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The federal grand jury exists to investigate crimes against the United States and to securepreserve the constitutional right of grand jury indictment. Its responsibilities require broad powers.
As an arm of the U.S. District Court which summons it, upon whose process it relies, and which will receive any indictments it returns, the grand jury's subject matter and geographical jurisdiction is that of the court to which it is attached.
As a general rule, the law is entitled to everyone's evidence. Witnesses subpoenaed to appear before the grand jury, therefore, will find little to excuse their appearance. Once before the panel, however, they are entitled to the benefit of various constitutional, common law, and statutory privileges including the right to withhold self-incriminating testimony and the security of confidentiality of their attorney-client communications. They are not, however, entitled to have an attorney with them in the grand jury room when they testify.
The grand jury conducts its business in secret. Those who attend its sessions other than witnesses may disclose its secrets only when a court determines the interests of justice permit.
Unless the independence of the grand jury is overborne, irregularities in the grand jury process ordinarily will not result in dismissal of an indictment, particularly where dismissal is sought after conviction.
The concurrence of the attorney for the government is required for the trial of any indictment voted by the grand jury. In the absence of such an endorsement or when a panel seeks to issue a report, the court enjoys narrowly exercised discretion to dictate expungement or permit distribution of the report.
This report is available in an abridged form—without footnotes or citations to authority—as CRS Report RS20214, Federal Grand Juries: The Law in a Nutshell.
"The grand jury [has] a unique role in our criminal justice system."1 It was born of a desire to identify more criminals for prosecution and thereby to increase the King's revenues. ButWith the exclusive power to accuse is alsoalso comes the power not to accuse, and early on the grand jury became both the "sword and the shield of justice."2
This dual character marks the federal grand jury to this day. As the sword of justice, it enjoys virtually unfettered power to secretly investigate the mere possibility that federal laws may have been broken. Yet it remains a potential shield for it must give its approval before anyone may be brought to trial unwillingly for a serious federal crime.3
What follows is a brief general description of the law relating to the federal grand jury, with particular emphasis on its more controversial aspects—relationship of the prosecutor and the grand jury, the rights of grand jury witnesses, grand jury secrecy, and rights of the targets of a grand jury investigation.
The grand jury is an institution of antiquity that dates back to the twelfth century. When William the Conqueror sought to compile the Domesday Book, he called upon the most respected men of each community. Their reports were collected to form an inventory of England's property, real and personal, and served as the foundation of the Crown's tax rolls.4
Almost a century later in the Assize of Clarendon, the ancestor of the modern grand jury, Henry II used the same approach to unearth reports of crime,45 and thereby increase the flow of fines and forfeitures into his treasury.5
6
From the power to accuse, the power to refuse to accuse (i.e., to protect) eventually developed. By the American colonial period, the grand jury had become both an accuser and a protector. It was thethis protector the Founders saw when they enshrined the grand jury within the Bill of Rights67 and the reason it has been afforded extraordinary inquisitorial powers and exceptional deference.7
8
The Fifth Amendment right to grand jury indictment is only constitutionally required in federal cases.89 In a majority of the states, prosecution may begin either with an indictment or with an information or complaint filed by the prosecutor.9
10
Although abolition of the right to indictment in themany U.S. states and abolition of the grand jury itself in England were primarily matters of judicial efficiency,1011 most of the more contemporary proposals to change the federal grand jury system are the product of concern for the fairness of the process or for perceived excesses caused by prosecutorial exuberance.11
The authority of a
The federal grand jury isenjoys sweeping authority, but it is limited to the investigation of possible violations of federal criminal law triable in the district in which it is sitting.12 This13 The grand jury does not includehave the power to investigate conduct known to have no connection to the court's jurisdiction, but does encompass the authority toit may inquire whether such a connection may exist.13
exists.14
The grand jury may begin its examination even in the absence of probable cause or any other level of suspicion that a crime has been committed within its reach. In the exercise of its jurisdiction, "the grand jury may ""can investigate merely on suspicion that the law is being violated, or even just because it wants assurance that it is not,""1514 and its inquiries "may be triggered by tips, rumors, evidence proffered by the prosecutor, or the personal knowledge of the grand jurors."15
16
Unrestrained "by questions of propriety or forecasts of the probable result of the investigation or by doubts whether any particular individual will be found properly subject to an accusation,"16 its17 the grand jury's "investigation is not fully carried out until every available clue has been run down and all witnesses examined in every proper way to find if a crime has been committed."17
Federal law requires the various United States District Courts to order one or more grand juries to be summoned when the public interest requires.1818
Selection
The various United States district courts each summon one or more grand jury panels.19 In addition, the Attorney General may request the District Courtdistrict court to summon a special grand jury in any of the larger districts or when he or she believes the level of criminal activity in the district warrants it.19
Historically,20
Originally under the English tradition the sheriff selected the members of the grand jury.2021 The practice of having the sheriff of the county select the members of the grand jury continued for some time in England and in colonial America, although grand jurors were elected in some colonies.2122 At one time, federal law addressed matters governing the selection, qualifications and exemptions of federal grand jurors largely by reference to the law of the state in which the grand jury was to be convened.2223 These matters are now the responsibility of the court, governed by the Jury Selection and Service Act of 1968,2324 and the selection plan established for the district in which the grand jury is to be convened.
