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.
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, post, p. 55.
Solicitor General Starr argued the cause for the United States. With him on the briefs were Assistant Attorney General Mueller, Deputy Solicitor General Bryson, and Michael R. Dreeben.
James C. Lang argued the cause for respondent. With him on the brief were G. Steven Stidham, Joel L. Wohlgemuth, and John E. Dowdell. *
[ Footnote * ] Dan Marmalefsky filed a brief for the National Association of Criminal Defense Lawyers as amicus curiae urging affirmance.
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 [504 U.S. 36, 38] 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. [504 U.S. 36, 39]
Shortly after arraignment, the District Court granted Williams' motion for disclosure of all exculpatory portions of the grand jury transcripts. See Brady v. Maryland, 373 U.S. 83 (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 in 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 [504 U.S. 36, 40] 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 (1988)); see 899 F.2d, 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. 905 (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, Inc., 352 U.S. 521, 560 (1957) (Harlan, J., concurring in part and dissenting in part); Donnelly v. DeChristoforo, 416 U.S. 637, 648 (1974) (Stewart, [504 U.S. 36, 41] J., concurring, joined by WHITE, J.). Cf. Oklahoma City v. Tuttle, 471 U.S. 808, 816 (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:
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 petitioner [504 U.S. 36, 45] 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, see Stevens v. Department of Treasury, 500 U.S. 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 (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 -668 [504 U.S. 36, 46] (1957); McNabb v. United States, 318 U.S. 332 (1943). That power has been applied not only to improve the truthfinding process of the trial, see, e.g., Mesarosh v. United States, 352 U.S. 1, 9 -14 (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 (1914). Thus, Bank of Nova Scotia v. United States, 487 U.S. 250 (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 (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 standards [504 U.S. 36, 47] 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.
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 (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 (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, see In re Grand Jury Investigation of Hugle, 754 F.2d 863 (CA9 1985) (opinion of Kennedy, J.) (same with respect to privilege for confidential marital communications). Even in this setting, however, we have insisted that the grand jury remain "free to pursue its investigations [504 U.S. 36, 49] unhindered by external influence or supervision so long as it does not trench upon the legitimate rights of any witness called before it." United States v. Dionisio, 410 U.S. 1, 17 -18 (1973). Recognizing this tradition of independence, we have said that the Fifth Amendment's "constitutional guarantee presupposes an investigative body `acting independently of either prosecuting attorney or judge.' . . ." Id., at 16 (emphasis added) (quoting Stirone, supra, at 218).
No doubt in view of the grand jury proceeding's status as other than a constituent element of a "criminal prosecutio[n]," U.S. Const., Amdt. 6, we have said that certain constitutional protections afforded defendants in criminal proceedings have no application before that body. The Double Jeopardy Clause of the Fifth Amendment does not bar a grand jury from returning an indictment when a prior grand jury has refused to do so. See Ex parte United States, 287 U.S. 241, 250 -251 (1932); United States v. Thompson, 251 U.S. 407, 413 -415 (1920). We have twice suggested, though not held, that the Sixth Amendment right to counsel does not attach when an individual is summoned to appear before a grand jury, even if he is the subject of the investigation. See United States v. Mandujano, 425 U.S. 564, 581 (1976) (plurality opinion); In re Groban, 352 U.S. 330, 333 (1957); see also Fed.Rule Crim.Proc. 6(d). And although "the grand jury may not force a witness to answer questions in violation of [the Fifth Amendment's] constitutional guarantee" against self-incrimination, Calandra, supra, at 346 (citing Kastigar v. United States, 406 U.S. 441 (1972)), our cases suggest that an indictment obtained through the use of evidence previously obtained in violation of the privilege against self-incrimination "is nevertheless valid." Calandra, supra, at 346; see Lawn v. United States, 355 U.S. 339, 348 -350 (1958); United States v. Blue, 384 U.S. 251, 255 , n. 3 (1966).
