9-11.233 Presentation of Exculpatory Evidence
In United States v. Williams, 112 S.Ct. 1735 (1992), the Supreme Court held that the Federal courts' supervisory powers over the grand jury did not include the power to make a rule allowing the dismissal of an otherwise valid indictment where the prosecutor failed to introduce substantial exculpatory evidence to a grand jury. It is the policy of the Department of Justice, however, that when a prosecutor conducting a grand jury inquiry is personally aware of substantial evidence that directly negates the guilt of a subject of the investigation, the prosecutor must present or otherwise disclose such evidence to the grand jury before seeking an indictment against such a person. While a failure to follow the Department's policy should not result in dismissal of an indictment, appellate courts may refer violations of the policy to the Office of Professional Responsibility for review.
Could this be the rule they are referring to?
I love freerepublic.
Thank you Tex.
Wait, that may not be the rule.
The Grand Jury can not be reconvened under another Justice Department rule.
By dragging this out so long, Fitzgerald can not even bring back the old Grand Jury to add new information. He must get permission to convene a new one and repeat the entire process. Only, the obstruction charge could not apply, since Libby was not the initial source and his conflicting statements with reporters under the basis that he learned the info from reporters would now be true to an extent.
Bob Woodward told me is a very nice defense.
Legal standards
No provision of the Constitution, statute, or court rule imposes a legal obligation on the prosecutor to present exculpatory evidence (substantial evidence which directly negates guilt) to the grand jury. The majority of courts that have addressed the question have found no obligation to present exculpatory evidence.(176) However, some courts have suggested that in some circumstances a prosecutor has a limited duty to present exculpatory evidence to the grand jury, based on constitutional, legal or ethical principles.
In United States v. Page, 808 F.2d 723, 727-28 (10th Cir.), cert. denied, 482 U.S. 918 (1987), the court found that a prosecutor had a duty to disclose evidence that clearly negates the guilt of the target of the grand jury investigation.(177) The Second Circuit, in United States v. Ciambrone, 601 F.2d 616, 622-23 (2d Cir. 1979), recognized that there is no obligation to present such evidence, but advised that prosecutors should make exculpatory evidence known to the grand jury, citing ABA Project on Standards for Criminal Justice - The Prosecution Function, § 3.6, pp. 90-91.(178) More recently, the court in United States v. Dorfman, 532 F. Supp. 1118, 1131-33 (N.D. Ill. 1981), dismissed an indictment, holding that a prosecutor has a constitutional duty to present evidence that clearly negates guilt. At least one panel of the Seventh Circuit has expressed its concurrence with the principle enunciated in Dorfman.(179)
Department of Justice policy
Department of Justice policy regarding the presentation of exculpatory evidence is contained in U.S.A.M. 9-11.233 which states:
[W]hen a prosecutor conducting a grand jury investigation is personally aware of substantial evidence which directly negates the guilt of a subject of the investigation, the prosecutor must present or otherwise disclose such evidence to the grand jury before seeking an indictment against such a person.
If it is unclear whether known evidence is exculpatory, a prosecutor should err on the side of disclosure.
Division attorneys should carefully consider whether the grand jury should be advised of inconsistent statements made by material witnesses. If appropriate, the grand jury should be provided with the substance of such statements. The attorney should also evaluate any statements made by the defendant to determine if they are exculpatory.
Source: Grand Jury Manual
http://www.usdoj.gov/atr/public/guidelines/206826.htm#IVG1