Grand Jury Secrecy
| Pages | 153-185 |
153
CHAPTER 9
GRAND JURY SECRECY
Rule 6(e) of the Federal Rules of Criminal Procedure (Rule 6(e))
prohibits members of the grand jury, prosecutors and their assistants, and
grand jury personnel (other than witnesses) from disclosing matters
occurring before the grand jury, except as the Rules of Criminal
Procedure otherwise provide.1 Judges may punish knowing violators of
Rule 6(e) with contempt of court.2 Attorneys involved in grand jury
practice should be knowledgeable about the secrecy obligations imposed
by Rule 6(e) and understand the common legal issues related to grand
jury secrecy.
A. Purpose
Grand jury secrecy serves several important interests. As the
Supreme Court observed in 1979:
First, if preindictment proceedings were made public, many prospective
witnesses would be hesitant to come forward voluntarily, knowing that
those against whom they testify would be aware of that testimony.
Moreover, witnesses who appeared before the grand jury wou ld be less
likely to testify fully and frankly, as they would be open to retribution
as well as inducements. There also would be the risk that those about
to be indicted would flee, or would try to influence individual grand
jurors to vote against indictment. Finally, by preserving the secrecy of
the proceedings, we assure that persons who are accused but exonerated
by the grand jury will not be held up to public ridicule.3
425 (1983).
2. FED. R. CRIM. P. 6(e)(2).
3. Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 219 (1979).
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B. Scope
1. Persons Subject to Grand Jury Secrecy
The Rule 6(e) prohibition on disclosure applies only to individuals
who have access to information by virtue of their relationship to the
grand jury, or under another provision of the Rule.4 Although Rule 6(e)
prohibits grand jurors, government attorneys and their agents, and court
reporters from disclosing grand jury materials, the advisory committee
notes to 6(e)(2) exempt grand jury witnesses from the mandate of
secrecy.5 Accordingly, a grand jury witness is free to discuss what he
intends to say during grand jury proceedings and to what he has testified
following grand jury proceedings.6 Because witnesses are generally free
to disclose their communications with the grand jury, a prosecutor may
not instruct a witness to keep secret the testimony or appearance before
the grand jury.7 Courts have held, however, that government attorneys
may advise a grand jury witness to decide on their own not to discuss
their testimony and the government may express a preference, or even
directly ask, that the witness not discuss it.8
4. See United States v. Forman, 71 F.3d 1214, 1215 (6th Cir. 1995) (noting
that government attorney who improperly gained access to grand jury
materials but had not been assigned to review the materials or to
participate in grand jury investigation was not “an attorney for the
government” subject to Rule 6(e) secrecy requirements); Fund for
Constitutional Gov’t v. National Archives and Records Serv., 656 F.2d
856, 870 n.33 (D.C. Cir. 1981).
committee notes to Rule 6(e)(2) state that “[t]he seal of secrecy on
witnesses seems an unnecessary hardship and may lead to injustice if a
witness is not permitted to make a disclosure to counsel or to an
associate.” FED. R. CRIM. P. 6(e)(2) advisory committee’s note.
6. In re Grand Jury Subpoena Duces Tecum, 797 F.2d 676, 679 (8th Cir.
1986) (recognizing that Rule 6(e) permits a grand jury witness to disclose
content of his testimony without first seeking a court order).
(1st Cir. 1987); see also In re Grand Jury Summoned Oct. 12, 1970, 321
F. Supp. 238, 240 (N.D. Ohio 1970) (observing that a prosecutor
improperly admonished grand jury witnesses to report back to grand jury
if later interrogated regarding questions asked of witnesses before grand
jury).
Jury Proceedings, 558 F. Supp. 532, 535 (W.D. Va. 1983). But see In re
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155
Some courts, however, have found that “[c]ircumstances may exist . .
. which would justify some restrictions on disclosure by [grand jury]
witnesses.”9 For example, one court held that under the appropriate
circumstances and upon the proper showing, a district court may direct a
grand jury witness to keep the fact that he has been served with a
subpoena secret from targets of the investigation for an appropriate
period of time.10 The court determined that in order to impose an order
of secrecy upon a grand jury witness, the party seeking such an order
must demonstrate “compelling necessity . . . shown with particularity.”11
2. Disclosure Must Be to Someone
Rule 6(e) prohibits disclosure if such disclosure would reveal
anything about “the contents of the grand jury proceedings.”12 Courts
have made clear that “[f]or there to be a disclosure, grand jury matters
must be disclosed to someone.”13 For instance, if the Antitrust Division
(Division) of the Department of Justice abandons a criminal investigation
and elects to proceed by civil complaint, the continued use of
information by the very same Division attorneys (who properly obtained
access to the information through the grand jury investigation) does not
Proceeding Before the Grand Jury Summoned Oct. 12, 1970, 321 F.
Supp. 238, 239 (N.D. Ohio 1970) (holding that government attorneys
must first advise witnesses that they have no obligation of secrecy
regarding their testimony before grand jury and that they may discuss
their testimony before grand jury).
Tecum, 797 F.2d 676, 680 (8th Cir.1986); Lockheed Martin Corp. v.
Boeing Co., 393 F. Supp. 2d 1276, 1279 (M.D. Fla. 2005); B eacon
Journal Publishing Co. v. Unger, 532 F. Supp. 55, 59 (N.D. Ohio 1982);
In re Grand Jury Witness Subpoenas, 370 F. Supp. 1282, 1285 n.5 (S.D.
Fla. 1974).
10. Grand Jury Subpoena Duces Tecum, 797 F.2d at 680 (concluding that
Congress, in approving Federal Rules of Criminal Procedure, did not
intend to completely bar courts from imposing a reasonable obligation of
secrecy in appropriate case).
11. Id. at 681 (quoting United States v. Procter & Gamble Co., 356 U.S. 677,
682 (1958)).
12. In re Grand Jury Matter, 697 F.2d 511, 512 (3d Cir. 1982) .
13. United States v. John Doe, Inc. I, 481 U.S. 102, 109 (1987) (quoting
United States v. Archer Daniels Midland Co., 785 F.2d 206, 212 (8th Cir.
1986)).
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