Given the grand jury's operational separateness from its constituting court, it should come as no surprise that we [504 U.S. 36, 50] have been reluctant to invoke the judicial supervisory power as a basis for prescribing modes of grand jury procedure. Over the years, we have received many requests to exercise supervision over the grand jury's evidence-taking process, but we have refused them all, including some more appealing than the one presented today. In United States v. Calandra, supra, a grand jury witness faced questions that were allegedly based upon physical evidence the Government had obtained through a violation of the Fourth Amendment; we rejected the proposal that the exclusionary rule be extended to grand jury proceedings, because of "the potential injury to the historic role and functions of the grand jury." 414 U.S., at 349 . In Costello v. United States, 350 U.S. 359 (1956), we declined to enforce the hearsay rule in grand jury proceedings, since that "would run counter to the whole history of the grand jury institution, in which laymen conduct their inquiries unfettered by technical rules." Id., at 364.
These authorities suggest that any power federal courts may have to fashion, on their own initiative, rules of grand jury procedure is a very limited one, not remotely comparable to the power they maintain over their own proceedings. See United States v. Chanen, 549 F.2d, at 1313. It certainly would not permit judicial reshaping of the grand jury institution, substantially altering the traditional relationships between the prosecutor, the constituting court, and the grand jury itself. Cf., e.g., United States v. Payner, 447 U.S. 727, 736 (1980) (supervisory power may not be applied to permit defendant to invoke third party's Fourth Amendment rights); see generally Beale, Reconsidering Supervisory Power in Criminal Cases: Constitutional and Statutory Limits on the Authority of the Federal Courts, 84 Colum.L.Rev. 1433, 1490-1494, 1522 (1984). As we proceed to discuss, that would be the consequence of the proposed rule here. [504 U.S. 36, 51]
Respondent argues that the Court of Appeals' rule can be justified as a sort of Fifth Amendment "common law," a necessary means of assuring the constitutional right to the judgment "of an independent and informed grand jury," Wood v. Georgia, 370 U.S. 375, 390 (1962). Brief for Respondent 27. Respondent makes a generalized appeal to functional notions: judicial supervision of the quantity and quality of the evidence relied upon by the grand jury plainly facilitates, he says, the grand jury's performance of its twin historical responsibilities, i.e., bringing to trial those who may be justly accused and shielding the innocent from unfounded accusation and prosecution. See, e.g., Stirone v. United States, 361 U.S., at 218 , n. 3. We do not agree. The rule would neither preserve nor enhance the traditional functioning of the institution that 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 to an adjudicatory body.
It is axiomatic that the grand jury sits not to determine guilt or innocence, but to assess whether there is adequate basis for bringing a criminal charge. See United States v. Calandra, 414 U.S., at 343 . That has always been so; and to make the assessment, it has always been thought sufficient to hear only the prosecutor's side. As Blackstone described the prevailing practice in 18th-century England, the grand jury was "only to hear evidence on behalf of the prosecution[,] for the finding of an indictment is only in the nature of an enquiry or accusation, which is afterwards to be tried and determined." 4 W. Blackstone, Commentaries 300 (1769); see also 2 M. Hale, Pleas of the Crown 157 (1st Am. ed. 1847). So also in the United States. According to the description of an early American court, three years before the Fifth Amendment was ratified, it is the grand jury's function not "to enquire . . . upon what foundation [the charge [504 U.S. 36, 52] may be] denied," or otherwise to try the suspect's defenses, but only to examine "upon what foundation [the charge] is made" by the prosecutor. Respublica v. Shaffer, 1 Dall. 236 (O.T. Phila. 1788); see also F. Wharton, Criminal Pleading and Practice 360, pp. 248-249 (8th ed. 1880). As a consequence, neither in this country nor in England has the suspect under investigation by the grand jury ever been thought to have a right to testify or to have exculpatory evidence presented. See 2 Hale, supra, at 157; United States ex rel. McCann v. Thompson, 144 F.2d 604, 605-606 (CA2), cert. denied, 323 U.S. 790 (1944).
