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- August 1990
-
-
- THE FEDERAL GRAND JURY:
- EXCEPTIONS TO THE RULE OF SECRECY (PART I)
-
- By
-
- Austin A. Andersen
- Special Agent, Legal Instructor, FBI Academy
-
-
- AN HISTORICAL PERSPECTIVE
-
- The modern grand jury was foreshadowed in feudal England
- during the 12th century, when King Henry II created the Assize of
- Clarendon in order to shift the power to prosecute from the
- Church to the Crown. (1) Under the Assize, prosecutions were
- initiated through an inquiry made by a body of 12 laymen, who
- resided in the vicinity of the crime, to determine if persons
- suspected of robbery, murder, or theft should be reported to the
- royal sheriff. The accused could plead guilty, deny the charges,
- or submit to the ``ordeal by water.'' (2) Under the third option,
- defendants were innocent if they sank after being lowered by rope
- into a body of water; if they floated, however, they were found
- guilty. (3) Based on the harshness of this procedure, there is
- little doubt that the grand jury was initially intended to be an
- instrument of inquisition rather than a bulwark against
- despotism.
-
- Although the Assize was designed to augment secular
- authority rather than to safeguard individuals from unfounded
- accusations, the practice of using persons from the locale of the
- crime to determine whether charges should be lodged against a
- member of the community eventually provided a measure of
- insulation against royal abuse of the criminal justice system. In
- order to serve as a ``shield'' to protect individuals from the
- prosecutive ``sword'' of the government, the grand jury gradually
- gained independence from the King by adopting the practice of
- hearing witnesses in private and swearing to an oath to keep the
- proceedings secret. (4)
-
- Part I of this article discusses the transplantation of
- grand jury secrecy to the United States and examines the
- underlying policy for secrecy concerning matters occurring before
- Federal grand juries. It also analyzes exceptions to the rule of
- secrecy that are of importance to law enforcement officers and
- notes those instances when State and local police officers may
- gain access to information derived from Federal grand jury
- investigations. Part II explores the difficulties commonly
- encountered in complying with the secrecy requirement and in
- defining grand jury material and its disclosure.
-
- EVOLUTION OF THE MODERN GRAND JURY
-
- Viewed as protection from autocratic oppression, the grand
- jury, deliberating beneath a veil of secrecy, was widely accepted
- in American communities during the colonial rule of George III.
- These local juries not only enabled the colonists to refuse to
- prosecute political opponents of the British but also afforded a
- means of protecting citizens against persecution by partisan
- zealots. (5) After the United States achieved independence from
- Britain, the use of grand juries was enshrined in the fifth
- amendment of the Constitution, which begins, ``No person shall be
- held to answer for a capital, or otherwise infamous crime, unless
- on a presentment or indictment of a grand jury....'' (6) The
- language of the fifth amendment, however, does not make the
- institution of a grand jury incumbent upon the States. Moreover,
- the Supreme Court has held that the procedure in which a neutral
- judge finds probable cause to charge and arrest is a sufficient
- safeguard of a defendant's rights. (7) Therefore, States, unlike
- the Federal Government, remain free to proceed with felony
- prosecutions by means other than grand jury indictments.
- Nevertheless, most States have incorporated into their
- constitutions provisions for grand juries--as well as grand jury
- secrecy (8)--which often closely resemble the Federal model. (9)
- It is ironic that despite its historical significance, the grand
- jury in England was abolished as a cost-cutting measure in
- l933. (10)
-
- Although the fifth amendment is silent on the issue of
- secrecy, the practice was continued at common law (11) until
- l945, when Congress codified Federal grand jury practice, including
- secrecy and its exceptions, in Rule 6(e) of the Federal Rules of
- Criminal Procedure (F.R.C.P.). Rule 7, F.R.C.P., specifies that
- when the grand jury is used, an offense punishable by death must
- be prosecuted by indictment. It also states that an offense
- punishable by imprisonment for more than 1 year must be
- prosecuted by indictment, unless waived, in which case, it may be
- prosecuted by information; any other offense may be prosecuted by
- indictment or information.
