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Rule 17(c) of the Federal Rules of Criminal Procedure governs the ability of parties in a federal criminal case to discover material from one another and from nonparties prior to or during trial. The language of Rule 17(c) itself is broad and allows for any subpoenas to be issued so long as they are not “unreasonable or oppressive.” Yet, the Supreme Court, in two cases, Bowman Dairy Co. v. United States and United States v. Nixon, substantially narrowed the applicability of the Rule, such that— absent affirmative showings of admissibility, relevance, and specificity for all material sought—parties are not entitled to discovery. While this high bar for discovery does not create major issues for the prosecution, which has already conducted sweeping discovery during the grand jury process, the defense is left at the mercy of the Nixon standard and its requisite, near-insurmountable showings to obtain subpoenas. While some have critiqued the current system of federal criminal discovery, few have focused on the best way to reform that system, without overturning any Supreme Court precedent. And the literature that has proposed reforms to the criminal discovery system has concentrated on altering the text of Rule 17 itself. This Note instead advocates for a court-driven approach to reform and, in doing so, argues that this solution is preferable to Rule reform when one weighs speed and clarity. This Note proposes a novel approach to Rule 17(c) jurisprudence and the defense discovery system by providing historical context for Nixon and elucidating the due process and compulsory process concerns with this legal regime, ultimately recommending that courts use different standards of evaluation depending on the target of the subpoena—be it an opposing party, a nonparty, or the President of the United States. [ABSTRACT FROM AUTHOR]

The interplay between grand jury secrecy and witness non-disclosure orders is easily quite puzzling given the statutory silence on the issue: Furthen the exclusion of witnesses from the "cloak of secrecy"2 granted by Federal Rule of Criminal Procedure 6(e)3 may seem as perplexing as it does common sense, depending on your views surrounding criminal investigations in the United States. Regardless, the main points of contention here lie amidst the tension between the efficiency and confidentiality of the investigative process as they are squarely met with countervailing First Amendment interests. In 2017, the D.C. Circuit upheld a routine non-disclosure order ONDO") issued to Uber Technologies along with a subpoena for business records, preventing the company from alerting its customer, the subject of a grand jury investigation, of the existence or contents of the subpoena for 180 days: The Government asserted, as it routinely does, that disclosure would compromise the investigation by giving targets the chance to flee or tamper with evidence.5 In doing so, the Court emphasized three widely accepted notions among the U.S. Courts of Appeals: First, that grand jury secrecy underpins the "proper functioning of our grand jury system" (as recognized by the Supreme Court of the United States)6. Second, that district courts are at times afforded "the authority to Ifill statutory interstices. '"7 And third, that nowhere in the Federal Rules does there exist an explicit prohibition on witness non-disclosure orders. Two years after In re United States 2017, the U.S. District Court for the District of Columbia backtracked and denied issuing a similar grand jury non-disclosure order on account of the D.C. Circuit's altered interpretation of Rule 6(e) in McKeever v. Barr.~ Practically speaking, the decision considerably narrowed the availability of non-disclosure orders on grand jury witnesses to solely instances of explicit statutory authorization in the District of Columbia Federal courts. This article examines the varied administration of witness NDOs through a holistic review Of the relevant historical, legislative, and judicial views of the grand jury, Federal Rules of Criminal Procedure, and the First Amendment to propose a uniform solution to the circuit split. [ABSTRACT FROM AUTHOR]

The article examines the impact of federal Racketeer Influenced and Corrupt Organizations prosecutions on Black and Brown minors involved in or adjacent to street gangs, emphasizing their vulnerability within the criminal legal system. Topics include the disproportionate targeting of these minors, the potential harm they face as grand jury witnesses, and the need for enhanced protections for them within the legal process.

Prosecutors are afforded significant discretionary power in the current justice system. While much attention has been given to the factors that influence charging decisions, little is known about decision-making in the charging process itself. Moreover, research has yet to examine the mechanisms used to initiate charging: grand jury indictments or the information. As these charging processes are characteristically different and may have significant implications for case processing and justice outcomes, it is important to explore what factors influence decision-making at this early stage. The current study addresses these shortcomings using case-processing data from a large urban jurisdiction. Results indicate significant differences between defendants charged via grand jury and information processes. In addition, charging pathways have important consequences for case outcomes. [ABSTRACT FROM AUTHOR]

A 2018 Pennsylvania grand jury report after a two-year investigation documented numerous incidents of sexual abuse by Catholic priests and the cover-up of these crimes by those in positions of leadership. Framing is a critical aspect of crisis response. Framing involves selecting and emphasizing certain attributes of an issue. This article examines the response of one Jesuit university in its attempt to frame itself and the sexual abuse crisis. The value of understanding frameworks for crisis assessment and response, public relations functions, and thinking through an organization’s mission and social legitimacy provides a comprehensive approach that can help an organization properly address a crisis. [ABSTRACT FROM AUTHOR]