Imposing upon the prosecutor a legal obligation to present exculpatory evidence in his possession would be incompatible with this system. If a "balanced" assessment of the entire matter is the objective, surely the first thing to be done - rather than requiring the prosecutor to say what he knows in defense of the target of the investigation - is to entitle the target to tender his own defense. To require the former while denying (as we do) the latter would be quite absurd. It would also be quite pointless, since it would merely invite the target to circumnavigate the system by delivering his exculpatory evidence to the prosecutor, whereupon it would have to be passed on to the grand jury - unless the prosecutor is willing to take the chance that a court will not deem the evidence important enough to qualify for mandatory disclosure. 7 See, e.g., United States v. Law Firm of Zimmerman & Schwartz, P. C., 738 F.Supp. 407, 411 (Colo. 1990) (duty to disclose exculpatory evidence held satisfied when [504 U.S. 36, 53] prosecution tendered to the grand jury defense-provided exhibits, testimony, and explanations of the governing law), aff'd sub nom. United States v. Brown, 943 F.2d 1246, 1257 (CA10 1991).
Respondent acknowledges (as he must) that the "common law" of the grand jury is not violated if the grand jury itself chooses to hear no more evidence than that which suffices to convince it an indictment is proper. Cf. Thompson, supra, at 607. Thus, had the Government offered to familiarize the grand jury in this case with the five boxes of financial statements and deposition testimony alleged to contain exculpatory information, and had the grand jury rejected the offer as pointless, respondent would presumably agree that the resulting indictment would have been valid. Respondent insists, however, that courts must require the modern prosecutor to alert the grand jury to the nature and extent of the available exculpatory evidence, because otherwise the grand jury "merely functions as an arm of the prosecution." Brief for Respondent 27. We reject the attempt to convert a nonexistent duty of the grand jury itself into an obligation of the prosecutor. The authority of the prosecutor to seek an indictment has long been understood to be "coterminous with the authority of the grand jury to entertain [the prosecutor's] charges." United States v. Thompson, 251 U.S., at 414 . If the grand jury has no obligation to consider all "substantial exculpatory" evidence, we do not understand how the prosecutor can be said to have a binding obligation to present it.
There is yet another respect in which respondent's proposal not only fails to comport with, but positively contradicts, the "common law" of the Fifth Amendment grand jury. Motions to quash indictments based upon the sufficiency of the evidence relied upon by the grand jury were unheard of at common law in England, see, e.g., People v. Restenblatt, 1 Abb.Pr. 268, 269 (Ct. Gen. Sess. N. Y. 1855). And the traditional American practice was described by Justice Nelson, riding circuit in 1852, as follows: [504 U.S. 36, 54]
[ Footnote 2 ] The dissent purports to distinguish Stevens and Virginia Bankshares on the ground that, "[a]lthough the parties may not have raised the questions presented in the petitions . . . before the Courts of Appeals in those cases, the courts treated the questions as open questions that they needed to resolve in order to decide the cases." Post, at 58, n. 4. The significance of this distinction completely eludes us. While there is much to be said for a rule (to which the Court has never adhered) limiting review to questions pressed by the litigants below, the rule implicitly proposed by the dissent - under which issues not pressed, but nevertheless passed upon, may be reviewed only if the court below thought the issue an "open" one - makes no sense except as a device to distinguish Stevens and Virginia Bankshares. It does nothing to further "the adversary process" that is the object of the dissent's concern, post, at 59, n. 5; if a question is not disputed by the parties, "the adversary process" is compromised whether the court thinks the question open or not. Indeed, if anything, it is compromised more when the lower court believes it is confronting a question of first impression, for it is in those circumstances that the need for an adversary presentation is most acute.
The dissent observes that, where a court disposes of a case on the basis of a "new rule that had not been debated by the parties, our review may be appropriate to give the losing party an opportunity it would not otherwise have to challenge the rule." Ibid. That is true enough, but the suggestion that this principle has something to do with Stevens and Virginia Bankshares is wholly unfounded: in neither case could - or did - the losing party claim to have been ambushed by the lower court's summary treatment of the undisputed issues which we later subjected to plenary review.
[ Footnote 3 ] The Court's per curiam dismissal of the writ in Kibbe was based principally upon two considerations: (1) that the crucial issue was not raised in the District Court because of failure to object to a jury instruction, thus invoking Rule 51 of the Federal Rules of Civil Procedure, which provides that "[n]o party may assign as error the giving . . . [of] an instruction unless he objects thereto before the jury retires to consider its verdict," and (2) that the crucial issue had in addition not explicitly been raised in the petition for certiorari. 480 U.S., at 259 , 260. Of course, neither circumstance exists here.
