Slip opinion

NOTE: Where it is feasible, a syllabus
(headnote) will be released, as is being
done in connection with this case, at
the time the opinion is issued.  The
syllabus constitutes no part of the
opinion of the Court but has been pre-
pared by the Reporter of Decisions for
the convenience of the reader.  See
United States v. Detroit Lumber Co., 200
U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

          Syllabus

  UNITED STATES v. WILLIAMS
certiorari to the united states court of appeals for the tenth circuit

No. 90-1972.   Argued January 22, 1992"Decided
         May 4, 1992

Respondent Williams was indicted by a federal
grand jury for alleged violations of 18 U.S.C.
1014.  On his motion, the District Court or-
dered the indictment dismissed without preju-
dice because the Government had failed to ful-
fill its obligation under Circuit precedent to
present ``substantial exculpatory evidence'' to
the grand jury.  Following that precedent, the
Court of Appeals affirmed.
Held:
1.The argument that the petition should be
dismissed as improvidently granted because the
question presented was not raised below was
considered and rejected when this Court grant-
ed certiorari and is rejected again here.  The
Court will not review a question that was nei-
ther pressed nor passed on below, see e. g.,
Stevens v. Department of Treasury, 500 U.S. ___,
___, but there is no doubt that the Court of
Appeals passed on the crucial issue of the
prosecutor's duty to present exculpatory evi-
dence to the grand jury.  It is appropriate to
review an important issue expressly decided by
a federal court where, as here, although the
petitioner did not contest the issue in the case
immediately at hand, it did so as a party to the
recent proceeding upon which the lower courts
relied for their resolution of the issue, and did
not concede in the current case the correct-
ness of that precedent.  Pp.3-9.
2.A district court may not dismiss an other-
wise valid indictment because the Government
failed to disclose to the grand jury ``substan-
tial exculpatory evidence'' in its possession.
Pp.9-19.
(a)Imposition of the Court of Appeals' dis-
closure rule is not supported by the courts'
inherent ``supervisory power'' to formulate
procedural rules not specifically required by
the Constitution or the Congress.  This Court's
cases relying upon that power deal strictly
with the courts' control over their own proce-
dures, whereas the grand jury is an institution
separate from the courts, over whose function-
ing the courts do not preside.  Any power fed-
eral courts may have to fashion, on their own
initiative, rules of grand jury procedure is
very limited and certainly would not permit the
reshaping of the grand jury institution that
would be the consequence of the proposed rule
here.  Pp.9-14.
(b)The Court of Appeals' rule would neither
preserve nor enhance the traditional function-
ing of the grand jury that the ``common law'' of
the Fifth Amendment demands.  To the contrary,
requiring the prosecutor to present exculpato-
ry as well as inculpatory evidence would alter
the grand jury's historical role, transforming it
from an accusatory body that sits to assess
whether there is adequate basis for bringing a
criminal charge into an adjudicatory body that
sits to determine guilt or innocence.  Because
it has always been thought sufficient for the
grand jury to hear only the prosecutor's side,
and, consequently that the suspect has no right
to present, and the grand jury no obligation to
consider, exculpatory evidence, it would be
incompatible with the traditional system to
impose upon the prosecutor a legal obligation
to present such evidence.  Moreover, motions to
quash indictments based upon the sufficiency of
the evidence relied upon by the grand jury have
never been allowed, and it would make little
sense to abstain from reviewing the evidentiary
support for the grand jury's judgment while
scrutinizing the sufficiency of the prosecutor's
presentation.  Pp.14-18.
(c)This Court need not pursue respondent's
argument that the Court of Appeals' rule would
save valuable judicial time.  If there is any
advantage to the proposal, Congress is free to
prescribe it.  Pp.18-19.
899 F.2d 898, reversed and remanded.

Scalia, J., delivered the opinion of the Court,
in which Rehnquist, C. J., and White, Kennedy, and
Souter, JJ., joined.  Stevens, J., filed a dissent-
ing opinion, in which Blackmun and O'Connor, JJ.,
joined, and in Parts II and III of which Thomas, J.,
joined.

Opinion
NOTICE: This opinion is subject to formal
revision before publication in the pre-
liminary print of the United States
Reports.  Readers are requested to
notify the Reporter of Decisions, Su-
preme Court of the United States, Wash-
ington, D.C. 20543, of any typographical
or other formal errors, in order that
corrections may be made before the
preliminary print goes to press.
 

SUPREME  COURT OF THE UNITED STATES
         No. 90-1972
 
UNITED STATES, PETITIONER v. JOHN H. WILLIAMS,
                  Jr.
on writ of certiorari to the united states
court of appeals for the tenth circuit
             [May 4, 1992]

