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FBIAUG07.TXT
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1990-08-20
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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