Federal grand jurors must be citizens of the United States, 18; be eighteen years of age or older and; be residents of the judicial district for at least a year,; be able to read, write and understand English with sufficient proficiency to complete the juror qualification form,; be able to speak English,; and be mentally and physically able to serve; those. 25 Those facing pending felony charges and those convicted of a felony (if their civil rights have not been restored) are ineligible.24
26
Discrimination in selection on the basis of race, color, religion, sex, national origin, or economic status is prohibited.2527 Grand jurors must be "selected at random from a fair cross section of the community in the district or division wherein the court convenes."2628 Either a defendant, an attorney for the government, or a member of an improperly excluded group may challenge the selection of a grand jury panel contrary to these requirements.27
29
Since the grand jury began with indictments based upon the personal knowledge of the members of the panel, there is some historical justification for the position that bias or want of impartiality should not disqualify a potential grand juror. The drafters of the Federal Rules of Criminal Procedure seemed to confirm this view when they rejected proposed language permitting a challenge of the grand jury based on "bias or prejudice."28
One commentator points out, however, that language in several Supreme Court cases has led some lower courts to assert that grand juries must be unbiased, or at least they must not be exposed to improper influences that would create bias.2930 The case law also seems to focus on any contamination of the panel as a whole and to rely upon each grand juror's faithfulness to his or her oath to avoid the adverse consequences of individual bias.30
Grand31
Federal grand jury panels consist of 16 to 23sixteen to twenty-three members,31 1632 sixteen of whom must be present for a quorum,3233 and 12twelve of whom must concur to indict.3334 The size of grand jury panels is a remnant of the common law,3435 but the common law treatises and the cases provide little indication of why those particular numbers were chosen.3536 Of course, when the grand jury's accusations were based primarily upon the prior knowledge of the panel's members, larger panels were more understandable.
The movement, which led to abolition of the right to indictment in many of the states, also resulted in a reduction in the size of most state grand jury panels.3637 Perhaps because of a reluctance to dilute the federal constitutional right to indictment, there have been few suggestions for a comparable reduction in the size of the federal grand jury.37
38
The selection of 23twenty-three members for a panel which requires only the presence of 16sixteen to conduct its business would seem to obviate the need for alternate grand jurors. This is not the case, however, and the rules permit the court to direct the selection of alternate grand jurors at the same time and in the same manner as other members of the panel are selected.38
After selection, the court swears in members of the grand jury;3940 names a "foreperson and deputy foreperson,"41"40 and instructs the panel.4142 Federal grand juries sit until discharged by the court, but generally for no longer than 18eighteen months, with the possibility of onea six -month extension.4243 Special grand juries convened in large districts or in districts with severe crime problems also serve until discharged or up to 18eighteen months, but may be extended up to 36thirty-six months and in some cases beyond.43
The grand jury does not conduct its business in open court, nor does a federal judge preside over its proceedings.4445 The grand jury meets behind closed doors with only the jurors, the attorney for the government, witnesses, someone to record testimony, and possibly an interpreter, present.45
46 In many cases, the government will have already conducted an investigation and the attorney for the government will present evidence to the panel. In other cases, the investigation will be incomplete and the grand jury, either on its own initiative or at the suggestion of the attorney for the government, will investigate.
