*1 v. WILLIAMS UNITED STATES May 4, 1992 22, 1992 January Argued No. 90-1972. Decided *2 Scalia, J., opinion Court, Rehnquist, delivered the in which J., White, Kennedy, C. Souter, JJ., joined. Stevens, J., and filed dissenting opinion, a O’Connor, JJ., in which joined, Blackmun and joined, post, Thomas, J., in Parts II and III of which p. 55.
Solicitor General Starr the cause for the United argued Attorney States. With him on the briefs were Assistant Deputy Bryson, Mueller, General Solicitor General Michael R. Dreeben. Lang
James C. the cause for argued With respondent. Wohlge- Stidham, G. Steven Joel L. him on the brief were muth, and John E. Dowdell.* delivered the of the Court. opinion
Justice Scalia in this case is whether a district question presented court dismiss an otherwise valid indictment because the Marmalefsky
*Dan filed a brief for the National Association of Criminal as amicus curiae Lawyers urging Defense affirmance.
Government failed to disclose to the “substantial possession. evidence” in its HH May respondent On 4, 1988, John Williams, Jr., Tulsa, H. indicted a federal
Oklahoma, investor, was on “knowingly mak[ing] [a] false seven counts of statement or report... purpose influencing [of for the . . the . action federally insured financial in violation of institution],” (1988 II). § According Supp. ed., U. S. C. 1014 to the indict September ment, between 1984and November 1985Williams supplied “materially four Oklahoma banks with state false” *3 variously ments that overstated the value of his current assets and interest income in order to influence the banks’ requests. actions on his loan misrepresentation allegedly
Williams’ was effected through provided two financial statements banks, Projected “Market Balance Value Sheet” and a “Statement of Expense.” Income and The former as included “current approximately assets” million in notes receivable from $6 capital companies. Though three venture it contained a dis- claimer that these assets were carried at cost rather than at listing market value, the Government asserted that them as quickly e., “current assets” —i assets reducible to cash—was misleading, since Williams knew that none of the venture capital companies satisfy could afford the notes in the short term. The second document—the Statement of Pro- jected Expense allegedly misrepresented Income and Wil- — liams’ interest income, since it failed to reflect that the inter- payments est capital received on the notes of the venture companies entirely by were funded Williams’ own loans to companies. falsely those implied, The Statement thus ac- cording to the deriving Government, that Williams was in- independent terest income from “an outside source.” Brief for United States 3. after
Shortly
arraignment,
the District Court granted Wil-
liams’ motion for disclosure of all exculpatory portions Brady
Maryland,
jury transcripts.
See
v.
373 U. S.
Upon
this
reviewing
material, Williams de-
manded that the District Court dismiss the indictment, alleg-
ing
Government had failed to fulfill its obligation
under the Tenth Circuit’s
United States decision in
prior
Page,
The District Court initially denied Williams’ motion, but upon reconsideration ordered the indictment dismissed with- out prejudice. It found, after hearing, the withheld evidence was “relevant to an essential element of the crime “ charged,” created ‘a reasonable doubt about [respondent’s] ” guilt,’ App. Pet. for Cert. 23a-24a (quoting United States *4 Gray, v. 502 (DC F. Supp. 150, 1980)), and thus “ren- dered] grand jury’s decision to indict gravely suspect,” App. to Pet. for Cert. 26a. Upon Government’s appeal, of Court Appeals affirmed the District order, Court’s fol- Page, supra. its earlier decision lowing in It first sustained as not “clearly erroneous” the Court’s District determination that the Government had withheld “substantial evidence” from the grand See 899 jury. F. 2d 898, 900-903 (CA10 1990). It then found that the Government’s behavior “ ” ‘substantially the grand influence^]’ jury’s decision to in- dict, or at the very least raised a “‘grave doubt
decision to was free indict from such substantial influence.’” (quoting Id., at 903 Bank Nova Scotia United States, (1988)); 487 U. S. 2d, see 899 F. at 903-904. Under these circumstances, the Tenth Circuit concluded, it was not an abuse of require discretion for the District Court to begin Government jury.1 before the anew We granted certiorari. U. S. 905
hH f-H proceeding Before to the merits of this matter, it is neces- sary propriety reaching to discuss the them. Certiorari sought granted was following in ques- this case on the tion: government “Whether indictment be dismissed because the present exculpatory failed to evidence to the grand jury.” point respondent’s The first discussed in brief opposing petition captioned was “The ‘Question Pre- sented’ in the Petition Was Never Raised Below.” Brief in Opposition granting necessarily 3. In certiorari, we consid- rejected ered and denying contention as a basis for review. dissent, however, revisits that issue,
Justice Stevens’ proposes briefing, argument, that —after and full consid eration of issue all the Justices of this Court—we now petition decline to entertain this for the same reason we originally rejected, and that we improvidently dismiss it as granted. improvident would be grant That indeed. Our entirely certiorari prac was accord with our traditional though (since tice, imprudent if it even were not it would be there jurisdiction is no doubt that we have to entertain case) to stage. reverse g., Fergu course at this late See, e. son v. Lines, Moore-McCormack Inc., (1957) (Harlan, concurring part dissenting J., part); Donnelly (1974) (Stew v. DeChristoforo, 416 U. S.
1 The Tenth
rejected
Circuit also
Williams’ cross-appeal, which con
tended that the District Court’s dismissal
prejudice.
should have
with
been
2d,
See 899 F.
at 904.
*5
joined
J.).
concurring,
by
art, J.,
City
Cf. Oklahoma
White,
v. Tuttle,
“The Solicitor General petition . . . submits that the for certiorari having should be dismissed as been im- providently granted. He rests this submission on the argument petitioner that properly present did not merits of the timeliness Appeals, issue to the Court of that this Court question should not address that the first argument time. He made the same oppo- in his petition sition to the rejected for certiorari. We that argument granting reject again certiorari and we now because Appeals, the Court of like the District Court it, before decided pre- the substantive issue Department sented.” Treasury, Stevens v. 500 (1991) J.) (citations omitted). 1, 8 (Blackmun, And in another case decided following: Term, last we said the
“Respondents argue that this issue was not raised appeals below. The court, however, addressed the availability right minority of action to shareholders respondents’ circumstances and concluded re- spondents were entitled to sue. It pur- suffices for our poses passed the court pre- below on the issue particularly sented, where the is, issue we believe, *6 state of definition and evolving and one uncertainty, the importance to administration of federal law.” Vir ginia Bankshares, Inc. v. 501 Sandberg, S. 1083, 1099, (1991) (citations 8n. omitted; internal quotation marks omitted).
