Lead Opinion
delivered the opinion of the Court.
The question presented in this case is whether a district court may dismiss an otherwise valid indictment because the
HH
On May 4, 1988, respondent John H. Williams, Jr., a Tulsa, Oklahoma, investor, was indicted by a federal grand jury on seven counts of “knowingly mak[ing] [a] false statement or report... for the purpose of influencing . . . the action [of a federally insured financial institution],” in violation of 18 U. S. C. § 1014 (1988 ed., Supp. II). According to the indictment, between September 1984 and November 1985 Williams supplied four Oklahoma banks with “materially false” statements that variously overstated the value of his current assets and interest income in order to influence the banks’ actions on his loan requests.
Williams’ misrepresentation was allegedly effected through two financial statements provided to the banks, a “Market Value Balance Sheet” and a “Statement of Projected Income and Expense.” The former included as “current assets” approximately $6 million in notes receivable from three venture capital companies. Though it contained a disclaimer that these assets were carried at cost rather than at market value, the Government asserted that listing them as “current assets” — i e., assets quickly reducible to cash — was misleading, since Williams knew that none of the venture capital companies could afford to satisfy the notes in the short term. The second document — the Statement of Projected Income and Expense — allegedly misrepresented Williams’ interest income, since it failed to reflect that the interest payments received on the notes of the venture capital companies were funded entirely by Williams’ own loans to those companies. The Statement thus falsely implied, according to the Government, that Williams was deriving interest income from “an independent outside source.” Brief for United States 3.
The District Court initially denied Williams’ motion, but upon reconsideration ordered the indictment dismissed without prejudice. It found, after a hearing, that the withheld evidence was “relevant to an essential element of the crime charged,” created “ ‘a reasonable doubt about [respondent’s] guilt,’ ” App. to Pet. for Cert. 23a-24a (quoting United States v. Gray,
hH f-H
Before proceeding to the merits of this matter, it is necessary to discuss the propriety of reaching them. Certiorari was sought and granted in this case on the following question: “Whether an indictment may be dismissed because the government failed to present exculpatory evidence to the grand jury.” The first point discussed in respondent’s brief opposing the petition was captioned “The ‘Question Presented’ in the Petition Was Never Raised Below.” Brief in Opposition 3. In granting certiorari, we necessarily considered and rejected that contention as a basis for denying review.
Justice Stevens’ dissent, however, revisits that issue, and proposes that — after briefing, argument, and full consideration of the issue by all the Justices of this Court — we now decline to entertain this petition for the same reason we originally rejected, and that we dismiss it as improvidently granted. That would be improvident indeed. Our grant of certiorari was entirely in accord with our traditional practice, though even if it were not it would be imprudent (since there is no doubt that we have jurisdiction to entertain the case) to reverse course at this late stage. See, e. g., Ferguson v. Moore-McCormack Lines, Inc.,
Our traditional rule, as the dissent correctly notes, precludes a grant of certiorari only when “the question presented was not pressed or passed upon below.” Post, at 58 (internal quotation marks omitted). That this rule operates (as it is phrased) in the disjunctive, permitting review of an issue not pressed so long as it has been passed upon, is illustrated by some of our more recent dispositions. As recently as last Term, in fact (in an opinion joined by Justice Stevens), we entertained review in circumstances far more suggestive of the petitioner’s “sleeping on its rights” than those we face today. We responded as follows to the argument of the Solicitor General that tracks today’s dissent:
“The Solicitor General . . . submits that the petition for certiorari should be dismissed as having been improvidently granted. He rests this submission on the argument that petitioner did not properly present the merits of the timeliness issue to the Court of Appeals, and that this Court should not address that question for the first time. He made the same argument in his opposition to the petition for certiorari. We rejected that argument in granting certiorari and we reject it again now because the Court of Appeals, like the District Court before it, decided the substantive issue presented.” Stevens v. Department of Treasury,500 U. S. 1 , 8 (1991) (Blackmun, J.) (citations omitted).
