We the people have been providentially provided legal recourse to address the criminal conduct of persons themselves entrusted to dispense justice. In the Supreme Court case of United States v. Williams, 112 S. Ct

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We the people have been providentially provided legal recourse to address the criminal conduct of persons themselves entrusted to dispense justice. In the Supreme Court case of United States v. Williams, 112 S.Ct. 1735, 504 U.S. 36, 118 L.Ed.2d 352 (1992), Justice Antonin Scalia, writing for the majority, confirmed that the American grand jury is neither part of the judicial, executive nor legislative branches of government, but instead belongs to the people. It is in effect a fourth branch of government "governed" and administered to directly by and on behalf of the American people, and its authority emanates from the Bill of Rights.
Thus, citizens have the unbridled right to empanel their own grand juries and present "True Bills" of indictment to a court, which is then required to commence a criminal proceeding. Our Founding Fathers presciently thereby created a "buffer" the people may rely upon for justice, when public officials, including judges, criminally violate the law.
112 S.Ct. 1735

504 U.S. 36

118 L.Ed.2d 352




No. 90-1972.

Argued Jan. 22, 1992.

Decided May 4, 1992.


          Respondent Williams was indicted by a federal grand jury for alleged violations of 18 U.S.C. § 1014. On his motion, the District Court ordered the indictment dismissed without prejudice because the Government had failed to fulfill its obligation under Circuit precedent to present "substantial exculpatory evidence" to the grand jury. Following that precedent, the Court of Appeals affirmed.


          1. The argument that the petition should be dismissed as improvidently granted because the question presented was not raised below was considered and rejected when this Court granted certiorari and is rejected again here. The Court will not review a question that was neither pressed nor passed on below, see e.g., Stevens v. Department of Treasury, 500 U.S. ----, ----, 111 S.Ct. 1562, ----, 114 L.Ed.2d 1, but there is no doubt that the Court of Appeals passed on the crucial issue of the prosecutor's duty to present exculpatory evidence to the grand jury. It is appropriate to review an important issue expressly decided by a federal court where, as here, although the petitioner did not contest the issue in the case immediately at hand, it did so as a party to the recent proceeding upon which the lower courts relied for their resolution of the issue, and did not concede in the current case the correctness of that precedent. Pp. 40-55.

          A district court may not dismiss an otherwise valid indictment because the Government failed to disclose to the grand jury "substantial exculpatory evidence" in its possession. Pp. 45-55.

          (a) Imposition of the Court of Appeals' disclosure rule is not supported by the courts' inherent "supervisory power" to formulate procedural rules not specifically required by the Constitution or the Congress. This Court's cases relying upon that power deal strictly with the courts' control over their own procedures, whereas the grand jury is an institution separate from the courts, over whose functioning the courts do not preside. Any power federal courts may have to fashion, on their own initiative, rules of grand jury procedure is very limited and certainly would not permit the reshaping of the grand jury institution that would be the consequence of the proposed rule here. Pp. 45-50.

          (b) The Court of Appeals' rule would neither preserve nor enhance the traditional functioning of the grand jury that the "common law" of

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the Fifth Amendment demands. To the contrary, requiring the prosecutor to present exculpatory as well as inculpatory evidence would alter the grand jury's historical role, transforming it from an accusatory body that sits to assess whether there is adequate basis for bringing a criminal charge into an adjudicatory body that sits to determine guilt or innocence. Because it has always been thought sufficient for the grand jury to hear only the prosecutor's side, and, consequently that the suspect has no right to present, and the grand jury no obligation to consider, exculpatory evidence, it would be incompatible with the traditional system to impose upon the prosecutor a legal obligation to present such evidence. Moreover, motions to quash indictments based upon the sufficiency of the evidence relied upon by the grand jury have never been allowed, and it would make little sense to abstain from reviewing the evidentiary support for the grand jury's judgment while scrutinizing the sufficiency of the prosecutor's presentation. Pp. 51-55.

          (c) This Court need not pursue respondent's argument that the Court of Appeals' rule would save valuable judicial time. If there is any advantage to the proposal, Congress is free to prescribe it. P. 1746. 99 F.2d 898 (CA10 1990), reversed and remanded.

          SCALIA, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and WHITE, KENNEDY, and SOUTER, JJ., joined. STEVENS, J., filed a dissenting opinion, in which BLACKMUN and O'CONNOR, JJ., joined, and in Parts II and III of which THOMAS, J., joined.