-
- Rule 6(a), F.R.C.P., vests in the U.S. district court full
- discretion to order one or more grand juries summoned as required
- by the public interest. The Federal grand jury is composed of 16
- to 23 jurors, with 12 votes needed for an indictment. (12) A
- prosecuting attorney, rather than a judge or jury member,
- presides over the daily operations. Rules of evidence are not
- applicable, allowing the prosecutor the freedom to use evidence
- which may not be admissible at trial to obtain an indictment, or
- true bill. (13) All proceedings, except the deliberation and
- voting of the jurors, must be recorded, and any recordings,
- notes, or transcripts are placed in the custody of the attorney
- for the government. The indictment is normally returned to a
- Federal magistrate in open court, but it may be sealed until the
- defendant is located and arrested. (14)
-
- In part, secrecy of the grand jury is achieved by placing
- limitations on who may be a participant. Rule 6(d) restricts
- attendance at grand jury proceedings to attorneys for the
- government, the witness under examination, interpreters when
- needed, and a stenographer or operator of a recording device. No
- provision is made for the presence of an attorney for either the
- defendant or a witness giving testimony. While a witness'
- attorney may not be present inside the grand jury room, the
- witness may consult with the attorney outside the room at any
- time, either before or in the course of responding to
- questions. (15)
-
- The general rule of secrecy, as set forth in Rule 6(e)(2),
- F.R.C.P., forbids a grand juror, an interpreter, a stenographer,
- an operator of a recording device, a typist who transcribes
- recorded testimony, an attorney for the government, or any person
- to whom disclosure is made by the attorney for the purpose of
- assisting in the enforcement of Federal criminal law, from
- disclosing ``matters occurring before the grand jury'' (a term
- courts often use interchangeably with ``grand jury material''),
- except as otherwise provided for in the rules. (16) A knowing
- violation of the rule is punishable as a contempt of court. (17)
-
- REASONS FOR GRAND JURY SECRECY
-
- According to the U.S. Supreme Court, the general policy
- which justifies the rule of secrecy is the grand jury's need
- for freedom to pursue its ``dual function of determining if
- there is probable cause to believe that a crime has been
- committed and of protecting citizens against unfounded criminal
- prosecutions.'' (18) Requiring a wide latitude of inquiry and
- virtual independence from external distraction, the grand jury
- has been described by the Supreme Court in 1919 as ``a grand
- inquest, a body with powers of investigation and inquisition,
- the scope of whose inquiries is not to be limited narrowly by
- questions of propriety or forecasts of the probable result of
- the investigation, or by doubts whether any particular
- individual will be found properly subject to an accusation of
- crime.'' (19)
-
- In recognizing that the proper functioning of the grand
- jury system depends on secrecy of the proceedings, the Supreme
- Court, in United States v. Proctor & Gamble, provided even more
- specific reasons for the rule of secrecy in 1958:
-
- . ``To prevent the escape of those whose indictment may be
- contemplated;
-
- . to insure the utmost freedom to the grand jury in its
- deliberations, and to prevent persons subject to
- indictment or their friends from importuning the grand
- jurors;
-
- . to prevent subornation of perjury or tampering with the
- witnesses who may testify before the grand jury and
- later appear at the trial of those indicted by it;
-
- . to encourage free and untrammeled disclosures by persons
- who have information with respect to the commission of
- crimes;
-
- . to protect [the] innocent accused who is exonerated from
- disclosure of the fact that he has been under
- investigation, and from the expense of standing trial
- where there was no probability of guilt.'' (20)
-
- In 1983, the Supreme Court identified three types of danger
- associated with the disclosure, absent a court order, of grand
- jury information concerning a criminal proceeding to government
- attorneys for use in related civil proceedings:
-
- . Disclosure increases the risk of inadvertent or illegal
- further release of information to unauthorized persons
- and thus may threaten the willingness of witnesses to
- testify fully and candidly;
-
- . It threatens the integrity of the grand jury process
- itself if there is a tendency for the government to
- manipulate the grand jury's powerful investigative tools
- to root out additional evidence useful in the civil
- suit, or even to start or continue a grand jury inquiry
- where no criminal prosecution seemed likely;
-
- . The use of grand jury materials by government agencies
- in civil or administrative settings threatens to
- subvert the limitations applied outside the grand
- jury context on the government's powers of discovery
- and investigation. (21)
-
- EXCEPTIONS TO THE RULE OF SECRECY
-
- The exceptions to the rule of secrecy specifically set forth
- in the text of Rule 6(e), F.R.C.P., are categorized according to
- the reason for disclosure. Under the appropriate circumstances,
- they provide various investigative options for Federal and State
- law enforcement officers to gain access to grand jury material.