Justice Scalia delivered the opinion of the
Court.
The question presented in this case is whether
a district court may dismiss an otherwise valid
indictment because the Government failed to
disclose to the grand jury ``substantial exculpa-
tory evidence'' in its possession.
                   I
On May 4, 1988, respondent John H. Williams, Jr.,
a Tulsa, Oklahoma, investor, was indicted by a
federal grand jury on seven counts of ``knowingly
mak[ing] [a] false statement or report . . . for the
purpose of influencing . . . the action [of a feder-
ally insured financial institution],'' in violation
of 18 U. S. C. 1014 (1988 ed., Supp. II).  According to
the indictment, between September 1984 and
November 1985 Williams supplied four Oklahoma
banks with ``materially false'' statements that
variously overstated the value of his current
assets and interest income in order to influence
the banks' actions on his loan requests.
Williams' misrepresentation was allegedly ef-
fected through two financial statements provided
to the banks, a ``Market Value Balance Sheet'' and
a ``Statement of Projected Income and Expense.''
The former included as ``current assets'' approxi-
mately $6 million in notes receivable from three
venture capital companies.  Though it contained a
disclaimer that these assets were carried at cost
rather than at market value, the Government
asserted that listing them as ``current assets''"i.
e., assets quickly reducible to cash"was mislead-
ing, since Williams knew that none of the venture
capital companies could afford to satisfy the
notes in the short term.  The second document"the
Statement of Projected Income and Ex-
pense"allegedly misrepresented Williams' interest
income, since it failed to reflect that the inter-
est payments received on the notes of the ven-
ture capital companies were funded entirely by
Williams' own loans to those companies.  The
Statement thus falsely implied, according to the
Government, that Williams was deriving interest
income from ``an independent outside source.''
Brief for United States 3.
Shortly after arraignment, the District Court
granted Williams' motion for disclosure of all
exculpatory portions of the grand jury tran-
scripts, see Brady v. Maryland, 373 U. S. 83 (1963).
Upon reviewing this material, Williams demanded
that the District Court dismiss the indictment,
alleging that the Government had failed to fulfill
its obligation under the Tenth Circuit's prior
decision in United States v. Page, 808 F. 2d 723,
728 (1987), to present ``substantial exculpatory
evidence'' to the grand jury (emphasis omitted).
His contention was that evidence which the Gov-
ernment had chosen not to present to the grand
jury"in particular, Williams' general ledgers and
tax returns, and Williams' testimony in his contem-
poraneous Chapter 11 bankruptcy proceed-
ing"disclosed that, for tax purposes and other-
wise, he had regularly accounted for the ``notes
receivable'' (and the interest on them) in a manner
consistent with the Balance Sheet and the Income
Statement.  This, he contended, belied an intent to
mislead the banks, and thus directly negated an
essential element of the charged offense.
The District Court initially denied Williams'
motion, but upon reconsideration ordered the
indictment dismissed without prejudice.  It found,
after a hearing, that the withheld evidence was
``relevant to an essential element of the crime
charged,'' created `` `a reasonable doubt about
[respondent's] guilt,' ''  App. to Pet. for Cert. 23a-
24a (quoting United States v. Gray, 502 F. Supp.
150, 152 (DC 1980)), and thus ``render[ed] the grand
jury's decision to indict gravely suspect.''  App.
to Pet. for Cert. 26a.  Upon the Government's
appeal, the Court of Appeals affirmed the District
Court's order, following its earlier decision in
Page, supra.  It first sustained as not ``clearly
erroneous'' the District Court's determination
that the Government had withheld ``substantial
exculpatory evidence'' from the grand jury, see
899 F. 2d 898, 900-903 (CA10 1990).  It then found
that the Government's behavior `` `substantially
influence[d]' '' the grand jury's decision to indict,
or at the very least raised a `` `grave doubt that
the decision to indict was free from such sub-
stantial influence,' '' id., at 903 (quoting Bank of
Nova Scotia v. United States, 487 U. S. 250, 263
(1988)); see id., at 903-904.  Under these circum-
stances, the Tenth Circuit concluded, it was not
an abuse of discretion for the District Court to
require the Government to begin anew before the
grand jury.  We granted certiorari, 502 U. S. ___
(1991).
                  II