And in another case decided last Term, we said the following:
“Respondents argue that this issue was not raised below. The appeals court, however, addressed the availability of a right of action to minority shareholders in respondents’ circumstances and concluded that respondents were entitled to sue. It suffices for our purposes that the court below passed on the issue presented, particularly where the issue is, we believe, in astate of evolving definition and uncertainty, and one of importance to the administration of federal law.” Virginia Bankshares, Inc. v. Sandberg, 501 U. S. 1083 , 1099, n. 8 (1991) (citations omitted; internal quotation marks omitted).
(Justice Stevens’ separate concurrence and dissent in Virginia Bankshares also reached the merits. Id, at 1110—1112.)
“The standard we previously have employed is that we will not review a question not pressed or passed on by the courts below. Here, the Court of Appeals expressly ruled on the question, in an appropriate exercise of itsappellate jurisdiction; it is therefore entirely proper in light of our precedents for the Court to reach the question on which it granted certiorari . . . Springfield v. Kibbe, 480 U. S. 257 , 266 (1987) (dissenting opinion) (emphasis in original; citations omitted).3
There is no doubt in the present case that the Tenth Circuit decided the crucial issue of the prosecutor’s duty to present exculpatory evidence.
In short, having reconsidered the precise question we resolved when this petition for review was granted, we again answer it the same way. It is a permissible exercise of our discretion to undertake review of an important issue expressly decided by a federal court
III
Respondent does not contend that the Fifth Amendment itself obliges the prosecutor to disclose substantial exculpatory evidence in his possession to the grand jury. 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,
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 stand
A
“[Rjooted in long centuries of Anglo-American history,” Hannah v. Larche,
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,
No doubt in view of the grand jury proceeding’s status as other than a constituent element of a “criminal prosecu-tio[n],” U. S. Const., Amdt. 6, we have said that certain constitutional protections afforded defendants in criminal proceedings have no application before that body. The Double Jeopardy Clause of the Fifth Amendment does not bar a grand jury from returning an indictment when a prior grand jury has refused to do so. See Ex parte United States,
Given the grand jury’s operational separateness from its constituting court, it should come as no surprise that we
These authorities suggest that any power federal courts may have to fashion, on their own initiative, rules of grand jury procedure is a very limited one, not remotely comparable to the power they maintain over their own proceedings. See United States v. Chanen,
Respondent argues that the Court of Appeals’ rule can be justified as a sort of Fifth Amendment “common law,” a necessary means of assuring the constitutional right to the judgment “of an independent and informed grand jury,” Wood v. Georgia,
It is axiomatic that the grand jury sits not to determine guilt or innocence, but to assess whether there is adequate basis for bringing a criminal charge. See United States v. Calandra,
Imposing upon the prosecutor a legal obligation to present exculpatory evidence in his possession would be incompatible with this system. If a “balanced” assessment of the entire matter is the objective, surely the first thing to be done— rather than requiring the prosecutor to say what he knows in defense of the target of the investigation — is to entitle the target to tender his own defense. To require the former while denying (as we do) the latter would be quite absurd. It would also be quite pointless, since it would merely invite the target to circumnavigate the system by delivering his exculpatory evidence to the prosecutor, whereupon it would have to be passed on to the grand jury — unless the prosecutor is willing to take the chance that a court will not deem the evidence important enough to qualify for mandatory disclosure.