(Justice separate concurrence and dissent in Vir Stevens’ ginia Bankshares also reached the Id, merits. at 1110— 1112.)2 As Justice has written: O’Connor
“The standard we have previously is employed that we will not review a not pressed question on passed by the courts below. Here, the Court of Appeals expressly ruled on the question, appropriate exercise of its purports The distinguish dissent Virginia Stevens to Bankshares on ground that, the “[a]lthough parties may the ques have raised the presented tions petitions in the ... Appeals before the Courts of in those cases, the courts questions treated the open questions as they that needed to resolve in order to Post, decide the cases.” at n. 4. signifi cance of this completely distinction eludes us. While there is much to be (to said for a rule adhered) which the Court has never limiting review to questions pressed by litigants below, the rule implicitly proposed by the dissent —under which pressed, issues not but passed nevertheless upon, may only be reviewed if the court below thought “open” the issue an one—makes no sense except as a distinguish device to Stevens arid Vir ginia Bankshares. It does to nothing further “the adversary process” object is the post, concern, dissent’s 6; n. if question is not disputed by parties, adversary process” “the compromised is whether the question court thinks the open Indeed, or not. if anything, compromised is more when the lower court believes it is confronting a question impression, of first for it is in those circumstances that the need for an adversary presentation is most acute. The dissent observes where disposes a court of case on the basis of a “new rule that had not been parties, debated our review appropriate
be give to losing party an opportunity it would not other- wise have to challenge the rule.” Ibid. That enough, is true but suggestion that principle this something has to do with Stevens and Vir- ginia Bankshares wholly is In neither unfounded: case could —or did—the losing party claim to have been ambushed summary lower court’s treatment of undisputed issues subjected which we plenary later review.
appellate jurisdiction;
it is therefore
entirely proper
of our
light
precedents
for the
Court
reach the ques-
tion
which it
on
granted certiorari
. . .
Springfield
Kibbe,
(1987)
(dissenting opinion)
omitted).3
(emphasis
original; citations
There
no doubt in
case that
present
the Tenth Cir
cuit
decided
crucial issue of the prosecutor’s
duty
pre
*7
sent
evidence.4
exculpatory
this is
as
Moreover,
not,
the dis
it,
sent paints
a case in which,
in the
losing
“[a]fter
Court of
Appeals,
the Government
reversed its position,”
at
post,
57.
3The
per
Court’s
curiam dismissal of the writ in
princi
Kibbe was based
pally
(1)
upon two considerations:
that the
issue
crucial
was not raised in
the District Court because of
object
failure to
jury instruction,
to a
thus
invoking
51 of
Rule
the
Procedure,
Federal Rules of Civil
which provides
party
that
may assign
“[n]o
giving
error
as
the
. .
[of]
.
an instruction
unless he objects thereto
jury
before
to
verdict,”
retires
consider its
(2)
that the crucial
had in
explicitly
issue
addition not
been raised
petition
in the
S.,
269,
certiorari.
at
course,
260. Of
neither
exists
circumstance
here.
4Relying upon, and to some
repeating,
extent
reasoning
earlier
its
holding in United States v. Page,
(1981),
acknowledged [in the Court of added). (emphasis Page,” post, It no at 56 did described in acknowledged thing. such “that Rather, the Government Page.” responsibilities Brief for under . . . has certain Response Appellee’s in Brief Nos. 88- in States added). (CA10), p. (emphasis conceded, It 2827, 88-2843 Page responsibilities im- had other not that the words, merely Page imposed posed proper, had were but judg- protests Government, but a them —over the panel binding precedent for the ment that was nonetheless apparently impose, as an absolute The dissent would below. upon granting an issue decided condition to our certiorari overruling squarely party of a a demand court, lower that a though prece- applicable, precedent, circuit even recent party itself dent in a case to which the was was established objection, Page, privy party’s vigorous see over (“The government 2d, at counters that F. [to duty
has no evidence to disclose developments jury]”), though “intervening and even no *8 post, the had That seems to us law,” 59, 5, at n. occurred. unreasonable. having precise question
In the we re- short, reconsidered granted, again petition solved when this for review was we way. permissible It is a exercise of our answer it the same important an issue ex- discretion to undertake review of although pressly peti- where, decided a federal court5 5 court, sought regard appro Where certiorari to a state “due for the is Compag McGoldrick v. courts,” priate relationship of this Court to state Transatlantique, 430, (1940), nie Generate may suggest 309 U. S. 434-435 greater applying “pressed passed upon” our or In that restraint rule. context, challenge seemingly the absence of to a settled federal rule de prives opportunity adequate on an the state court of rest its decision Gates, 213, See Illinois v. independent ground. and state U. S. post, Casualty Bankers & (1983), 59; at cited the dissent see also Life Crenshaw, But cf. Cohen v. Cowles 71, Co. v. S. 486 U. (1991) (“It Co., Media juris- 601 U. is irrelevant to this Court’s tioner did immediately not contest the issue in the case at party hand, it did so proceeding upon as a to the recent which the lower courts relied their resolution of the issue, did not concede in the current case the correctness of that precedent. Undoubtedly the United States benefits from parties; rule this more often inevitably than other but that is procedure true of most jurisdiction desirable rules of or that we being announce, the frequent United States the most liti- gant in our courts. Since we appli- announce the rule to be parties; cable to recently applied all we since have a similar (indeed, cast) rule broadly a rule even more to the disadvan- tage of the Department United States, see Stevens v. Treasury, (1991); 1S. and since the dissenters them- approved (or application selves have of this rule one) broader rationally indistinguishable circumstances from supra; those us, before see suggestion 2,n. the dissent’s deciding that in appears this case “the Court to favor the ordinary litigant,” Government over post, compromises “obligation justice its impar- to administer tially,” response. ibid., needs no Respondent does not contend that the Fifth Amendment III obliges
itself exculpa to disclose substantial tory possession grand jury. evidence in his Instead, building on our “may, statement that the federal courts procedural within specifically limits, formulate rules not re quired by Congress,” Constitution United States Hasting, (1983), argues imposi he tion the Tenth supported by Circuit’s disclosure rule “supervisory power.” Hasting, courts’ We think not. rely upon cases principle expresses, deal *9 strictly power with the proce courts’ their control own g., dures. See, e. States, Jencks v. United 353 667- diction whether party raised below argued and a federal-law issue that supreme actually decided”). state court considered and
46 (1943). States, McNabb v. United (1967);
668
We did not hold in Bank Nova
that the
of
used,
could
as a
merely
courts’
be
supervisory power
means of
or
stand-
enforcing
vindicating legally compelled
a number
Rule 6 of the Federal Rules of Criminal Procedure contains
rules, providing,
example,
person
jurors
for
of such
“no
other than the
6(d),
deliberating
voting,”
or
present
be
while the
Rule
placing
occurring
strict controls on disclosure of “matters
before
6(e);
Engineering,
grand jury,”
generally
Rule
United States v. Sells
see
Inc.,
prosecu
47 ards of conduct prosecutorial before the but as grand jury, prescribing means of those of standards con- prosecutorial in duct the first as it be used as a just means instance — of establishing standards of prosecutorial conduct before the courts themselves. It is this latter exercise that respondent demands. Because the is an institution separate from the courts, over whose the courts do functioning we think it clear preside, as a that, matter at general least, no such judicial exists, “supervisory” authority and that the disclosure rule here applied exceeded the Tenth Circuit’s authority.
