64
Stevens, J., dissenting
Berger v. United States, 295 U. S. 78, 88 . . . (1935)." Id., at 628-629.9
The standard for judging the consequences of prosecutorial misconduct during grand jury proceedings is essentially the same as the standard applicable to trials. In United States v. Mechanik, 475 U. S. 66 (1986), we held that there was "no reason not to apply [the harmless error rule] to 'errors, defects, irregularities, or variances' occurring before a grand jury just as we have applied it to such error occurring in the criminal trial itself," id., at 71-72. We repeated that holding in Bank of Nova Scotia v. United States, 487 U. S. 250 (1988), when we rejected a defendant's argument that an indictment should be dismissed because of prosecutorial misconduct and irregularities in proceedings before the grand jury. Referring to the prosecutor's misconduct before the grand jury, we "concluded that our customary harmless-error inquiry is applicable where, as in the cases before us, a court is asked to dismiss an indictment prior to the conclusion of the trial." Id., at 256. Moreover, in reviewing the instances of misconduct in that case, we applied precisely the
9 Although the majority in Ciambrone did not agree with Judge Friendly's appraisal of the prejudicial impact of the misconduct in that case, it also recognized the prosecutor's duty to avoid fundamentally unfair tactics during the grand jury proceedings. Judge Mansfield explained:
"On the other hand, the prosecutor's right to exercise some discretion and selectivity in the presentation of evidence to a grand jury does not entitle him to mislead it or to engage in fundamentally unfair tactics before it. The prosecutor, for instance, may not obtain an indictment on the basis of evidence known to him to be perjurious, United States v. Basurto, 497 F. 2d 781, 785-86 (9th Cir. 1974), or by leading it to believe that it has received eyewitness rather than hearsay testimony, United States v. Estepa, 471 F. 2d 1132, 1136-37 (2d Cir. 1972). We would add that where a prosecutor is aware of any substantial evidence negating guilt he should, in the interest of justice, make it known to the grand jury, at least where it might reasonably be expected to lead the jury not to indict. See ABA Project on Standards for Criminal Justice—the Prosecution Function, § 3.6, pp. 90-91." 601 F. 2d, at 623.
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