The grand jury and health care crimes: what every physician executive needs to know.Prosecutions for health care criminal offenses, as well as the government's use of the grand jury, continue to increase. The grand jury serves the dual function as both a sword and shield Sword and shield can refer to:
[ILLUSTRATION OMITTED] It is imperative that physician executives understand the workings of the grand jury, as the criminalization crim·i·nal·ize tr.v. crim·i·nal·ized, crim·i·nal·iz·ing, crim·i·nal·iz·es 1. To impose a criminal penalty on or for; outlaw. 2. To treat as a criminal. of health care malfeasance The commission of an act that is unequivocally illegal or completely wrongful. Malfeasance is a comprehensive term used in both civil and Criminal Law to describe any act that is wrongful. continues to rise. The grand jury is rooted in long centuries of Anglo-American history. (1) Its purpose is to protect citizens from arbitrary or oppressive government action. "Serious criminal accusations are brought only upon the considered judgment of a representative body of citizens acting under oath and under judicial instruction and guidance." (2) It is mentioned in the Bill of Rights but not in the originally drafted Constitution. The Fifth Amendment provides, "No person shall be held to answer for a capital or otherwise infamous crime unless on presentment or indictment of a grand jury." Infamous crimes have been defined as all those that are punishable by imprisonment Imprisonment See also Isolation. Alcatraz Island former federal maximum security penitentiary, near San Francisco; “escapeproof.” [Am. Hist.: Flexner, 218] Altmark, the German prison ship in World War II. [Br. Hist. . (3) States are not required to proceed by grand jury for state crimes, however, one third of states do empanel TO EMPANEL, practice. To make a list or roll, by the sheriff or other authorized officer, of the names of jurors who are summoned to appear for the performance of such service as jurors are required to perform. grand juries for charging and investigating. The grand jury is often described as having dual roles. The first involves screening criminal cases. These are termed "charging grand juries." The purpose is to help assure false and unreasonable charges are not brought by the government. The second role is one of investigating criminal offenses. These are called "investigative grand juries." In complex crimes, this use of the grand jury is invaluable in the government's effort to collect evidence. Grand jury rules require that 12 out of 23 jurors agree that there is probable cause Apparent facts discovered through logical inquiry that would lead a reasonably intelligent and prudent person to believe that an accused person has committed a crime, thereby warranting his or her prosecution, or that a Cause of Action has accrued, justifying a civil lawsuit. that a criminal offense has been committed for the government to proceed to trial. Procedure Jurors may be selected from a variety of lists including voter registrations, driver's licenses, and, in Alaska, hunter's licenses. Federal grand juries consist of 23 people with 16 constituting a quorum. They are empanelled for 18 months with six-month extensions. A special grand jury may sit for up to 36 months. A regular grand jury convenes for four to six days a week. The grand jurors meet as needed as needed prn. See prn order. , which may be as frequently as several times per week. Not all jurors need be present to review evidence and hear witnesses, but 12 need to agree to proceed to trial. Traditionally, the grand jury has been accorded wide latitude to inquire into violations of criminal law. No judge presides to monitor its proceedings. It deliberates in secret and may determine alone the course of its inquiry. Anyone involved in a grand jury, including attorneys, jurors, and stenographers are strictly prohibited from disclosing information about the grand jury. Attorneys for witnesses, targets and subjects are not permitted in the grand jury room. The grand jury may compel the production of evidence and its operation generally is unrestrained by the technical, procedural and evidentiary rules governing the conduct of criminal trials. (4) Inadmissible That which, according to established legal principles, cannot be received into evidence at a trial for consideration by the jury or judge in reaching a determination of the action. hearsay in a trial court is admissible before the grand jury. (5) In addition, evidence seized in violation of the Fourth Amendment's prohibition against unlawful search and seizure search and seizure In law enforcement, an exploratory investigation of a premises or a person and the taking into custody of property or an individual in the interest of gaining evidence of unlawful activity or guilt. may be admitted. (6) Thus, the exclusionary rule exclusionary rule In U.S. law, the principle that evidence seized by police in violation of the constitutional protection against unreasonable search and seizure may not be used against a criminal defendant at trial. does not apply. Subpoena subpoena (səpē`nə) [Lat.,=under penalty], in law, an order to a witness to appear before a court. A subpoena ad testificandum [Lat. power The grand jury may subpoena witnesses or documents. A witness subpoena is termed a "subpoena ad testificatum" and may be for a witness or a target of the grand jury. A witness may not refuse to respond or answer a subpoena. The Fifth Amendment