Before proceeding to the merits of this matter,
it is necessary to discuss the propriety of
reaching them.  Certiorari was sought and granted
in this case on the following question:  Whether
an indictment may be dismissed because the gov-
ernment failed to present exculpatory evidence to
the grand jury.  The first point discussed in
respondent's brief opposing the petition was
captioned ``The `Question Presented' in the Peti-
tion Was Never Raised Below.''  Brief in Opposition
3.  In granting certiorari, we necessarily consid-
ered and rejected that contention as a basis for
denying review.
Justice Stevens' dissent, however, revisits
that issue, and proposes that"after briefing,
argument, and full consideration of the issue by
all the Justices of this Court"we now decline to
entertain this petition for the same reason we
originally rejected, and that we dismiss it as
improvidently granted.  That would be improvident
indeed.  Our grant of certiorari was entirely in
accord with our traditional practice, though even
if it were not it would be imprudent (since there is
no doubt that we have jurisdiction to entertain
the case) to reverse course at this late stage.
See, e.g., Ferguson v. Moore-McCormack Lines, 352
U. S. 521, 560 (1957) (Harlan, J, concurring in part
and dissenting in part); Donnelly v. DeChristoforo,
416 U. S. 637, 648 (1974) (Stewart, J., concurring,
joined by White, J.).  Cf. Oklahoma City v. Tuttle,
471 U. S. 808, 816 (1985).
Our traditional rule, as the dissent correctly
notes, precludes a grant of certiorari only when
 the question presented was not pressed or
passed upon below.  Post, at 3 (internal quotation
marks omitted).  That this rule operates (as it is
phrased) in the disjunctive, permitting review of
an issue not pressed so long as it has been
passed upon, is illustrated by some of our more
recent dispositions.  As recently as last Term, in
fact (in an opinion joined by Justice Stevens), we
entertained review in circumstances far more
suggestive of the petitioner's  sleeping on its
rights than those we face today.  We responded
as follows to the argument of the Solicitor
General that tracks today's dissent:
   ``The Solicitor General . . . submits that the
petition for certiorari should be dismissed as
having been improvidently granted.  He rests
this submission on the argument that peti-
tioner did not properly present the merits of
the timeliness issue to the Court of Appeals,
and that this Court should not address that
question for the first time.  He made the same
argument in his opposition to the petition for
certiorari.  We rejected that argument in
granting certiorari and we reject it again now
because the Court of Appeals, like the Dis-
trict Court before it, decided the substantive
issue presented.''  Stevens v. Department of
Treasury, 500 U. S. ___, ___ (1991) (slip op. 6)
(citations omitted) (opinion of Blackmun, J.).
And in another case decided last Term, we said the
following:
   ``Respondents argue that this issue was not
raised below.  The appeals court, however,
addressed the availability of a right of action
to minority shareholders in respondents'
circumstances and concluded that respondents
were entitled to sue.  It suffices for our
purposes that the court below passed on the
issue presented, particularly where the issue
is, we believe, in a state of evolving defini-
tion and uncertainty, and one of importance to
the administration of federal law.''  Virginia
Bankshares, Inc. v. Sandberg, 500 U. S. ___, ___
(1991) (slip op. 14) (citations omitted; internal
quotation marks omitted).
(Justice Stevens' separate concurrence and
dissent in Virginia Bankshares also reached the
merits.  Id., at ___ (slip op. ___).)  As Justice
O'Connor has written:
``The standard we previously have employed is
that we will not review a question not pressed
or passed on by the courts below.  Here, the
Court of Appeals expressly ruled on the ques-
tion, in an appropriate exercise of its appel-
late jurisdiction; it is therefore entirely
proper in light of our precedents for the
Court to reach the question on which it grant-
ed certiorari . . . .''  Springfield v. Kibbe, 480
U. S. 257, 266 (1987) (O'Connor, J., dissenting)
(emphasis in original; citations omitted).
      There is no doubt in the present case that the
Tenth Circuit decided the crucial issue of the
prosecutor's duty to present exculpatory evi-
dence.  Moreover, this is not, as the dissent
paints it, a case in which, ``[a]fter losing in the
Court of Appeals, the Government reversed its
position,'' post, at 3.  The dissent describes the
Government as having ``expressly acknowledged [in
the Court of Appeals] the responsibilities de-
scribed in Page,'' post, at 2 (emphasis added).  It
did no such thing.  Rather, the Government ac-
knowledged ``that it has certain responsibilities
under . . . Page.''  Brief for the United States in
Response to Appellee's Brief in Nos. 88-2827,
88-2843 (CA10), p. 9 (emphasis added).  It conceded,
in other words, not that the responsibilities Page
had imposed were proper, but merely that Page had
imposed them"over the protests of the Govern-
ment, but in a judgment that was nonetheless
binding precedent for the panel below.  The dis-
sent would apparently impose, as an absolute
condition to our granting certiorari upon an issue
decided by a lower court, that a party demand
overruling of a squarely applicable, recent
circuit precedent, even though that precedent was
established in a case to which the party itself
was privy and over the party's vigorous objec-
tion, see Page, 808 F.2d, at 727 (``The government
counters that a prosecutor has no duty to dis-
close exculpatory evidence to a grand jury''), and
even though no ``intervening developments in the
law,'' post, at 5, n. 5, had occurred.  That seems to
us unreasonable.
In short, having reconsidered the precise
question we resolved when this petition for
review was granted, we again answer it the same
way.  It is a permissible exercise of our discre-
tion to undertake review of an important issue
expressly decided by a federal court where,
although the petitioner did not contest the issue
in the case immediately at hand, it did so as a
party to the recent proceeding upon which the
lower courts relied for their resolution of the
issue, and did not concede in the current case the
correctness of that precedent.  Undoubtedly the
United States benefits from this rule more often
than other parties; but that is inevitably true of
most desirable rules of procedure or jurisdiction
that we announce, the United States being the
most frequent litigant in our courts.  Since we
announce the rule to be applicable to all parties;
since we have recently applied a similar rule
(indeed, a rule even more broadly cast) to the
disadvantage of the United States, see Stevens v.
Department of Treasury, 500 U. S. ___ (1991); and
since the dissenters themselves have approved
the application of this rule (or a broader one) in
circumstances rationally indistinguishable from
those before us, see n. 2, supra; the dissent's
suggestion that in deciding this case  the Court
appears to favor the Government over the ordi-
nary litigant, post, at 5, and compromises its
 obligation to administer justice impartially,
ibid., needs no response.
                  III
Respondent does not contend that the Fifth
Amendment itself obliges the prosecutor to
disclose substantial exculpatory evidence in his
possession to the grand jury.  Instead, building on
our statement that the federal courts ``may,
within limits, formulate procedural rules not
specifically required by the Constitution or the
Congress,'' United States v. Hasting, 461 U. S. 499,
505 (1983), he argues that imposition of the Tenth
Circuit's disclosure rule is supported by the
courts' ``supervisory power.''  We think not.
Hasting, and the cases that rely upon the princi-
ple it expresses, deal strictly with the courts'
power to control their own procedures.  See, e.g.,
Jencks v. United States, 353 U. S. 657, 667-668
(1957); McNabb v. United States, 318 U. S. 332 (1943).
That power has been applied not only to improve
the truth-finding process of the trial, see, e.g.,
Mesarosh v. United States, 352 U. S. 1, 9-14 (1956),
but also to prevent parties from reaping benefit
or incurring harm from violations of substantive
or procedural rules (imposed by the Constitution
or laws) governing matters apart from the trial
itself, see, e.g., Weeks v. United States, 232 U. S.
383 (1914).  Thus, Bank of Nova Scotia v. United
States, 487 U. S. 250 (1988), makes clear that the
supervisory power can be used to dismiss an
indictment because of misconduct before the grand
jury, at least where that misconduct amounts to
a violation of one of those ``few, clear rules which
were carefully drafted and approved by this Court
and by Congress to ensure the integrity of the
grand jury's functions,'' United States v. Mechanik,
475 U. S. 66, 74 (1986) (O'Connor, J., concurring in
judgment).
We did not hold in Bank of Nova Scotia, however,
that the courts' supervisory power could be used,
not merely as a means of enforcing or vindicating
legally compelled standards of prosecutorial
conduct before the grand jury, but as a means of
prescribing those standards of prosecutorial
conduct in the first instance"just as it may be
used as a means of establishing standards of
prosecutorial conduct before the courts them-
selves.  It is this latter exercise that respon-
dent demands.  Because the grand jury is an
institution separate from the courts, over whose
functioning the courts do not preside, we think it
clear that, as a general matter at least, no such
 supervisory judicial authority exists, and that
the disclosure rule applied here exceeded the
Tenth Circuit's authority.



