Criminal procedure - First Circuit establishes less demanding requirement of particularized need to access prior grand jury testimony - In re Grand Jury.

• Author: Ames, Rodney W., Jr.

Criminal Procedure--First Circuit Establishes Less Demanding Requirement of Particularized Need to Access Prior Grand Jury Testimony--In re Grand Jury, 566 F.3d 12 (1st Cir. 2009)

The Federal Rules of Criminal Procedure, protecting the secrecy of federal grand jury proceedings, permit limited disclosure of grand jury materials. (1) Courts have differed on the standard of need grand jury witnesses must show to access prior testimony transcripts. (2) In In re Grand Jury, (3) the United states Court of Appeals for the First Circuit considered whether a strong showing of particularized need standard should apply to grand jury witnesses seeking access to, not copies of, prior testimony transcripts. (4) The First Circuit, following a United States District Court for the District of Columbia decision, established a less demanding particularized need requirement for grand jury witnesses seeking only access and not a copy of prior testimony transcripts. (5)

In May 2008, the government subpoenaed the appellant, a non-target witness, to testify before a Massachusetts federal grand jury. (6) Responding to the appellant's indication that he would assert his constitutional right against self-incrimination, the government granted him use immunity under 18 U.S.C. [section][section] 6002 & 6003, requiring the appellant to testify. (7) Appearing before the grand jury in June 2008, the appellant testified for approximately three hours and fifteen minutes on "highly technical and ancient subject matter." (8) Three assistant U.S. attorneys questioned the appellant, sometimes repetitively, and the prosecutors warned him on several occasions not to testify falsely. (9) The government did not complete the examination, and ordered the appellant to return to complete his testimony. (10)

The government denied the appellant's request to review his previous testimony before returning to complete his testimony. (11) Subsequently, the appellant moved for emergency access to the transcript under Federal Rule of Criminal Procedure 6(e)(3)(E)(i). (12) The district court determined that First Circuit precedent required the appellant to provide a strong showing of particularized need and ruled that his circumstances were not "highly unusual" enough to grant his motion. (13) In July 2008, the appellant returned to the grand jury unwilling to answer any questions, and upon the government's petition, the district court ordered the appellant in contempt pursuant to 28 U.S.C. [section] 1826. (14) On appeal, the First Circuit reversed, holding a less demanding particularized need applies when grand jury witnesses seek access to prior testimony transcripts. (15)

Since the 1950s, courts have debated whether to allow disclosure of grand jury transcripts to requesting parties, with the majority of cases involving third-party witness attempts to obtain copies of prior testimony. (16) Although the Supreme Court of the United States has never established a standard for grand jury witnesses to review their testimonial transcript, most appellate courts hold non-defendant witnesses to a particularized need standard for access to previous grand jury testimony. (17) To demonstrate a particularized need, a witness must show their individual interest of access outweighs the government's interest in maintaining the secrecy of grand jury proceedings. (18) In some instances, however, courts have ruled that witnesses are entitled to obtain copies of their grand jury testimony based on their interests alone. (19)

The Federal Rules of Criminal Procedure's grand jury secrecy requirements do not apply to witnesses, and courts have taken latitude when weighing the importance of witness secrecy to the proceedings. (20) Witnesses risk intimidation and third-party coercion when disclosing testimony, but some courts have allowed access to review prior testimony, instead of giving a copy of the transcript. (21) Without access to their prior testimony, witnesses could present inconsistent statements and face perjury charges. (22) Given the interests of both sides in the secrecy debate, court rulings on disclosure of prior grand jury testimony are conflicted. (23)

In 2004, the First Circuit decided In re Special Proceedings, (24) holding a strong showing of particularized need is required for grand jury witnesses to access their transcript. (25) Three years later, in In re Grand Jury, (26) the D.C. Circuit held that Rule 6(e)(3)(E)(i) entitles grand jury witnesses access to review their previous grand jury testimony at the U.S. Attorney's Office, an agreed upon location, or a place designated by the court. (27) The court determined that the interests of grand jury witnesses seeking access only to review their transcripts outweighed the government's interests. (28) The court reasoned that witnesses need to be able to accurately remember events from their past in order to recant incorrect statements and avoid perjury convictions. (29) Moreover, the circuit justices concluded that witnesses granted access to review transcripts in private face the same risks of intimidation as recalling their testimony from memory. (30)

In In re Grand Jury, the First Circuit held that witnesses demanding access to the transcript of their prior grand jury testimony, rather than copies of the transcript, are required to show a less demanding particularized need. (31) Relying on the D.C. Circuit's reasoning in In re Grand Jury, the First Circuit agreed that witnesses seeking only to access their own testimony need not make a strong showing of particularized need. (32) The court opined that its prior decisions concerned grand jury witnesses seeking copies of their transcript, not access to review them. (33) Addressing its prior position in In re Special Proceedings, the court clarified that its holding, "a majority of circuits hold that a non-defendant witness seeking access to his own deposition transcript must make a strong showing of particularized need," referred to access to transcript copies and not access to review them. (34)

The First Circuit stressed the importance of witnesses reviewing the transcript of their prior grand jury testimony to prevent inaccurate and inconsistent statements that could lead to a perjury conviction. (35) The court recognized a federal statute granting witnesses the right to recant previous statements and acknowledged that witnesses could not fully exercise that right without the opportunity to review their prior testimony. (36) The court emphasized that there is no rule requiring witnesses to maintain the secrecy of their testimony and that access--unlike obtaining a copy--would not augment the risk of third-party intimidation and coercion. (37) The court concluded that a lesser standard of particularized need would not impose unnecessary hardship on grand jury investigations. (38)

Recognizing that the benefits to grand jury...