A “[Rjooted in centuries long of Anglo-American history,” Hannah v. Larche, (1960) 363 420, U. S. 490 (Frankfurter, J., concurring result), the grand is mentioned in the Bill of Rights, but not in the body Constitution. It has not been textually assigned, therefore, any branches “ described in the first three Articles. It ‘is a constitutional fixture in its own right.’” United States Chanen, v. 549 (CA9) Nixon Sirica, 1306, F. 2d 1312 (quoting v. 159 U. S. 58, 70, 54, D. C. n. 487 App. 2d 700, 712, F. n. 54 (1973)), cert. (1977). denied, 434 U. S. In fact the whole theory its function is that belongs no branch of the institutional Government, as a kind of serving buffer or referee between See Stirone v. the Government and the people. States, Henkel, Hale U. S. 218 (1960); U. S. (1906); Edwards, G. The Grand Al Jury though grand jury normally course, operates, courthouse and under judicial its institutional auspices, rela with the tionship Judicial Branch has been, so traditionally at arm’s speak, length. direct involvement Judges’ in the functioning has been generally confined to the constitutive one of calling grand jurors together of office. See United States v. Ca their oaths administering landra, 6(a). 343 (1974); Fed. Rule Crim. Proc. grand jury’s independence functional from the Judicial scope power
Branch is evident both in the
of its
to investi-
gate
wrongdoing
criminal
and in the manner which
*11
power
[cjourt,
jurisdiction
[a]
is exercised. “Unlike
whose
is
predicated upon specific
controversy,
grand jury
case or
investigate merely
suspicion
being
‘can
on
that the law is
violated, or even because it wants assurance that it is not.’”
Enterprises,
Inc.,
United States v. R.
498 U.
292,
S.
(1991) (quoting
Co.,
States v. Morton
United
Salt
338 U. S.
(1950)).
identify
632, 642-643
It need not
the offender it
suspects,
precise
or even “the
nature
of
offense”
is
investigating.
States,
Blair
273,
v. United
250 U. S.
(1919).
grand jury requires
no authorization from its
constituting
investigation,
court to
Hale,
initiate an
see
supra,
prosecutor require
at 59-60, 65, nor does the
leave of
grand jury
day-to-
court to seek a
And in
indictment.
its
day functioning,
grand jury generally operates
without
presiding judge.
supra,
the interference
Calandra,
of a
See
at 343. It
swears
its own witnesses, Fed. Rule Crim.
6(c),
secrecy,
Proc.
deliberates in total
see United States
(1983).
Engineering, Inc.,
v. Sells
463 U.
424-425
S.
grand jury
compel
appearance
True, the
cannot
of
production
appeal
witnesses and the
of evidence, and must
compulsion
required.
g.,
to the court when such
See, e.
States,
Brown v.
And the
compulsion
court will refuse to lend its assistance when the
grand jury
rights
by
seeks would override
accorded
g.,
Constitution, see, e.
States,
Gravel v. United
408 U. S. 606
(1972) (grand jury subpoena effectively qualified by order
limiting questioning
preserve Speech
so as to
or Debate
immunity),
privileges recognized
Clause
or even testimonial
Jury Investigation
the common
see
law,
In re Grand
(CA9 1985)
J.)
Hugle,
(opinion Kennedy,
have
judicial
been
supervisory power
to invoke
reluctant
prescribing
as a
jury procedure.
basis
grand
modes of
years,
many requests
Over the
have
we
received
to exercise
supervision
grand jury’s evidence-taking process,
over the
but we
including
have
them
appealing
refused
all,
some more
presented today.
than the one
In United States v. Calan
swpra, grand jury
questions
dra,
witness faced
that were
allegedly
upon physical
based
evidence
Government had
through
obtained
a violation of the Fourth Amendment; we
rejected
proposal
exclusionary
that the
rule be extended
grand jury proceedings,
to
potential injury
because of “the
grand jury.”
the historic role and functions of the
atS.,
349. In
States,
Costello v. United
These authorities federal courts may have fashion, on their own initiative, rules of jury procedure very remotely compara one, limited power they ble to the proceedings. maintain over their own See United certainly States Chanen, 2d, It F. 1313. permit judicial reshaping would not institu substantially altering tion, relationships the traditional be *13 prosecutor, constituting tween court, and the jury g., Payner, itself. Cf., e. United States v. (1980) (supervisory power may applied permit not be party’s
defendant to invoke third Fourth Amendment rights); generally Reconsidering Supervisory see Beale, Statutory Power in Criminal Cases: Constitutional Lim Authority its on the of the Federal Courts, 84 Colum. L. Rev. (1984). proceed 1433, 1490-1494, 1522 As we to discuss, that consequence proposed would be the rule here.