                   A
``[R]ooted in long centuries of Anglo-American
history,'' Hannah v. Larche, 363 U. S. 420, 490 (1960)
(Frankfurter, J., concurring in result), the grand
jury is mentioned in the Bill of Rights, but not in
the body of the Constitution.  It has not been
textually assigned, therefore, to any of the
branches described in the first three Articles.  It
`` `is a constitutional fixture in its own right.' ''
United States v. Chanen, 549 F. 2d 1306, 1312 (CA9)
(quoting Nixon v. Sirica, 159 U.S. App. D.C. 58, 70, n.
54, 487 F. 2d 700, 712, n. 54 (1973)), cert. denied,
434 U. S. 825 (1977).  In fact the whole theory of
its function is that it belongs to no branch of the
institutional government, serving as a kind of
buffer or referee between the Government and the
people.  See Stirone v. United States, 361 U. S. 212,
218 (1960); Hale v. Henkel, 201 U. S. 43, 61 (1906); G.
Edwards, The Grand Jury 28-32 (1906).  Although
the grand jury normally operates, of course, in
the courthouse and under judicial auspices, its
institutional relationship with the judicial branch
has traditionally been, so to speak, at arm's
length.  Judges' direct involvement in the func-
tioning of the grand jury has generally been
confined to the constitutive one of calling the
grand jurors together and administering their
oaths of office.  See United States v. Calandra, 414
U. S. 338, 343 (1974); Fed. Rule Crim. Proc. 6(a).
The grand jury's functional independence from
the judicial branch is evident both in the scope of
its power to investigate criminal wrongdoing, and
in the manner in which that power is exercised.
``Unlike [a] [c]ourt, whose jurisdiction is predi-
cated upon a specific case or controversy, the
grand jury `can investigate merely on suspicion
that the law is being violated, or even because it
wants assurance that it is not.' ''  United States v.
R. Enterprises, 498 U. S. ___, ___ (1991) (slip op. 4)
(quoting United States v. Morton Salt Co., 338 U. S.
632, 642-643 (1950)).  It need not identify the
offender it suspects, or even ``the precise nature
of the offense'' it is investigating.  Blair v.
United States, 250 U. S. 273, 282 (1919).  The grand
jury requires no authorization from its consti-
tuting court to initiate an investigation, see
Hale, supra, at 59-60, 65, nor does the prosecutor
require leave of court to seek a grand jury
indictment.  And in its day-to-day functioning, the
grand jury generally operates without the inter-
ference of a presiding judge.  See Calandra, supra,
at 343.  It swears in its own witnesses, Fed. Rule
Crim. Proc. 6(c), and deliberates in total secrecy,
see United States v. Sells Engineering, Inc., 463
U. S., at 424-425.
True, the grand jury cannot compel the appear-
ance of witnesses and the production of evidence,
and must appeal to the court when such compulsion
is required.  See, e.g., Brown v. United States, 359
U. S. 41, 49 (1959).  And the court will refuse to
lend its assistance when the compulsion the grand
jury seeks would override rights accorded by the
Constitution, see, e.g., Gravel v. United States,
408 U. S. 606 (1972) (grand jury subpoena effec-
tively qualified by order limiting questioning so
as to preserve Speech or Debate Clause immunity),
or even testimonial privileges recognized by the
common law, see In re Grand Jury Investigation of
Hugle, 754 F. 2d 863 (CA9 1985) (same with respect
to privilege for confidential marital communi-
cations) (opinion of Kennedy, J.).  Even in this
setting, however, we have insisted that the grand
jury remain ``free to pursue its investigations
unhindered by external influence or supervision
so long as it does not trench upon the legitimate
rights of any witness called before it.''  United
States v. Dionisio, 410 U. S. 1, 17-18 (1973).  Recog-
nizing this tradition of independence, we have said
that the Fifth Amendment's ``constitutional guar-
antee presupposes an investigative body `acting
independently of either prosecuting attorney or
judge'. . . .''  Id., at 16 (emphasis added) (quoting
Stirone, supra, at 218).
No doubt in view of the grand jury proceeding's
status as other than a constituent element of a
 criminal prosecutio[n], U. S. Const., Amdt. VI, we
have said that certain constitutional protections
afforded defendants in criminal proceedings have
no application before that body.  The Double
Jeopardy Clause of the Fifth Amendment does not
bar a grand jury from returning an indictment when
a prior grand jury has refused to do so.  See Ex
parte United States, 287 U. S. 241, 250-251 (1932);
United States v. Thompson, 251 U. S. 407, 413-415
(1920).  We have twice suggested, though not held,
that the Sixth Amendment right to counsel does
not attach when an individual is summoned to
appear before a grand jury, even if he is the
subject of the investigation.  See United States v.
Mandujano, 425 U. S. 564, 581 (1976) (plurality
opinion); In re Groban, 352 U. S. 330, 333 (1957); see
also Fed. Rule Crim. Proc. 6(d).  And although ``the
grand jury may not force a witness to answer
questions in violation of [the Fifth Amendment's]
constitutional guarantee'' against self-incrimina-
tion, Calandra, supra, at 346 (citing Kastigar v.
United States, 406 U. S. 441 (1972)), our cases
suggest that an indictment obtained through the
use of evidence previously obtained in violation
of the privilege against self-incrimination ``is
nevertheless valid.''  Calandra, supra, at 346; see
Lawn v. United States, 355 U. S. 339, 348-350 (1958);
United States v. Blue, 384 U. S. 251, 255, n. 3 (1966).

