II

105TH CONGRESS

2D SESSION S. 2030

To amend the Federal Rules of Civil Procedure, relating to counsel for

witnesses in grand jury proceedings, and for other purposes.

IN THE SENATE OF THE UNITED STATES

MAY 4, 1998

Mr. BUMPERS introduced the following bill; which was read twice and referred

to the Committee on the Judiciary

A BILL

To amend the Federal Rules of Civil Procedure, relating

to counsel for witnesses in grand jury proceedings, and

for other purposes.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Grand Jury Due Proc5 ess Act’’.

6 SEC. 2. GRAND JURIES.

7 (a) IN GENERAL.—Rule 6 of the Federal Rules of

8 Criminal Procedure is amended—
2

•S 2030 IS

1 (1) in subdivision (d), by inserting ‘‘and counsel

2 for that witness (as provided in subdivision (h))’’

3 after ‘‘under examination’’; and

4 (2) by adding at the end the following:

5 ‘‘(h) COUNSEL FOR GRAND JURY WITNESSES.—

6 ‘‘(1) IN GENERAL.—

7 ‘‘(A) RIGHT OF ASSISTANCE.—Each wit8 ness subpoenaed to appear and testify before a

9 grand jury in a district court, or to produce

10 books, papers, documents, or other objects be11 fore that grand jury, shall be allowed the assist12 ance of counsel during such time as the witness

13 is questioned in the grand jury room.

14 ‘‘(B) RETENTION OR APPOINTMENT.—

15 Counsel for a witness described in subpara16 graph (A)—

17 ‘‘(i) may be retained by the witness;

18 or

19 ‘‘(ii) in the case of a witness who is

20 determined by the court to be financially

21 unable to obtain counsel, shall be ap22 pointed as provided in section 3006A of

23 title 18, United States Code.
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•S 2030 IS

1 ‘‘(2) POWERS AND DUTIES OF COUNSEL.—A

2 counsel retained by or appointed for a witness under

3 paragraph (1)—

4 ‘‘(A) shall be allowed to be present in the

5 grand jury room only during the questioning of

6 the witness and only to advise the witness;

7 ‘‘(B) shall not be permitted to address the

8 attorney for the government or any grand juror,

9 or otherwise participate in the proceedings be10 fore the grand jury; and

11 ‘‘(C) shall not represent more than 1 client

12 in a grand jury proceeding, if the exercise of

13 the independent judgment of the counsel on be14 half of 1 or both clients will be, or is likely to

15 be, adversely affected by the representation of

16 another client.

17 ‘‘(3) POWERS OF THE COURT.—

18 ‘‘(A) IN GENERAL.—If the court deter19 mines that counsel retained by or appointed for

20 a witness under this subdivision has violated

21 paragraph (2), or that such action is necessary

22 to ensure that the activities of the grand jury

23 are not unduly delayed or impeded, the court

24 may—
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•S 2030 IS

1 ‘‘(i) remove the counsel and either ap2 point new counsel or order the witness to

3 obtain new counsel; and

4 ‘‘(ii) with respect to a violation of

5 paragraph (2)(C), order separate represen6 tation of the witnesses at issue, giving ap7 propriate weight to the right of each wit8 ness to counsel of his or her own choosing.

9 ‘‘(B) NO EFFECT ON OTHER SANCTIONS.—

10 Nothing in this paragraph shall be construed to

11 affect the contempt powers of the court or the

12 power of the court to impose other appropriate

13 sanctions.

14 ‘‘(4) NOTICE.—Upon service of any subpoena

15 requiring any witness to testify or produce informa16 tion at any proceeding before a grand jury

17 impaneled before a district court, the witness shall

18 be given adequate and reasonable notice of the right

19 to the presence of counsel in the grand jury room,

20 as provided in this subdivision.’’.

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