Keeping Secrets: The Unsettled Law of Judge-Made Exceptions to Grand Jury Secrecy

Federal Rule of Criminal Procedure 6(e) functionally binds everyone who is present during grand jury proceedings (except witnesses) to secrecy. But questions arise when courts are asked to make exceptions to grand jury secrecy outside those enumerated in the rule, such as exceptions for Congress or for the release of historically significant grand jury records. This Note examines the propriety of judge-made exceptions to grand jury secrecy. Contrary to some courts authorizing disclosure outside of Rule 6(e), this Note argues that the text and development of Rule 6(e), along with limitations on courts’ inherent authority over grand jury procedure, caution against this practice. The tension between the current practice of some courts and the apparent meaning of Rule 6(e) renders the law of grand jury secrecy unsettled. To clarify the law, the Advisory Committee on Criminal Rules should add a residual exception to Rule 6(e) that would not only give courts flexibility and discretion but also a clear source of authority on which to authorize disclosures

Keeping Secrets: The Unsettled Law of Judge-Made Exceptions to Grand Jury Secrecy

Federal Rule of Criminal Procedure 6(e) functionally binds everyone who is present during grand jury proceedings (except witnesses) to secrecy. But questions arise when courts are asked to make exceptions to grand jury secrecy outside those enumerated in the rule, such as exceptions for Congress or for the release of historically significant grand jury records. This Note examines the propriety of judge-made exceptions to grand jury secrecy. Contrary to some courts authorizing disclosure outside of Rule 6(e), this Note argues that the text and development of Rule 6(e), along with limitations on courts’ inherent authority over grand jury procedure, caution against this practice. The tension between the current practice of some courts and the apparent meaning of Rule 6(e) renders the law of grand jury secrecy unsettled. To clarify the law, the Advisory Committee on Criminal Rules should add a residual exception to Rule 6(e) that would not only give courts flexibility and discretion but also a clear source of authority on which to authorize disclosures

Pretrial Disclosure of Federal Grand Jury Testimony

The scope of this study is limited to what is probably the most criticized aspect of the traditional grand jury system, the restrictions on disclosure of grand jury proceedings, especially the criminal defendant\u27s lack of access to a transcript of the testimony given before the grand jury which indicted him. Examining the history of the grand jury as it relates to the tradition of secrecy, this study discusses the philosophies underlying the practice and analyzes the impact of the Federal Rules of Criminal Procedure, federal statutes, and certain Supreme Court decisions on this tradition. This study concludes that there is no basis in fact for most of the reasons traditionally given for grand jury secrecy, and that accordingly every criminal defendant should be presumed to have the right to discover before trial all grand jury testimony which the prosecution plans to use against him. However, the courts should retain the power to refuse discovery if the prosecution shows a compelling reason to maintain secrecy at that time. In order to prevent prosecutors from circumventing the defendant\u27s right, this study recommends that all grand jury testimony be recorded and that Rule 6 of the Federal Rules of Criminal Procedure be amended to compel recording and allow pretrial discovery

Grand Jury Secrecy

When a leading state such as Illinois enacts reform legislation, an impact on the legislatures of other jurisdictions may be anticipated. Accordingly, a need exists for an examination of this legislation in the light of the common-law background of grand jury secrecy and for a further analysis of it in the face of the growing trend toward more liberalized discovery of grand jury minutes in other jurisdictions. It is the contention of the author that such an empirical study will demonstrate that this legislation adopted by Illinois is contrary to all modern judicial thinking and is, in fact, a retrogressive step toward a period long outdated; that it facilitates serious abuses inherent in granting to the prosecution sole control over the use of grand jury minutes; and that, by the very limitations it creates, a serious question is raised as to its constitutionality

Visibly (Un)Just: The Optics of Grand Jury Secrecy and Police Violence

Police violence has become more visible to the public through racial justice activism and social justice advocates’ use of technology. Yet, the heightened visibility of policing has had limited impact on transparency and accountability in the legal process, particularly when a grand jury is empaneled to determine whether to issue an indictment in a case of police violence. When a grand jury decides not to indict, the requirement of grand jury secrecy prevents public disclosure of the testimony, witnesses, and evidence presented to the grand jury. Grand jury secrecy leaves those who have seen and experienced the act of police violence through activism and social media with no way of reconciling the grand jury’s decision with what they saw. As a result of increased demands for transparency and accountability in grand jury investigations of police violence, prosecutors, state legislators, and judicial and administrative policymakers have proposed or implemented measures to bring greater transparency to the grand jury process. However, their efforts have had varying degrees of success. This Article examines efforts to reconcile the doctrine of grand jury secrecy with the public’s need for greater transparency and accountability following the highly visible police killings of Michael Brown, Eric Garner, and Tamir Rice. It argues that most of the attempts to bring greater transparency to the grand jury process fall short because of narrow assumptions about the concept of transparency and deep entrenchment of racial disparities in our criminal legal system. The Article considers how principles that have emerged from the heightened visibility of policing inform a more expansive type of grand jury visibility— one that does not merely seek to legitimize the grand jury process, but rather serves to shift power dynamics between the civilian and state. While increased transparency is not in and of itself a means of solving systemic problems of race and police violence, the ability to see, interpret, and influence how our current models of accountability function provides an important foundation for those working toward a reimagining of our justice systems and greater protections for marginalized minorities