Given the grand jury's operational separateness
from its constituting court, it should come as no
surprise that we have been reluctant to invoke
the judicial supervisory power as a basis for
prescribing modes of grand jury procedure.  Over
the years, we have received many requests to
exercise supervision over the grand jury's evi-
dence-taking process, but we have refused them
all, including some more appealing than the one
presented today.  In Calandra v. United States,
supra, a grand jury witness faced questions that
were allegedly based upon physical evidence the
Government had obtained through a violation of
the Fourth Amendment; we rejected the proposal
that the exclusionary rule be extended to grand
jury proceedings, because of ``the potential
injury to the historic role and functions of the
grand jury.''  414 U. S., at 349.  In Costello v.
United States, 350 U. S. 359 (1956), we declined to
enforce the hearsay rule in grand jury proceed-
ings, since that ``would run counter to the whole
history of the grand jury institution, in which
laymen conduct their inquiries unfettered by
technical rules.''  Id., at 364.
These authorities suggest that any power
federal courts may have to fashion, on their own
initiative, rules of grand jury procedure is a
very limited one, not remotely comparable to the
power they maintain over their own proceedings.
See United States v. Chanen, 549 F. 2d, at 1313.  It
certainly would not permit judicial reshaping of
the grand jury institution, substantially altering
the traditional relationships between the prose-
cutor, the constituting court, and the grand jury
itself.  Cf., e.g., United States v. Payner, 447 U. S.
727, 736 (1980) (supervisory power may not be
applied to permit defendant to invoke third party-
's Fourth Amendment rights); see generally Beale,
Reconsidering Supervisory Power in Criminal
Cases: Constitutional and Statutory Limits on the
Authority of the Federal Courts, 84 Colum. L. Rev.
1433, 1490-1494, 1522 (1984).  As we proceed to
discuss, that would be the consequence of the
proposed rule here.
                   B
Respondent argues that the Court of Appeals'
rule can be justified as a sort of Fifth Amendment
``common law,'' a necessary means of assuring the
constitutional right to the judgment ``of an
independent and informed grand jury,'' Wood v.
Georgia, 370 U. S. 375, 390 (1962).  Brief for Re-
spondent 27.  Respondent makes a generalized
appeal to functional notions: Judicial supervision
of the quantity and quality of the evidence relied
upon by the grand jury plainly facilitates, he
says, the grand jury's performance of its twin
historical responsibilities, i. e., bringing to trial
those who may be justly accused and shielding the
innocent from unfounded accusation and prosecu-
tion.  See, e. g., Stirone v. United States, 361 U. S.,
at 218, n. 3.  We do not agree.  The rule would
neither preserve nor enhance the traditional
functioning of the institution that the Fifth
Amendment demands.  To the contrary, requiring
the prosecutor to present exculpatory as well as
inculpatory evidence would alter the grand jury's
historical role, transforming it from an accusato-
ry to an adjudicatory body.
It is axiomatic that the grand jury sits not to
determine guilt or innocence, but to assess
whether there is adequate basis for bringing a
criminal charge.  See United States v. Calandra, 414
U. S., at 343.  That has always been so; and to make
the assessment it has always been thought suffi-
cient to hear only the prosecutor's side.  As
Blackstone described the prevailing practice in
18th-century England, the grand jury was ``only to
hear evidence on behalf of the prosecution[,] for
the finding of an indictment is only in the nature
of an enquiry or accusation, which is afterwards
to be tried and determined.''  4 W. Blackstone,
Commentaries 300 (1769); see also 2 M. Hale, Pleas
of the Crown 157 (1st Am. ed. 1847).  So also in the
United States.  According to the description of an
early American court, three years before the
Fifth Amendment was ratified, it is the grand
jury's function not ``to enquire . . . upon what
foundation [the charge may be] denied,'' or other-
wise to try the suspect's defenses, but only to
examine ``upon what foundation [the charge] is
made'' by the prosecutor.  Respublica v. Shaffer, 1
Dall. 236 (Philadelphia Oyer and Terminer 1788);
see also F. Wharton, Criminal Pleading and Prac-
tice 360, pp. 248-249 (8th ed. 1880).  As a conse-
quence, neither in this country nor in England has
the suspect under investigation by the grand jury
ever been thought to have a right to testify, or
to have exculpatory evidence presented.  See 2
Hale, supra, at 157; United States ex rel. McCann v.
Thompson, 144 F. 2d 604, 605-606 (CA2), cert.
denied, 323 U. S. 790 (1944).
Imposing upon the prosecutor a legal obligation
to present exculpatory evidence in his possession
would be incompatible with this system.  If a
``balanced'' assessment of the entire matter is the
objective, surely the first thing to be
done"rather than requiring the prosecutor to say
what he knows in defense of the target of the
investigation"is to entitle the target to tender
his own defense.  To require the former while
denying (as we do) the latter would be quite
absurd.  It would also be quite pointless, since it
would merely invite the target to circumnavigate
the system by delivering his exculpatory evidence
to the prosecutor, whereupon it would have to be
passed on to the grand jury"unless the prosecu-
tor is willing to take the chance that a court will
not deem the evidence important enough to qualify
for mandatory disclosure.  See, e. g., United
States v. Law Firm of Zimmerman & Schwartz, P.C.,
738 F. Supp. 407, 411 (Colo. 1990) (duty to disclose
exculpatory evidence held satisfied when prose-
cution tendered to the grand jury defense-pro-
vided exhibits, testimony, and explanations of the
governing law), aff'd sub nom. United States v.
Brown, 943 F. 2d 1246, 1257 (CA10 1991).
Respondent acknowledges (as he must) that the
 common law of the grand jury is not violated if
the grand jury itself chooses to hear no more
evidence than that which suffices to convince it
an indictment is proper.  Cf. Thompson, supra, at
607.  Thus, had the Government offered to famil-
iarize the grand jury in this case with the five
boxes of financial statements and deposition
testimony alleged to contain exculpatory informa-
tion, and had the grand jury rejected the offer as
pointless, respondent would presumably agree
that the resulting indictment would have been
valid.  Respondent insists, however, that courts
must require the modern prosecutor to alert the
grand jury to the nature and extent of the avail-
able exculpatory evidence, because otherwise the
grand jury ``merely functions as an arm of the
prosecution.''  Brief for Respondent 27.  We reject
the attempt to convert a nonexistent duty of the
grand jury itself into an obligation of the prose-
cutor.  The authority of the prosecutor to seek
an indictment has long been understood to be
``coterminous with the authority of the grand jury
to entertain [the prosecutor's] charges.''  United
States v. Thompson, 251 U. S. 407, 414 (1920).  If the
grand jury has no obligation to consider all
``substantial exculpatory'' evidence, we do not
understand how the prosecutor can be said to
have a binding obligation to present it.
There is yet another respect in which responde-
nt's proposal not only fails to comport with, but
positively contradicts, the ``common law'' of the
Fifth Amendment grand jury.  Motions to quash
indictments based upon the sufficiency of the
evidence relied upon by the grand jury were
unheard of at common law in England, see, e. g.,
People v. Restenblatt, 1 Abb. Prac. 268, 269 (Ct.
Gen. Sess. N.Y. 1855).  And the traditional American
practice was described by Justice Nelson, riding
circuit in 1852, as follows:
      ``No case has been cited, nor have we been
able to find any, furnishing an authority for
looking into and revising the judgment of the
grand jury upon the evidence, for the purpose
of determining whether or not the finding was
founded upon sufficient proof, or whether
there was a deficiency in respect to any part
of the complaint . . . .''  United States v. Reed,
27 Fed. Cas. 727, 738 (No. 16,134) (CCNDNY 1852).
We accepted Justice Nelson's description in
Costello v. United States, 350 U. S. 359 (1956),
where we held that ``it would run counter to the
whole history of the grand jury institution'' to
permit an indictment to be challenged ``on the
ground that there was incompetent or inadequate
evidence before the grand jury.''  Id., at 363-364.
And we reaffirmed this principle recently in Bank
of Nova Scotia, where we held that ``the mere fact
that evidence itself is unreliable is not suffi-
cient to require a dismissal of the indictment,''
and that ``a challenge to the reliability or compe-
tence of the evidence presented to the grand
jury'' will not be heard.  487 U. S., at 261.  It would
make little sense, we think, to abstain from
reviewing the evidentiary support for the grand
jury's judgment while scrutinizing the sufficiency
of the prosecutor's presentation.  A complaint
about the quality or adequacy of the evidence can
always be recast as a complaint that the prosecu-
tor's presentation was ``incomplete'' or ``mislead-
ing.''  Our words in Costello bear repeating:
Review of facially valid indictments on such
grounds ``would run counter to the whole history
of the grand jury institution[,] [and] [n]either
justice nor the concept of a fair trial requires
[it].''  350 U. S., at 364.
                *  *  *
Echoing the reasoning of the Tenth Circuit in
United States v. Page, 808 F. 2d, at 728, respon-
dent argues that a rule requiring the prosecutor
to disclose exculpatory evidence to the grand
jury would, by removing from the docket unjusti-
fied prosecutions, save valuable judicial time.
That depends, we suppose, upon what the ratio
would turn out to be between unjustified prosecu-
tions eliminated and grand jury indictments
challenged"for the latter as well as the former
consume ``valuable judicial time.''  We need not
pursue the matter; if there is an advantage to the
proposal, Congress is free to prescribe it.  For
the reasons set forth above, however, we con-
clude that courts have no authority to prescribe
such a duty pursuant to their inherent supervi-
sory authority over their own proceedings.  The
judgment of the Court of Appeals is accordingly
reversed and the cause remanded for further
proceedings consistent with this opinion.
                                                    So ordered.