B Respondent argues Appeals’ the Court rule can justified as a sort of law,” be Fifth Amendment “common necessary assuring right means of the constitutional to the judgment independent grand jury,” “of an and informed Georgia, 370 Brief Wood v. for Re- spondent Respondent generalized appeal 27. makes supervision quantity functional notions: Judicial quality upon by grand jury plainly of the evidence relied says, grand jury’s performance facilitates, he of its twin responsibilities, bringing historical e., i. to trial those who justly shielding be accused and the innocent from un- prosecution. g., founded accusation and e. See, Stirone v. agree. States, atS., 218, n. 3. We do not preserve rule would neither nor enhance the traditional func- tioning of the institution that the Fifth Amendment de- contrary, requiring present To the mands. inculpatory as well as evidence would alter the grand jury’s transforming historical role, it from an accusa- tory adjudicatory body. to an
It is axiomatic that the sits not to determine guilt adequate innocence, or but to assess whether there bringing charge. basis for a criminal See United States v. always Calandra, S.,U. That so; 343. has been always thought to make the assessment it has been sufficient only prosecutor’s to hear As Blackstone side. described prevailing practice 18th-century England, “only prosecu- was to hear evidence on behalf of the finding only for the tion[,] of an indictment is in the nature enquiry of an which accusation, is afterwards to be tried and determined.” 4 Blackstone, W. Commentaries 300 (1st (1769);see also M. Pleas of the Hale, Crown 157 Am. 1847). According ed. also in So the United States. description early years of an court, American three before grand jury’s the Fifth ratified, Amendment was it is the func- enquire upon charge [the tion not “to what foundation . . . *14 52 try be] suspect’s denied,” or otherwise to defenses, only “upon charge] [the
but to examine what foundation prosecutor. Respublica made” 1 Shaffer, Dall. 236 (O. 1788); Pleading T. see Wharton, Phila. also F. Criminal (8th 1880). § pp. Practice 248-249 ed. As a conse quence, country England neither in this nor in has the sus pect investigation by thought under ever been right testify exculpatory to have a to or to have evidence presented. supra, 2See at Hale, 157; United States ex rel. (CA2), Thompson, McCann v. 2d 604, F. cert. denied, 323 U.
Imposing upon
prosecutor
legal obligation
present
to
exculpatory
possession
incompatible
evidence in his
would be
system.
with this
If a “balanced” assessment of the entire
objective, surely
thing
matter is the
the first
to be done—
requiring
say
rather than
to
what he knows
target
investigation
in defense of the
to entitle the
—is
target
require
to tender his own defense. To
the former
(as
do)
denying
quite
while
we
the latter would be
absurd.
quite pointless,
merely
It would also be
since it would
invite
target
circumnavigate
system by
delivering
his
exculpatory
prosecutor, whereupon
evidence to the
it would
passed
prosecu
have to be
on to the
—unless
willing
tor is
to take the chance that a court will not deem
important enough
qualify mandatory
the evidence
disc
g.,
See,
losure.7
e. United States v. Law Firm Zimmer
(Colo. 1990)
Supp.
man
Schwartz,
&
P. C., F.
(duty
to disclose
evidence held satisfied when
gamble
How much of a
is is
Appeals’
illustrated
the Court of
opinion
present
in the
Though
case.
purported
applying
the court
to be
exculpatory”
the “substantial
prior Page decision,
standard set forth in its
2d,
900, portions
see 899 F.
opinion
recite a much more inclusive
(“[T]he
id.,
standard.
See
at 902
any
must receive
information
any
that is relevant
[exculpatory] theory
reasonable
may adopt”);
ibid.
(“We conclude, therefore,
clearly
district court was not
in error
when it
deposition
found that the
testimony
exculpatory”).
was
*15
prosecution
grand jury defense-provided
tendered
the
ex-
testimony,
explanations
governing law),
hibits,
of the
aff’d
Brown,
sub nom. United States v.
Respondent acknowledges
he
that the “common
grand jury
grand jury
law” of the
is not violated if the
itself
chooses to hear no more evidence than that which suffices to
proper.
convince it an
Thompson, supra,
indictment is
Cf.
at
Thus,
607.
had the Government offered to familiarize the
grand jury in this case with the five boxes of financial state-
deposition testimony alleged
exculpa-
ments and
to contain
tory
grand jury rejected
information, and had the
the offer
pointless, respondent
presumably agree
as
would
that the
resulting
Respondent
indictment would have been valid.
require
prose-
insists, however, that courts must
the modern
grand jury
cutor to alert the
to the nature and extent of the
available
evidence, because otherwise the
jury “merely
prosecution.”
functions as an arm of the
Brief
Respondent
reject
attempt
for
27. We
the
to convert a non-
duty
grand jury
obligation
existent
of the
itself into an
of
prosecutor.
authority
the
of the
to seek an
long
indictment has
been understood to be “coterminous with
authority
grand jury
[the
prosecutor’s]
to entertain
charges.”
Thompson,
United States v.
251 S., at 414. If
obligation
has no
to consider all “substantial
exculpatory”
prose-
evidence, we do not understand how the
binding obligation
cutor can be
present
said to have a
it.
yet
respect
respondent’s
There is
pro-
another
in which
posal
only
comport
positively
fails to
with, but
contra-
dicts, the “common
jury.
law” of
Fifth
Amendment
quash
upon
Motions to
sufficiency
indictments based
upon by
the evidence relied
were unheard of
England,
g., People
common
law
see, e.
Restenblatt,
(Ct.
1855).