          Solicitor Gen. Kenneth W. Starr, for petitioner.

          James C. Lang, Tulsa, Okl., for respondent.

           Justice SCALIA delivered the opinion of the Court.

          The question presented in this case is whether a district court may dismiss an otherwise valid indictment because the

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Government failed to disclose to the grand jury "substantial exculpatory evidence" in its possession.


          On May 4, 1988, respondent John H. Williams, Jr., a Tulsa, Oklahoma, investor, was indicted by a federal grand jury on seven counts of "knowingly mak[ing] [a] false statement or report . . . for the purpose of influencing . . . the action [of a federally insured financial institution]," in violation of 18 U.S.C. § 1014 (1988 ed., Supp. II). According to the indictment, between September 1984 and November 1985 Williams supplied four Oklahoma banks with "materially false" statements that variously overstated the value of his current assets and interest income in order to influence the banks' actions on his loan requests.

          Williams' misrepresentation was allegedly effected through two financial statements provided to the banks, a "Market Value Balance Sheet" and a "Statement of Projected Income and Expense." The former included as "current assets" approximately $6 million in notes receivable from three venture capital companies. Though it contained a disclaimer that these assets were carried at cost rather than at market value, the Government asserted that listing them as "current assets"—i.e., assets quickly reducible to cash was misleading, since Williams knew that none of the venture capital companies could afford to satisfy the notes in the short term. The second document—the Statement of Projected Income and Expense—allegedly misrepresented Williams' interest income, since it failed to reflect that the interest payments received on the notes of the venture capital companies were funded entirely by Williams' own loans to those companies. The Statement thus falsely implied, according to the Government, that Williams was deriving interest income from "an independent outside source." Brief for United States 3.

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          Shortly after arraignment, the District Court granted Williams' motion for disclosure of all exculpatory portions of the grand jury transcripts, Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Upon reviewing this material, Williams demanded that the District Court dismiss the indictment, alleging that the Government had failed to fulfill its obligation under the Tenth Circuit's prior decision United States v. Page, 808 F.2d 723, 728 (1987), to present "substantial exculpatory evidence" to the grand jury (emphasis omitted). His contention was that evidence which the Government had chosen not to present to the grand jury—in particular, Williams' general ledgers and tax returns, and Williams' testimony in his contemporaneous Chapter 11 bankruptcy proceeding—disclosed that, for tax purposes and otherwise, he had regularly accounted for the "notes receivable" (and the interest on them) in a manner consistent with the Balance Sheet and the Income Statement. This, he contended, belied an intent to mislead the banks, and thus directly negated an essential element of the charged offense.

          The District Court initially denied Williams' motion, but upon reconsideration ordered the indictment dismissed without prejudice. It found, after a hearing, that the withheld evidence was "relevant to an essential element of the crime charged," created " 'a reasonable doubt about [respondent's] guilt,' " App. to Pet. for Cert. 23a-24a (quoting United States v. Gray, 502 F.Supp. 150, 152 (DC 1980)), and thus "render[ed] the grand jury's decision to indict gravely suspect." App. to Pet. for Cert. 26a. Upon the Government's appeal, the Court of Appeals affirmed the District Court's order, following its earlier decision in Page, supra. It first sustained as not "clearly erroneous" the District Court's determination that the Government had withheld "substantial exculpatory evidence" from the grand jury, see 899 F.2d 898, 900-903 (CA10 1990). It then found that the Government's behavior " 'substantially influence[d]' " the grand jury's decision to indict, or at the very least raised a " 'grave doubt that the

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decision to indict was free from such substantial influence,' " id., at 903 (quoting Bank of Nova Scotia v. United States, 487 U.S. 250, 263, 108 S.Ct. 2369, 2378, 101 L.Ed.2d 228 (1988)); see id., at 903-904. Under these circumstances, the Tenth Circuit concluded, it was not an abuse of discretion for the District Court to require the Government to begin anew before the grand jury.1 We granted certiorari, 502 U.S. ----, 112 S.Ct. 294, 116 L.Ed.2d 239 (1991).


