Rule 13.7 Appearance of Persons Under Investigation; Immunity and

Comment Rule 13.7(a) permits a person under investigation by the grand jury to appear before that body by written request. See United States v. Levinson, 405 F. 2d 971, 980 (6th Cir. 1968), cert. denied, 395 U.S. 958, 89 S. Ct. 2097, 23 L. Ed. 2d 744 (1969) (“One accused of crime may oftentimes, by himself testifying before the grand jury, clear up the charges against him so that no indictment is returned”). The rule is discretionary, and does not create an absolute right on the part of a person under investigation to appear before the grand jury. Federal courts have long held that a potential defendant has no absolute right to appear before a grand jury. See, e.g., Duke v. United States, 90 F. 2d 840, 841 (4th Cir. 1937), cert. denied, 302 U.S. 685, 58 S. Ct. 33, 82 L. Ed. 528 (1937) (“There is no right on the part of one whose conduct is being investigated by a grand jury to petition the grand jury or to appear before it, which is guaranteed by the Constitution or otherwise”). Consistent with practice in federal courts, a person under investigation is given the right to consult with an attorney outside the grand jury room, as a means of safeguarding the right against self-incrimination. See, e.g., United States v. Corallo, 413 F. 2d 1306, 1329-30 (2d Cir. 1969), cert. denied, 396 U.S. 958, 90 S. Ct. 431, 24 L. Ed. 2d 422 (1969).

Section (b) provides that the prosecuting attorney shall furnish any immunity agreement to the court, in writing, for approval. See Miss. Code Ann. § 99-15-53; Wright v. McAdory, 536 So. 2d 897, 899 (Miss. 1988) (enforceability of immunity agreement predicated upon obtaining “approval of the circuit court”). Transactional immunity is extended to the person under investigation in such circumstances. See Wright, 536 So. 2d at 904-05 (“we hold that Article 3, Section 26 of the Mississippi Constitution requires a transactional immunity grant[,]” as “[o]nly such broad immunity will make the individual as secure as if he had remained silent”; the lone exception pertains to perjury); Kellum v. State, 194 So. 2d 492, 493 (Miss. 1967) (“Witnesses who voluntarily appear before grand juries and other investigative bodies have a constitutional right not to be required to testify against themselves”); State v. Milam, 210 Miss. 13, 48 So. 2d 594, 596 (1950) (“It is well settled in Mississippi and elsewhere that the constitutional privilege against self- incrimination applies to proceedings before a grand jury”).

A person under investigation granted immunity may not refuse to testify based on the privilege against self-incrimination. See Wright, 536 So. 2d at 903-04. The enforcement of this duty to testify is pursuant to the court’s contempt powers under Rule 32.