-
- Witnesses
-
- By failing to mention witnesses in the categories of
- persons--jurors, interpreters, stenographers, typists,
- attorneys--expressly prohibited from disclosing matters
- occurring before the grand jury, Rule 6(e) eradicated the
- previous practice of some Federal districts of swearing
- witnesses to oaths of secrecy. (22) Making this exception
- unequivocal is the admonition that ``[no] obligation of secrecy
- may be imposed on any person except in accordance with this
- rule.'' (23) The basis for this exception in the Federal system is
- the elimination of any potential for hardship created by the
- inability of a witness to reveal testimony to counsel retained to
- protect the witness' interests. (24) Attempts by government
- attorneys or other government personnel to muzzle witnesses
- concerning their testimony before the Federal grand jury have
- generally been construed by the courts as unwarranted and illegal
- obligations of secrecy. (25)
-
- Relieving witnesses from the obligation of secrecy lessens
- to a degree the control of the prosecutor by allowing prospective
- defendants, or targets, some opportunity to learn the direction
- of the investigation. Therefore, a number of States have enacted
- statutes prohibiting a witness from ever disclosing testimony
- given before a State grand jury. Recently, the Supreme Court
- held that insofar as a State law prohibits witnesses from
- disclosing their own testimony after the term of the grand jury
- has ended, that law violates the first amendment to the U.S.
- Constitution. (26) While the grand jury is in session, however,
- the Court suggested that the State's interests in preserving
- grand jury secrecy may outweigh the competing first amendment
- right of freedom of speech. (27)
-
- Attorneys for the Government
-
- Rule 6(e)(3)(A)(i) provides an exception to the rule of
- secrecy for ``an attorney for the government for use in the
- performance of such attorney's duty to enforce federal criminal
- law.'' This exception is based on the prosecutor's practical
- need to know what evidence is before the grand jury, as well as
- the grand jury's need for the prosecutor's assistance and
- guidance in its investigation. An attorney for the government
- is defined as ``the Attorney General, an authorized assistant of
- the Attorney General, a United States Attorney, [and] an
- authorized assistant of the United States Attorney.'' (28) The
- definition does not include attorneys for Federal agencies. (29)
- Although the prosecuting attorney for the government has access
- to the transcript of matters occurring before the grand jury,
- the ability to disclose this material to others is limited by
- the remaining exceptions set forth in Rule 6(e). Rule
- 6(e)(3)(C)(iii), for instance, allows disclosure by an attorney
- for the government to another Federal grand jury. This
- exception implies the ability of one government attorney to
- disclose grand jury information to another government attorney
- who is engaged in the enforcement of criminal law.
-
- However, a government attorney may not under this exception
- make a discretionary disclosure of grand jury material to another
- government attorney for use in a related civil proceeding. (30)
- Instead, civil attorneys must seek disclosure of such information
- only ``when so directed by a court preliminarily to or in
- connection with a judicial proceeding.'' (31) Such court-ordered
- disclosures are made upon a showing of ``particularized need'' or
- ``compelling necessity,'' with the primary purpose of the
- disclosure being to assist in the ``preparation or conduct of a
- judicial proceeding.'' (32) Courts have held that ``judicial
- proceedings'' do not include tax audits or preliminary agency
- investigations. (33)
-
- Government Personnel Assisting the Attorney for the Government
-
- Rule 6(e)(3)(A)(ii) permits disclosure by the attorney for
- the government of matters occurring before the grand jury to
- government personnel assisting the attorney in the performance of
- duties to enforce Federal criminal law. (34) This exception
- provides the most common method of access to grand jury material
- by Federal investigators; assistance to the attorney generally
- consists of investigation or analysis in support of the grand
- jury's efforts. Disclosure to government personnel assisting
- the attorney includes not only Federal but also State and local
- government employees, but only for the purpose of enforcing
- Federal criminal statutes (as opposed to use in civil,
- administrative, or internal agency matters).