The U.S. Supreme Court has never held that the Fourteenth Amendment makes the entire Bill of Rights applicable to the states. Instead, it has selectively incorporated against the states those rights that it deems to be fundamental. However, only two enumerated rights remain that the Court has affirmatively labeled non-fundamental. It is doctrinally puzzling why the Fourteenth Amendment should be understood to stop just short of total incorporation. Of the last unincorporated rights, only one relates to criminal procedure: the Grand Jury Clause, which guarantees the right to be indicted by a grand jury before prosecution for a felony. The Court declined to incorporate the Grand Jury Clause in 1884 in Hurtado v. California, and this Note argues that Hurtado should be overturned. After analyzing the incorporation caselaw from the Roberts Court, an area in which the Court has been active, this Note argues that Hurtado is doctrinally incompatible with the modern approach to fundamental rights. Despite the internal inconsistencies in the doctrine, which this Note identifies, applying the modern incorporation framework to the Grand Jury Clause shows that the right to indictment is a fundamental one. Finally, this Note argues that Hurtado can be overturned consistent with principles of stare decisis. Indeed, this Note makes a novel but striking finding--Hurtado likely does not carry precedential force as an incorporation case at all. This Note shows that Hurtado was argued and decided as a procedural due process case. Because the Court's incorporation doctrine turns on substantive rather than procedural due process, Hurtado did not decide the relevant legal question at all for incorporation purposes. [ABSTRACT FROM AUTHOR]

In 1995, Lamar Johnson was convicted of a murder in St. Louis. Twentytwo years later, St. Louis Circuit Attorney Kimberly Gardner created a Conviction Integrity Unit ("CIU") to review possible wrongful convictions. After reviewing Johnson's case, the CIU concluded that Johnson was innocent. Then, consistent with her special responsibility as a prosecutor to seek to remedy wrongful convictions, Gardner filed a motion for a new trial. The court, however, denied the motion, holding that there was no enabling legislation in Missouri authorizing CIUs to seek relief for wrongful convictions. Gardner is not alone in her inability to rectify wrongful convictions. Although the number of CIUs has increased, most jurisdictions still do not have such a unit, and several CIUs exist in states that, like Missouri, lack enabling legislation. Conversely, it has perhaps never been easier for prosecutors to commence criminal proceedings that culminate in wrongful convictions. The Fifth Amendment Grand Jury Clause provides that no person shall be subjected to a trial for felony charges unless there is a grand jury presentment or indictment. The grand jury's historical mission was "to clear the innocent, no less than to bring to trial those who may be guilty," and yet grand juries now return indictments in approximately ninety-nine percent of cases. Meanwhile, the use of presentments waned in the wake of the Civil War and was effectively declared dead in the criminal charging context in 1946. Historically, however, grand jury presentments were used not only to accuse wrongdoers of criminal behavior but also to call attention to issues of public concern. With the demise of presentments in the criminal charging context, this other historical function of the grand jury has largely fallen into disuse. This Article advances the original thesis that there is a dormant Grand Jury Clause that prosecutors can use to revive the common law power of presentment and fulfill their responsibility to rectify wrongful convictions. Under this dormant Grand Jury Clause, a prosecutor who believes her office previously secured a wrongful conviction can take the case to a grand jury. If the grand jury agrees with the prosecutor, it can submit a wrongful conviction presentment to a judge, who can vacate the conviction under the inherent power of the court. By doing so, prosecutors can restore some of the glory of the common law grand jury and create a powerful new tool to right wrongs. [ABSTRACT FROM AUTHOR]