Respondent acknowledges (as he must) that the “common law” of the grand jury is not violated if the grand jury itself chooses to hear no more evidence than that which suffices to convince it an indictment is proper. Cf. Thompson, supra, at 607. Thus, had the Government offered to familiarize the grand jury in this case with the five boxes of financial statements and deposition testimony alleged to contain exculpatory information, and had the grand jury rejected the offer as pointless, respondent would presumably agree that the resulting indictment would have been valid. Respondent insists, however, that courts must require the modern prosecutor to alert the grand jury to the nature and extent of the available exculpatory evidence, because otherwise the grand jury “merely functions as an arm of the prosecution.” Brief for Respondent 27. We reject the attempt to convert a nonexistent duty of the grand jury itself into an obligation of the prosecutor. The authority of the prosecutor to seek an indictment has long been understood to be “coterminous with the authority of the grand jury to entertain [the prosecutor’s] charges.” United States v. Thompson,
There is yet another respect in which respondent’s proposal not only fails to comport with, but positively contradicts, the “common law” of the Fifth Amendment grand jury. Motions to quash indictments based upon the sufficiency of the evidence relied upon by the grand jury were unheard of at common law in England, see, e. g., People v. Restenblatt,
“No case has been cited, nor have we been able to find any, furnishing an authority for looking into and revising the judgment of the grand jury upon the evidence, for the purpose of determining whether or not the finding was founded upon sufficient proof, or whether there was a deficiency in respect to any part of the complaint... United States v. Reed, 27 F. Cas. 727 , 738 (No. 16,134) (CC NDNY 1852).
We accepted Justice Nelson’s description in Costello v. United States, where we held that “[i]t would run counter to the whole history of the grand jury institution” to permit an indictment to be challenged “on the ground that there was inadequate or incompetent evidence before the grand jury.”
* * *
Echoing the reasoning of the Tenth Circuit in United States v. Page,
So ordered.
Notes
The Tenth Circuit also rejected Williams’ cross-appeal, which contended that the District Court’s dismissal should have been with prejudice. See
The dissent purports to distinguish Stevens and Virginia Bankshares on the ground that, “[a]lthough the parties may not have raised the questions presented in the petitions ... before the Courts of Appeals in those cases, the courts treated the questions as open questions that they needed to resolve in order to decide the cases.” Post, at 68, n. 4. The significance of this distinction completely eludes us. While there is much to be said for a rule (to which the Court has never adhered) limiting review to questions pressed by the litigants below, the rule implicitly proposed by the dissent — under which issues not pressed, but nevertheless passed upon, may be reviewed only if the court below thought the issue an “open” one — makes no sense except as a device to distinguish Stevens arid Virginia Bankshares. It does nothing to further “the adversary process” that is the object of the dissent’s concern, post, at 69, n. 6; if a question is not disputed by the parties, “the adversary process” is compromised whether the court thinks the question open or not. Indeed, if anything, it is compromised more when the lower court believes it is confronting a question of first impression, for it is in those circumstances that the need for an adversary presentation is most acute.
The dissent observes that where a court disposes of a case on the basis of a “new rule that had not been debated by the parties, our review may be appropriate to give the losing party an opportunity it would not otherwise have to challenge the rule.” Ibid. That is true enough, but the suggestion that this principle has something to do with Stevens and Virginia Bankshares is wholly unfounded: In neither case could — or did — the losing party claim to have been ambushed by the lower court’s summary treatment of the undisputed issues which we later subjected to plenary review.
The Court’s per curiam dismissal of the writ in Kibbe was based principally upon two considerations: (1) that the crucial issue was not raised in the District Court because of failure to object to a jury instruction, thus invoking Rule 51 of the Federal Rules of Civil Procedure, which provides that “[n]o party may assign as error the giving . . . [of] an instruction unless he objects thereto before the jury retires to consider its verdict,” and (2) that the crucial issue had in addition not explicitly been raised in the petition for certiorari.
Relying upon, and to some extent repeating, the reasoning of its earlier holding in United States v. Page,
“We have previously held that a prosecutor has the duty to present substantial exculpatory evidence to the grand jury. Although we do not require the prosecutor to ‘ferret out and present every bit of potentially exculpatory evidence,’ we do require that substantial exculpatory evidence discovered during the course of an investigation be revealed to the grand jury. Other courts have also recognized that such a duty exists. This requirement promotes judicial economy because ‘if a fully informed grand jury cannot find probable cause to indict, there is little chance the prosecution could have proved guilt beyond a reasonable doubt to a fully informed petit jury.’”899 F. 2d 898 , 900 (1990) (citations omitted).