Dissent
 

SUPREME  COURT OF THE UNITED STATES
         No. 90-1972
 
UNITED STATES, PETITIONER v. JOHN H.
             WILLIAMS, Jr.
on writ of certiorari to the united states
court of appeals for the tenth circuit
             [May 4, 1992]

Justice Stevens, with whom Justice Blackmun
and Justice O'Connor join, and with whom Justice
Thomas joins as to Parts II and III, dissenting.
The Court's opinion announces two important
changes in the law.  First, it justifies its special
accommodation to the Solicitor General in grant-
ing certiorari to review a contention that was not
advanced in either the District Court or the
Court of Appeals by explaining that the fact that
the issue was raised in a different case is an
adequate substitute for raising it in this case.
Second, it concludes that a federal court has no
power to enforce the prosecutor's obligation to
protect the fundamental fairness of proceedings
before the grand jury.
                   I
The question presented by the certiorari
petition is whether the failure to disclose sub-
stantial exculpatory evidence to the grand jury
is a species of prosecutorial misconduct that may
be remedied by dismissing an indictment without
prejudice.  In the District Court and the Court of
Appeals both parties agreed that the answer to
that question is  yes, in an appropriate case.
The only disagreement was whether this was an
appropriate case:  The prosecutor vigorously
argued that it was not because the undisclosed
evidence was not substantial exculpatory evi-
dence, while respondent countered that the
evidence was exculpatory and the prosecutor's
misconduct warranted a dismissal with prejudice.
In an earlier case arising in the Tenth Circuit,
United States v. Page, 808 F. 2d 723, cert. denied,
482 U. S. 918 (1987), the defendant had claimed that
his indictment should have been dismissed because
the prosecutor was guilty of misconduct during
the grand jury proceedings.  Specifically, he
claimed that the prosecutor had allowed the grand
jury to consider false testimony and had failed to
present it with substantial exculpatory evidence.
808 F. 2d, at 726-727.  After noting that there
are  two views concerning the duty of a prosecu-
tor to present exculpatory evidence to a grand
jury, id., at 727, the court concluded that the
 better, and more balanced rule is that  when
substantial exculpatory evidence is discovered in
the course of an investigation, it must be re-
vealed to the grand jury, id., at 728 (emphasis in
original).  The court declined to dismiss the
indictment, however, because the evidence with-
held in that case was not  clearly exculpatory.
Ibid.
In this case the Government expressly acknowl-
edged the responsibilities described in Page, but
argued that the withheld evidence was not excul-
patory or significant.  Instead of questioning
the controlling rule of law, it distinguished the
facts of this case from those of an earlier case
in which an indictment had been dismissed because
the prosecutor had withheld testimony that made
it factually impossible for the corporate defen-
dant to have been guilty.  The Government
concluded its principal brief with a request that
the Court apply the test set forth in Bank of Nova
Scotia v. United States, 487 U. S. 250 (1988),  fol-
low the holding of Page, and hold that dismissal
was not warranted in this case because the
withheld evidence was not substantial exculpatory
evidence and respondent  was not prejudiced in
any way.  Brief for United States in No. 88-2827
(CA10), pp. 40-43.
After losing in the Court of Appeals, the Gov-
ernment reversed its position and asked this
Court to grant certiorari and to hold that the
prosecutor has no judicially enforceable duty to
present exculpatory evidence to the grand jury.
In his brief in opposition to the petition, respon-
dent clearly pointed out that the question pre-
sented by the petition  was neither presented to
nor addressed by the courts below.  Brief in
Opposition 2.  He appropriately called our atten-
tion to many of the cases in which we have stated,
repeated, and reiterated the general rule that
precludes a grant of certiorari when the question
presented was  not pressed or passed upon
below.  Id., at 5-9.  Apart from the fact that
the United States is the petitioner, I see no
reason for not following that salutary practice in
this case.  Nevertheless, the requisite number
of Justices saw fit to grant the Solicitor Genera-
l's petition. 502 U. S. ___ (1991).
The Court explains that the settled rule does
not apply to the Government's certiorari petition
in this case because the Government raised the
same question three years earlier in the Page
case and the Court of Appeals passed on the issue
in that case.  Ante, at 8.  This is a novel, and
unwise, change in the rule.  We have never sug-
gested that the fact that a court has repeated a
settled proposition of law and applied it, without
objection, in the case at hand provides a suffi-
cient basis for our review.  See Illinois v.
Gates, 462 U. S. 213, 222-223 (1982), and cases
cited therein.  If this is to be the rule in the
future, it will either provide a basis for a signif-
icant expansion of our discretionary docket
or, if applied only to benefit repetitive litigants,
a special privilege for the Federal Government.
This Court has a special obligation to adminis-
ter justice impartially and to set an example of
impartiality for other courts to emulate.  When
the Court appears to favor the Government over
the ordinary litigant, it seriously compromises
its ability to discharge that important duty.  For
that reason alone, I would dismiss the writ of
certiorari as improvidently granted.
                  II
     Like the Hydra slain by Hercules, prosecutorial
misconduct has many heads.  Some are cataloged in
Justice Sutherland's classic opinion for the Court
in Berger v. United States, 295 U. S. 78 (1935):
    That the United States prosecuting attor-
ney over-stepped the bounds of that propri-
ety and fairness which should characterize
the conduct of such an officer in the prosecu-
tion of a criminal offense is clearly shown by
the record.  He was guilty of misstating the
facts in his cross-examination of witnesses;
of putting into the mouths of such witnesses
things which they had not said; of suggesting
by his questions that statements had been
made to him personally out of court, in re-
spect of which no proof was offered; of pre-
tending to understand that a witness had said
something which he had not said and persis-
tently cross-examining the witness upon that
basis; of assuming prejudicial facts not in
evidence; of bullying and arguing with witness-
es; and in general, of conducting himself in a
thoroughly indecorous and improper man-
ner. . . .
 The prosecuting attorney's argument to the
jury was undignified and intemperate, contain-
ing improper insinuations and assertions
calculated to mislead the jury.  Id., at 84-85.
 This, of course, is not an exhaustive list of the
kinds of improper tactics that overzealous or
misguided prosecutors have adopted in judicial
proceedings.  The reported cases of this Court
alone contain examples of the knowing use of
perjured testimony, Mooney v. Holohan, 294 U. S.
103 (1935), the suppression of evidence favorable
to an accused person, Brady v. Maryland, 373 U. S.
83, 87-88 (1963), and misstatements of the law in
argument to the jury, Caldwell v. Mississippi, 472
U. S. 320, 336 (1985), to name just a few.
Nor has prosecutorial misconduct been limited
to judicial proceedings: the reported cases
indicate that it has sometimes infected grand jury
proceedings as well.  The cases contain examples
of prosecutors presenting perjured testimony,
United States v. Basurto, 497 F. 2d 781, 786 (CA9
1974), questioning a witness outside the presence
of the grand jury and then failing to inform the
grand jury that the testimony was exculpatory,
United States v. Phillips Petroleum, Inc., 435 F.
Supp. 610, 615-617 (ND Okla. 1977), failing to inform
the grand jury of its authority to subpoena
witnesses, United States v. Samango, 607 F. 2d 877,
884 (CA9 1979), operating under a conflict of
interest, United States v. Gold, 470 F. Supp. 1336,
1346-1351 (ND Ill. 1979), misstating the law, United
States v. Roberts, 481 F. Supp. 1385, 1389, and n. 10
(CD Cal. 1980), and misstating the facts on
cross-examination of a witness, United States v.
Lawson, 502 F. Supp. 158, 162, and nn. 6-7 (Md. 1980).
Justice Sutherland's identification of the basic
reason why that sort of misconduct is intolerable
merits repetition:
       The United States Attorney is the repre-
sentative not of an ordinary party to a con-
troversy, but of a sovereignty whose obliga-
tion to govern impartially is as compelling as
its obligation to govern at all; and whose
interest, therefore, in a criminal prosecution
is not that it shall win a case, but that jus-
tice shall be done.  As such, he is in a peculiar
and very definite sense the servant of the
law, the twofold aim of which is that guilt
shall not escape or innocence suffer.  He may
prosecute with earnestness and vigor"indeed,
he should do so.  But, while he may strike hard
blows, he is not at liberty to strike foul ones.
It is as much his duty to refrain from improper
methods calculated to produce a wrongful
conviction as it is to use every legitimate
means to bring about a just one.  Berger v.
United States, 295 U. S., at 88.
It is equally clear that the prosecutor has the
same duty to refrain from improper methods
calculated to produce a wrongful indictment.
Indeed, the prosecutor's duty to protect the
fundamental fairness of judicial proceedings
assumes special importance when he is presenting
evidence to a grand jury.  As the Court of Appeals
for the Third Circuit recognized,  the costs of
continued unchecked prosecutorial misconduct
before the grand jury are particularly substan-
tial because there
 the prosecutor operates without the check of
a judge or a trained legal adversary, and
virtually immune from public scrutiny.  The
prosecutor's abuse of his special relationship
to the grand jury poses an enormous risk to
