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41. Should the court dismiss the indictment?
The witness has moved to dismiss the indictment.
The witness was subsequently indicted for drug crimes. The indictment was based on the witness's grand jury testimony and on evidence seized in an unconstitutional search of the witness's home.
A federal grand jury that was investigating drug trafficking in the jurisdiction subpoenaed a witness to testify. The prosecutor advised the witness that he had a Fifth Amendment privilege not to testify if he so chose. The witness asked that his attorney be allowed to advise him inside the grand jury room, but the prosecutor refused to allow the attorney inside. After speaking with his attorney outside the grand jury room, the witness decided to testify. During his testimony, he made self-incriminating statements.
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A is incorrect. A grand jury witness does not have a constitutional right to counsel inside a grand jury room.
B is incorrect. The Fourth Amendment exclusionary rule does not apply to federal grand juries and is not a basis upon which a federal indictment can be dismissed.
C is incorrect. The issue here does not turn on waiver, nor do the facts demonstrate a waiver of any constitutional rights. Rather, wholly apart from any waiver, none of the witness's constitutional rights were violated, as explained above.