SECRECY
FEDERAL:
Grand Jury proceedings are kept secret pursuant to Rule 6 of the Federal rules of Criminal Procedure. The policy reasons for grand jury secrecy are to encourage untrammeled disclosure by future grand jury witnesses and discourage witness tampering. Douglas Oil Company of California v. Petrol Stops Northwestern et al, 441 U.S. 211, 222 (1979). Thus, disclosure of grand jury material is appropriate only when the public interest in secrecy is outweighed by the need for disclosure. In Re Lynde, 922 F.2d 1448, 1452 (10th Cir. 1991). The party seeking disclosure has the burden of demonstrating a “particular need” for the disclosure. Id. The secrecy of the proceeding may only be lifted to the extent necessary to fulfill the narrowly tailored and compelling need. In Re Grand Jury 89-4-72, 932 F.2d 481, 489 (6th Cir. 1991).
FED. R. CRIM. PRO. Rule 6 [“General Rule of Secrecy”] expressly provides that any grand juror, interpreter, typist or attorney for the government “shall not disclose matters occurring before the grand jury” and that a “knowing violation of [the] Rule . . . may be punished as contempt of court”. U.S. v. Duff, 529 F. Supp. 148 (N.D. Ill. 1981) (noting that the secrecy of grand jury proceedings serves to encourage unhampered investigation of criminal charges and protect the innocent from negative inferences that might be drawn from mere initiation of grand jury proceedings); Pigman v. Evansville Press, 537 N.E.2d 547 (Ind. App. 1989) (denying a news reporter’s right to grand jury subpoena’s through Indiana’s public records act because, otherwise, the function of future grand juries and willingness of witnesses to testify would be affected by such a disclosure-the court cited cases interpreting Rule 6(e)(2) to mean that grand jury subpoenas were “matters occurring before the grand jury“); The proper remedy for such violations of grand jury secrecy is not per se a dismissal of the indictment but rather a contempt of court citation. U.S. v. Kilpatrick, 821 F.2d 1456, 1468 (10th Cir. 1988); Flores v. Executive Office of the United States Attorney, Freedom of Information/Privacy Act Unit, No.CIV.A. 99-1930(RMU), 121 F.Supp.2d 14 ( D.C. Cir. 2000) [Grand jury ballots are matters occurring before the grand jury].
The rule of secrecy applies to defendant, grand jurors, and prosecutors, however it does not apply to grand jury witnesses. These witnesses each have a First Amendment Right to speak about the substance of their testimony. Butterworth v. Smith, 494 U.S. 624 (1990). Also, persons who have not appeared before the grand Jury may reveal information about the investigation. Thus lawyers may reveal the existence of grand jury subpoena to persons with whom their client shares a common interest. In re Grand Jury Subpoenas 89-3 & 89-4, (John Doe), 89-129, 902 F.2d 244, 249 (4th Cir. 1990); U.S. v.
Eastern Air Lines, Inc., 923 F.2d 241 (2d Cir. 1991) (stating Rule 6(e)(2) covers anything that may reveal what transpired before grand jury, but does not preclude disclosing information from persons who have neither testified nor had their knowledge placed before grand jury through hearsay evidence). And the fact that a grand jury exists is not, without more, protected by the rule of secrecy. In Re Complaint Against Circuit Judge Cudahy, 294 F.3d 947 (7th Cir. 2002).
GOVERNMENT USE OF GRAND JURY MATERIALS TO DETERMINE WHETHER TO PROCEED IN A CIVIL ACTION
However, government use of grand jury materials by government attorneys who were present during the proceedings has been found permissible under certain circumstances.
U.S. v. John Doe, Inc. I, 481 U.S. 102 (1987).
Justice Stephens, writing the majority opinion, explained that use of these materials was not disclosure when the attorneys who were involved in the proceedings were requesting use of said materials to determine whether to proceed with a civil action.
U.S. v. John Doe, Inc. I, 481 U.S. 102 (1987). The Court went further to say that the “particularized need” test is not as rigorous when government attorneys are seeking disclosure versus when a private party seeks the same.
“. . . it seems plain to us that Rule 6(e) prohibits those with information about the workings of the grand jury from revealing such information to other persons who are not authorized to have access to it under the Rule. The Rule does not contain a prohibition against the continued use of information by attorneys who legitimately obtained access to the information through the grand jury investigation. …It is indeed fictional – and not just ‘at first glance’ – to interpret the word ‘disclose’ to embrace a solitary reexamination of material in the privacy of an attorney’s office. …the concerns that underlie the policy of grand jury secrecy are implicated to a much lesser extent when the disclosure merely involves Government attorneys.” John Doe, Inc. I, 481 U.S. at 108, 112.
However, it is an abuse of the grand jury for the government to utilize the grand jury information to investigate and prosecute civil cases. U.S. v. Sells Engineering Inc., 463 U.S. 418, 440 (1983).
GOVERNMENT’S USE OF GRAND JURY INFORMATION TO PURSUE CRIMINAL INVESTIGATION ELSEWHERE
With prior court approval, federal prosecutors may share grand jury information with state and local law enforcement authorities, or any other government personnel, in order to assist the prosecutors in enforcing federal laws. Fed. R. Crim. P. 6 3(a)(ii). Furthermore, the USA Patriot Act expands the powers of the federal Prosecutor by allowing him or her to share grand jury information with officials of federal law enforcement agencies, immigration agencies, protective agencies, national defense or national security agencies if the information relates to foreign intelligence or foreign counter intelligence activities or foreign intelligence information. Fed. R. Crim. P. 6(c)(v) (remarkably this is permitted without prior court approval). The Federal Rules of Criminal Procedure defines foreign intelligence information as information that relates to the ability of the United States to protect itself against potential or actual attacks by foreign powers, international terrorism acts and clandestine intelligence activities. Fed.
- Crim. P. 6(a)(iv)(I)
