498 lines
25 KiB
Plaintext
498 lines
25 KiB
Plaintext
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.
|
||
|