“No case has been nor cited, have we been able to find any, furnishing authority looking revising for into and judgment grand jury upon evidence, purpose determining finding whether or not the upon proof, was founded sufficient or whether there was deficiency respect any part complaint... (No. 16,134) Reed, United States v. 27 F. Cas. (CC 1852). NDNY accepted description
We Justice Nelson’s in Costello v. *16 “[i]t United States, where we held that would run counter history grand jury permit the whole of the institution” to challenged ground an indictment to be “on the that there inadequate incompetent grand was or evidence before the jury.” prin- S., at 363-364. And we reaffirmed this ciple recently in Scotia, Bank Nova where we held that “the mere fact that evidence itself is unreliable is not suffi- require cient to a indictment,” dismissal of the and that “a challenge reliability competence to the or of the evidence presented grand jury” to the will be heard. 487 S.,U. at It 261. would make little sense, think, we to abstain from reviewing evidentiary support grand jury’s judg- for the scrutinizing sufficiency prosecutor’s ment while presentation. complaint quality adequacy A about the or always complaint the evidence can be recast as a that the prosecutor’s presentation “incomplete” “misleading.”8 was repeating: facially Our words in Costello bear Review of 8 Costello, In example, complaining instead of grand jury’s about the reliance upon hearsay evidence petitioner complained could have prosecutor’s about the g., introduction of it. e. United States v. Es See, tepa, (CA2 1972) 471 F. 2d (prosecutor intro should not hearsay duce evidence jury before when direct evidence is avail able); Arenella, see also Reforming Jury the Federal Grand and the State Preliminary Hearing to Adjudication, Prevent Conviction Without (1980) (“[S]ome 463, 540 Mich. L. Rev. cautiously begun federal courts have to . .. prosecutorial us[e] revitalized misconduct doctrine to circumvent Costello’s prohibition against directly evaluating sufficiency of the evi presented grand jury”). dence to the grounds valid indictments such “would run counter to the on. history [and] [n]either institution^] whole justice requires [it].” concept S., nor trial of a fair at 364.
[*] [*] [*] Echoing reasoning of the Tenth Circuit Page, respondent argues that a 2d, States v. F. requiring evi- rule to disclose by removing from the docket would, dence to the judicial unjustified prosecutions, save valuable time. That depends, suppose, upon what the ratio would turn out to we unjustified prosecutions eliminated and be between challenged the latter as well as the indictments —for judicial “valuable We need not former consume time.” pursue advantage proposal, matter; if there is an Congress prescribe set forth is free to it. For the reasons authority courts have no above, however, we conclude that prescribe duty pursuant supervisory to their inherent such judgment authority proceedings. over their own Appeals accordingly the cause reversed, Court of *17 proceedings with this is remanded for further consistent opinion. ordered.
So with whom Justice Blackmun Justice Stevens, join, whom and with Thomas Justice O’Connor Justice joins dissenting. as to III, Parts II and changes opinion important in
The Court’s two announces justifies special the to the First, law. it its accommodation granting a conten- Solicitor General in certiorari to review tion that was not advanced in either the District Court by Appeals explaining that the the that the fact Court adequate was in a case is an substitute issue raised different raising a federal Second, it in this case. it concludes that prosecutor’s obligation power to to enforce the court has no the proceedings before fairness fundamental protect the jury. grand
I petition is certiorari the presented question The exculpatory evi- substantial to disclose failure the whether prosecutorial mis- species of jury grand is dence dismissing an indictment remedied be that conduct the Court Court District In the prejudice. without question that to agreed the answer parties that Appeals both disagreement was only The appropriate case.” “yes, anin is vigor- prosecutor appropriate case: was an this whether evi- undisclosed the not because argued it was ously that re- evidence, while exculpatory substantial not was dence exculpatory and was evidence that the spondent countered with a dismissal warranted misconduct prosecutor’s the prejudice. Circuit, United arising the Tenth in case earlier
In denied, cert. Page, 2d 808 F. States should indictment his that (1987), had claimed the defendant guilty of was prosecutor because been dismissed have Specifically, proceedings. jury grand during misconduct grand allowed prosecutor had that the he claimed present it with to testimony failed and had false consider at 726-727. 2d, F. exculpatory evidence. substantial duty concerning views “two noting are that there After ato exculpatory evidence present aof “better, concluded court jury,” id., substantial “when is that rule” balanced more investigation, anof the course discovered evidence (emphasis jury,” at 728 id., revealed be must indictment, to dismiss original). The court declined was case withheld evidence because however, *18 exculpatory.” “clearly Ibid. acknowledged the expressly the Government this case
In with- argued the Page, but responsibilities described significant.1 Instead held evidence was not distinguished questioning controlling the law, it of rule of in which an case an earlier facts of this case from those of had indictment had been dismissed because factually impossible for the testimony made it withheld guilty.2 corporate The Government have defendant to been request court principal that the brief a concluded its with apply Nova Scotia United in Bank the test set forth of (1988), holding Page,” and “follow States, 487 in this case because was not warranted hold that dismissal exculpatory evi- was not substantial the withheld evidence any way.” prejudiced respondent “was not dence and (CA10),pp. 40-43. in No. 88-2827 Brief for United States Appeals, re- losing the Government the Court After grant certiorari position to and asked this Court its versed responsibilities certain acknowledged that it has has government “The 1987), (10th Page, F. 2d 723 Cir. United States v. under the case of from exculpatory evidence duty not withhold substantial a that includes that... would contend government jury if exists. ... The such ... stated in the case. complied principles with was familiar with com whole, government that the it is clear Considering the evidence as Page, supra.” Brief with, beyond requirements went plied 88-2827, Brief in Nos. 88-2843 Response Appellee’s United States in (CA10), pp. 9-10. Co.,435 Phillips Petroleum States v. Respondent had relied on United 1977). (ND the case distinguished The Government Supp. F. Okla. prosecu Phillips, supra, the In type on “the of evidence excluded. based questioning a day, continued Jury home for the but tor sent the Grand members, Jury session, hearing of the Grand In that outside the witness. infor immunity, to certain witness, granted testified had been use who knowingly one who been the which showed that the witness had mation intention had not offense, corporation and showed that committed question that the There was no ally an offense in that case. committed corporate defend factually for the testimony impossible made it withheld substantial and evidence was guilty, been and therefore the ant have gov disagreement between exculpatory. In case is a the instant ..there documents defendant as to whether the ernment and the defendant in No. United States exculpatory.” Brief for presented wants in full are (CA10), p. 38. *19 58 and to hold that the has judicially no enforceable duty present grand jury. evidence to the In his opposition brief in petition, respondent clearly pointed out question that the presented by petition the “was presented
neither
to nor
by
addressed
the courts below.”
