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May 29, 1992



The opinion of the court was delivered by: EDWARD R. KORMAN


 John Doe is a witness who was subpoenaed to appear before a grand jury investigating an organized crime family in the New York area. The witness is believed by the United States Attorney to have been a victim of the extortionate activity of the targets of the investigation and to have had "minor, if any" culpability in criminal wrongdoing. The witness refuses to answer questions before the grand jury because he fears that by doing so he will be placing his life in jeopardy. The United States Attorney concedes that this fear is well-founded. Indeed, it is confirmed by information that the Federal Bureau of Investigation communicated to the witness. Nevertheless, while he is "sensitive to the concerns" raised by the witness, the United States Attorney presses his motion for an order summarily confining the witness for a period of up to eighteen months. According to the United States Attorney, the witness can secure his safety by permanently separating himself from his friends and family and beginning a new life in the witness protection program.

 Although the United States Attorney asserts that he is entitled as a matter of right to an order that would force the witness to choose - upon pain of summary incarceration for a period of up to eighteen months - either the physical retribution that he has reason to fear or the end of the life that he has known up to this point, a citizen may not be forced to make such a choice based upon the unreviewable discretion of the United States Attorney.

 Of particular significance here is the Supreme Court's decision in Winston v. Lee, 470 U.S. 753, 84 L. Ed. 2d 662, 105 S. Ct. 1611 (1985), which held that a "community's vital interests in law enforcement" must be balanced against the threat to the health and safety of the individual from whom evidence is sought. Id. at 759. Specifically, the Commonwealth of Virginia had obtained a court order directing a suspect in an armed robbery to undergo surgery to remove an object thought to be a bullet lodged under his left collarbone. Id. at 756. There was, concededly, probable cause to believe that this bullet would confirm that the suspect had been the perpetrator of the robbery and that he had been shot by the victim. See id. at 755-56.

 The Supreme Court held that a threat to the health and safety of the suspect had to be weighed against the need of the Commonwealth of Virginia for the evidence. Id. at 760. In affirming a judgment that enjoined the enforcement of the order requiring the suspect to undergo surgery, the Supreme Court observed:

 The medical risks of the operation, although apparently not extremely severe, are a subject of considerable dispute; the very uncertainty militates against finding the operation to be "reasonable." In addition, the intrusion on respondent's privacy interests entailed by the operation can only be characterized as severe. On the other hand, although the bullet may turn out to be useful to the Commonwealth in prosecuting respondent, the Commonwealth has failed to demonstrate a compelling need for it. We believe that in these circumstances the Commonwealth has failed to demonstrate that it would be "reasonable" under the terms of the Fourth Amendment to search for evidence of this crime by means of the contemplated surgery.

 Id. at 766. *fn1"

 The analysis employed in Lee is consistent with the caveat Wigmore has attached to his often cited restatement of the "fundamental maxim that the public (in the words sanctioned by Lord Hardwicke) has a right to every man's evidence." 8 Wigmore, Evidence § 2192, at 64 (3d ed. 1940). See also Piemonte v. United States, 367 U.S. 556, 559, 6 L. Ed. 2d 1028, 81 S. Ct. 1720 n.2 (1961). In return for the sacrifice a citizen may be required to make by testifying, Wigmore wrote, "society can fairly be expected to concede . . . that it will not exact this knowledge when necessity does not demand it, or when the benefit gained by exacting it would in general be less valuable than the disadvantage caused. . . The duty [to provide evidence] runs on throughout all, and does not abate; it is merely sometimes not insisted upon." 8 Wigmore, Evidence § 2192, at 66 (3d ed. 1940).

 What the United States Attorney asks of John Doe here is perhaps a greater sacrifice than what was asked of the suspect in Lee. Doe appears to be an innocent victim rather than a suspect. The risk to his life, if he testifies, would be more serious than the medical risk, "apparently not extremely severe," of the surgery ordered in Lee. Lee, 470 U.S. at 766. Moreover, the witness protection program, which the United States Attorney holds out as an alternative, would involve an extraordinary intrusion into John Doe's life and liberty.

 The present case is admittedly different from Lee in one significant legal respect. Because John Doe has been subpoenaed to appear before a grand jury, he may not invoke the protection of the Fourth Amendment against unreasonable searches and seizures upon which the holding there turned. See United States v. Dionisio, 410 U.S. 1, 35 L. Ed. 2d 67, 93 S. Ct. 764 (1973). *fn2" On the other hand, the issue here is not whether there is a legal basis for a United States district judge to stop an ongoing state criminal investigation. While such extraordinary relief may rest only upon a specific provision of the Constitution, at issue here is the discretionary authority that a district judge has been asked to exercise to aid a grand jury investigation. As the Supreme Court has held:

 A grand jury is clothed with great independence in many areas, but it remains an appendage of the court, powerless to perform its investigative function without the court's aid, because powerless itself to compel the testimony of witnesses. It is the court's process which summons the witness to attend and give testimony, and it is the court which must compel a witness to testify if, after appearing, he refuses to do so.

 Brown v. United States, 359 U.S. 41, 49, 3 L. Ed. 2d 609, 79 S. Ct. 539 (1959).

 The discretionary nature of the relief requested here is confirmed by the text of 28 U.S.C. § 1826 upon which the United States Attorney relies in seeking the ...

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