Originally, the grand jury brought criminal accusations based exclusively on the prior knowledge of its members. Today, the grand jury acts on the basis of evidence presented by witnesses called for that purpose and only rarely on the personal knowledge of individual jurors.46
47
The attorney for the government will ordinarily arrange for the appearance of witnesses before the grand jury, will suggest the order in which they should be called, and will take part in questioning them.4748 The grand jury most often turns to prosecutorthe prosecutor for legal advice49 and to draft most of the indictments, which the grand jury returns.48
Grand jury witnesses usually appear before the grand jury under subpoena.4951 The rule calls for subpoenas to be available in blank for the "parties" to proceedings before the court, but "no one is meaningfully a party in a grand jury proceeding."5052 Nevertheless, there seems little question that subpoenas may be issued and served at the request of the panel itself,5153 although the attorney for the government usually "fills in the blanks" on a grand jury subpoena and arranges the case to be presented to the grand jury.5254 Unjustified failure to comply with a grand jury subpoena may result in a witness being held in civil contempt,5355 convicted for criminal contempt,5456 or both.5557 A witness who lies to a grand jury may be prosecuted for perjury,5658 or for making false declarations before the grand jury.57
59
Conversely, others with information they wish to provide it to the grand jury are prohibited from doing so except through the court or the attorney for the government.5860 Consequently, neither a potential defendant nor a grand jury target nor any of their counsel has any right to appear before the grand jury unless invited or subpoenaed.5961 Nor does a potential defendant nor a grand jury target nor their counsel have any right to present exculpatory evidence to the grand jury nor to present a substantive objection.60
62
Grand jury appearances, however, are more likely to be fought than sought. Resistance is futile most often. Absent self-incrimination or some other privilege, the law expects citizens to cooperate with efforts to investigate crime.6163 In the name of this expectation, a witness may be arrested, held for bail, and under some circumstances incarcerated.6264 Even when armed with an applicable privilege, a witness' compliance with a grand jury subpoena is only likely to be excused with respect to matters protected by the privilege. A witness subpoenaed to testify rather than merely produce documents may be compelled to appear before the grand jury and claim the privilege with respect to any questions to which it applies.63
65
Witnesses also enjoy the benefit of fewer checks on the grand jury's exercise of investigative power than might be the case if the inquisitor were a government official rather than a group of randomly selected members of the community.6466 Thus as a rule, the grand jury is entitled to every individual's evidence even though testimony may prove burdensome, embarrassing, or socially or economically injurious for the witness.65
67
A grand jury subpoena may even "trump" a pre-existing protective court order under some circumstances.6668 This is not to say that the grand jury's authority is without limit, or that excessive prosecutorial zeal before the grand jury is unknown, or that there is never any just cause for a witness's refusal to answer a question or provide a document, but simply that the restraints on the grand jury's authority have been narrowly drawn and applied.
Grand
Federal grand jury subpoenas are subject to the maxim that, "the grand jury ... may not itself violate a valid privilege, whether established by the Constitution, statutes, or the common law."6769 In the context of grand jury subpoenas, as in most others, federal evidentiary privileges are governed by the Federal Rules of Evidence.68
70
The Rules do not articulate specific privileges. Instead, they declare that federal law concerning privileges is "governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience."69
71
Although the standard is clearly evolutionary, present federal law seems to reflect three levels of privilege recognition. Some privileges like doctor-patient, have been refused recognition at least for the time being, some like journalist-source have been recognized for limited purposes that may or may not provide the basis for a motion to quash a grand jury subpoena, and some like clergy-communicant have been recognized as evidentiary privileges for grand jury purposes.