-
- Disclosure under this exception is made at the attorney's
- discretion and does not require a court order. Such disclosure
- is, however, subject to the following three restrictions:
-
- . Any person to whom matters are disclosed cannot use that
- grand jury material for any other purpose other than to
- assist the attorney in matters concerning the
- enforcement of Federal criminal law;
-
- . The attorney must promptly provide the district court
- before which the grand jury was empaneled with a list of
- the names of all persons to whom disclosure has been
- made;
-
- . The attorney must certify that each person on the list
- has been advised of the obligation of secrecy. (35)
-
- An issue often arising under this exception is whether a
- government employee who lawfully obtains grand jury material to
- assist a government attorney may divulge that material to other
- government personnel working on the same, related, or unrelated
- Federal criminal investigations. Because the conditions of this
- exception require the attorney not only to provide the court with
- the names of persons on the disclosure list (36) but also to
- certify that each person was advised of the obligation of
- secrecy, it seems clear that assisting personnel must seek the
- authority of the government attorney in order to make a further
- disclosure of materials identified as matters occurring before a
- grand jury.
-
- Disclosure to Domestic Law Enforcement Agencies
-
- It is often desirable for Federal and State authorities to
- cooperate in investigations where jurisdictions overlap, such as
- organized crime or political corruption. Therefore, Rule 6(e)
- was amended in 1985 to allow Federal prosecutors to disclose
- Federal grand jury matters to the personnel of law enforcement
- agencies of ``a state or subdivision of a state'' when the
- assistance of such personnel would be beneficial to the Federal
- investigation. (37) This disclosure is governed by the discretion
- of the government attorney and is subject to the same
- restrictions that are applicable to Federal personnel assisting
- the attorney. That is, all officers receiving such material
- must be advised of the obligation of secrecy and the name of each
- individual to whom disclosure is made must be promptly provided
- to the court. (38)
-
- The 1985 amendment to Rule 6(e) also made it possible for a
- government attorney to disclose to an appropriate official of a
- State or subdivision of a State evidence developed during a
- grand jury investigation which relates to a violation of State
- law. It is important to note, however, that this disclosure
- (39) is accomplished by an order of the court rather than the
- discretion of the attorney. Unlike the conditions for
- disclosure to personnel assisting the attorney in a Federal
- prosecution, disclosure of matters relating to a violation of
- State law will be made ``in such manner, at such time, and under
- such conditions as the court may direct.'' (40)
-
- Disclosure to the Defendant
-
- Upon order of the court, disclosure of grand jury material
- may be made pursuant to a request of the defendant upon a
- showing that grounds may exist for a motion to dismiss the
- indictment based on matters which occurred before the grand
- jury. (41) In addition, Rule 16(a) (1)(A), F.R.C.P., mandates
- that upon request, defendants are entitled to a pre-trial
- disclosure of any recorded statements made by them before the
- grand jury which relate to the offense charged. Finally, a
- defendant may have access to transcripts of grand jury testimony
- of witnesses for the government after they have testified on
- direct examination in the trial of the case.(42)
-
- Part II of this article will examine the difficulties
- encountered in disseminating grand jury material to foreign
- police agencies and in defining grand jury material and its
- disclosure.
-
-
- FOOTNOTES
-
- (1) Helmlolz, ``The Early History of the Grand Jury and the
- Canon Law,'' 50 U. of Chi. Law Rev. 613 (1983).
-
- (2) Kuh, ``The Grand Jury `Presentment': Foul Blow or Fair
- Play?'' 55 Columbia Law Rev. 1103, 1106 (1955).
-
- (3) Id. at 1107.
-
- (4) The oath appeared as early as 1600. See Brown, ``The
- Witness and Grand Jury Secrecy,'' 11 American Journal of Criminal
- Law 169, 170-171 (1983).
-
- (5) Id. at 170-171.
-
- (6) U.S. Const. amend V.
-
- (7) Hurtado v. California, 110 U.S. 516 (1884).
-
- (8) Only three States (Alabama, Connecticut, and New
- Hampshire) have no specific secrecy provision, S. Beale & W.
- Bryson 1 Grand Jury Law and Practice 7:04 at 15.
-
- (9) Note ``Grand Jury Secrecy v. The First Amendment: A Case
- for Press Interviews of Grand Jurors,'' 23 Valparaiso Univ. Law
- Rev. 559, 560-561 (1989).
-
- (10) Id. at 564.
-
- (11) See e.g., In Re Grand Jury Proceedings, 4 F.Supp. 283,
- 284-5 (E.D. Pa. 1933).