[ Footnote 4 ] Relying upon, and to some extent repeating, the reasoning of its earlier holding in United States v. Page, 808 F.2d 723 (1981), the Court of Appeals said the following:
[ Footnote 5 ] Where certiorari is sought to a state court, "due regard for the appropriate relationship of this Court to state courts," McGoldrick v. Compagnie Generale Transatlantique, 309 U.S. 430, 434 -435 (1940), may suggest greater restraint in applying our "pressed or passed upon" rule. In that context, the absence of challenge to a seemingly settled federal rule deprives the state court of an opportunity to rest its decision on an adequate and independent state ground. See Illinois v. Gates, 462 U.S. 213, 222 (1983), cited by the dissent post, at 59; see also Bankers Life & Casualty Co. v. Crenshaw, 486 U.S. 71, 79 -80 (1988). But cf. Cohen v. Cowles Media Co., 501 U.S. 663, 667 (1991) ("It is irrelevant to this Court's jurisdiction [504 U.S. 36, 45] whether a party raised below and argued a federal law issue that the state supreme court actually considered and decided").
[ Footnote 6 ] Rule 6 of the Federal Rules of Criminal Procedure contains a number of such rules, providing, for example, that "no person other than the jurors may be present while the grand jury is deliberating or voting," Rule 6(d), and placing strict controls on disclosure of "matters occurring before the grand jury," Rule 6(e); see generally United States v. Sells Engineering, Inc., 463 U.S. 418 (1983). Additional standards of behavior for prosecutors (and others) are set forth in the United States Code. See 18 U.S.C. 6002, 6003 (setting forth procedures for granting a witness immunity from prosecution); 1623 (criminalizing false declarations before grand jury); 2515 (prohibiting grand jury use of unlawfully intercepted wire or oral communications); 1622 (criminalizing subornation of perjury). That some of the misconduct alleged in Bank of Nova Scotia v. United States, 487 U.S. 250 (1988), was not specifically proscribed by Rule, statute, or the Constitution does not make the case stand for a judicially prescribable grand jury code, as the dissent suggests, see post, at 64-65. All of the allegations of violation were dismissed by the Court - without considering their validity in law - for failure to meet Nova Scotia's dismissal standard. See Bank of Nova Scotia, supra, at 261.
[ Footnote 7 ] How much of a gamble that is is illustrated by the Court of Appeals' opinion in the present case. Though the court purported to be applying the "substantial exculpatory" standard set forth in its prior Page decision, see 899 F.2d, at 900, portions of the opinion recite a much more inclusive standard. See id., at 902 ("[T]he grand jury must receive any information that is relevant to any reasonable [exculpatory] theory it may adopt"); ibid. ("We conclude, therefore, that the district court was not clearly in error when it found that the deposition testimony was exculpatory").
[ Footnote 8 ] In Costello, for example, instead of complaining about the grand jury's reliance upon hearsay evidence, the petitioner could have complained about the prosecutor's introduction of it. See, e.g., United States v. Estepa, 471 F.2d 1132, 1136-1137 (CA2 1972) (prosecutor should not introduce hearsay evidence before grand jury when direct evidence is available); see also Arenella, Reforming the Federal Grand Jury and the State Preliminary Hearing to Prevent Conviction Without Adjudication, 78 Mich.L.Rev. 463, 540 (1980) ("[S]ome federal courts have cautiously begun to . . . us[e] a revitalized prosecutorial misconduct doctrine to circumvent Costello's prohibition against directly evaluating the sufficiency of the evidence presented to the grand jury").
JUSTICE STEVENS, with whom Justice and JUSTICE O'CONNOR join, and with whom JUSTICE THOMAS joins as to Parts II and III, dissenting.
The Court's opinion announces two important changes in the law. First, it justifies its special accommodation to the Solicitor General in granting certiorari to review a contention that was not advanced in either the District Court or the Court of Appeals by explaining that the fact that the issue was raised in a different case is an adequate substitute for raising it in this case. Second, it concludes that a federal court has no power to enforce the prosecutor's obligation to [504 U.S. 36, 56] protect the fundamental fairness of proceedings before the grand jury.