72 Thus, the federal courts have said that for purposes of federal law no evidentiary privilege exists in cases of:
88A second group consists of recognized or developing butemerging qualified privileges, whose effectiveness against a grand jury subpoena may be uncertain at best. Members of the group include privileges for:
The handful of privileges that provide the grounds for quashing a grand jury subpoena include:
104Perhaps the two most commonly cited privileges in motions to quash grand jury subpoenas are the attorney-client privilege and the closely related attorney work product privilege. The attorney-client privilege covers "[c]onfidential disclosures by a client to an attorney made in order to obtain legal assistance."106105 The privilege does not foreclose grand jury inquiry into attorney-client communications which are themselves criminal or are in furtherance of some future criminal activity.107106 Nor, as a general rule, does the privilege cover the identity of the client nor details concerning payment of the attorney's fee,108107 and thus the privilege will usually not constitute grounds to quash a grand jury subpoena directed to secure that information.109
108
This last general rule may be subject to any of three exceptions. The privilege may extend to information concerning the identity of the client or the particulars of the fee arrangement when (1) "disclosure would implicate the client in the very criminal activity for which legal advice was sought; ... [(2)] disclosure of the client's identity by his attorney would have supplied the last link in an existing chain of incriminating evidence likely to lead to the client's indictment; ... [or (3)] the payment of the fee itself is unlawful ... [or] the fee contract contain[s] any confidential communication."110
109
The attorney "work product privilege protects any material obtained or prepared by a lawyer in the course of his legal duties, provided that the work was done with an eye toward litigation."111110 Like the attorney-client privilege, it is subject to a crime/fraud exception.112111 Unlike that privilege, however, "the work product privilege belongs to both the client and the attorney, either one of whom may claim it.112 An innocent attorney may claim the privilege even if a prima facie case of fraud or criminal activity has been madeexists as to the client."113
The cases which give rise to attorney-client and attorney work product claims not infrequently include Sixth Amendment invocations as well.114 At first blush, the Sixth Amendment right to the assistance of counsel might be thought to afford but scant ground upon which to base a motion to quash a grand jury subpoena since the right does not ordinarily attach until an individual has been accused of a crime, e.g., after indictment.115 This is in fact a very real limitation, but one which admits to exception where either the client has already been indicted or arrested or where the vitality of the right requires pre-attachment recognition.116
As a general rule, a grand jury subpoena will only be quashed on the basis of Sixth Amendment considerations on those rare instances where it is shown to have been motivated solely by an intent to harass,117 where compliance would unnecessarily result in an actual conflict of interest between the attorney and his or her client, or where compliance would unnecessarily tend to undermine the attorney-client relationship.117118 The Sixth Amendment, however, does not assure a grand jury witness of the right to have an attorney present when the witness testifies before the grand jury.118
119
A successful refusal to appear or testify before the grand jury, based upon the First Amendment guarantees of the freedoms of the press, association, or expression,119120 is even more rare. Under extreme circumstances, it will provide the grounds to avoid a contempt citation or to quash a federal grand jury subpoena.120121 Generally it will not.121
122
The Fourth Amendment prohibits unreasonable governmental searches and seizures.122123 What might be unreasonable under other circumstances, may well be considered reasonable in a grand jury environment. For example, grand jury subpoenas are not considered per se unreasonable simply because they require neither probable cause nor the filter of an approving neutral magistrate. 124
The opportunity to be heard on a motion to quash before complying makes the grand jury subpoena in many respects less intrusive than the warrant.123
125
Even "forthwith" subpoenas, where the opportunity to quash may be minimized,124126 have generally been thought to pass constitutional muster, either because the party to whom they were address complied, i.e., consented,125127 or because the circumstances presented exigencies similar to those to which Fourth Amendment demands have traditionally yielded.126
128 The shadow of the Fourth Amendment is visible in Rule 17(c) of the Federal Rules of Criminal Procedure, which supplies the grounds most often successfully employed to quash a grand jury subpoena:
A subpoena may also command the person to whom it is directed to produce the books, papers, documents or other objects designated therein. The court on motion made promptly may quash or modify the subpoena if compliance would be unreasonable or oppressive.
