What is the reason for requiring the recording of testimony from a grand jury?

But there is a second, perhaps more cogent reason for requiring grand jury testimony to be recorded, entirely independent of the first. The recording of testimony is in a very real sense a circumstantial guaranty of trustworthiness.² Without the restraint of being subject to prosecution for perjury, a restraint which is wholly meaningless or nonexistent if the testimony is unrecorded, a witness may make baseless accusations, accusations founded on hearsay or false accusations, all resulting in the indictment of a fellow citizen for a crime. In today's case it is the commercial crime of tax evasion; in tomorrow's it may be incitement to riot, conspiracy to murder, or something equally serious. It is no answer to say that the grand jury hands down only indictments, and not convictions.³ For today, as to serious crimes, with crowded courts and crowded jails, a defendant who may subsequently be acquitted or have the charges against him dismissed, may spend a year or two or three in custody awaiting trial. See United States ex rel. Frizer v. McMann, 437 F.2d 1312 (2d Cir. 1971) (en banc). If he is fortunate enough to be a so-called "political" defendant, he may arouse sympathy and be able to advance his cause in jail or raise a large amount

[447 F.2d 223]

of bail. But if he is a typical criminal in a typical American jail, he hasn't any money, he may get only an automatic defense, he may be punished before he's even tried.

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