Costello v. United States

RESPONDENT: United States

DECIDED BY: Warren Court (1955-1956)
LOWER COURT: United States Court of Appeals for the Second Circuit

ARGUED: Jan 16, 1956 / Jan 17, 1956
DECIDED: Mar 05, 1956

Facts of the case


Media for Costello v. United States

Audio Transcription for Oral Argument - January 16, 1956 in Costello v. United States

Audio Transcription for Oral Argument - January 17, 1956 in Costello v. United States

Earl Warren:

Mr. Shilensky, you may proceed.

Morris Shilensky:


I've had the exceptional opportunity to being able to prepare my argument as an answer to the Court's questions which were opposed during yesterday's session.

I will proceed through it rather rapidly because I'd like to leave sometime for further questions by the Court after my prepared presentation.

Before proceeding, however, to answer the several questions, I would like to point out that there's been a tremendous narrowing of the issue on this appeal.

Originally, it was argued by the Solicitor as he did in his brief that the grand jury is a powerful secret largely uncontrolled body whose indictment is not reviewable by the courts.

This was based in part on Judge Hand's statement of 1910, that the grand jury was an irresponsible utterance of the community at large.

But now, Judge Hand, in the opinion below and my adversaries, had recognized that on a proper showing, such as that the indictments based on new evidence or an indictment which is based on so-called the aggravated hearsay like a police officer testifying that someone told him that the indictee was the murderer, and those cases, the courts must set aside the indictment.

In other words, the grand jury is like all other agencies, judicial and otherwise, provided for under the Constitution and they are governed by rules and it is not in an artistic body, thus, if a grand jury's indictment --

Felix Frankfurter:

You mean they're responsible not artistic.

Those are very different concepts.

And Judge Hand, you -- you mean the word irresponsible and maybe not artistic.

Morris Shilensky:


I -- I didn't say that.

I say that he didn't mean that because as he later said --

Felix Frankfurter:

But he didn't mean it when he first said it.

Morris Shilensky:

Well, he --

Felix Frankfurter:

Never mind that --

Morris Shilensky:

-- he regard --

Felix Frankfurter:

-- we can't go to his mind but he has the way of using words that precedes.

When he said irresponsible, he meant that that is for the grand jury.

It's a very different thing (Inaudible) and from the cabinet officer whose under particularly by a statute.

Morris Shilensky:

I agree with that.

If the grand jury's indictment is presumed to be a finding of probable cause, it is at least not conclusive as the Solicitor per se.

Now, we then proceed to the question as to what showing a defendant must make in order to invoke the supervision of the courts.

That leads me to Mr. Justice Reed's question as to whether we ask for the grand jury minutes during the trial, we did.

At page 135 of Volume 1, at that time, the agent (Inaudible) was on the stand.

He was the one agent who was in a position to testify to something which wasn't hearsay because he talked to the defendant in 1939.

But he wasn't called before the grand jury and we didn't know it at the time of the trial.

And we said to the Court, look at the minutes, grand jury minutes and the Court during the recess said, after recess, I advice you that I have read the grand jury minutes and I state to you that I find no contradiction on the grand jury minutes with anything that this witness has said, no suggestion that the witness had not testified before the grand jury.