The question presented by the certiorari petition is whether the failure to disclose substantial exculpatory evidence to the grand jury is a species of prosecutorial misconduct that may be remedied by dismissing an indictment without prejudice. In the District Court and the Court of Appeals, both parties agreed that the answer to that question is "yes, in an appropriate case." The only disagreement was whether this was an appropriate case: the prosecutor vigorously argued that it was not, because the undisclosed evidence was not substantial exculpatory evidence, while respondent countered that the evidence was exculpatory, and the prosecutor's misconduct warranted a dismissal with prejudice.
In an earlier case arising in the Tenth Circuit, United States v. Page, 808 F.2d 723, cert. denied, 482 U.S. 918 (1987), the defendant had claimed that his indictment should have been dismissed because the prosecutor was guilty of misconduct during the grand jury proceedings. Specifically, he claimed that the prosecutor had allowed the grand jury to consider false testimony and had failed to present it with substantial exculpatory evidence. 808 F.2d, at 726-727. After noting that there are "two views concerning the duty of a prosecutor to present exculpatory evidence to a grand jury," id., at 727, the court concluded that the "better and more balanced rule" is that, "when substantial exculpatory evidence is discovered in the course of an investigation, it must be revealed to the grand jury," id., at 728 (emphasis in original). The court declined to dismiss the indictment, however, because the evidence withheld in that case was not "clearly exculpatory." Ibid.
In this case, the Government expressly acknowledged the responsibilities described in Page, but argued that the withheld [504 U.S. 36, 57] evidence was not exculpatory or significant. 1 Instead of questioning the controlling rule of law, it distinguished the facts of this case from those of an earlier case in which an indictment had been dismissed because the prosecutor had withheld testimony that made it factually impossible for the corporate defendant to have been guilty. 2 The Government concluded its principal brief with a request that the court apply the test set forth in Bank of Nova Scotia v. United States, 487 U.S. 250 (1988), "follow the holding of Page," and hold that dismissal was not warranted in this case because the withheld evidence was not substantial exculpatory evidence and respondent "was not prejudiced in any way." Brief for United States in No. 88-2827 (CA10), pp. 40-43.
After losing in the Court of Appeals, the Government reversed its position and asked this Court to grant certiorari [504 U.S. 36, 58] and to hold that the prosecutor has no judicially enforceable duty to present exculpatory evidence to the grand jury. In his brief in opposition to the petition, respondent clearly pointed out that the question presented by the petition "was neither presented to nor addressed by the courts below." Brief in Opposition 2. He appropriately called our attention to many of the cases in which we have stated, repeated, and reiterated the general rule that precludes a grant of certiorari when the question presented was "not pressed or passed upon below." 3 Id., at 5-9. Apart from the fact that the United States is the petitioner, I see no reason for not following that salutary practice in this case. 4 Nevertheless, the requisite number of Justices saw fit to grant the Solicitor General's petition. 502 U.S. 905 (1991).
The Court explains that the settled rule does not apply to the Government's certiorari petition in this case because the Government raised the same question three years earlier in the Page case and the Court of Appeals passed on the issue in that case. Ante, at 44-45. This is a novel, and unwise, [504 U.S. 36, 59] change in the rule. We have never suggested that the fact that a court has repeated a settled proposition of law and applied it, without objection, in the case at hand provides a sufficient basis for our review. 5 See Illinois v. Gates, 462 U.S. 213, 222 -223 (1983), and cases cited therein. If this is to be the rule in the future, it will either provide a basis for a significant expansion of our discretionary docket 6 or, if applied only to benefit repetitive litigants, a special privilege for the Federal Government.
