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Note: The comments and questions on this page came from people who visited this website. Please feel free to send your comments and questions to Professor Brenner (brenner@udayton.edu). She will respond privately, and may ask permission to post your message on this page. No one's e-mail will be used without first obtaining their permission, and names and e-mail addresses are removed before a comment is posted. Starting in 2002, the responses posted to the site indicate which of us replied: The initials SWB mean Professor Brenner wrote the response; the initials LES mean Professor Shaw wrote the response. We are also putting the year down, to indicate when the response was posted. If no initials appear, Professor Brenner wrote the response.

Questions about the investigative process

 1) What is the purpose of a lawyer not being allowed to accompany his/her

client into the grand jury room?

  The basic theory is that the lawyer will disrupt the process, making objections and sidetracking the proceedings . . . turning what is an investigative process into a "mini-trial."  The lack of a lawyer does not violate constitutional prohibitions because the Sixth Amendment right to counsel does not kick in until someone has been charged, and grand jury's are the ones who bring charges . . . so they act pre-charging.  Also, the

Supreme Court held, in U.S. v. Mandujano, that the Miranda right to counsel does not apply to grand jury proceedings.

 2)What is a grant of immunity, and who gets it?

    It is in essence the government's promise not to use what you say and/or anything derived from what you say to prosecute you (that is use immunity - transactional immunity is simply a promise not to prosecute you, at all, for the offenses about which you testify).

   It is given to whomever the government wants to give it to.  Witnesses often negotiate for immunity, raising Fifth Amendment objections until they are given immunity, after which they testify.

 3) How can a witness be forced to accept immunity?

   A grant of immunity, according to the Supreme Court, gives you the same protection you have if you take your Fifth Amendment privilege against self-incrimination and do not testify:  In either eventuality, what you say cannot be used against you.  Therefore, you cannot refuse immunity, because you are not being disadvantaged.

 4) Do you think the federal grand jury system needs a reform, if yes, what

should be done?

    Download or print the law review article you can access via the first page of the site, via one of the red buttons on the left hand side of the page, and you'll get my answers.

 5) Do you think the prosecutor has too much power over the federal grand

jury?

     Same as #4.

  

SWB

2002

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