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SUPREME COURT OF THE UNITED STATES
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No. 90-1972
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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 granting certiorari to review a conten-
tion 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 substi-
tute 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 proceed-
ings before the grand jury.
                            I
  The question presented by the certiorari petition is
whether the failure to disclose substantial exculpatory
evidence to the grand jury is a species of prosecutorial
misconduct that may be remedied by dismissing an indict-
ment 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
evidence, 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 concern-
ing the duty of a prosecutor 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 revealed to the grand jury,- id., at
728 (emphasis in original).  The court declined to dismiss
the indictment, however, because the evidence withheld in
that case was not -clearly exculpatory.-  Ibid.
  In this case the Government expressly acknowledged the
responsibilities described in Page, but argued that the
withheld evidence was not exculpatory 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 defendant 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),
-follow 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 Government
reversed its position and asked this Court to grant certiora-
ri and to hold that the prosecutor has no judicially enforce-
able duty to present exculpatory evidence to the grand jury.
In his brief in opposition to the petition, respondent clearly
pointed out that the question presented by the petition -was
neither presented to nor addressed by the courts below.-
Brief in Opposition 2.  He appropriately called our attention
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 General'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 suggested 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 sufficient 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 significant expansion of our discretionary docket or,
if applied only to benefit repetitive litigants, a special privi-
lege for the Federal Government.
This Court has a special obligation to administer 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 compro-
mises 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 miscon-
duct 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 attorney over-
stepped the bounds of that propriety and fairness
which should characterize the conduct of such an officer
in the prosecution 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
respect of which no proof was offered; of pretending to
understand that a witness had said something which
he had not said and persistently cross-examining the
witness upon that basis; of assuming prejudicial facts
not in evidence; of bullying and arguing with witnesses;
and in general, of conducting himself in a thoroughly
indecorous and improper manner. . . .
-The prosecuting attorney's argument to the jury was
undignified and intemperate, containing 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 some-
times 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 representative not
of an ordinary party to a controversy, but of a sover-
eignty whose obligation 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 justice 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 particu-
larly substantial 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 indictment will often
have a devastating personal and professional impact
that a later dismissal or acquittal can never undo.
Where the potential for abuse is so great, and the
consequences of a mistaken indictment so serious, the
ethical responsibilities of the prosecutor, and the
obligation of the judiciary to protect against even the
appearance of unfairness, are correspondingly height-
ened.-  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 proceedings:
-As the Supreme Court has noted, `the Founders
thought the grand jury so essential to basic liberties
that they provided in the Fifth Amendment that federal
prosecution for serious crimes can only be instituted by
-a presentment or indictment of a Grand Jury.-'
United States v. Calandra, 414 U. S. 338, 343, . . .
(1974).  Before the grand jury the prosecutor has the
dual role of pressing for an indictment 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., dissent-
ing), cert. denied, 347 U. S. 913 . . . (1954).
-The ex parte character of grand jury proceedings
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 prosecutori-
al misconduct during grand jury proceedings is essentially
the same as the standard 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 proceed-
ings before the grand jury.  Referring to the prosecutor's
misconduct before the grand jury, we -concluded that our
customary harmless-error inquiry is applicable where, as in
the cases before us, a court is asked to dismiss an indict-
ment prior to the conclusion of the trial,- id., at 256.
Moreover, in reviewing the instances of misconduct in that
case, we applied precisely the same standard to the prose-
cutor'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 prosecutor'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 concedes that the treatment of the expert
tax witness was improper, the witness himself testified
that his testimony was unaffected by this misconduct.
The prosecutors instructed the grand jury to disregard
anything they may have heard in conversations be-
tween 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 prosecutor's conduct toward this
witness substantially affected the grand jury's evalua-
tion 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
proceedings 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 separa-
tion 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
completely beyond the reach of the other branches.
Throughout its life, from the moment it is convened 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 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 (1959).
See also Blair v. United States, 250 U. S. 273, 280 (1919)
(-At the foundation of our Federal Government the inquisi-
torial 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).  Correspondingly,
we have acknowledged that -its operation generally is
unrestrained by the technical procedural 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, statutes,
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 subpoena, 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 result.
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 independence 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 -protector
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, mali-
cious and oppressive persecution; it serves the invalu-
able function in our society of standing between the
accuser and the accused, whether the latter be an
individual, 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 legitimate 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 unprece-
dented, unwarranted, and unwise.  Unrestrained prosecuto-
rial misconduct 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 exculpatory 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 investigation.  But that does not
mean that the prosecutor may mislead the grand jury into
believing that there is probable cause to indict by withhold-
ing clear evidence to the contrary.  I thus agree with the
Department of Justice that -when a prosecutor conducting
a grand jury inquiry is personally aware of substantial
evidence which directly negates the guilt of a subject of the
investigation, 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 withheld 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
preclude 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 Government as a litigator,
I would dismiss the writ of certiorari as improvidently
granted.