This Court has a special obligation to administer justice impartially and to set an example of impartiality for other courts to emulate. When the Court appears to favor the Government over the ordinary litigant, it seriously compromises its ability to discharge that important duty. For that [504 U.S. 36, 60] reason alone, I would dismiss the writ of certiorari as improvidently granted. 7
Like the Hydra slain by Hercules, prosecutorial misconduct has many heads. Some are cataloged in Justice Sutherland's classic opinion for the Court in Berger v. United States, 295 U.S. 78 (1935):
Nor has prosecutorial misconduct been limited to judicial proceedings: The reported cases indicate that it has sometimes infected grand jury proceedings as well. The cases contain examples of prosecutors presenting perjured testimony, United States v. Basurto, 497 F.2d 781, 786 (CA9 1974), questioning a witness outside the presence of the grand jury and then failing to inform the grand jury that the testimony was exculpatory, United States v. Phillips Petroleum, Inc., 435 F.Supp. 610, 615-617 (ND Okla. 1977), failing to inform the grand jury of its authority to subpoena witnesses, United States v. Samango, 607 F.2d 877, 884 (CA9 1979), operating under a conflict of interest, United States v. Gold, 470 F.Supp. 1336, 1346-1351 (ND Ill. 1979), misstating the law, United States v. Roberts, 481 F.Supp. 1385, 1389, and n. 10 (CD Cal. 1980), 8 and misstating the facts on cross-examination [504 U.S. 36, 62] of a witness, United States v. Lawson, 502 F.Supp. 158, 162, and nn. 6-7 (Md. 1980).
Justice Sutherland's identification of the basic reason why that sort of misconduct is intolerable merits repetition:
In an opinion that I find difficult to comprehend, the Court today repudiates the assumptions underlying these cases and seems to suggest that the court has no authority to supervise the conduct of the prosecutor in grand jury proceedings so long as he follows the dictates of the Constitution, applicable statutes, and Rule 6 of the Federal Rules of Criminal Procedure. The Court purports to support this conclusion by invoking the doctrine of separation of powers and citing a string of cases in which we have declined to impose categorical [504 U.S. 36, 66] restraints on the grand jury. Needless to say, the Court's reasoning is unpersuasive.
Although the grand jury has not been "textually assigned" to "any of the branches described in the first three Articles" of the Constitution, ante, at 47, it is not an autonomous body completely beyond the reach of the other branches. Throughout its life, from the moment it is convened until it is discharged, the grand jury is subject to the control of the court. As Judge Learned Hand recognized over 60 years ago, "a grand jury is neither an officer nor an agent of the United States, but a part of the court." Falter v. United States, 23 F.2d 420, 425 (CA2), cert. denied, 277 U.S. 590 (1928). This Court has similarly characterized the grand jury:
This Court has, of course, long recognized that the grand jury has wide latitude to investigate violations of federal law as it deems appropriate and need not obtain permission from either the court or the prosecutor. See, e.g., id., at 343; Costello v. United States, 350 U.S. 359, 362 (1956); Hale v. Henkel, 201 U.S. 43, 65 (1906). Correspondingly, we have acknowledged that "its operation generally is unrestrained [504 U.S. 36, 67] 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 [504 U.S. 36, 68] it may also invoke its supervisory authority to fashion other limited rules of grand jury procedure, ante, at 48-49, it concludes that it has no authority to prescribe "standards of prosecutorial conduct before the grand jury," ante, at 46-47, because that would alter the grand jury's historic role as an independent, inquisitorial institution. I disagree.
We do not protect the integrity and independence of the grand jury by closing our eyes to the countless forms of prosecutorial misconduct that may occur inside the secrecy of the grand jury room. After all, the grand jury is not merely an investigatory body; it also serves as a "protector of citizens against arbitrary and oppressive governmental action." United States v. Calandra, 414 U.S., at 343 . Explaining why the grand jury must be both "independent" and "informed," the Court wrote in Wood v. Georgia, 370 U.S. 375 (1962):
Unlike the Court, I am unwilling to hold that countless forms of prosecutorial misconduct must be tolerated - no matter how prejudicial they may be or how seriously they may distort the legitimate function of the grand jury - simply because they are not proscribed by Rule 6 of the Federal Rules of Criminal Procedure or a statute that is applicable [504 U.S. 36, 69] in grand jury proceedings. Such a sharp break with the traditional role of the federal judiciary is unprecedented, unwarranted, and unwise. Unrestrained prosecutorial misconduct in grand jury proceedings is inconsistent with the administration of justice in the federal courts and should be redressed in appropriate cases by the dismissal of indictments obtained by improper methods. 12
What, then, is the proper disposition of this case? I agree with the Government that the prosecutor is not required to place all exculpatory evidence before the grand jury. A grand jury proceeding is an ex parte investigatory proceeding to determine whether there is probable cause to believe a violation of the criminal laws has occurred, not a trial. Requiring the prosecutor to ferret out and present all evidence that could be used at trial to create a reasonable doubt as to the defendant's guilt would be inconsistent with the purpose of the grand jury proceeding and would place significant burdens on the investigation. But that does not mean that the prosecutor may mislead the grand jury into believing that there is probable cause to indict by withholding clear evidence to the contrary. I thus agree with the Department of Justice that, "when a prosecutor conducting a grand jury inquiry is personally aware of substantial evidence which directly negates the guilt of a subject of the investigation, the prosecutor must present or otherwise [504 U.S. 36, 70] disclose such evidence to the grand jury before seeking an indictment against such a person." U.S. Dept. of Justice, United States Attorneys' Manual § 9-11.233, p. 88 (1988).