This excerpt from the opinion below should make abundantly clear that, contrary to the dissent’s mystifying assertion, see post, at 58, and n. 3, we premise our grant of certiorari not upon the Tenth Circuit’s having “passed on” the issue in its prior Page decision, but rather upon its having done so in this case. We discuss Page only to point out that, had the Government not disputed the creation of the binding Tenth Circuit precedent in that case, a different exercise of discretion might be appropriate.
Where certiorari is sought to a state court, “due regard for the appropriate relationship of this Court to state courts,” McGoldrick v. Compagnie Generate Transatlantique,
Rule 6 of the Federal Rules of Criminal Procedure contains a number of such rules, providing, for example, that “no person other than the jurors may be present while the grand jury is deliberating or voting,” Rule 6(d), and placing strict controls on disclosure of “matters occurring before the grand jury,” Rule 6(e); see generally United States v. Sells Engineering, Inc.,
How much of a gamble that is is illustrated by the Court of Appeals’ opinion in the present case. Though the court purported to be applying the “substantial exculpatory” standard set forth in its prior Page decision, see
In Costello, for example, instead of complaining about the grand jury’s reliance upon hearsay evidence the petitioner could have complained about the prosecutor’s introduction of it. See, e. g., United States v. Estepa,
Although the majority in Ciambrone did not agree with Judge Friendly’s appraisal of the prejudicial impact of the misconduct in that case, it also recognized the prosecutor’s duty to avoid fundamentally unfair tactics during the grand jury proceedings. Judge Mansfield explained:
“On the other hand, the prosecutor’s right to exercise some discretion and selectivity in the presentation of evidence to a grand jury does not entitle him to mislead it or to engage in fundamentally unfair tactics before it. The prosecutor, for instance, may not obtain an indictment on the basis of evidence known to him to be perjurious, United States v. Basurto,
Dissenting Opinion
with whom Justice Blackmun and Justice O’Connor join, and with whom Justice Thomas joins as to Parts II and III, dissenting.
The Court’s opinion announces two important changes in the law. First, it justifies its special accommodation to the Solicitor General in granting certiorari to review a contention that was not advanced in either the District Court or the Court of Appeals by explaining that the fact that the issue was raised in a different case is an adequate substitute for raising it in this case. Second, it concludes that a federal court has no power to enforce the prosecutor’s obligation to
I
The question presented by the certiorari petition is whether the failure to disclose substantial exculpatory evidence to the grand jury is a species of prosecutorial misconduct that may be remedied by dismissing an indictment without prejudice. In the District Court and the Court of Appeals both parties agreed that the answer to that question is “yes, in an appropriate case.” The only disagreement was whether this was an appropriate case: The prosecutor vigorously argued that it was not because the undisclosed evidence was not substantial exculpatory evidence, while respondent countered that the evidence was exculpatory and the prosecutor’s misconduct warranted a dismissal with prejudice.
In an earlier case arising in the Tenth Circuit, United States v. Page,
In this case the Government expressly acknowledged the responsibilities described in Page, but argued that the with
After losing in the Court of Appeals, the Government reversed its position and asked this Court to grant certiorari
The Court explains that the settled rule does not apply to the Government’s certiorari petition in this case because the Government raised the same question three years earlier in the Page case and the Court of Appeals passed on the issue in that case. Ante, at 44-45. This is a novel, and unwise,
This Court has a special obligation to administer justice impartially and to set an example of impartiality for other courts to emulate. When the Court appears to favor the Government over the ordinary litigant, it seriously compromises its ability to discharge that important duty. For that
II
Like the Hydra slain by Hercules, prosecutorial misconduct has many heads. Some are cataloged in Justice Sutherland’s classic opinion for the Court in Berger v. United States,
“That the United States prosecuting attorney overstepped the bounds of that propriety and fairness which should characterize the conduct of such an officer in the prosecution of a criminal offense is clearly shown by the record. He was guilty of misstating the facts in his cross-examination of witnesses; of putting into the mouths of such witnesses things which they had not said; of suggesting by his questions that statements had been made to him personally out of court, in respect of which no proof was offered; of pretending to understand that a witness had said something which he had not said and persistently cross-examining the witness upon that basis; of assuming prejudicial facts not in evidence; ofbullying and arguing with witnesses; and in general, of conducting himself in a thoroughly indecorous and improper manner. . . .