protection against self-incrimination does apply. Therefore a witness does not have to testify against himself. In fact, the protection has been expanded to include those testimonies that cause the witness to reasonably apprehend danger. (7) The subpoena of physical evidence is termed a "subpoena duces tecum [Latin, Under penalty to bring with you.] The judicial process used to command the production before a court of papers, documents, or other tangible items of evidence. " and is often for voluminous amounts of documents. No probable cause is needed for a grand jury subpoena unlike those used in other criminal investigations. Failure to produce documents or testify will result in the prosecution seeking a judicial order compelling production or testimony. Failure to respond to the judicial order will result in a finding of contempt that is punishable by jail until the conclusion of the grand jury's investigation. In addition, lying to the grand jury can result in a separate charge of perjury or obstruction of justice A criminal offense that involves interference, through words or actions, with the proper operations of a court or officers of the court. The integrity of the judicial system depends on the participants' acting honestly and without fear of reprisals. . Witnesses, targets and subjects A "witness" is a person who has information relevant to the inquiry. (8) A witness, while not initially thought to be involved in any criminal activity, may ultimately become a target. The label is therefore misleading. A "target" is "a person as to whom the prosecutor or the grand jury has substantial evidence linking him or her to the commission of a crime and who, in the judgment of the prosecutor, is a putative defendant." Finally, a "subject" lies in between and is "a person whose conduct is within the scope of the grand jury investigation." (8) This is a tenuous area because subjects may become targets and eventual defendants, or may become uncharged government witnesses at trial. Alternatively, a subject's involvement may end with the grand jury testimony. Immunities Prosecutors use immunities in order to obtain evidence that would otherwise be protected by the Fifth Amendment. Witnesses are granted either transactional or use immunity. These are negotiated between the witnesses, counsel and the prosecutors. Transactional immunity may be granted by the government when it does not contemplate prosecuting the witness. Its use forecloses the ability to prosecute for the crimes under investigation. Use immunity, on the other hand, prevents the prosecutors from using the testimony of the witness against him, but allows the government to use independent sources to prosecute the witness in the crime under investigation. Needless to say, witnesses prefer use to transactional immunity whenever testifying before the grand jury. Challenging grand jury Challenging grand jury subpoenas is difficult as there is a strong historical bias; it is seen as a duty of citizens to cooperate with grand jury investigations. Secrecy is maintained in order to provide protection to witnesses and jurors. While challenges may be based on the Fourth, Fifth and Sixth Amendments, the best challenge is based on unreasonableness and oppressiveness. (9) Factors to be considered for unreasonableness include time, money and effort expended, as well as invasion of privacy invasion of privacy n. the intrusion into the personal life of another, without just cause, which can give the person whose privacy has been invaded a right to bring a lawsuit for damages against the person or entity that intruded. , disclosure of trade secrets, and chilling effect of First Amendment issues. Subpoenas pass muster if they command documents only relevant to the investigation, specify with particularity par·tic·u·lar·i·ty n. pl. par·tic·u·lar·i·ties 1. The quality or state of being particular rather than general. 2. , and are limited to a reasonable time. (10) An unreasonable or oppressive request may be quashed or modified. Christopher Spevak, MD, MPH, MBA MBA abbr. Master of Business Administration Noun 1. MBA - a master's degree in business Master in Business, Master in Business Administration , JD, is the physician director of government relations for the MidAtlantic Permanente Medical Group and an associate clinical professor of anesthesia at Georgetown University Medical Center Georgetown University Medical Center (GUMC) is the medical campus at Georgetown University. It is co-located with Georgetown University Hospital on the University's main campus in Washington, DC. . He may reached by email at Christopher.Spevak@kp.org. References 1. Hannah v. Larche, 363 U.S. 420, 490 (1960) 2. United States v. Mandujano, 425 U.S.564, 571 (1976) 3. Fed. R. Crim. Pro. 7(a) 4. United States v. Calandra, 414 U.S. 338, 343 (1974) 5. Costello v U.S., 350 U.S. 359 (1956) 6. U.S. v. Calandra, 414 U.S. 338 (1974) 7. Ohio v. Reiner, 532 U.S. 17 (2001) 8. United States Department of Justice “Justice Department” redirects here. For other uses, see Department of Justice. The United States Department of Justice (DOJ) is a Cabinet department in the United States government designed to enforce the law and defend the interests of the United States Criminal Resource Manual SSS SSS abbr. sick sinus syndrome 9-11.151 9. Fed. R. Crim. Pro 17 (c) (2) 10. U.S. v. R. Enterprises, Inc., 498 U.S. 292 (1991) By Christopher Spevak, MD, MPH, MBA, JD |
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