Although I question whether the evidence withheld in this case directly negates respondent's guilt, 13 I need not resolve my doubts because the Solicitor General did not ask the Court to review the nature of the evidence withheld. Instead, he asked us to decide the legal question whether an indictment may be dismissed because the prosecutor failed to present exculpatory evidence. Unlike the Court and the Solicitor General, I believe the answer to that question is yes, if the withheld evidence would plainly preclude a finding of probable cause. I therefore cannot endorse the Court's opinion.
More importantly, because I am so firmly opposed to the Court's favored treatment of the Government as a litigator, I would dismiss the writ of certiorari as improvidently granted.
[ Footnote 1 ] The government has acknowledged that it has certain responsibilities under the case of United States v. Page, 808 F.2d 723 (10th Cir. 1987), and that includes a duty to not withhold substantial exculpatory evidence from a grand jury if such exists. . . . The government would contend that . . . it was familiar with and complied with the principles stated in the case. . . Considering the evidence as a whole, it is clear that the government complied with, and went beyond the requirements of Page, supra. Brief for United States in Response to Appellee's Brief in Nos. 88-2827, 88-2843 (CA10), pp. 9-10.
[ Footnote 2 ] Respondent had relied on United States v. Phillips Petroleum Co., 435 F.Supp. 610 (ND Okla. 1977). The Government distinguished the case based on "the type of evidence excluded. In Phillips, supra, the prosecutor sent the Grand Jury home for the day, but continued questioning a witness. In that session, outside the hearing of the Grand Jury members, the witness, who had been granted use immunity, testified to certain information which showed that the witness had been the one who knowingly committed an offense, and showed that the corporation had not intentionally committed an offense in that case. There was no question that the withheld testimony made it factually impossible for the corporate defendant to have been guilty, and therefore the evidence was substantial and exculpatory. In the instant case, there is a disagreement between the government and the defendant as to whether the documents the defendant wants presented in full are exculpatory." Brief for United States in No. 88-2827 (CA10), p. 38.
[ Footnote 3 ] Duignan v. United States, 274 U.S. 195, 200 (1927); see also, e.g., United States v. Lovasco, 431 U.S. 783, 788 , n. 7 (1977); United States v. Ortiz, 422 U.S. 891, 898 (1975). Until today, the Court has never suggested that the fact that an argument was pressed by the litigant or passed on by the court of appeals in a different case would satisfy this requirement.
[ Footnote 4 ] Stevens v. Department of Treasury, 500 U.S. 1 (1991), and Virginia Bankshares, Inc. v. Sandberg, 501 U.S. 1083 (1991), discussed by the Court, ante, at 41-42, were routine applications of the settled rule. Although the parties may not have raised the questions presented in the petitions for certiorari before the Courts of Appeals in those cases, the courts treated the questions as open questions that they needed to resolve in order to decide the cases. Similarly, in Springfield v. Kibbe, 480 U.S. 257 (1987), the Court of Appeals had expressly considered and answered the question that Justice O'CONNOR thought we should decide, see id., at 263-266. This case, in contrast, involved "the routine restatement and application of settled law by an appellate court," which we have previously found insufficient to satisfy the "pressed or passed upon below" rule. Illinois v. Gates, 462 U.S. 213, 222 -223 (1983).