-
- (12) Rule 6(a)(1), F.R.C.P.
-
- (13) See Beale & Bryson, supra note 8 at 1:06, at 32.
-
- (14) Rule 6(e)(4), F.R.C.P.; this provision allows law
- enforcement officers to locate and arrest indicted individuals
- who are apt to flee upon learning the details of a public
- indictment.
-
- (15) See, e.g., In Re Taylor, 567 F.2d 1183 (2d Cir. 1977);
- see also, Waller, ``An Introduction of Federal Grand Jury
- Practice,'' 61 Wisconsin Bar Bulletin 17, 19 (1988).
-
- (16) Rule 6(e)(2), F.R.C.P.
-
- (17) Id.
-
- (18) Branzburg v. Hayes, 408 U.S. 665, 686-687 (1972).
-
- (19) Blair v. United States, 250 U.S. 273, 282 (1919).
-
- (20) 356 U.S. 677, 681 n.6 (1958), quoting from United States
- v. Rose, 215 F.2d 617, 628-629 (3d Cir. 1954), quoting from
- United States v. Amazon Industrial Chemical Corp, 55 F.2d 254,
- 261 (D.C. Md. 1931). The passage is later referred to in United
- States v. Sells Engineering, Inc., 103 S. Ct. 3133, 3140 (1983).
-
- (21) Sells Engineering, supra note 20, at 3142-3143; and United
- States v. John Doe, Inc. I, 107 S. Ct. 1656, 1663-64 (1987).
-
- (22) See Notes of Advisory Committee on Rules, Note to
- Subdivision (e), Rule 6, F.R.C.P.
-
- (23) Rule 6(e)(2), F.R.C.P.
-
- (24) Supra note 22.
-
- (25) See, e.g., In Re Grand Jury Summoned October 12, 1970, 321
- F.Supp. 238 (N.D. Ohio 1970); United States v. Radetsky, 535 F.2d
- 556 (10th Cir. 1976); In re Vescovo Special Grand Jury, 473
- F.Supp. 1335 (C.D. Cal. 1979).
-
- (26) Butterworth v. Smith, 110 S.Ct. 1376 (1990).
-
- (27) Id.
-
- (28) Rule 54(c), F.R.C.P.
-
- (29) In re Grand Jury Proceedings, 309 F.2d 440 (3d Cir. 1962).
-
- (30) Sells Engineering, supra note 20, at 3140.
-
- (31) Rule 6(e)(3)(C)(i), F.R.C.P. Use of this exception is not
- limited to government attorneys; any party to a judicial
- proceeding may petition the court to release grand jury material
- in the interests of justice. This exception existed at common
- law as well. In United States v. Socony-Vacuum Oil Co., 310
- U.S. 150, 234 (1940), the Court noted that after the grand
- jury's work in complete,``disclosure is wholly proper where the
- ends of justice require it.''
-
- (32) United States v. Baggot, 103 S.Ct. 3140, 3164 (1983).
-
- (33) Id. at 3166. See also, Bradley v. Fairfax, 634 F.2d 1126
- (8th Cir. 1980) (disclosure denied for parole revocation
- hearing); United States v. Bates, 627 F.2d 349 (D.C. Cir. 1980)
- (disclosure denied for agency investigation.)
-
- (34) Rule 6(e)(3)(A)(ii), F.R.C.P.
-
- (35) Rule 6(e)(3)(B), F.R.C.P.
-
- (36) See Notes on Advisory Committee on Rules, 1985 Amendment,
- Rule 6 (e)(3)(A)(ii) which states, in part, ``...because not all
- federal government personnel will otherwise know of this
- obligation [secrecy], the giving of the advice and certification
- thereof is required as to all persons receiving disclosure....''
-
- (37) Rule 6(e)(3)(A)(ii), F.R.C.P.
-
- (38) Supra note 36.
-
- (39) Rule 6(e)(3)(c)(iv), F.R.C.P.
-
- (40) Id.
-
- (41) Rule 6(e)(3)(c)(iv), F.R.C.P.
-
- (42) 18 U.S.C. 3500.
-
- ____________
-
- Law enforcement officers of other than Federal jurisdiction
- who are interested in this article should consult their legal
- adviser. Some police procedures ruled permissible under Federal
- constitutional law are of questionable legality under State law
- or are not permitted at all.