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Sidestepping Due Process - Federal Grand Juries and the Unindicted Co-Conspirator

NCJ Number
Judicature Volume: 65 Issue: 7 Dated: (February 1982) Pages: 362-373
D Golladay
Date Published
12 pages
Due process issues involved in grand jury identification of unindicted conconspirators are examined.
The 'report' is a type of grand jury finding. A report neither indicts nor specifically charges any individual with suspected criminal activity. Rather, it details wrongdoing or actions that fall short of actual crimes and often will suggest remedies short of trial court procedures. Although the practice of naming unindicted coconspirators is connected with indictments, it is most similar to grand jury reports. In both instances, persons may be accused without being legally charged. Unlike those actually charged with suspected criminal activity in an indictment, unindicted coconspirators have no effective legal recourse. The sole recourse offered by the courts is the expunction of the offensive report or naming. Federal courts have recognized that while grand jury reports may be permissible under certain conditions, there are definite bounds which may not be crossed. Reports may be of a general nature and deal only with Federal public affairs. This much meets the public's right to know; however, the public's right to know may not extend into the area of a person's constitutional rights or cause damage to his/her reputation without an opportunity of redress. Grand jury reports may not accompany indictments, may not directly accuse persons of illegal activity, may not render judgment, may not deprive persons of their day in court, and may not violate the separation of powers doctrine. As long as the courts continue to deliver a consistent series of decisions restricting the naming of unindicted coconspirators, fundamental fairness will be served. Particular attention is given to court decisions bearing upon the naming of unindicted coconspirators during the grand jury proceedings of 'Watergate.' A total of 55 footnotes are listed.