Grand Juries Are Not for Trial Preparation After Indictment

The Government properly uses grand juries to investigate and prepare cases for trial. But, what happens if the Government to continue using the indicting grand jury same or even some other grand jury (new or continuing) to tie up the loose ends in the indicted case? Most of us understand instinctively that that is a problem because it circumvents the discovery rules allowed in criminal cases.

This is, of course, not usually even a significant risk in most tax crimes cases. But, in the larger cases it could be an issue.

For example, in the KPMG case, after 19 individual defendants were indicted, my understanding was that the Government contemplated further investigation of "subjects" and "targets" (targets being subjects until a few nanoseconds before the jury indicts, particularly when the prosecutors want to squeeze out a voluntary proffer) and further indictments resulting therefrom either by the same or some other grand jury. Of course, we all know that the KPMG original indictment of the 19 became bogged down in major issues for several years and thus hampered any ideas that the Government may have had about further investigation and indictment of others. But had that happened, it could have been an issue. Perhaps a similar problem is presented by the offshore account initiatives as rolling indictments are brought with a number of continuing or seriatim grand jury investigations where evidence may be produced that could conceivably related to earlier indictments. Need there be any concern that the Government will exploit in an earlier indictment information developed in the subsequent investigations?

The White Collar Crime Prof Blog has a blog entry, Grand Juries Are Not For Trial Preparation, with a concise discussion of a case where this issue was fleshed out and the court entered a protective order to prevent that type abuse. I refer readers to that discussion.