Witness to Abuse - Human Rights Watch

In grand jury investigations there is not necessarily a set crime or established set of issues
against which to assess materiality. 140 A grand jury investigation is convened and run by
the Department of Justice to “determine whether a crime has been committed and
whether criminal proceedings should be instituted against any person.” 141 To accomplish
its task, the grand jury must “inquire into all information that might possibly bear on its
investigation until it has identified an offense or has satisfied itself that none has
occurred.” 142 The Justice Department “has exceedingly broad powers of investigation” 143
and has wide latitude in defining both the scope of the grand jury investigation and who
has information that might be useful to it.
Because grand jury investigations are broad in scope and are run largely by the
prosecution, some federal courts have established an extremely low threshold to
determine whether the government has met its burden in proving a witness has material
information. For example, the Second Circuit Court of Appeals has noted that in grand
jury material witness arrests, “The judge [must] rely largely on the prosecutor’s
representations about the scope of the investigation and the materiality of the
testimony.” 144 Thus, some federal courts have held that “a mere statement by a
responsible official, such as a United States Attorney, is sufficient to satisfy” the
requirement of materiality. 145
140
Materiality is the requirement that a witness has material information.
141
United States v. Calandra, 414 U.S. 338, 343-44 (1974).
142
Ibid.
143
Bacon v. United States, 499 F.2d 933, 943 (9th Cir. 1971).
144
Awadallah, 349 F.3d at 55-56.
145
Bacon, 449 F.2d., p. 943. See also Awadallah, 349 F.3d, p. 70; United States v. Oliver, 638 F.2d (7th Cir.
1982), p. 224, 231. The Bacon “take the government at its word” probable cause standard raises Fourth
Amendment concerns. The Supreme Court “repeatedly has explained that ‘probable cause’ to justify an arrest
means facts and circumstances within the officer’s knowledge that are sufficient to warrant a prudent person, or
one of reasonable caution, in believing, in the circumstances shown that the suspect has committed, is
committing, or is to commit an offense.” Michigan v. DeFillippo, 433 U.S. 31, 37 (1979). Put differently, the
Court has interpreted the Fourth Amendment to require that courts examine the government’s evidence to
review whether a reasonable or prudent person would believe that there are sufficient facts to believe that the
person to be arrested has committed an offense. In contrast, the Bacon sworn statement standard does not
require courts to test whether a reasonable person would agree with the government’s assertion that a
witness’s testimony is material. Also, courts have required more judicial scrutiny for grand jury subpoena
requests than applications for the detention of grand jury material witnesses. In considering whether to grant a
grand jury subpoena, courts are required to check for relevancy, specificity and whether the government is
going on a “fishing expedition” or requesting irrelevant information. In re Grand Jury Subpoena: Subpoena
Duces Tecum, 829 F.2d 1291, 1302 (4th Cir. 1987). Grand jury subpoenas are designed only for the purpose of
obtaining testimony and are “not meant to be the private tool of the prosecutor,” United States v. Fisher, 455
F.2d 1101, 1105 (2d Cir.1972). “[P]ractices which do not aid the grand jury in its quest for information bearing
on the decision to indict are forbidden.” United States v. [Under Seal], 714 F.2d 347, 349 (4th Cir. 1983), cert.
dismissed, 464 U.S. 978 (1983).
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