56
Stevens, J., dissenting
protect the fundamental fairness of proceedings before the grand jury.
I
The question presented by the certiorari petition is whether the failure to disclose substantial exculpatory evidence to the grand jury is a species of prosecutorial misconduct that may be remedied by dismissing an indictment without prejudice. In the District Court and the Court of Appeals both parties agreed that the answer to that question is "yes, in an appropriate case." The only disagreement was whether this was an appropriate case: The prosecutor vigorously argued that it was not because the undisclosed evidence was not substantial exculpatory evidence, while respondent countered that the evidence was exculpatory and the prosecutor's misconduct warranted a dismissal with prejudice.
In an earlier case arising in the Tenth Circuit, United States v. Page, 808 F. 2d 723, cert. denied, 482 U. S. 918 (1987), the defendant had claimed that his indictment should have been dismissed because the prosecutor was guilty of misconduct during the grand jury proceedings. Specifically, he claimed that the prosecutor had allowed the grand jury to consider false testimony and had failed to present it with substantial exculpatory evidence. 808 F. 2d, at 726-727. After noting that there are "two views concerning the duty of a prosecutor to present exculpatory evidence to a grand jury," id., at 727, the court concluded that the "better, and more balanced rule" is that "when substantial exculpatory evidence is discovered in the course of an investigation, it must be revealed to the grand jury," id., at 728 (emphasis in original). The court declined to dismiss the indictment, however, because the evidence withheld in that case was not "clearly exculpatory." Ibid.
In this case the Government expressly acknowledged the responsibilities described in Page, but argued that the with-
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