          Before proceeding to the merits of this matter, it is necessary to discuss the propriety of reaching them. Certiorari was sought and granted in this case on the following question: "Whether an indictment may be dismissed because the government failed to present exculpatory evidence to the grand jury." The first point discussed in respondent's brief opposing the petition was captioned "The 'Question Presented' in the Petition Was Never Raised Below." Brief in Opposition 3. In granting certiorari, we necessarily considered and rejected that contention as a basis for denying review.

          Justice STEVENS' dissent, however, revisits that issue, and proposes that—after briefing, argument, and full consideration of the issue by all the Justices of this Court—we now decline to entertain this petition for the same reason we originally rejected, and that we dismiss it as improvidently granted. That would be improvident indeed. Our grant of certiorari was entirely in accord with our traditional practice, though even if it were not it would be imprudent (since there is no doubt that we have jurisdiction to entertain the case) to reverse course at this late stage. See, e.g., Ferguson v. Moore-McCormack Lines, 352 U.S. 521, 560, 77 S.Ct. 457, 478, 1 L.Ed.2d 511 (1957) (Harlan, J, concurring in part and dissenting in part); Donnelly v. DeChristoforo, 416 U.S. 637, 648, 94 S.Ct. 1868, 1874, 40 L.Ed.2d 431 (1974) (Ste-

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wart, J., concurring, joined by WHITE, J.). Oklahoma City v. Tuttle, 471 U.S. 808, 816, 105 S.Ct. 2427, 2432, 85 L.Ed.2d 791 (1985).

          Our traditional rule, as the dissent correctly notes, precludes a grant of certiorari only when "the question presented was not pressed or passed upon below." Post, at 58 (internal quotation marks omitted). That this rule operates (as it is phrased) in the disjunctive, permitting review of an issue not pressed so long as it has been passed upon, is illustrated by some of our more recent dispositions. As recently as last Term, in fact (in an opinion joined by Justice STEVENS), we entertained review in circumstances far more suggestive of the petitioner's "sleeping on its rights" than those we face today. We responded as follows to the argument of the Solicitor General that tracks today's dissent:

                    "The Solicitor General . . . submits that the petition for certiorari should be dismissed as having been improvidently granted. He rests this submission on the argument that petitioner did not properly present the merits of the timeliness issue to the Court of Appeals, and that this Court should not address that question for the first time. He made the same argument in his opposition to the petition for certiorari. We rejected that argument in granting certiorari and we reject it again now because the Court of Appeals, like the District Court before it, decided the substantive issue presented." Stevens v. Department of Treasury, 500 U.S. ----, ----, 111 S.Ct. 1562, 1567, 114 L.Ed.2d 1 (1991) (citations omitted) (opinion of BLACKMUN, J.).

          And in another case decided last Term, we said the following:

                    "Respondents argue that this issue was not raised below. The appeals court, however, addressed the availability of a right of action to minority shareholders in respondents' circumstances and concluded that respondents were entitled to sue. It suffices for our purposes that the court below passed on the issue presented, particularly where the issue is, we believe, in a

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state of evolving definition and uncertainty, and one of importance to the administration of federal law." Virginia Bankshares, Inc. v. Sandberg, 500 U.S. ----, ----, n. 8, 111 S.Ct. 2749, 2761, n. 8, 115 L.Ed.2d 929 (1991) (citations omitted; internal quotation marks omitted).

          (Justice STEVENS' separate concurrence and dissent in Virginia Bankshares also reached the merits. Id., at ----, 111 S.Ct., at 2767.)2 As Justice O'CONNOR has written:

          "The standard we previously have employed is that we will not review a question not pressed or passed on by the courts below. Here, the Court of Appeals expressly ruled on the question, in an appropriate exercise of its

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appellate jurisdiction; it is therefore entirely proper in light of our precedents for the Court to reach the question on which it granted certiorari. . . ." Springfield v. Kibbe, 480 U.S. 257, 266, 107 S.Ct. 1114, 1119, 94 L.Ed.2d 293 (1987) (O'CONNOR, J., dissenting) (emphasis in original; citations omitted).3

          There is no doubt in the present case that the Tenth Circuit decided the crucial issue of the prosecutor's duty to present exculpatory evidence.4 Moreover, this is not, as the dissent paints it, a case in which, "[a]fter losing in the Court of Appeals, the Government reversed its position," post, at 57.