Brief in Opposition 2. He appropriately called our attention
many
of the cases in which we
repeated,
have stated,
general
reiterated the
precludes
rule that
grant
of certio-
rari
question
when
presented
the
pressed
was “not
passed
or
upon below.”3
at
Id.,
Apart
5-9.
from the fact that the
United States is
petitioner,
the
I see no reason for not fol-
lowing
salutary
practice in this case.4 Nevertheless,
requisite
number of
grant
Justices saw fit to
the Solicitor
petition.
General's
(1991).
This Court has a special to obligation administer justice impartially and to set an of example impartiality for other courts to emulate. When the Court to appears favor the Government over the ordinary litigant, it seriously compro- mises its to ability discharge that For important duty. expresses The Court inability an to understand the difference between the routine application, objection, without rule, of settled on the one hand, and the open decision of an question ground on a argued by not the parties, on the other. The difference is explained best light in of the basic assumption that adversary process provides the best method of arriv ing correct decisions. of appellate Rules practice generally require that an issue actually be by raised parties debated if it is to be preserved. In exceptional case, in which appellate an court announces a new rule that had not been by debated parties, our review be appropriate give the losing party an opportunity it would not otherwise have to challenge the case, rule. In however, this there why is no reason the Government could not challenged have Page rule in this case in the Tenth Circuit. There is no need for exception preserve losing litigant’s opportunity to be Moreover, heard.- the Government’s object failure to application of the Page deprived rule the Court of Appeals of an opportunity to validity reexamine the of that rule in the light of intervening developments in the law. “Sandbagging” just as improper in an appellate court in a as trial court. “expressed passed predicate on” jurisdic for the exercise of our tion special is of importance in determining power our to review state- judgments. court If the newly Court’s announced view that the routine application of a settled rule satisfies the “passed requirement on” in a case, federal I no why see reason it should satisfy not also the same re quirement in a state case.
reason I would dismiss the writ of certiorari im- alone, as providently granted.7
II Hercules, Like the slain miscon- Hydra prosecutorial duct has heads. Some are Justice Suther- many cataloged land’s States, classic for the Court v. United opinion Berger (1935): 78S.
“That
the United States
over-
prosecuting attorney
the bounds of that
and fairness which
stepped
propriety
should characterize the conduct of such an officer
shown
of criminal offense is
prosecution
clearly
He was
the facts in his
record.
guilty
misstating
into the
witnesses;
cross-examination
putting
mouths
which
had
they
of such witnesses
things
said; of
his
that statements had
suggesting by
questions
*21
been made to him
in
court,
out of
of
personally
respect
which no
was
of
to understand
offered;
proof
pretending
he had
that a witness had said
which
not said
something
and
the witness
persistently cross-examining
upon
in
basis;
evidence;
of
facts not
of
assuming prejudicial
7
suggests
“improvident”
The Court
that it would be
for the Court to
ground
dismiss the writ of certiorari on the
that the Government failed to
question presented
respondent
raise the
in the lower courts because
raised
argument
opposition,
granted
this
in his brief in
the Court nevertheless
writ,
Ante,
argued.
and the
has been
I
case
briefed and
dis
40..
agree.
grant petition
The vote of four Justices is sufficient to
a
for certio-
rari,
preclude majority
but that action does not
a
of the Court from dis
missing
improvidently granted
argued.
the writ as
after the case has been
(1966)
See, g.,
Overstreet,
(dismissing,
e. NAACP v.
after oral
384
118
Justices).
argument,
improvidently granted
writ
four
as
over the dissent of
frequently
improvidently granted
We have
dismissed the writ as
after the
fact,
argued;
already
case has been briefed and
so twice
we have
done
Bar,
(1991);
Proper
this Term. See Gibson v.
S. 104
PFZ
Florida
502 U.
ties,
Rodriguez,
Although
always
Inc. v.
61 arguing bullying general, witnesses; and with and in of conducting thoroughly himself and im- indecorous proper manner. . . . prosecuting attorney’s argument
“The to the was undignified intemperate, containing improper insin- jury.” uations assertions to mislead calculated Id., at 84-85.
This,
course,
is not an
exhaustive list
the kinds of
improper
misguided prosecutors
tactics that overzealous or
adopted
judicial proceedings.
reported
have
The
cases
examples
knowing
of this Court alone contain
use of
(1935),
perjured testimony, Mooney Holohan,
v.
