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STEVENS, J., dissenting

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 (1983), 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 6 or, if applied only to benefit repetitive litigants, a special privilege 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 compromises its ability to discharge that important duty. For that

5 The Court expresses an inability to understand the difference between the routine application, without objection, of a settled rule, on the one hand, and the decision of an open question on a ground not argued by the parties, on the other. The difference is best explained in light of the basic assumption that the adversary process provides the best method of arriving at correct decisions. Rules of appellate practice generally require that an issue be actually raised and debated by the parties if it is to be preserved. In the exceptional case, in which an appellate court announces a new rule that had not been debated by the parties, our review may be appropriate to give the losing party an opportunity it would not otherwise have to challenge the rule. In this case, however, there is no reason why the Government could not have challenged the Page rule in this case in the Tenth Circuit. There is no need for an exception to preserve the losing litigant's opportunity to be heard. Moreover, the Government's failure to object to the application of the Page rule deprived the Court of Appeals of an opportunity to reexamine the validity of that rule in the light of intervening developments in the law. “Sandbagging” is just as improper in an appellate court as in a trial court.

6 The “expressed or passed on” predicate for the exercise of our jurisdiction is of special importance in determining our power to review statecourt judgments. If the Court's newly announced view that the routine application of a settled rule satisfies the “passed on” requirement in a federal case, I see no reason why it should not also satisfy the same requirement in a state case.

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STEVENS, J., dissenting

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 attorney overstepped 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

? The Court suggests that it would be “improvident” for the Court to dismiss the writ of certiorari on the ground that the Government failed to raise the question presented in the lower courts because respondent raised this argument in his brief in opposition, the Court nevertheless granted the writ, and the case has been briefed and argued. Ante, at 40. I disagree. The vote of four Justices is sufficient to grant a petition for certiorari, but that action does not preclude a majority of the Court from dismissing the writ as improvidently granted after the case has been argued. See, e. g., NAACP v. Overstreet, 384 U. S. 118 (1966) (dismissing, after oral argument, writ as improvidently granted over the dissent of four Justices). We have frequently dismissed the writ as improvidently granted after the case has been briefed and argued; in fact, we have already done so twice this Term. See Gibson v. Florida Bar, 502 U. S. 104 (1991); PFZ Properties, Inc. v. Rodriguez, 503 U. S. 257 (1992). Although we do not always explain the reason for the dismissal, we have on occasion dismissed the writ for the reasons raised by the respondent in the brief in opposition. Thus, nothing precludes the Court from dismissing the writ in this case.

STEVENS, J., dissenting

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 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

8 The court found the Government guilty of prosecutorial misconduct because it “fail[ed] to provide the polygraph evidence to the Grand Jury despite the prosecutor's guarantee to Judge Pregerson that all exculpatory evidence would be presented to the Grand Jury, and compound[ed] this indiscretion by erroneously but unequivocally telling the Grand Jury that

STEVENS, J., dissenting

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 sovereignty 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 particularly 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

the polygraph evidence was inadmissible.” United States v. Roberts, 481 F. Supp., at 1389.

STEVENS, J., dissenting

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 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 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., dissenting), 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.'

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