Under the statute of limitations applicable to most federal crimes, 18 U.S.C. § 3282(a), "no person shall be prosecuted, tried, or punished for any offense, not capital, unless the indictment is found or the information is instituted within five years next after such offense shall have been committed." That long-standing, generally uncontroversial procedural statute was thrust into the spotlight in 2020, when courts, prosecutors, and criminal defendants confronted an unprecedented and extraordinary scenario. In response to the COVID-19 pandemic, many federal district courts suspended grand juries to prevent the spread of the highly contagious life-threatening virus through group congregation. Indeed, to combat the rampant and unabating COVID-19 outbreak in Florida, the District Court for the Southern District of Florida suspended grand juries from March 26, 2020, until November 17, 2020, creating a nearly eight-month period during which prosecutors could not obtain indictments. But, under the Fifth Amendment to the United States Constitution, criminal defendants have the right to be prosecuted by indictment. Thus, during the grand jury suspension, the five-year statute of limitations applicable to most federal crimes was expiring on uncharged criminal conduct that ended in 2015 at a time when prosecutors could not comply with the Fifth Amendment. Despite being alerted of this constitutional issue, Congress did not enact legislation giving either the Chief Judge of the United States Supreme Court or the Chief Judges of the United States District Courts authority to suspend statutes of limitations during national emergencies, such as the COVID-19 pandemic, that affect the functioning of the courts. The combination of that judicial decision to suspend grand juries and that legislative decision not to suspend statutes of limitations posed a pandemic riddle: how can prosecutors comply with both the statutes of limitations and the Fifth Amendment when there are no grand juries? This Article examines the text of 18 U.S.C. § 3282(a), Federal Rule of Criminal Procedure 48(a), and 18 U.S.C. §§ 3288 and 3289; the purposes of statutes of limitations and the Fifth Amendment right to prosecution by indictment; and the related legislative history. Based on that examination, this Article suggests that, for most federal crimes, when defendants assert their Fifth Amendment right to prosecution by indictment during a pandemic (or other national emergency) that suspended grand juries and the statute of limitations on their alleged crimes is expiring, prosecutors can uphold that constitutional right and that statutory privilege as well as the public interest in seeing lawbreakers brought to justice by: (1) filing an information to toll the statute of limitations under 18 U.S.C. § 3282(a); (2) dismissing that information without prejudice under Federal Rule of Criminal Procedure 48(a) if the defendant does not waive his right to prosecution by indictment; and (3) obtaining a timely indictment within six months of the resumption of grand juries under the savings clauses in 18 U.S.C. §§ 3288 and 3289 for re-prosecutions after the dismissal of a timely filed information. This Article concludes that there already is a mechanism in the federal statute of limitations appliable to most federal crimes that allows prosecutors to constitutionally preserve criminal charges when a national emergency prevents grand juries from finding indictments. [ABSTRACT FROM AUTHOR]

In 2006, flea-borne rickettsiosis (flea-borne typhus), a zoonotic disease caused by either Rickettsia typhi or R. felis and transmitted primarily by two flea species, the Oriental rat flea and the cat flea, re-emerged as an important vector-borne disease in Orange County, California. The Orange County Mosquito and Vector Control District (OC Vector Control) has investigated 142 human cases of flea-borne rickettsiosis. Results of these investigations have established a link with Rickettsia-infected cat fleas, opossums, feral cats, and disease transmission to humans; no cases have been associated with rats and their fleas. Since initiation of a Trap-Neuter-Return (TNR) Program by Orange County (OC) Animal Care in 2009, OC Vector Control has been working with OC Animal Care to minimize the potential public health risks associated with the TNR Program. Interagency discussions have led OC Animal Care to prohibit the release of TNR cats at locations with a high risk for zoonotic disease transmission to humans, such as schools, parks, and health care facilities, and also to disclose the release sites to OC Vector Control. OC Animal Care has not agreed to OC Vector Control’s request for a zoonotic disease review of its TNR Program, nor has it provided a procedural manual to verify the verbal agreements reached by the two agencies. In agreement with OC Vector Control’s concerns, an investigation in 2015 by the Orange County Grand Jury of OC Animal Care’s TNR Program recognized the Program’s potential to increase zoonotic disease transmission to the public and other wildlife. We discuss the conflicting views arising from two governmental agencies, which perceive the zoonotic diseases risk associated with a TNR program at significantly different thresholds of concern.

For more than two centuries, many legal systems in the world have tried to implement the adversarial system in their criminal proceedings. Unfortunately, this implementation has encountered a large number of obstacles from institutions of the old inquisitorial system that are incomprehensibly preserved in the current model. In addition, some institutions of the old English jury-process were collected, albeit they make no longer sense at present. All this has been due to an atrocious conservatism of the legal profession, unbecoming precisely of the reformers of two centuries ago, which should be urgently overcome. [ABSTRACT FROM AUTHOR]

For nearly seventy years, the Ralph M. Brown Act has assured Californians' right to require legislative bodies to hold certain meetings open to the public. This Article considers the extent to which that law has become internalized in government and normalized in Califbrnians' expectations of government conduct. We discuss possible mechanisms./br securing compliance with the Brown Act's requirements, including criminal sanctions, civil litigation, grand jury investigations, and self-policing. We examine in detail the identities of those who bring civil claims or invoke grand jury investigations, the implicated subject areas, the nature of the alleged violations of the Brown Act, and the eventual outcomes. After evaluating the extent to which each contributes to state compliance, we conclude that the government's own internal public law advisors have likely contributed most to ensuring transparency in decision making. [ABSTRACT FROM AUTHOR]