defendants as well.  For while in theory a trial
provides the defendant with a full opportunity
to contest and disprove the charges against
him, in practice, the handing up of an indict-
ment will often have a devastating personal
and professional impact that a later dismissal
or acquittal can never undo.  Where the poten-
tial for abuse is so great, and the conse-
quences of a mistaken indictment so serious,
the ethical responsibilities of the prosecu-
tor, and the obligation of the judiciary to
protect against even the appearance of un-
fairness, are correspondingly heightened.
United States v. Serubo, 604 F. 2d 807, 817
(1979).
In his dissent in United States v. Ciambrone, 601 F.
2d 616 (CA2 1979), Judge Friendly also recognized
the prosecutor's special role in grand jury pro-
ceedings:
    As the Supreme Court has noted, `the Foun-
ders thought the grand jury so essential to
basic liberties that they provided in the Fifth
Amendment that federal prosecution for seri-
ous crimes can only be instituted by  a pre-
sentment or indictment of a Grand Jury.'
United States v. Calandra, 414 U. S. 338, 343,
. . . (1974).  Before the grand jury the prosecu-
tor has the dual role of pressing for an in-
dictment and of being the grand jury adviser.
In case of conflict, the latter duty must take
precedence.  United States v. Remington, 208 F.
2d 567, 573-74 (2d Cir. 1953) (L. Hand, J., dis-
senting), cert. denied, 347 U. S. 913 . . . (1954).
 The ex parte character of grand jury pro-
ceedings makes it peculiarly important for a
federal prosecutor to remember that, in the
familiar phrase, the interest of the United
States `in a criminal prosecution is not that
it shall win a case, but that justice shall be
done.'  Berger v. United States, 295 U. S. 78, 88
. . . (1935).  Id., at 628-629.
The standard for judging the consequences of
prosecutorial misconduct during grand jury
proceedings is essentially the same as the stan-
dard applicable to trials.  In United States v.
Mechanik, 475 U. S. 66 (1986), we held that there
was  no reason not to apply [the harmless error
rule] to `errors, defects, irregularities, or
variances' occurring before a grand jury just as
we have applied it to such error occurring in the
criminal trial itself, id., at 71-72.  We repeated
that holding in Bank of Nova Scotia v. United
States, 487 U. S. 250 (1988), when we rejected a
defendant's argument that an indictment should be
dismissed because of prosecutorial misconduct
and irregularities in proceedings before the
grand jury.  Referring to the prosecutor's miscon-
duct before the grand jury, we  concluded that
our customary harmless-error inquiry is applica-
ble where, as in the cases before us, a court is
asked to dismiss an indictment prior to the con-
clusion of the trial, id., at 256.  Moreover, in
reviewing the instances of misconduct in that
case, we applied precisely the same standard to
the prosecutor's violations of Rule 6 of the
Federal Rules of Criminal Procedure and to his
violations of the general duty of fairness that
applies to all judicial proceedings.  This point is
illustrated by the Court's comments on the prose-
cutor's abuse of a witness:
    The District Court found that a prosecutor
was abusive to an expert defense witness
during a recess and in the hearing of some
grand jurors.  Although the Government con-
cedes that the treatment of the expert tax
witness was improper, the witness himself
testified that his testimony was unaffected
by this misconduct.  The prosecutors in-
structed the grand jury to disregard anything
they may have heard in conversations between
a prosecutor and a witness, and explained to
the grand jury that such conversations should
have no influence on its deliberations.  App.
191.  In light of these ameliorative measures,
there is nothing to indicate that the prosecu-
tor's conduct toward this witness substan-
tially affected the grand jury's evaluation of
the testimony or its decision to indict.  487
U. S., at 261.
Unquestionably, the plain implication of that
discussion is that if the misconduct, even though
not expressly forbidden by any written rule, had
played a critical role in persuading the jury to
return the indictment, dismissal would have been
required.
In an opinion that I find difficult to comprehend,
the Court today repudiates the assumptions
underlying these cases and seems to suggest that
the court has no authority to supervise the
conduct of the prosecutor in grand jury proceed-
ings so long as he follows the dictates of the
Constitution, applicable statutes, and Rule 6 of
the Federal Rules of Criminal Procedure.  The
Court purports to support this conclusion by
invoking the doctrine of separation of powers and
citing a string of cases in which we have declined
to impose categorical restraints on the grand
jury.  Needless to say, the Court's reasoning is
unpersuasive.
Although the grand jury has not been  textually
assigned to  any of the branches described in
the first three Articles of the Constitution,
ante, at 9, it is not an autonomous body complete-
ly beyond the reach of the other branches.
Throughout its life, from the moment it is con-
vened until it is discharged, the grand jury is
subject to the control of the court.  As Judge
Learned Hand recognized over sixty years ago,  a
grand jury is neither an officer nor an agent of
the United States, but a part of the court.
Falter v. United States, 23 F. 2d 420, 425 (CA2),
cert. denied, 277 U. S. 590 (1928).  This Court has
similarly characterized the grand jury:
 A grand jury is clothed with great indepen-
dence in many areas, but it remains an append-
age 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 (1959).
See also Blair v. United States, 250 U. S. 273, 280
(1919) ( At the foundation of our Federal Govern-
ment the inquisitorial function of the grand jury
and the compulsion of witnesses were recognized
as incidents of the judicial power of the United
States); United States v. Calandra, 414 U. S. 338,
346, and n. 4 (1974).
This Court has, of course, long recognized that
the grand jury has wide latitude to investigate
violations of federal law as it deems appropriate
and need not obtain permission from either the
court or the prosecutor.  See, e.g., id., at 343;
Costello v. United States, 350 U. S. 359, 362 (1956);
Hale v. Henkel, 201 U. S. 43, 65 (1906).  Correspond-
ingly, we have acknowledged that  its operation
generally is unrestrained by the technical proce-
dural and evidentiary rules governing the conduct
of criminal trials.  Calandra, 414 U. S., at 343.
But this is because Congress and the Court have
generally thought it best not to impose proce-
dural restraints on the grand jury; it is not
because they lack all power to do so.
      To the contrary, the Court has recognized that
it has the authority to create and enforce limited
rules applicable in grand jury proceedings.  Thus,
for example, the Court has said that the grand
jury  may not itself violate a valid privilege,
whether established by the Constitution, stat-
utes, or the common law.  Id., at 346.  And the
Court may prevent a grand jury from violating
such a privilege by quashing or modifying a sub-
poena, id., at 346, n. 4, or issuing a protective
order forbidding questions in violation of the
privilege, Gravel v. United States, 408 U. S. 606,
628-629 (1972).  Moreover, there are, as the Court
notes, ante, at 12-13, a series of cases in which we
declined to impose categorical restraints on the
grand jury.  In none of those cases, however, did
we question our power to reach a contrary re-
sult.
     Although the Court recognizes that it may
invoke its supervisory authority to fashion and
enforce privilege rules applicable in grand jury
proceedings, ante, at 11, and suggests that it may
also invoke its supervisory authority to fashion
other limited rules of grand jury procedure, ante,
at 12, it concludes that it has no authority to
 prescrib[e] standards of prosecutorial conduct
before the grand jury, ante, at 9, because that
would alter the grand jury's historic role as an
independent, inquisitorial institution.  I disagree.
We do not protect the integrity and indepen-
dence of the grand jury by closing our eyes to the
countless forms of prosecutorial misconduct that
may occur inside the secrecy of the grand jury
room.  After all, the grand jury is not merely an
investigatory body; it also serves as a  protec-
tor of citizens against arbitrary and oppressive
governmental action.  United States v. Calandra,
414 U. S., at 343.  Explaining why the grand jury
must be both  independent and  informed, the
Court wrote in Wood v. Georgia, 370 U. S. 375 (1962):
    Historically, this body has been regarded
as a primary security to the innocent against
hasty, malicious and oppressive persecution;
it serves the invaluable function in our
society of standing between the accuser and
the accused, whether the latter be an individ-
ual, minority group, or other, to determine
whether a charge is founded upon reason or
was dictated by an intimidating power or by
malice and personal ill will.''  Id., at 390.
It blinks reality to say that the grand jury can
adequately perform this important historic role
if it is intentionally misled by the prosecutor"on
whose knowledge of the law and facts of the
underlying criminal investigation the jurors will,
of necessity, rely.
       Unlike the Court, I am unwilling to hold that
countless forms of prosecutorial misconduct must
be tolerated"no matter how prejudicial they may
be, or how seriously they may distort the legiti-
mate function of the grand jury"simply because
they are not proscribed by Rule 6 of the Federal
Rules of Criminal Procedure or a statute that is
applicable in grand jury proceedings.  Such a
sharp break with the traditional role of the
federal judiciary is unprecedented, unwarranted,
and unwise.  Unrestrained prosecutorial miscon-
duct in grand jury proceedings is inconsistent
with the administration of justice in the federal
courts and should be redressed in appropriate
cases by the dismissal of indictments obtained by
improper methods.

