review Government activity and bring all criminality to justice was very well received.  It seems to have woken alot of people up to the possibility of reviving the Constitution.  The power of  “presentment” is not some fanciful concept but a very real provision stated unequivocally in the 5th Amendment.   There’s no legal reason why we can’t use it.

That being said, the question of how we can use it must be tackled.  But always keep this in mind when the naysayers start harassing you.  25 people sitting on Grand Juries is the way we do all criminal indictments in the US.  If somebody is facing the death penalty or life in prison, they must first be brought before a Grand Jury and if 13 of the 25 agree that the person should stand trial then that’s what happens.


This will be your mantra.  Don’t forget it.  Say it every day.

And as a teaser let me present to you some interesting SCOTUS language.

In United States v. Morton Salt, 338 U.S. 632 (1950), Justice Jackson said this:

The only power that is involved here is the power to get information from those who best can give it and who are most interested in not doing so. Because judicial power is reluctant, if not unable, to summon evidence until it is shown to be relevant to issues in litigation, it does not follow that an administrative agency charged with seeing that the laws are enforced may not have and exercise powers of original inquiry. It has a power of inquisition, if one chooses to call it that, which is not derived from the judicial function. It is more analogous to the Grand Jury, which does not depend on a case or controversy for power to get evidence, but can investigate merely on suspicion that the law is being violated, or even just because it wants assurance that it is not.

Ok, now let’s review the obstacle in our path.  Read my first article again and educate yourself regarding Note 4 to Rule 7 of the Federal Rules of Criminal Procedure wherein this Note to a Rule has been used as the executioner of our Presentment rights.  Basically, this note – which has no legal power to reverse a Constitutional provision – has been used to declare our 5th Amendment “Presentment” power  as “obsolete”.  Obsolete is a clever use of wording.  Obsolete doesn’t mean “illegal” or “cancelled by law”… obsolete simply means that it hasn’t been used recently, but “not being used” doesn’t mean we can’t use it.  We can.

In UNITED STATES vs. WILLIAMS 504 U.S. 36 (1992) the Court discussed a case wherein the defendant in a criminal action sought to overturn a Grand Jury indictment since the Prosecutor failed to provide exculpatory evidence to the Grand Jury.  Defendant relied on a rule which the 10th Circuit had enacted which required disclosure of exculpatory evidence by the  prosecutor to the Grand Jury.  But SCOTUS did not accept the argument. Justice Scalia wrote the following:

Respondent does not contend that the Fifth Amendment itself obliges the prosecutor to disclose substantial exculpatory evidence in his possession to the grand jury.

Ah, please note the Court’s concern for the construction of the 5th Amendment.  SCOTUS tells us here that the 5th Amendment trumps the 10th Circuit disclosure Rule.  Scalia goes on:

Instead, building on our statement that the federal courts “may, within limits, formulate procedural rules not specifically required by the Constitution or the Congress,” United States v. Hasting, 461 U.S. 499, 505 (1983), he argues that imposition of the Tenth Circuit’s disclosure rule is supported by the courts’ “supervisory power.” We think not. Hasting, and the cases that rely upon the principle it expresses, deal strictly with the courts’ power to control their own procedures. See, e. g., Jencks v. United States, 353 U.S. 657, 667-668 (1957); McNabb v. United States, 318 U.S. 332 (1943). That power has been applied not only to improve the truth finding process of the trial, see, e. g., Mesarosh v. United States, 352 U.S. 1, 9-14 (1956), but also to prevent parties from reaping benefit or incurring harm from violations of substantive or procedural rules (imposed by the Constitution or laws) governing matters apart from the trial itself, see, e. g., Weeks v. United States, 232 U.S. 383 (1914). Thus, Bank of Nova Scotia v. United States, 487 U.S. 250 (1988), makes clear that the supervisory power can be used to dismiss an indictment because of misconduct before the grand jury, at least where that misconduct amounts to a violation of one of those “few, clear rules which were carefully drafted and approved by this Court and by Congress to ensure the integrity of the grand jury’s functions,” United States v. Mechanik, 475 U.S. 66, 74 (1986) (O’Connor, J., concurring in judgment). [n.6]

We did not hold in Bank of Nova Scotia, however, that the courts’ supervisory power could be used, not merely as a means of enforcing or vindicating legally compelled standards of prosecutorial conduct before the grand jury, but as a means of prescribing those standards of prosecutorial conduct in the first instance — just as it may be used as a means of establishing standards of prosecutorial conduct before the courts themselves. It is this latter exercise that respondent demands. Because the grand jury is an institution separate from the courts, over whose functioning the courts do not preside, we think it clear that, as a general matter at least, no such “supervisory” judicial authority exists, and that the disclosure rule applied here exceeded the Tenth Circuit’s authority.