[ Footnote 5 ] The Court expresses an inability to understand the difference between the routine application, without objection, of a settled rule, on the one hand, and the decision of an open question on a ground not argued by the parties, on the other. The difference is best explained in light of the basic assumption that the adversary process provides the best method of arriving at correct decisions. Rules of appellate practice generally require that an issue be actually raised and debated by the parties if it is to be preserved. In the exceptional case, in which an appellate court announces a new rule that had not been debated by the parties, our review may be appropriate to give the losing party an opportunity it would not otherwise have to challenge the rule. In this case, however, there is no reason why the Government could not have challenged the Page rule in this case in the Tenth Circuit. There is no need for an exception to preserve the losing litigant's opportunity to be heard. Moreover, the Government's failure to object to the application of the Page rule deprived the Court of Appeals of an opportunity to reexamine the validity of that rule in the light of intervening developments in the law. "Sandbagging" is just as improper in an appellate court as in a trial court.
[ Footnote 6 ] The "expressed or passed on" predicate for the exercise of our jurisdiction is of special importance in determining our power to review state-court judgments. If the Court's newly announced view that the routine application of a settled rule satisfies the "passed on" requirement in a federal case, I see no reason why it should not also satisfy the same requirement in a state case.
[ Footnote 7 ] The Court suggests that it would be "improvident" for the Court to dismiss the writ of certiorari on the ground that the Government failed to raise the question presented in the lower courts, because respondent raised this argument in his brief in opposition, the Court nevertheless granted the writ, and the case has been briefed and argued. Ante, at 40. I disagree. The vote of four Justices is sufficient to grant a petition for certiorari, but that action does not preclude a majority of the Court from dismissing the writ as improvidently granted after the case has been argued. See, e.g., NAACP v. Overstreet, 384 U.S. 118 (1966) (dismissing, after oral argument, writ as improvidently granted over the dissent of four Justices). We have frequently dismissed the writ as improvidently granted after the case has been briefed and argued; in fact, we have already done so twice this Term. See Gibson v. Florida Bar, 502 U.S. 104 (1991); PFZ Properties, Inc. v. Rodriguez, 503 U.S. 257 (1992). Although we do not always explain the reason for the dismissal, we have on occasion dismissed the writ for the reasons raised by the respondent in the brief in opposition. Thus, nothing precludes the Court from dismissing the writ in this case.
[ Footnote 8 ] The court found the Government guilty of prosecutorial misconduct because it "fail[ed] to provide the polygraph evidence to the Grand Jury despite the prosecutor's guarantee to Judge Pregerson that all exculpatory evidence would be presented to the Grand Jury, and compound[ed] this indiscretion by erroneously but unequivocally telling the Grand Jury that [504 U.S. 36, 62] the polygraph evidence was inadmissible." United States v. Roberts, 481 F.Supp., at 1389.
[ Footnote 9 ] Although the majority in Ciambrone did not agree with Judge Friendly's appraisal of the prejudicial impact of the misconduct in that case, it also recognized the prosecutor's duty to avoid fundamentally unfair tactics during the grand jury proceedings. Judge Mansfield explained:
[ Footnote 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.
[ Footnote 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.
[ Footnote 12 ] Although the Court's opinion barely mentions the fact that the grand jury was intended to serve the invaluable function of standing between the accuser and the accused, I must assume that, in a proper case, it will acknowledge - as even the Solicitor General does - that unrestrained prosecutorial misconduct in grand jury proceedings "could so subvert the integrity of the grand jury process as to justify judicial intervention. Cf. Franks v. Delaware, 438 U.S. 154, 164 -171 (1978) (discussing analogous considerations in holding that a search warrant affidavit may be challenged when supported by deliberately false police statements)." Brief for United States 22, n. 8.
[ Footnote 13 ] I am reluctant to rely on the lower courts' judgment in this regard, as they apparently applied a more lenient legal standard. The District Court dismissed the indictment because the "information withheld raises reasonable doubt about the Defendant's intent to defraud," and thus "renders the grand jury's decision to indict gravely suspect." App. to Pet. for Cert. 26a. The Court of Appeals affirmed this decision because it was not "clearly erroneous." 899 F.2d 898, 902-904 (CA10 1990). [504 U.S. 36, 71]