                  III
What, then, is the proper disposition of this
case?  I agree with the Government that the
prosecutor is not required to place all exculpa-
tory evidence before the grand jury.  A grand jury
proceeding is an ex parte investigatory proceed-
ing to determine whether there is probable cause
to believe a violation of the criminal laws has
occurred, not a trial.  Requiring the prosecutor
to ferret out and present all evidence that could
be used at trial to create a reasonable doubt as
to the defendant's guilt would be inconsistent
with the purpose of the grand jury proceeding and
would place significant burdens on the investiga-
tion.  But that does not mean that the prosecutor
may mislead the grand jury into believing that
there is probable cause to indict by withholding
clear evidence to the contrary.  I thus agree with
the Department of Justice that  when a prosecu-
tor conducting a grand jury inquiry is personally
aware of substantial evidence which directly
negates the guilt of a subject of the investiga-
tion, the prosecutor must present or otherwise
disclose such evidence to the grand jury before
seeking an indictment against such a person.
U. S. Dept. of Justice, United States Attorneys'
Manual, Title 9, ch. 11, 9-11.233, 88 (1988).
Although I question whether the evidence with-
held in this case directly negates respondent's
guilt, I need not resolve my doubts because
the Solicitor General did not ask the Court to
review the nature of the evidence withheld.
Instead, he asked us to decide the legal question
whether an indictment may be dismissed because
the prosecutor failed to present exculpatory
evidence.  Unlike the Court and the Solicitor
General, I believe the answer to that question is
yes, if the withheld evidence would plainly pre-
clude a finding of probable cause.  I therefore
cannot endorse the Court's opinion.
More importantly, because I am so firmly opposed
to the Court's favored treatment of the Govern-
ment as a litigator, I would dismiss the writ of
certiorari as improvidently granted.

