Opinion of the Court

"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 F. Cas. 727, 738 (No. 16,134) (CC NDNY 1852).

We accepted Justice Nelson's description in Costello v. United States, where we held that "[i]t 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 inadequate or incompetent evidence before the grand jury." 350 U. S., 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 sufficient to require a dismissal of the indictment," and that "a challenge to the reliability or competence 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 prosecutor's presentation was "incomplete" or "misleading." Our words in Costello bear repeating: Review of facially

8 In Costello, for example, instead of complaining about the grand jury's reliance upon hearsay evidence the petitioner could have complained about the prosecutor's introduction of it. See, e. g., United States v. Estepa, 471 F. 2d 1132, 1136-1137 (CA2 1972) (prosecutor should not introduce hearsay evidence before grand jury when direct evidence is available); see also Arenella, Reforming the Federal Grand Jury and the State Preliminary Hearing to Prevent Conviction Without Adjudication, 78 Mich. L. Rev. 463, 540 (1980) (“[S]ome federal courts have cautiously begun to ... us[e] a revitalized prosecutorial misconduct doctrine to circumvent Costello's prohibition against directly evaluating the sufficiency of the evidence presented to the grand jury”).

STEVENS, J., dissenting

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, respondent argues that a rule requiring the prosecutor to disclose exculpatory evidence to the grand jury would, by removing from the docket unjustified prosecutions, save valuable judicial time. That depends, we suppose, upon what the ratio would turn out to be between unjustified prosecutions 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 conclude that courts have no authority to prescribe such a duty pursuant to their inherent supervisory authority over their own proceedings. The judgment of the Court of Appeals is accordingly reversed, and the cause is remanded for further proceedings consistent with this opinion.

So ordered.

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 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

STEVENS, J., dissenting

protect the fundamental fairness of proceedings 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 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 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 concerning 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 with

STEVENS, J., dissenting

held evidence was not exculpatory or significant.1 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.2 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 certiorari

1 "The government has acknowledged that it has certain responsibilities under the case of United States v. Page, 808 F. 2d 723 (10th Cir. 1987), and that includes a duty to not withhold substantial exculpatory evidence from a grand jury if such exists. . . . The government would contend that . . . it was familiar with and complied with the principles stated in the case. . . . Considering the evidence as a whole, it is clear that the government complied with, and went beyond the requirements of Page, supra." Brief for United States in Response to Appellee's Brief in Nos. 88-2827, 88-2843 (CA10), pp. 9–10.

2 Respondent had relied on United States v. Phillips Petroleum Co., 435 F. Supp. 610 (ND Okla. 1977). The Government distinguished the case based on "the type of evidence excluded. In Phillips, supra, the prosecutor sent the Grand Jury home for the day, but continued questioning a witness. In that session, outside the hearing of the Grand Jury members, the witness, who had been granted use immunity, testified to certain information which showed that the witness had been the one who knowingly committed an offense, and showed that the corporation had not intentionally committed an offense in that case. There was no question that the withheld testimony made it factually impossible for the corporate defendant to have been guilty, and therefore the evidence was substantial and exculpatory. In the instant case there is a disagreement between the government and the defendant as to whether the documents the defendant wants presented in full are exculpatory." Brief for United States in No. 88-2827 (CA10), p. 38.

STEVENS, J., dissenting

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, 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."3 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. 905 (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 44-45. This is a novel, and unwise,

3 Duignan v. United States, 274 U. S. 195, 200 (1927); see also, e. g., United States v. Lovasco, 431 U. S. 783, 788, n. 7 (1977); United States v. Ortiz, 422 U. S. 891, 898 (1975). Until today the Court has never suggested that the fact that an argument was pressed by the litigant or passed on by the court of appeals in a different case would satisfy this requirement.

4 Stevens v. Department of Treasury, 500 U. S. 1 (1991), and Virginia Bankshares, Inc. v. Sandberg, 501 U. S. 1083 (1991), discussed by the Court, ante, at 41-42, were routine applications of the settled rule. Although the parties may not have raised the questions presented in the petitions for certiorari before the Courts of Appeals in those cases, the courts treated the questions as open questions that they needed to resolve in order to decide the cases. Similarly, in Springfield v. Kibbe, 480 U. S. 257 (1987), the Court of Appeals had expressly considered and answered the question that JUSTICE O'CONNOR thought we should decide, see id., at 263-266. This case, in contrast, involved "the routine restatement and application of settled law by an appellate court," which we have previously found insufficient to satisfy the "pressed or passed upon below" rule. Illinois v. Gates, 462 U. S. 213, 222-223 (1983).