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The dissent describes the Government as having "expressly acknowledged [in the Court of Appeals] the responsibilities described in Page," post, at 56 (emphasis added). It did no such thing. Rather, the Government acknowledged "that it has certain responsibilities under . . . Page." Brief for the United States in Response to Appellee's Brief in Nos. 88-2827, 88-2843 (CA10), p. 9 (emphasis added). It conceded, in other words, not that the responsibilities Page had imposed were proper, but merely that Page had imposed them—over the protests of the Government, but in a judgment that was nonetheless binding precedent for the panel below. The dissent would apparently impose, as an absolute condition to our granting certiorari upon an issue decided by a lower court, that a party demand overruling of a squarely applicable, recent circuit precedent, even though that precedent was established in a case to which the party itself was privy and over the party's vigorous objection, see Page, 808 F.2d, at 727 ("The government counters that a prosecutor has no duty to disclose exculpatory evidence to a grand jury"), and even though no "intervening developments in the law," post, at 59, n. 5, had occurred. That seems to us unreasonable.

          In short, having reconsidered the precise question we resolved when this petition for review was granted, we again answer it the same way. It is a permissible exercise of our discretion to undertake review of an important issue expressly decided by a federal court 5 where, although the peti-

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tioner did not contest the issue in the case immediately at hand, it did so as a party to the recent proceeding upon which the lower courts relied for their resolution of the issue, and did not concede in the current case the correctness of that precedent. Undoubtedly the United States benefits from this rule more often than other parties; but that is inevitably true of most desirable rules of procedure or jurisdiction that we announce, the United States being the most frequent litigant in our courts. Since we announce the rule to be applicable to all parties; since we have recently applied a similar rule (indeed, a rule even more broadly cast) to the disadvantage of the United States, Stevens v. Department of Treasury, 500 U.S. ----, 111 S.Ct. 1562, 114 L.Ed.2d 1 (1991); and since the dissenters themselves have approved the application of this rule (or a broader one) in circumstances rationally indistinguishable from those before us, see n. 2, supra; the dissent's suggestion that in deciding this case "the Court appears to favor the Government over the ordinary litigant," post, at 59, and compromises its "obligation to administer justice impartially," ibid., needs no response.


          Respondent does not contend that the Fifth Amendment itself obliges the prosecutor to disclose substantial exculpatory evidence in his possession to the grand jury. Instead, building on our statement that the federal courts "may, within limits, formulate procedural rules not specifically required by the Constitution or the Congress," United States v. Hasting, 461 U.S. 499, 505, 103 S.Ct. 1974, 1978, 76 L.Ed.2d 96 (1983), he argues that imposition of the Tenth Circuit's disclosure rule is supported by the courts' "supervisory power." We think not. Hasting, and the cases that rely upon the principle it expresses, deal strictly with the courts' power to control their own procedures. See, e.g., Jencks v. United States, 353 U.S. 657, 667-

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668, 77 S.Ct. 1007, 1013, 1 L.Ed.2d 1103 (1957); McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819 (1943). That power has been applied not only to improve the truth-finding process of the trial, see, e.g., Mesarosh v. United States, 352 U.S. 1, 9-14, 77 S.Ct. 1, 5-8, 1 L.Ed.2d 1 (1956), but also to prevent parties from reaping benefit or incurring harm from violations of substantive or procedural rules (imposed by the Constitution or laws) governing matters apart from the trial itself, see, e.g., Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914). Thus, Bank of Nova Scotia v. United States, 487 U.S. 250, 108 S.Ct. 2369, 101 L.Ed.2d 228 (1988), makes clear that the supervisory power can be used to dismiss an indictment because of misconduct before the grand jury, at least where that misconduct amounts to a violation of one of those "few, clear rules which were carefully drafted and approved by this Court and by Congress to ensure the integrity of the grand jury's functions," United States v. Mechanik, 475 U.S. 66, 74, 106 S.Ct. 938, 943, 89 L.Ed.2d 50 (1986) (O'CONNOR, J., concurring in judgment).6

            We did not hold in Bank of Nova Scotia, however, that the courts' supervisory power could be used, not merely as a means of enforcing or vindicating legally compelled stand-

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ards of prosecutorial conduct before the grand jury, but as a means of prescribing those standards of prosecutorial conduct in the first instance—just as it may be used as a means of establishing standards of prosecutorial conduct before the courts themselves. It is this latter exercise that respondent demands. Because the grand jury is an institution separate from the courts, over whose functioning the courts do not preside, we think it clear that, as a general matter at least, no such "supervisory" judicial authority exists, and that the disclosure rule applied here exceeded the Tenth Circuit's authority.


