5.9 - B. Secrecy

• Jurisdiction: New York

B. Secrecy

Secrecy accompanies the workings of the grand jury by statute and by tradition.⁶²² The statute requires that, during deliberations and voting, only grand jurors may be present in the room.⁶²³ The presence of any other person provides grounds for invalidating any action taken upon such deliberation or vote.⁶²⁴ During the presentation of evidence, the only persons permitted in the grand jury room are individuals specifically authorized by statute.⁶²⁵ These individuals are the district attorney, a clerk authorized to provide administrative assistance to the grand jury, an authorized court stenographer, an interpreter, a public servant holding a witness in custody, an attorney representing a witness who has waived immunity, a videotape operator, a professional accompanying a child who is the victim of certain crimes and a sign language interpreter for a deaf or hearing-impaired grand juror.⁶²⁶ The presence of unauthorized persons in the grand jury room may well constitute grounds for dismissal of a resulting indictment.⁶²⁷

The secrecy of grand jury proceedings is guarded by specific penal prohibitions. Unauthorized disclosure by any of the persons permitted to be present during grand jury proceedings, including the grand jurors themselves, or by other public servants having duties relating to grand juries, constitutes a felony.⁶²⁸ However, the rule of secrecy is not without exceptions.

The principal exception to the rule of secrecy is that nothing prohibits a witness before the grand jury from disclosing his testimony once the witness leaves the grand jury room.⁶²⁹ The statute permits the district attorney and police officials to examine testimony or evidence to assist the grand jury in conducting its investigation. In addition, the court may permit disclosure of grand jury testimony upon written order.⁶³⁰ There must be a showing of a compelling and particularized need. Only then will a court balance various factors to determine whether the public interest in secrecy is outweighed by its interest in disclosure. For example, a compelling public interest exists in assisting those who have been civilly defrauded and in deterring others who might engage in fraudulent conduct in the future. This is so where the United Arab Emirate bank account records of a $2,000,000 default-judgment Ponzi-scheme thief are in the possession of a District Attorney and are not available from any other source. ⁶³¹

A police officer who has made a career of bribe-receiving and extortion, a lawyer who is a thief, a licensed physician quack, and the like should not be held civilly or administratively harmless or entrenched by his or her compelled but criminally immunized confession of his or her wrongdoing before a grand jury.⁶³² This proposition explains why grand jury secrecy is not hermetic, but almost so.

Those seeking to pierce the veil of grand jury secrecy must have the legal standing to do so. Plus, “[s]o strong are the principles of grand jury secrecy and the policies underlying it that unauthorized disclosure of grand jury evidence is a felony in New York.”⁶³³ There must be a competently established compelling and particularized need for disclosure. The people’s or the media’s “right to know” is not one, nor a legislature’s desire to fashion remedial legislation. “[C]urbing community unrest and restoring faith in courts and prosecutors” is not one, nor is the Legal Aid Society’s claim that disclosure will ensure better representation to current and future indigent clients. Moreover, there must be a demonstration that relevant information cannot be obtained from alternate sources.⁶³⁴

The defendant has some latitude in obtaining information regarding the grand jury proceeding. Once an indictment is filed, the defendant can request an...