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 in this highly complex area of the criminal justice system.

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It is imperative that physician executives understand the workings of the grand jury, as the criminalization of health care malfeasance 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. (3) States are not required to proceed by grand jury for state crimes, however, one third of states do empanel 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 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, 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 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 may be admitted. (6) Thus, the exclusionary rule does not apply.

Subpoena 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" 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.

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, 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, and are limited to a reasonable time. (10) An unreasonable or oppressive request may be quashed or modified.

Christopher Spevak, MD, MPH, MBA, 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. He may reached by email at [e-mail].

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 Criminal Resource Manual SSS9-11.151

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