So what does that mean to the Presentment issue?  It means that no Federal regulation can trump the Constitution.  The Constitution says we the people can bring “Presentments”.  A footnote to a Rule of procedure that attempts to set aside a Constitutional power granted to we the people has no legal effect whatsoever.

Then check out Scalia as he goes on to cement the fact that the Grand Jury is a separate branch of Government:

“[R]ooted in long centuries of Anglo American history,” Hannah v. Larche, 363 U.S. 420, 490 (1960) (Frankfurter, J., concurring in result), the grand jury is mentioned in the Bill of Rights, but not in the body of the Constitution. It has not been textually assigned, therefore, to any of the branches described in the first three Articles. It ” `is a constitutional fixture in its own right.’ ” United States v. Chanen, 549 F. 2d 1306, 1312 (CA9) (quoting Nixon v. Sirica, 159 U.S. App. D.C. 58, 70, n. 54, 487 F. 2d 700, 712, n. 54 (1973)), cert. denied, 434 U.S. 825 (1977). In fact the whole theory of its function is that it belongs to no branch of the institutional government, serving as a kind of buffer or referee between the Government and the people. See Stirone v. United States, 361 U.S. 212, 218 (1960); Hale v. Henkel, 201 U.S. 43, 61 (1906); G. Edwards, The Grand Jury 28-32 (1906). Although the grand jury normally operates, of course, in the courthouse and under judicial auspices, its institutional relationship with the judicial branch has traditionally been, so to speak, at arm’s length. Judges’ direct involvement in the functioning of the grand jury has generally been confined to the constitutive one of calling the grand jurors together and administering their oaths of office. See United States v. Calandra, 414 U.S. 338, 343 (1974); Fed. Rule Crim. Proc. 6(a).

The grand jury’s functional independence from the judicial branch is evident both in the scope of its power to investigate criminal wrongdoing, and in the manner in which that power is exercised. “Unlike [a] [c]ourt, whose jurisdiction is predicated upon a specific case or controversy, the grand jury `can investigate merely on suspicion that the law is being violated, or even because it wants assurance that it is not.’ ” United States v. R. Enterprises, 498 U. S. ___, ___ (1991) (slip op. 4) (quoting United States v. Morton Salt Co., 338 U.S. 632, 642-643 (1950)). It need not identify the offender it suspects, or even “the precise nature of the offense” it is investigating. Blair v. United States, 250 U.S. 273, 282 (1919). The grand jury requires no authorization from its constituting court to initiate an investigation, see Hale, supra, at 59-60, 65, nor does the prosecutor require leave of court to seek a grand jury indictment. And in its day to day functioning, the grand jury generally operates without the interference of a presiding judge. See Calandra, supra, at 343. It swears in its own witnesses, Fed. Rule Crim. Proc. 6(c), and deliberates in total secrecy, see United States v. Sells Engineering, Inc., 463 U. S., at 424-425.

True, the grand jury cannot compel the appearance of witnesses and the production of evidence, and must appeal to the court when such compulsion is required. See, e. g., Brown v. United States, 359 U.S. 41, 49 (1959). And the court will refuse to lend its assistance when the compulsion the grand jury seeks would override rights accorded by the Constitution, see, e. g., Gravel v. United States, 408 U.S. 606 (1972) (grand jury subpoena effectively qualified by order limiting questioning so as to preserve Speech or Debate Clause immunity), or even testimonial privileges recognized by the common law, see In re Grand Jury Investigation of Hugle, 754 F. 2d 863 (CA9 1985) (same with respect to privilege for confidential marital communications) (opinion of Kennedy, J.). Even in this setting, however, we have insisted that the grand jury remain “free to pursue its investigations unhindered by external influence or supervision so long as it does not trench upon the legitimate rights of any witness called before it.” United States v. Dionisio, 410 U.S. 1, 17-18 (1973). Recognizing this tradition of independence, we have said that the Fifth Amendment’s “constitutional guarantee presupposes an investigative body `acting independently of either prosecuting attorney or judge’. . . .” Id., at 16 (emphasis added) (quoting Stirone, supra, at 218).

This is what you need to run with the ball, USA.  If your Government is breaking laws, then start using the law that is available to you.