“The representative United States is the not ordinary party of an controversy, to a but a sover- eignty obligation govern whose impartially to is as com- pelling obligation govern as its to all; at and whose inter- prosecution est, therefore, in a criminal is not that it justice shall a case, win but that shall be done. As such, peculiar very he is in a definite sense the servant of the escape guilt law, twofold aim of which is that shall not may prosecute innocence suffer. He with vigor earnestness and he indeed, should do so. But, — while he liberty strike blows, hard he is to strike duty foul ones. It is as much his to refrain from improper produce methods wrongful calculated to a con- every legitimate viction as it is to use bring means to just Berger about a one.” States, v. United S., at 88. equally
It is clear that duty has the same improper to refrain from produce methods calculated wrongful prosecutor’s duty indictment. pro- Indeed, the judicial tect the fundamental special importance proceedings fairness of assumes presenting when he evidence jury. Appeals As the Court of recog- for the Third Circuit nized, “the costs of prosecutorial continued unchecked mis- conduct” before particularly are substantial because there prosecutor operates
“the judge without the check of a legal adversary, or a trained virtually immune from public scrutiny. prosecutor’s special abuse of his polygraph evidence was Roberts, inadmissible.” States Supp., F. at 1389. *23 relationship grand jury poses an enormous risk to theory provides defendants as well. For while in a trial opportunity the defendant with a full to contest and disprove charges against practice, him, in the hand- ing up of an devastating indictment will often have a personal professional impact that a later dismissal acquittal potential can never undo. Where the for great, consequences abuse is so and the of a mistaken responsibilities serious, indictment so the ethical prosecutor, obligation judiciary protect against appearance even the of unfairness, are corre- spondingly heightened.” United States v. Serubo, 604 (1979). F. 2d 807, 817
In his dissent in United Ciambrone, States v. 2dF. (CA2 1979),Judge Friendly recognized prosecutor’s also special grand jury proceedings: role Supreme
“As the has noted, Court ‘the Founders thought grand jury so essential to basic liberties that they provided in the Fifth Amendment that federal prosecution only for serious crimes can be instituted presentment “a Jury.’” or indictment of a Grand (1974). United States v. Calandra, 414 338, 343,... prosecutor Before the has the dual role pressing being indictment and of duty In adviser. case of conflict, the latter must take precedence. Remington, United States v. 208 F. 2d (2d 1953) (L. dissenting), Cir. Hand, J., cert. denied, 347 ... parte
“The ex proceedings character of peculiarly important makes it for a federal phrase, to remember that, in the familiar the interest of prosecution the United ‘in States a criminal is not that justice it shall win a case, but that shall be done.’ *24 (1935).” Berger States, 88 . . . v. United Id., at 628-629.9 consequences prosecuto- judging the for standard essentially jury proceedings during grand
rial is misconduct applicable to trials. In the same as the standard (1986), we held that there Mechanik, States 475 U. S. v. [the rule] apply harmless error to ‘er- was not to “no reason irregularities, occurring a or variances’ before rors, defects, occurring applied jury just it to such error as we have repeated that id., in trial at 71-72. We itself,” the criminal holding States, 487 U. S. Nova v. United in Bank Scotia argument (1988), rejected that a defendant’s when we prosecutorial be dismissed because an indictment should proceedings irregularities in before the misconduct and prosecutor’s grand jury. Referring misconduct before customary grand jury, harmless- that our we “concluded inquiry applicable us, in the cases before where, as error prior to the conclu- a asked to dismiss an indictment court is reviewing in Id., Moreover, 256. sion of the trial.” at applied precisely the case, in that we instances of misconduct agree Judge Friend Ciambrone majority in did not with Although the case, it impact of the misconduct ly’s appraisal prejudicial fundamentally duty unfair tactics recognized prosecutor’s to avoid also explained: Judge Mansfield during grand jury proceedings. discretion hand, prosecutor’s right to exercise some “On the other does not selectivity presentation of evidence to fundamentally unfair tactics be engage it or to entitle him to mislead instance, on the prosecutor, may not obtain an indictment fore it. The Basurto, United States perjurious, him of evidence known to to be basis (9th 1974), by leading it has it to believe that 497 F. 2d 785-86 Cir. v. Es United States testimony, hearsay eyewitness received rather than (2d 1972). would that where a tepa, 471 F. 2d Cir. We add should, negating guilt he prosecutor any substantial evidence is aware of jury, at least where justice, it known to the in the interest of make ABA jury not to indict. See might reasonably expected be to lead the Function, Prosecution Project for Criminal Justice —the on Standards 2d, §3.6, pp. 90-91.” 601 F. 623. prosecutor’s
same standard to the violations of Rule 6 of the Federal Rules of Criminal Procedure and to his violations of general duty applies judicial pro- of fairness that to all ceedings. point This is illustrated the Court’s comments prosecutor’s on abuse of a witness:
“The District Court found was abu- expert during sive to an defense witness a recess and in hearing grand jurors. Although of some the Gov- expert ernment concedes that the treatment of the tax improper, witness was the witness himself testified that *25 testimony his was unaffected this misconduct. The prosecutors grand jury disregard instructed any- the to thing they may have heard in conversations between a prosecutor explained and a witness, and jury that such conversations should have no influence on App. its light deliberations. 191. In of these ameliora- nothing tive measures, there is to indicate that the prosecutor’s substantially conduct toward this witness grand jury’s testimony affected the evaluation its decision to S., indict.” 487 U. at 261. Unquestionably, plain implication of that discussion is though that if expressly the misconduct, even forbidden by any played persuading rule, written had a critical role in jury to return the indictment, dismissal would have required. been opinion comprehend,
In an that I find difficult to the Court today repudiates assumptions underlying these cases and suggest authority seems supervise to that the court has no to grand jury proceedings conduct of the so long as he applicable follows the dictates of the Constitution, statutes, and Rule 6 of the Federal Rules of Criminal Proce- purports support dure. The Court this conclusion in- voking separation powers citing doctrine of string of impose categori- cases in which we have declined to grand jury. say,
cal restraints on the Needless to reasoning unpersuasive. Court’s is Although “textually assigned” has not been “any three Articles” of the branches described the first it is not an autonomous Constitution, ante, body completely beyond the reach of the other branches. Throughout its from the moment it is convened until it is life, discharged, grand jury subject to the control ofthe court. years ago, Judge recognized As Learned Hand over 60 “a agent is neither an officer nor an of the United part States, States, but a of the court.” Falter v. United (1928). (CA2), 2d 277 S. 590 This denied, F. cert. similarly grand jury: Court has characterized the great independence “A is clothed with many appendage of the areas, court, but it remains an powerless perform investigative its function without powerless compel the court’s itself to aid, because testimony process court’s which of witnesses. It is the give testimony, summons the witness to attend and testify compel it is the court which must a witness to if, appearing, after he refuses to do so.” Brown v. United States, 359 *26 (1919)(“At States, Blair 273,
