The confidentiality of grand jury proceedings is a long-standing and well-protected policy. There are several reasons for this that have been established by the courts:
By having no advance notice of the investigation, confidentiality helps in the prevention of potential indictees escaping.
It protects grand jurors from outside pressures and threats of retaliation, allowing the investigation to continue without interruption.
Maintaining confidentiality helps to avoid perjury and witness tampering by investigation goals.
It encourages witnesses to testify freely and openly without fear of retribution.
Finally, it protects innocent citizens who are under investigation from having their reputations harmed by the public publication of false allegations.
This veil of secrecy, however, is not impenetrable. “In certain cases, justice may require that discrete parts of transcripts be made available for use in subsequent proceedings,” the United States Supreme Court said. There are numerous scenarios in which grand jury documents may be disclosed.
For starters, information that does not come into the category of “a matter before the grand jury” is not subject to the confidentiality requirement. Second, witnesses are not required to keep their evidence confidential. Finally, if the grand jury testimony applies to the alleged crime, a criminal defendant is entitled to transcripts of his or her own grand jury testimony. Fourth, a convicted defendant is entitled to copies of transcripts of witnesses who testify against him at trial under the Jencks Act. Finally, a court may order disclosure if a defendant demonstrates that there is a basis “to dismiss the indictment because of a matter that occurred before the grand jury.” Sixth, without court approval, disclosure can be made to a government attorney for use in performing that attorney’s duties, as well as to other government personnel if a government attorney believes it is appropriate to support him or her in performing his or her duty to enforce federal criminal law. Personnel employed by the government include those employed by a state, a state subdivision, or an Indian tribe. Seventh, prosecuting attorneys have the authority to reveal grand jury information to another grand jury. Finally, upon a showing of need, a court may order disclosure “preliminarily to or in connection with a judicial proceeding”. Officials from a state, a state subdivision, an Indian tribe, or a military official can obtain federal grand jury material with court approval for use in prosecuting violations of their own criminal law. Tenth, a government attorney can reveal foreign intelligence details to another federal official without court approval in order to assist that official in performing his or her duties.
A grand juror’s breach of the trials’ confidentiality is not the sort of structural flaw that requires the indictment to be dismissed.
Who is Bound by the Confidentiality Requirement
Unless the laws provide otherwise, the following are prohibited from reporting grand jury matters under Rule 6 of the Federal Rules of Criminal Procedure: Grand jurors, interpreters, court reporters, owners of recording equipment, people who transcribe evidence, and government lawyers and their assistants are among those who are bound by secrecy.
Grand jury witnesses are not included. Since Rule 6(e)(2) expressly states that “no duty of secrecy may be placed on any individual except in accordance with Rule 6(e)(2),” a witness has the right to reveal the subject matter of his or her own grand jury testimony at any time.
The Eighth Circuit, on the other hand, has ruled that courts maintain the power to impose a witness confidentiality requirement in specific cases. As a result, even the investigation’s subject is not entitled to a transcript until he or she is charged. In a similar vein, a witness cannot refuse to testify because he or she would not be provided with a copy of his or her testimony.
What Matters Are Subject to Grand Jury Confidentiality?
Only “a matter arising before the grand jury” is subject to the confidentiality requirement imposed by Rule 6. This standard is broadly described as something that reveals what happened in front of the grand jury. Transcripts of witness testimony, of course, fall firmly within this definition. Memoranda detailing possible witness testimony, memoranda summarizing testimony given, and remarks by a witness to be read to the grand jury are all things that come before the grand jury.
Some courts have broadened the confidentiality requirement to include any information that reveals what is expected to happen in the future as well as what has already happened. However, there is a subset of things in the possession of the grand jury that, if released, does not tend to disclose what happened before the grand jury. For instance, company documents that have been subpoenaed and government audit files that have been turned over to the grand jury are examples of these things. Since these documents existed before the grand jury investigation, access can not be denied simply because the grand jury already has them. When testimony or data is obtained for its own sake—for its intrinsic value in furtherance of a lawful investigation—rather than to learn what happened before the grand jury, as the Second Circuit noted in United States v. Interstate Dress Carriers, Inc.
When testimony or data is sought for its own sake—for its intrinsic value in furtherance of a lawful investigation—rather than to learn what happened before the grand jury, it is not a legitimate defense to disclosure that the same records.
Some courts have clearly determined that it is not a grand jury matter and have allowed disclosure without requiring a specific need to be shown. Others have ruled that these are matters before the grand jury and that a show of specific need is needed, but with a much lower standard of evidence.
The wording of the request for disclosure is particularly important. Even if the material covered by both requests is coincidentally the same, there is a clear distinction between a request for a list of itemized records and a request for “all documents subpoenaed by the grand jury.” The latter, more general, request has been viewed by courts as an effort to learn what happened before the grand jury, and courts have declined to apply the Interstate Dress Carriers approach to those requests.
If you have been investigated by a federal grand jury, call the federal criminal attorneys with Norman Spencer PC to discuss your matter!