information nor could they consider the wisdom of any law passed by congress represent an unconstitutional exercise of supervisory power over the grand jury williams holds that district courts have limited supervisory power over well what happened was that the prosecutor was being required to submit brady information to the grand jury and conduct of the prosecutor was the subject of the rule that's correct here the question is what would what the jury is prosecutor to submit it so i think that that portion of the opinion is relevant to the argument that we're making here today which is that the because the grand jury can't be instructed to consider exculpatory evidence then there is no supervisory authority to prohibit specific instructions that were challenging today are technical rules they tell them look these are two things generations that you cannot consider it's essentially thought control directed at the grand jury which is different from saying that an indictment needs to be supported by probable hillary was that the state of california asked the supreme court to overrule rose versus mitchell and do in rejecting that claim the supreme court relied on two separate positions number one that racial discrimination was  anathema to the system and therefore they would continue that rule but they also said the other reason that we're not going to overrule rose versus mitchell is because the difficulty in assessing the error with respect to individual defendants that's why they discuss the traditional powers and duties of the grand jury and in fact at the when they actually reached their conclusion on this issue on page two sixty four they said that the grand jury w that a prop really constitute a grand jury would have assessed the need to indict the same way as a properly constituted grand jury so the need to indict was key to the analysis undertaken in vazquez versus hillary so i think that it isn't fact the holding but even if it's not a holding if it's did it could be based on whether there's probable cause or not it could come after that it could also be based upon the considerations that the supreme court set forth in on page two sixty three which were related to the fact that the grand jury can charge many counts or no counsel can charge a capital offense or a non capital fans all based upon the same set of facts that go over the supreme court's grand jury can also decide not to indict because you don't like the penalty well i think that it does it says that the grand jury is not bound to indict in every case where a conviction can be attained so there's clearly a recognition that even if there you have proof beyond a reasonable doubt the grand jury can still choose not to indict relatively minor crime and he was facing a sentence of life so those four justices four of whom then made up four of the five in vasquez versus hillary certainly believes that you could take into account penalty and that in don't think i could i could ask the court to require that they be told to consider anything with respect to penalty i think that if they choose to go down that road if they want to ask then they would be entitled to what i'm saying is you cannot ask prosecuting attorney  presented to the grand jury what's the penalty the prosecutor is going to be obliged to answer the question in some manner yes i think the prosecutor will be advice for us decide whether he wants us to give them the maximum the idea is that they're supposed to be conducting an independent inquiry if they want to know more than just what the maximum sentence is then they could ask those questions but what you can't tell them is that they cannot consider that there's no authority and that i've never seen a case or any thore all  allowed to tell the grand jury what to think and what to think about in the context of penalty because of the constitution with jail if they would just say to the constitution you're looking for probable cause hurt it well i i understand that they're looking for a problem cause i don't think it's probable cause period otherwise vazquez versus hillary wouldn't say what it says what are the implications of the argument with the same be trial juries that certainly will settle the trial juries and not to that's not the case here we have supreme court authority in vazquez versus hillary saying that the grand jury has these wide ranging powers what's more one of the teacher gets that kind of information and they choose to acquit then you know double jeopardy says that's the end of the game but in the grand jury proceedings under williams if the particular grand jury squeamish about the penalty or doesn't think that a marijuana offense should be subject to federal prosecution given how the state of california now views marijuana you can still make that case to another foreclosed by mark who decided really two issues number one was whether or not the instruction given in that case to the grand jury from refusing to indict it helped that it didn't the other issue that he decided was whether or not the grand jury had to and if that's been given a delegation instruction it did not resolve any sort of challenge under william sr whether or not the supervisory power permits instructions like these to be given so this issue is  open the other issues are arguably foreclosed by art who is you although i think that given this opinion in miller saying that not only are the lower courts bound by the holding of supreme court cases but also their mode of analysis i think that itself says that the traditional function of the grand jury is what the that the moment guarantees and i think when you limit their deliberations that does circumscribed the traditional functioning and that's why the limbs issue presented a constitutional claim historical material that we've relied on is the history of the grand jury in which it really came into vogue because of the fact that it did refuse to indict in a number of situations where there was probable cause you know the stephen college case in  england john peters anger case here the historical research fusil to indict people for customs violations during the revolutionary war period and i think that is a significant part of the history of the grand jury but the bottom line is that i'm not asking that the grand cases we have two published opinions from this court in the meantime to deal