“The prosecuting attorney’s argument to the jury was undignified and intemperate, containing improper insinuations and assertions calculated to mislead the jury.” Id., at 84-85.
This, of course, is not an exhaustive list of the kinds of improper tactics that overzealous or misguided prosecutors have adopted in judicial proceedings. The reported cases of this Court alone contain examples of the knowing use of perjured testimony, Mooney v. Holohan,
Nor has prosecutorial misconduct been limited to judicial proceedings: The reported cases indicate that it has sometimes infected grand jury proceedings as well. The cases contain examples of prosecutors presenting perjured testimony, United States v. Basurto,
Justice Sutherland’s identification of the basic reason why that sort of misconduct is intolerable merits repetition:
“The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor — indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.” Berger v. United States,295 U. S., at 88 .
It is equally clear that the prosecutor has the same duty to refrain from improper methods calculated to produce a wrongful indictment. Indeed, the prosecutor’s duty to protect the fundamental fairness of judicial proceedings assumes special importance when he is presenting evidence to a grand jury. As the Court of Appeals for the Third Circuit recognized, “the costs of continued unchecked prosecutorial misconduct” before the grand jury are particularly substantial because there
“the prosecutor operates without the check of a judge or a trained legal adversary, and virtually immune from public scrutiny. The prosecutor’s abuse of his specialrelationship to the grand jury poses an enormous risk to defendants as well. For while in theory a trial provides the defendant with a full opportunity to contest and disprove the charges against him, in practice, the handing up of an indictment will often have a devastating personal and professional impact that a later dismissal or acquittal can never undo. Where the potential for abuse is so great, and the consequences of a mistaken indictment so serious, the ethical responsibilities of the prosecutor, and the obligation of the judiciary to protect against even the appearance of unfairness, are correspondingly heightened.” United States v. Serubo, 604 F. 2d 807 , 817 (1979).
In his dissent in United States v. Ciambrone,
“As the Supreme Court has noted, ‘the Founders thought the grand jury so essential to basic liberties that they provided in the Fifth Amendment that federal prosecution for serious crimes can only be instituted by “a presentment or indictment of a Grand Jury.’” United States v. Calandra,414 U. S. 338 , 343,... (1974). Before the grand jury the prosecutor has the dual role of pressing for an indictment and of being the grand jury adviser. In case of conflict, the latter duty must take precedence. United States v. Remington,208 F. 2d 567 , 573-74 (2d Cir.1953) (L. Hand, J., dissenting), cert. denied,347 U. S. 913 ... (1954).
“The ex parte character of grand jury proceedings makes it peculiarly important for a federal prosecutor to remember that, in the familiar phrase, the interest of the United States ‘in a criminal prosecution is not that it shall win a case, but that justice shall be done.’Berger v. United States, 295 U. S. 78 , 88 ... (1935).” Id., at 628-629.9
The standard for judging the consequences of prosecuto-rial misconduct during grand jury proceedings is essentially the same as the standard applicable to trials. In United States v. Mechanik,
“The District Court found that a prosecutor was abusive to an expert defense witness during a recess and in the hearing of some grand jurors. Although the Government concedes that the treatment of the expert tax witness was improper, the witness himself testified that his testimony was unaffected by this misconduct. The prosecutors instructed the grand jury to disregard anything they may have heard in conversations between a prosecutor and a witness, and explained to the grand jury that such conversations should have no influence on its deliberations. App. 191. In light of these ameliorative measures, there is nothing to indicate that the prosecutor’s conduct toward this witness substantially affected the grand jury’s evaluation of the testimony or its decision to indict.”487 U. S., at 261 .
