Obtaining Grand Jury Materials for Civil Suits
| Publication year | 1980 |
| Pages | 2314 |
| Citation | Vol. 9 No. 11 Pg. 2314 |
1980, November, Pg. 2314. Obtaining Grand Jury Materials for Civil Suits
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Grand jury investigations in antitrust, unfair competition, securities, tax and other areas are frequently followed by related civil actions. The parties to these actions often seek to obtain the transcripts and documents relating to the earlier grand jury investigations. However, private litigants can obtain these materials only if they persuade a court that their need outweighs the need for grand jury secrecy.(fn1)
The secrecy of federal grand jury proceedings is based on long-standing public policy.(fn2) The reasons for this policy are summarized in the following often quoted paragraph:
(1) To prevent the escape of those whose indictment may be contemplated; (2) 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; (3) 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; (4) to encourage free and untrammeled disclosures by persons who have information with respect to the commission of crimes; (5) to protect an 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.(fn3)
Colorado grand juries also operate behind a shroud of secrecy.(fn4) Nevertheless, "[s]ecrecy for secrecy's sake . . . [is] no longer the rule in Colorado."(fn5)
This article discusses the appropriate methods private parties use to obtain grand jury materials from both federal and Colorado courts.
A civil litigant's right to obtain grand jury materials is grounded on federal or state rules of criminal procedure.
Any federal court's order for disclosure of grand jury materials must come within the limited authorization provided in Rule 6(e) of the Federal Rules of Criminal Procedure (F.R.Crim.P.).(fn6) That rule, as amended October 1, 1977, provides in general that persons with knowledge of matter transpiring before a grand jury must not disclose such matters, unless disclosure is permitted by one of the exceptions set forth in the rule. The pertinent exceptions provide:
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(2) EXCEPTIONS
(A) Disclosure otherwise prohibited by this rule of matters occurring before the grand jury, other than its deliberations and the vote of any grand juror, may be made to---
(i) an attorney for the government for use in the performance of such attorney's duty.
. . . (C) Disclosure otherwise prohibited by this rule of matters occurring before the grand jury may also be made---
(i) when so directed by a court preliminarily to or in connection with a judicial proceeding; or
(ii) when permitted by a court at the request of the defendant, upon a showing that grounds may exist for a motion to dismiss the indictment because of matters occurring before the grand jury. . . . [Emphasis supplied.]
A government attorney may obtain transcripts for use in performance of his duties and in aid of enforcement of the federal criminal laws.
A personal defendant in a criminal action can usually obtain a copy of his grand jury testimony by filing a motion pursuant to F.R.Crim.P. Rule 16(a)(1)(A).(fn7) In general, a corporate criminal defendant can obtain the grand jury transcripts of those of its officers or employees who were so situated as to have been legally able to bind said defendant in respect to conduct constituting the alleged offense.(fn8)
A party to private civil litigation, however, may obtain grand jury materials "only when so directed by the court preliminary to or in connection with a judicial proceeding," and only upon a showing of "particularized need."(fn9)
Rule 6.9 of the colorado Rules of Criminal Procedure (C.R.Crim.P.) dictates in part the circumstances under which access may be had in pending criminal cases to grand jury materials. Briefly stated, this rule permits a prosecutor to obtain testimony, minutes, reports or exhibits, and a grand jury witness to obtain a transcript of his own testimony, upon a showing of "good cause." The rule also states:
Rule 6.9 Testimony
. . . (c) Limitations on Release. An order to furnish transcripts of grand jury testimony, minutes, reports, or exhibits under this rule shall specify the person or persons who may be granted access to such material upon its release. Such order shall also specify any limitations which the court finds should be imposed on the use to be made of such material by any person or persons. . . . Such order shall also provide that release of such material shall not be made by the clerk of the court...
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