United States v. Williams, 504 U.S. 36, 32 (1992)

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Cite as: 504 U. S. 36 (1992)

Stevens, J., dissenting

by the technical procedural and evidentiary rules governing the conduct of criminal trials." Calandra, 414 U. S., at 343. But this is because Congress and the Court have generally thought it best not to impose procedural restraints on the grand jury; it is not because they lack all power to do so.10

To the contrary, the Court has recognized that it has the authority to create and enforce limited rules applicable in grand jury proceedings. Thus, for example, the Court has said that the grand jury "may not itself violate a valid privilege, whether established by the Constitution, statutes, or the common law." Id., at 346. And the Court may prevent a grand jury from violating such a privilege by quashing or modifying a subpoena, id., at 346, n. 4, or issuing a protective order forbidding questions in violation of the privilege, Gravel v. United States, 408 U. S. 606, 628-629 (1972). Moreover, there are, as the Court notes, ante, at 49, a series of cases in which we declined to impose categorical restraints on the grand jury. In none of those cases, however, did we question our power to reach a contrary result.11

Although the Court recognizes that it may invoke its supervisory authority to fashion and enforce privilege rules applicable in grand jury proceedings, ibid., and suggests that

10 Indeed, even the Court acknowledges that Congress has the power to regulate the grand jury, for it concedes that Congress "is free to prescribe" a rule requiring the prosecutor to disclose substantial exculpatory evidence to the grand jury. Ante, at 55.

11 In Costello v. United States, 350 U. S. 359, 363 (1956), for example, the Court held that an indictment based solely on hearsay evidence is not invalid under the Grand Jury Clause of the Fifth Amendment. The Court then rejected the petitioner's argument that it should invoke "its power to supervise the administration of justice in federal courts" to create a rule permitting defendants to challenge indictments based on unreliable hearsay evidence. The Court declined to exercise its power in this way because "[n]o persuasive reasons are advanced for establishing such a rule. It would run counter to the whole history of the grand jury institution, in which laymen conduct their inquiries unfettered by technical rules. Neither justice nor the concept of a fair trial requires such a change." Id., at 364.

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