Unquestionably, the plain implication of that discussion is that if the misconduct, even though not expressly forbidden by any written rule, had played a critical role in persuading the jury to return the indictment, dismissal would have been required.
In an opinion that I find difficult to comprehend, the Court today repudiates the assumptions underlying these cases and seems to suggest that the court has no authority to supervise the conduct of the prosecutor in grand jury proceedings so long as he follows the dictates of the Constitution, applicable statutes, and Rule 6 of the Federal Rules of Criminal Procedure. The Court purports to support this conclusion by invoking the doctrine of separation of powers and citing a string of cases in which we have declined to impose categori
Although the grand jury has not been “textually assigned” to “any of the branches described in the first three Articles” of the Constitution, ante, at 47, it is not an autonomous body completely beyond the reach of the other branches. Throughout its life, from the moment it is convened until it is discharged, the grand jury is subject to the control of the court. As Judge Learned Hand recognized over 60 years ago, “a grand jury is neither an officer nor an agent of the United States, but a part of the court.” Falter v. United States,
“A grand jury is clothed with great independence in many areas, but it remains an appendage of the court, powerless to perform its investigative function without the court’s aid, because powerless itself to compel the testimony of witnesses. It is the court’s process which summons the witness to attend and give testimony, and it is the court which must compel a witness to testify if, after appearing, he refuses to do so.” Brown v. United States,359 U. S. 41 , 49 (1959).
See also Blair v. United States,
This Court has, of course, long recognized that the grand jury has wide latitude to investigate violations of federal law as it deems appropriate and need not obtain permission from either the court or the prosecutor. See, e. g., id., at 343; Costello v. United States,
To the contrary, the Court has recognized that it has the authority to create and enforce limited rules applicable in grand jury proceedings. Thus, for example, the Court has said that the grand jury “may not itself violate a valid privilege, whether established by the Constitution, statutes, or the common law.” Id., at 346. And the Court may prevent a grand jury from violating such a privilege by quashing or modifying a subpoena, id., at 346, n. 4, or issuing a protective order forbidding questions in violation of the privilege, Gravel v. United States,
Although the Court recognizes that it may invoke its supervisory authority to fashion and enforce privilege rules applicable in grand jury proceedings, ibid., and suggests that
We do not protect the integrity and independence of the grand jury by closing our eyes to the countless forms of prosecutorial misconduct that may occur inside the secrecy of the grand jury room. After all, the grand jury is not merely an investigatory body; it also serves as a “protector of citizens against arbitrary and oppressive governmental action.” United States v. Calandra,
“Historically, this body has been regarded as a primary security to the innocent against hasty, malicious and oppressive persecution; it serves the invaluable function in our society of standing between the accuser and the accused, whether the latter be an individual, minority group, or other, to determine whether a charge is founded upon reason or was dictated by an intimidating power or by malice and personal ill will.” Id., at 390.
It blinks reality to say that the grand jury can adequately perform this important historic role if it is intentionally misled by the prosecutor — on whose knowledge of the law and facts of the underlying criminal investigation the jurors will, of necessity, rely.
Unlike the Court, I am unwilling to hold that countless forms of prosecutorial misconduct must be tolerated — no matter how prejudicial they may be, or how seriously they may distort the legitimate function of the grand jury — simply because they are not proscribed by Rule 6 of the Federal Rules of Criminal Procedure or a statute that is applicable
III
What, then, is the proper disposition of this case? I agree with the Government that the prosecutor is not required to place all exculpatory evidence before the grand jury. A grand jury proceeding is an ex parte investigatory proceeding to determine whether there is probable cause to believe a violation of the criminal laws has occurred, not a trial. Requiring the prosecutor to ferret out and present all evidence that could be used at trial to create a reasonable doubt as to the defendant’s guilt would be inconsistent with the purpose of the grand jury proceeding and would place significant burdens on the investigation. But that does not mean that the prosecutor may mislead the grand jury into believing that there is probable cause to indict by withholding clear evidence to the contrary. I thus agree with the Department of Justice that “when a prosecutor conducting a grand jury inquiry is personally aware of substantial evidence which directly negates the guilt of a subject of the investigation, the prosecutor must present or otherwise dis
Although I question whether the evidence withheld in this case directly negates respondent’s guilt,
More importantly, because I am so firmly opposed to the Court’s favored treatment of the Government as a litigator, I would dismiss the writ of certiorari as improvidently granted.
