Federal Evidence Review

On review of civil contempt of a corporation for refusing to provide documents requested by the grand jury, circuit declines to consider claim that grand jury may have considered evidence obtained in violation of the Fourth Amendment, noting that “[v]irtually any source” of evidence may be considered, in In Re: Grand Jury Subpoena, 597 F.3d 189 (4th Cir. Feb. 24, 2010) (Nos. 06-2125, 06-2220, 07-1646)

A recent Fourth Circuit case underscored the breadth of evidence which a federal grand jury may consider and the reasons for this policy. In the case, twelve unnamed corporations were held in civil contempt after refusing to provide documents requested under a grand jury subpoena. On appeal, one of the companies argued contempt was inappropriate because the company “was the subject of unlawful National Security Agency wiretapping” in violation of the Fourth Amendment. In Re: Grand Jury Subpoena, 597 F.3d at 191.

In affirming the civil contempt ruling, the Fourth Circuit noted that the constitutional claim was not properly before the court. The grand jury is empowered to consider a wide range of evidence, regardless of whether it is unconstitutional, contains hearsay, or is otherwise inadmissible. As the circuit explained:

“The reason for this rule is the grand jury’s function, not in ascertaining guilt, but in determining whether a crime may have occurred. [United States v.]
Calandra, 414 U.S. [338,] 344 [(1974)]. Virtually any source that may be helpful to the investigation can be considered. For example, the Court in United States v. Calandra noted that ‘tips, rumors, evidence proffered by the prosecutor, or the personal knowledge of the grand jurors’ may trigger a grand jury investigation. Id. at 344 (citing Branzenburg v. Hayes, 408 U.S. 665, 701 (1972)).

“Further, courts for generations have recognized that a grand jury indictment need not be based on evidence conforming to the formal requirements of a trial. As Justice Samuel Nelson, riding circuit in the 1850’s, explained:

“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 (C.C.N.D.N.Y. 1852) (cited in United States v. Williams, 504 U.S. 36, 54 (1992)). See also Blair v. United States, 250 U.S. 273, 282 (1919) (same)….

“Because of this rule, courts have upheld grand juries’ use of a broad range of evidence that would be inadmissible at trial. For instance, the Calandra Court allowed consideration of unlawfully seized evidence and refused to apply the Fourth Amendment’s exclusionary rule at the grand jury stage. Calandra, 414 U.S. at 341-42. In doing so, the Court relied on Costello v. United States, in which the Supreme Court upheld a tax evasion conviction when the grand jury considered only hearsay evidence in returning an indictment. 350 U.S. at 361. Other decisions have reached similar results. Our decision in United States v. Jefferson rejected an invitation to engage in a comprehensive review of grand jury proceedings alleged to infringe on a congressman’s constitutional Speech or Debate Clause rights. [ United States v. Jefferson, 546 F.3d 300, 312 ]. See also United States v. Johnson, 419 F.2d 56 (4th Cir. 1969) (refusing to review grand jury proceedings to determine whether privileged legislative materials were considered). It is thus well-established that grand juries may consider broad-ranging sources of evidence, admissible at trial or not, as part of their mandate to uncover criminal acts.”

“Additionally, Calandra noted that limiting the evidence available to grand juries provides little additional protection to individual rights. As the Court explained, ‘[t]he purpose of the exclusionary rule is not to redress the injury to the privacy of the search victim. . . . the rule’s prime purpose is to deter future unlawful police conduct.’ Calandra, 414 U.S. at 347. Because potential inadmissibility at trial already provides a compelling incentive for investigators to respect Fourth Amendment strictures, Calandra saw no reason to extend the rule:

“Any incremental deterrent effect which might be achieved by extending the rule to grand jury proceedings is uncertain at best. . . . The incentive to disregard the requirement of the Fourth Amendment solely to obtain an indictment from a grand jury is substantially negated by the inadmissibility of the illegally seized evidence in a subsequent criminal prosecution.

“ Id. at 351. While there may be other objections that appellant may interpose as to the subpoena, a Fourth Amendment claim is not among them. Thus, regardless of whether or not the appellants in the current case were subjected to unlawful surveillance, as a preliminary matter there is no constitutional bar to a grand jury considering the subpoenaed documents. If there is no constitutional bar to the consideration of such evidence, there can be no constitutional challenge to its production. Appellant’s belief that the subpoena is the fruit of the surveillance necessarily rests upon the very constitutional claim that, if litigated, the Supreme Court and this court have held would undermine the grand jury’s investigative function.”

In Re: Grand Jury Subpoena, 597 F.3d at 197.

The case emphasizes that the grand jury may consider any form of evidence to fulfill its investigatory function. However, this does not mean the otherwise inadmissible evidence may be considered during later stages in the case, including at trial. Challenges to the admissibility of the evidence, either under the Constitution or FRE, may be raised post-indictment when considered at trial.