Notes

Civil Rights- Municipalities as Parties- Waiver of Sovereign Immunity by a State does not Give a Federal Cause of Action for Damages under Sections 1983 and 1988 of the Civil Rights Act: This Note evaluates the Supreme Court\u27s holding in Moor v. Alameda with reference to the development of sections 1983 and 1988 of the Civil Rights Act through other relevant case law, such as Monroe v. Pape and United Mine Workers v. Gibbs. It then summarizes the holding, which limits persons deprived of civil rights by a municipal employee and who are seeking damages from the municipality in federal court to two approaches- pendent and diversity jurisdiction. Constitutional Law- Equal Protection- School District\u27s Failure to Teach Chinese Speaking Students the English Language Does Not Constitute a Violation of the Equal Protection Clause: This Note summarizes Lau v. Nichols, a class action brought to compel the San Francisco Unified School District to provide Chinese speaking students who did not speak English with some instruction in the English language. It then analyzes other recent cases regarding equal protection in the context of social welfare issues, including Dandridge v. Williams and Brown v. Board of Education, to address the issue presented in Lau v. Nichols. Environmental Law- Non-Degradation- Clean Air Act and Amendments Held to Mandate a Policy Prohibiting Significant Deterioration of Air Quality in Areas of Relatively Clean Air: This Note analyzes the Clean Air Act and the impact of litigation brought by the Sierra Club against the Administrator of the EPA for permitting deterioration of air quality in areas where air quality was better than federally mandated secondary standards. Grand Jury- Secrecy of Testimony- Protection Afforded by Traditional Rule of Secrecy is Waived by a Witness Who Seeks Disclosure: This Note analyzes the history and case law regarding grand juries and disclosure of grand jury testimony in light of the case In re Biaggi involving the release of a United States Congressman\u27s grand jury testimony. It also discusses the public interest ramifications of full disclosure, attempts to misuse the secrecy of the grand jury, and the expansion of the scope of permissible disclosure to requests not made in connection with a judicial proceeding under Federal Rule of Criminal Procedure 6(e)

An Institution “at Arm’s Length”: Reconsidering Supervisory Power over the Federal Grand Jury

Grand jury proceedings are shrouded in secrecy. No judge presides over them, no reporter annotates them, and when they have concluded, no juror may speak about them. While secrecy serves many important functions for the grand jury, its veil may be lifted under certain circumstances. Grand jury records may be released if they fall under a disclosure exception laid out in Federal Rule of Criminal Procedure 6(e). While some courts limit release to the exceptions laid out in the Rule, others look to an alternative source of authority. Several courts of appeals have held that district court judges may exercise inherent supervisory power in authorizing the release of grand jury records. Judges may consider the public interest in disclosure, compare it to the institutional interest in secrecy, and decide for themselves. Other circuits find no such power. The circuits have reached an impasse on the text of the Rule alone, with each side offering compelling but incomplete justifications for their interpretation. This Comment provides an alternative path forward. By examining the history of the grand jury and the relationship between the Federal Rules and common law supervisory power, this Comment argues that district court judges lack inherent supervisory power over the grand jury to order disclosure.Courts that follow the exhaustive position—that Rule 6(e)(3) limits the exceptions when a court may authorize disclosure—better align with the understanding of the grand jury as an independent body. Conscious of this historical positioning, this Comment returns to both influential and overlooked Supreme Court precedent and offers a more contextually grounded interpretation of each. Judges have discretion to act within the bounds of Rule 6(e), not outside of i

54/08/18 Judge tells jury to keep secrets

Grand Jury was called into open court to be reminded by Common Pleas Judge Arthur Day of their oath of secrecy. The jury heard 15 witnesses.https://engagedscholarship.csuohio.edu/newspaper_coverage/1470/thumbnail.jp

54/08/18 Judge tells jury to keep secrets

Grand Jury was called into open court to be reminded by Common Pleas Judge Arthur Day of their oath of secrecy. The jury heard 15 witnesses.https://engagedscholarship.csuohio.edu/newspaper_coverage/1470/thumbnail.jp

The USA PATRIOT Act of 2001, the Homeland Security Act of 2002, and the False Dichotomy Between Protecting National Security and Preserving Grand Jury Secrecy

This article makes three important contributions. First, it establishes that the right of grand jury secrecy enjoys constitutional protection. The Supreme Court has never had occasion to determine whether the right to indictment by a grand jury established by the Fifth Amendment encompasses a right to secrecy, but the recent amendments to Federal Rule of Criminal Procedure 6(e) all but guarantee that the Court will face this issue. These amendments decimate the grand jury secrecy fiercely protected under the common law and the rules of procedure for nearly a millennium. They put to the test the Court’s long-held position that secrecy is “indispensable” to the grand jury process. Second, the article demonstrates that even setting aside their constitutionality, the exceptions to the rule of grand jury secrecy created by the hasty amendment of Federal Rule of Criminal Procedure 6(e) are unsound public policy. In creating these exceptions, Congress took measures beyond those necessary to achieve the legitimate goal of preventing and responding to threats to our national security. It granted the Department of Justice unprecedented authority to disclose grand jury materials with no supervision by the courts or by Congress. Third, the article proposes an amendment to Federal Rule of Criminal Procedure 6(e) that would preserve the right of secrecy and bring the new exceptions within constitutional limits without sacrificing national security interests