“The government has acknowledged that it has certain responsibilities under the case of United States v. Page,
Respondent had relied on United States v. Phillips Petroleum Co.,
Duignan v. United States, 274 U.S. 195, 200 (1927); see also, e.g., United States v. Lovasco,
Stevens v. Department of Treasury,
The Court expresses an inability to understand the difference between the routine application, without objection, of a settled rule, on the one hand, and the decision of an open question on a ground not argued by the parties, on the other. The difference is best explained in light of the basic assumption that the adversary process provides the best method of arriving at correct decisions. Rules of appellate practice generally require that an issue be actually raised and debated by the parties if it is to be preserved. In the exceptional case, in which an appellate court announces a new rule that had not been debated by the parties, our review may be appropriate to give the losing party an opportunity it would not otherwise have to challenge the rule. In this case, however, there is no reason why the Government could not have challenged the Page rule in this case in the Tenth Circuit. There is no need for an exception to preserve the losing litigant’s opportunity to be heard.- Moreover, the Government’s failure to object to the application of the Page rule deprived the Court of Appeals of an opportunity to reexamine the validity of that rule in the light of intervening developments in the law. “Sandbagging” is just as improper in an appellate court as in a trial court.
The “expressed or passed on” predicate for the exercise of our jurisdiction is of special importance in determining our power to review state-court judgments. If the Court’s newly announced view that the routine application of a settled rule satisfies the “passed on” requirement in a federal case, I see no reason why it should not also satisfy the same requirement in a state case.
The Court suggests that it would be “improvident” for the Court to dismiss the writ of certiorari on the ground that the Government failed to raise the question presented in the lower courts because respondent raised this argument in his brief in opposition, the Court nevertheless granted the writ, and the case has been briefed and argued. Ante, at 40.. I disagree. The vote of four Justices is sufficient to grant a petition for certio-rari, but that action does not preclude a majority of the Court from dismissing the writ as improvidently granted after the case has been argued. See, e. g., NAACP v. Overstreet,
The court found the Government guilty of prosecutorial misconduct because it “fail[ed] to provide the polygraph evidence to the Grand Jury despite the prosecutor’s guarantee to Judge Pregerson that all exculpatory evidence would be presented to the Grand Jury, and compounded] this indiscretion by erroneously but unequivocally telling the Grand Jury that
Indeed, even the Court acknowledges that Congress has the power to regulate the grand jury, for it concedes that Congress “is free to prescribe” a rule requiring the prosecutor to disclose substantial exculpatory evidence to the grand jury. Ante, at 56.
In Costello v. United States,
Although the Court’s opinion barely mentions the fact that the grand jury was intended to serve the invaluable function of standing between the accuser and the accused, I must assume that in a proper ease it will acknowledge — as even the Solicitor General does — that unrestrained prosecutorial misconduct in grand jury proceedings “could so subvert the integrity of the grand jury process as to justify judicial intervention. Cf. Franks v. Delaware,
I am reluctant to rely on the lower courts’ judgment in this regard, as they apparently applied a more lenient legal standard. The District Court dismissed the indictment because the “information withheld raises reasonable doubt about the Defendant’s intent to defraud,” and thus “renders the grand jury’s decision to indict gravely suspect.” App. to Pet. for Cert. 26a. The Court of Appeals affirmed this decision because it was not “clearly erroneous.”