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28 Seatle U. L. Rev. 379 (2004-2005)
Misuse of the Grand Jury: Forcing a Putative Defendant to Appear and Plead the Fifth Amendment

handle is hein.journals/sealr28 and id is 391 raw text is: Misuse of the Grand Jury: Forcing a Putative Defendant to Appear and Plead the Fifth Amendment Aaron M Clemens* I. INTRODUCTION In this article, I consider the propriety of an indictment of a person who was subpoenaed to testify before a grand jury at which the person invoked the Fifth Amendment privilege against self-incrimination on any questions relevant to the investigation and where the government knew that this person would assert the privilege. In Part I, I explore the prose- cutor's power to secure evidence and present it the grand jury. In Part II, I describe how the Fifth Amendment's privilege against self- incrimination limits the prosecutor's power to secure evidence and pre- sent it to the grand jury. In Part III, I apply the privilege to a situation where a prosecutor knows that the person will invoke the privilege and refuse to testify, yet still forces the person to exercise her privilege in front of the grand jury which later indicts her. I conclude that because of the inherent prejudice, if a person in- formed the government of her intent to invoke her Fifth Amendment privilege, then any indictment handed down by a grand jury that person- ally observed this person invoke this privilege must be dismissed. A con- trary rule undermines the Fifth Amendment privilege by allowing a prosecutor to force a person to invoke the privilege in front of the grand jury, thus raising the presumption of guilt in the grand jurors' minds while concomitantly presenting an unnecessary opportunity for prosecu- torial harassment, imposing an unnecessary burden on the witness and potentially causing unnecessary embarrassment, all while wasting grand jurors' time.' * Office of the Public Defender, Palm Beach County, Florida; B.A. 2001, University of Nevada, Las Vegas; J.D. 2004, Georgetown University Law Center. Special thanks to Professor Roger A. Fairfax, Jr., Adjunct Professor of Law at Georgetown University, for his encouragement and supervision of this article. The views expressed herein are my own, as are any errors or omissions. I. See infra Part V.

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