          "[R]ooted in long centuries of Anglo-American history," Hannah v. Larche, 363 U.S. 420, 490, 80 S.Ct. 1502, 1544, 4 L.Ed.2d 1307 (1960) (Frankfurter, J., concurring in result), the grand jury is mentioned in the Bill of Rights, but not in the body of the Constitution. It has not been textually assigned, therefore, to any of the branches described in the first three Articles. It " 'is a constitutional fixture in its own right.' " United States v. Chanen, 549 F.2d 1306, 1312 (CA9 1977) (quoting Nixon v. Sirica, 159 U.S.App.D.C. 58, 70, n. 54, 487 F.2d 700, 712, n. 54 (1973)), cert. denied, 434 U.S. 825, 98 S.Ct. 72, 54 L.Ed.2d 83 (1977). In fact the whole theory of its function is that it belongs to no branch of the institutional government, serving as a kind of buffer or referee between the Government and the people. Stirone v. United States, 361 U.S. 212, 218, 80 S.Ct. 270, 273, 4 L.Ed.2d 252 (1960); Hale v. Henkel, 201 U.S. 43, 61, 26 S.Ct. 370, 373, 50 L.Ed. 652 (1906); G. Edwards, The Grand Jury 28-32 (1906). Although the grand jury normally operates, of course, in the courthouse and under judicial auspices, its institutional relationship with the judicial branch has traditionally been, so to speak, at arm's length. Judges' direct involvement in the functioning of the grand jury has generally been confined to the constitutive one of calling the grand jurors together and administering their oaths of office. United States v. Calandra, 414 U.S. 338, 343, 94 S.Ct. 613, 617, 38 L.Ed.2d 561 (1974); Fed.Rule Crim.Proc. 6(a).

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          The grand jury's functional independence from the judicial branch is evident both in the scope of its power to investigate criminal wrongdoing, and in the manner in which that power is exercised. "Unlike [a] [c]ourt, whose jurisdiction is predicated upon a specific case or controversy, the grand jury 'can investigate merely on suspicion that the law is being violated, or even because it wants assurance that it is not.' " United States v. R. Enterprises, 498 U.S. ----, ----, 111 S.Ct. 722, 726, 112 L.Ed.2d 795 (1991) (quoting United States v. Morton Salt Co., 338 U.S. 632, 642-643, 70 S.Ct. 357, 364, 94 L.Ed. 401 (1950)). It need not identify the offender it suspects, or even "the precise nature of the offense" it is investigating. Blair v. United States, 250 U.S. 273, 282, 39 S.Ct. 468, 471, 63 L.Ed. 979 (1919). The grand jury requires no authorization from its constituting court to initiate an investigation, see Hale, supra, 201 U.S., at 59-60, 65, 26 S.Ct., at 373, 375, nor does the prosecutor require leave of court to seek a grand jury indictment. And in its day-to-day functioning, the grand jury generally operates without the interference of a presiding judge. See Calandra, supra, 414 U.S., at 343, 94 S.Ct., at 617. It swears in its own witnesses, Fed.Rule Crim.Proc. 6(c), and deliberates in total secrecy, see United States v. Sells Engineering, Inc., 463 U.S., at 424-425, 103 S.Ct., at 3138.

            True, the grand jury cannot compel the appearance of witnesses and the production of evidence, and must appeal to the court when such compulsion is required. See, e.g., Brown v. United States, 359 U.S. 41, 49, 79 S.Ct. 539, 545, 3 L.Ed.2d 609 (1959). And the court will refuse to lend its assistance when the compulsion the grand jury seeks would override rights accorded by the Constitution, see, e.g., Gravel v. United States, 408 U.S. 606, 92 S.Ct. 2614, 33 L.Ed.2d 583 (1972) (grand jury subpoena effectively qualified by order limiting questioning so as to preserve Speech or Debate Clause immunity), or even testimonial privileges recognized by the common law, In re Grand Jury Investigation of Hugle, 754 F.2d 863 (CA9 1985) (same with respect to privilege for confidential marital communications) (opinion of Kennedy, J.). Even in this setting, however, we have insisted that the grand jury remain "free to pursue its investi-

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