See also v. United 250 U. S. 280 inquisitorial the foundation of our Federal Government compulsion function of the and the witnesses recognized judicial power were as incidents of the States”); 414 Calandra, 338, United United States U. S. (1974). 4 346, n. long recognized
This Court that the has, course, investigate has wide law latitude to violations of federal appropriate permission it from as deems and need not obtain prosecutor. g., id., 343; either the court or the e. See, Cos- (1956); States, tello Hale v. v. United 350 U. S. (1906). Correspondingly, Henkel, 201 we have U. S. acknowledged operation generally that “its is unrestrained by procedural evidentiary the technical governing rules the conduct of criminal trials.” Calandra, 414 S.,U. at 343. Congress But this is because generally and the Court have thought impose procedural best not to restraints on the grand jury; they power it is not because lack all to do so.10 contrary, recognized
To the the Court has that it has the authority to applicable create and enforce limited rules in grand jury proceedings. example, Thus, for Court has grand jury “may said that the privi not itself violate a valid lege, whether established the Constitution, statutes, or the common may prevent Id., law.” at 346. And the Court violating a privilege by quashing from a such or modifying subpoena, issuing protec id., at 346, 4,n. forbidding questions tive order privilege, in violation of the Gravel v. States, United 606, 628-629 More over, there as are, the Court notes, ante, at 49, a series of cases in impose categorical we which declined to restraints grand jury. on the In none of those cases, however, did we question power contrary our to reach a result.11
Although recognizes the Court that it su- invoke its pervisory authority to privilege fashion and enforce rules applicable grand jury proceedings, suggests ibid., and 10Indeed, even the Court acknowledges Congress power has to regulate grand jury, for it Congress concedes that prescribe” “is free to a rule requiring to disclose substantial exculpatory evi grand jury. Ante, dence at 56. 11In States, Costello v. (1966), example, Court held that an indictment solely hearsay based on evidence is not invalid under the Jury Grand Clause of the Fifth Amendment. The Court rejected then petitioner’s argument that it should power invoke “its supervise justice administration of in federal courts” to create a permitting rule defendants to challenge indictments based on unreliable hearsay evidence. Court power declined exercise its way this because persuasive “[n]o reasons are establishing advanced for such a rule. It run would counter the whole history jury institution, laymen which inquiries conduct their unfettered rules. technical Nei *27 justice ther nor concept of a fair Id., requires trial change.” such a at 364. may authority supervisory also invoke its to fashion other grand jury procedure,
limited of ante, 48-49, rules at it con- authority prescribe prose- cludes that it has no “standards of grand jury,” ante, cutorial conduct before the at 46-47, be- grand jury’s cause that would alter the historic role as an independent, inquisitorial disagree. I institution. protect integrity independence
We do not and grand jury by closing eyes our to the countless forms of prosecutorial may secrecy misconduct that occur inside the grand jury grand jury of all, After is room. merely investigatory body; “protector an it also serves as a against arbitrary governmental oppressive of citizens Calandra, S., action.” United States v. at 348. Ex- plaining why grand jury “independent” must both be Georgia, and “informed,” the Court wrote Wood v. (1962): U. 376
“Historically, body regarded pri- this has been as a mary security hasty, against to the innocent malicious oppressive persecution; it serves the invaluable society standing function in our between accuser accused, and the whether the latter be an mi- individual, nority group, charge or other, determine whether a upon by intimidating founded reason or was dictated power personal Id., malice and ill will.” 390. reality say adequately It blinks that the can perform important intentionally this if historic role it is mis- knowledge led whose of the law —on underlying jurors investigation facts of the criminal will, necessity, rely. unwilling Court, Unlike the I am to hold that countless prosecutorial forms misconduct must be tolerated —no prejudicial they may seriously they matter how be, or how legitimate distort the function of the —sim- ply they proscribed by because are not Rule of Federal applicable Rules of Criminal Procedure or a statute that is *28 grand jury proceedings. sharp in a Such break with the tra- judiciary unprecedented, ditional role of the federal is unwar- prosecutorial ranted, and unwise. Unrestrained misconduct grand jury proceedings in is inconsistent with the adminis- justice tration of in the federal courts and should be re- appropriate dressed cases the dismissal of indictments by improper obtained methods.12
I I I proper disposition agree What, is the then, of this I case? prosecutor required with the Government that the is not place grand jury. all evidence before the A grand jury proceeding parte investigatory proceed- is an ex ing probable to determine whether there is cause to believe a violation of the criminal laws has occurred, not a trial. Requiring prosecutor present to ferret out and all evi- dence that could be used at trial to create a reasonable doubt guilt as to the defendant’s would be inconsistent with the purpose grand jury proceeding place sig- of the and would investigation. nificant burdens on the But that does not prosecutor may mean that the mislead the into believing probable that there is cause to indict withhold- ing contrary. agree clear evidence to I thus with the Department prosecutor conducting of Justice that “when a grand jury inquiry personally aware of substantial evi- directly negates guilt subject dence which of a investigation, present must or otherwise dis- 12Although opinion barely the Court’s mentions the fact that the jury was intended to serve standing the invaluable function of between accused, the accuser and the proper I must assume that ease it will acknowledge even the Solicitor General does —that unrestrained —as prosecutorial in grand jury proceedings misconduct “could so subvert integrity grand jury process justify judicial as to intervention. Cf. Delaware, (1978) Franks (discussing analogous considerations in holding that a search warrant affidavit be chal lenged statements).” supported by deliberately when police false Brief for United States n. 8. seeking
close in such evidence to the before against person.” Dept. Justice, dictment such a Attorneys’ p. ¶ Manual 9-11.233, States Although question I whether the evidence withheld this directly negates guilt,13 I respondent’s case need resolve my doubts because the Solicitor General did not ask the *29 Court to review the nature of evidence withheld. In legal question he decide the whether an stead, asked us to indictment dismissed be because the failed present exculpatory Unlike the evidence. Court and the question I General, Solicitor believe the answer to that yes, plainly preclude finding if the withheld evidence would probable I cause. therefore cannot endorse the Court’s opinion. importantly, firmly opposed
More because I am so litigator, Court’s favored treatment of the as a Government improvidently I would dismiss the writ of certiorari as granted. rely
13 Iam judgment reluctant on the lower regard, courts’ in this they apparently as applied legal more lenient standard. The District Court dismissed the indictment because the “information withheld raises defraud,” reasonable doubt about the Defendant’s intent and thus “ren grand jury’s gravely ders the suspect.” App. decision to indict to Pet. for Appeals Cert. 26a. The Court of affirmed this decision because it was not (CA10 “clearly 1990). erroneous.” 899 F. 2d