with this issue in a very succinct fashion but that is both the adams case which said that the court that panel couldn't review the because the opinion basically has two lines that says the grand jury instruction issue has been foreclosed by marcucci so whether the exact opposite yes yes or whether the exact same argument was made for not i can't i can't your honor's or a different panel next week with a slightly different twist a slightly different argument one different client what's what's what's wrong with that we you know do you think for example when the supreme court decides a first amendment case jury have an unlimited instruction if that's what the law is you're going to get it you're going to get offended jury instructions well and i think are some similarities between the grand jury in the penitentiary in this regard i don't think either one should be considering punishment for what they do and miss some check point one way will maybe that maybe a grand jury would exercise some compassion and not indict what any of us think that would be a good thing that the grand jury asked what's the punishment for this  all the punishment is one year in prison well that's not too bad so we really don't think there's probable cause but because the punishment isn't that severe we're going to indict him anyways to make sure we brought any of those in with hypotheticals exist in the grand jury can title to the when they had the grand jury you know they go back framing structure what would we have a grand jury judge and which rotates which rotates most of these cases involve judge weller and i believe that he has a sheet i don't know for a fact and it's part of meeting with the grand jurors and trying to give them guidance as to what their function is and what this post be doing what the guidelines are he gets to stand structure  struck exactly the same way every time mark you may not know it well whether the instruction whether what the judge tells the grand jury is transcribed every time i don't i honestly don't know it's my understanding and mr object can refer to it there was a motion practice wasn't there another was and there was a motion that there was a motion brought before the district court raising this issue and whether we produced a transcript i don't know i wasn't counsel record on that  a question independent of any advice for a from the district court and they asked the prosecutor the prosecutor i expect would answer the question the same way if they asked the punishment we'd say in effect you should not be concerned with punishment if you know is different but the fact that the person really is a bad man apart from anything that imparts knowledge and intent it's not there in the system and the grand jury is entitled to know the rules whether it comes from the district court or practice i would assume that i don't do that i you know what the number one requirement is or what we're allowed to get away with is not always the same answer is what we should be doing or what is the best practice  do believe that the district court i believe the grand jury is entitle want to know what the law yes as far as performing its duties and i asked my question with specific limitations and there's no statute that i know that requires a district court judge this is an ad hoc thing that is due without any authority whatsoever but i don't think that's being fair well of the grand jury and i'm looking for await us at pages sixty sixty seven and should roll the grand jury as the dual function of determining if there is probable cause to believe that a crime has been committed and protecting citizens against unfounded prosecutions so that properly goes to the probable cause function the treasury's entitle to consider especially on the common law of england came over the time of the year of the constitution as good law because the supreme court has in essence ratified and it does not go to the problem of the legitimate probable cause function or protecting citizens against unfounded prosecutions the grand jury should not be considering i mean it's it's hard for me to think that we really want the grand jury i think the supreme court has spoken about what the function of the grand jury is the grand juries entitled to know in carrying out its duties what the ground rules are i believe that a ground rule is a magician with proper ground rule is that you should not consider punishment the same way particularly should that's that's exactly the question you believe that and now let's say this were brief i i think we all assume that's the case but give me an authority you want to take a couple of days and come up and i thought well i would like an opportunity if you got two days ok i would like the two days for that and i guess i'd like prosecutor bound to answer that question or suppose he sent a note to the judge you know with punishment is this an obligation to answer the question i think the prosecutor should answer the question i think it's desirable but is there an obligation on your theory of the case well i think under under williams sister courts have limited power to force prosecutors to do things in the grand jury so no i don't think that they would be compelled i think the grand jury would have prosecutor bond answer the question well i i don't think the prosecutor is bound to answer the question but the district judge this judge found answer the question for her is the district or bound answer the question i but i think this is the course of action that the constitution requires because this grand jury system has been adopted and the common law rule is that there are no limitations that you can put on the grand jury's deliberations so the extent of this causes problems  the problems and demick in having a grand jury system that puts this group of independent people in between you know the defendant and the court and the and the prosecutor occupying this sort of independent ground but the bottom line is that they can't be told what they can and of record new cases the february two thousand and one grand jury and then on page thirteen of the accident record is the instruction itself which was given on february first of two thousand and one and then lastly with respect to what the question but my question is how do you know how do i know that this grand jury was given that instruction it's not a transcript