Should private citizens be forced, against their will, to subsidize and assist the state in its prosecutorial function? This is basically what happens when people are summoned to testify before grand juries or are picked for grand jury duty. I’ve previously written an extensive critique of the grand jury, with a focus on its subpoena powers. An article today in the Washington Post describes the debilitating costs grand jury witnesses must often pay in attorneys’ fees:
Sympathy can be hard to come by for White House officials who are summoned to appear before a grand jury.
Those whose identities remain a secret suffer in silence, discouraged from reaching out to their closest friends for help. Those whose names leak into the public domain become lightning rods for rumor, suspicion and innuendo, as politicians, commentators and journalists try to divine a meaning behind each summons. . . .
But while the politics of every appearance is picked over in minute detail, there is also a human story to each summons that often goes unexplored.
Witnesses face stress, uncertainty and — worst of all — crippling lawyer’s fees that can take years to pay off. And as prosecutors cast their net ever wider, inexperienced staffers with few financial assets are increasingly facing the emotional and financial burden of grand jury testimony. . . .
When government aides are summoned to testify, the government often doesn’t pay the attorney bills (or only pays a fraction of them):
The two former Clinton aides said that the financial burden was crippling. Like many others, these White House officials had to pay their own legal bills, and these can run into the hundreds of thousands of dollars. Some may qualify for a partial reimbursement from the Justice Department, but this usually covers a fraction of the outlay and can take as long as seven years to be paid out. White House aides are even barred from receiving free legal assistance.
“We spent our time on Capitol Hill, and none of us had any assets. It’s a scary thing. Lots of people rented apartments, had no assets to their name,” said the former Clinton staffer. “If you have a career in public service, you’re being paid well under $100,000 a year, and you have student loans; you become paralyzed financially.”
Lattimore said that he had to turn to his parents, who loaned him money to cover his legal fees. Lattimore’s lawyer, Adam S. Hoffinger, said that the bill for representing someone in a grand jury investigation is usually large. “A white-collar grand jury investigation in D.C. or New York could cost a witness between $10,000 and $100,000, assuming no trial and no criminal exposure,” he wrote in an e-mail. . . .
This is another strike against the grand jury, which is a tool to assist prosecutors that I believe sometimes amounts to an end-run around other criminal procedure rules. Witnesses should not bear these extensive costs to assist the state in its prosecutorial efforts. Many of these witnesses are not suspects — they are just ordinary people who happen to have some knowledge about a matter under investigation.
Grand jurors must also bear a tremendous burden. Grand juries last for months, and are tremendously disruptive to people’s lives. Being a grand juror can have a devastating impact on small business owners. Grand jurors may also be forced to bear significant costs in transportation and child care. So witnesses and grand jurors must bear great cost and sacrifice because they are conscripted into assisting the state in prosecuting its cases. Grand jurors are basically a tool used by prosecutors to collect evidence in cases (grand juries basically do whatever the prosecutor wants). For these reasons – and for the reasons in my previous post about grand juries – I wonder whether it’s time to end grand juries or greatly curtail their use. (Of course, there are constitutional issues that might limit to some extent how far grand juries can be curtailed).
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This post was authored by Professor Daniel J. Solove, who through TeachPrivacy develops computer-based privacy training, data security training, HIPAA training, and many other forms of awareness training on privacy and security topics. Professor Solove also posts at his blog at LinkedIn. His blog has more than 1 million followers.