However, a "'grand jury proceeding is accorded a presumption of regularity, which generally may be dispelled only upon particularized proof of irregularities in the grand jury process.' Consequently, a grand jury subpoena issued through normal channels is presumed to be reasonable."127
129
A subpoena is "unreasonable or oppressive" if (1) it commands the production of things clearly irrelevant to the investigation being pursued; (2) it fails to specify the things to be produced with reasonable particularity; or (3) it is unreasonable in terms of the relative extent of the effort required to comply.128
130
It is not unreasonable under the Fourth Amendment nor contrary to the Fifth Amendment privilege against self-incrimination to subpoena a witness to appear before the grand jury in order to furnish a voice exemplar,129131 a handwriting exemplar,130132 to sign a consent form authorizing the disclosure of bank records,131133 or for juveniles to produce a DNA sample and a complete set of fingerprints.132134 Consequently, the courts will not quash an otherwise valid subpoena issued for any those purposes.133
135
Although the Fifth Amendment privilege against self-incrimination134136 precludes requiring a witness to testify at his or her criminal trial,135137 it does not "confer an absolute right to decline to respond in a grand jury inquiry."136138 Once before the grand jury, a witness may decline to present self-incriminating testimony.137139 The right does not include the option to protect pre-existing, voluntarily prepared personal papers on the ground that they are self-incriminatory,138140 but a witness may refusedrefuse to produce that documents where the act of production (rather than the mere content of the documents) would itself be incriminating.139141 The privilege, nevertheless, is a personal one, and as a result provides no basis to quash a grand jury subpoena duces tecum for the records of corporate or other legal entities rather than of individuals.140
142
The Fifth Amendment due process clause,141Due Process Clause,143 with and like the "unreasonable or oppressive" standard of Rule 17 of Federal Rules of Criminal Procedure, supplements, supplement other grounds for a motion to quash grand jury subpoenas when confronted with potential abuse of the grand jury process or practices that are fundamentally unfair.
Thus, a grand jury subpoena is subject to a motion to quash if issued for the sole or dominant purpose of preparing the government's case against a previously indicted target, but not if there is a possible valid purpose for the subpoena.142144 Nor may the grand jury subpoena be used solely as a discovery device for civil cases in which the government has an interest.143
145
Finally, the Constitution provides that "for any speech or debate in either House, they [the members of Congress] shall not be questioned in any other place."144146 The privilege precludes questioning before the grand jury of a Member's legislative acts.145
Federal law prohibits the use of evidence tainted by illegal wiretapping.146148 The prohibition provides just cause for the refusal ofpermits a grand jury witness to respond to refuse to answer inquiries based onderived from illegal wiretapping information.147.149 Similarly, a grand jury subpoena directed towards earlier testimony secured under a promise of immunity from prosecution may be quashed if sought solely for the purpose of indicting the witness.148 There is some limited support for the proposition that a claim of foreign sovereign immunity may not be interposed to avoid compliance with a grand jury subpoena.149
150
The courts are divided over the question of whether a statute that classifies information as confidential thereby takes the information beyond the reach of a federal grand jury subpoena, or otherwise confines its authority.150
the grand jury's prerogatives.151
The vitality of regulatory limitations upon the grand jury subpoena power are equally unclear. The courts have consistently held that the government's failure to comply with the guidelines in the United States Attorneys' Manual concerning grand jury subpoenas does not constitute valid ground upon which to quash or modify a grand jury subpoena,151152 but implications of ethical rules purporting to proscribe the manner in which government attorneys may act with respect grand jury subpoenas and other matters arising out of their duties are less clear.152
Federal grand juries conduct their business in a secrecy defined by rules which limit who may attend,153secret, primarily154 at the direction of Rule 6 of the Federal Rules of Criminal Procedure that limits who may attend,155 and the circumstances under which matters involving the conduct of their business may be disclosed.154156 Grand jury secrecy predates the arrival of the grand jury in this country and the Supreme Court has said that "the proper functioning of our grand jury system depends upon" it.155157 On the other hand, it has always been freely acknowledged that there are circumstances when, in balancing the interests of justice, the interests to be served by disclosure will outweigh the interests in secrecy.
The cloak surrounding the grand jury's business serves several interests:
(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 witness 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 [the] 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.156
158 Conversely, circumstances may exist under which evidence of what occurred before the grand jury could prevent a miscarriage of justice or serve some other public interest. These conditions may develop in any environment in which evidence unearthed by the grand jury might be relevant. They can arise in the federal criminal trials which often follow from a grand jury investigation, in state criminal investigations and proceedings, in civil litigation, and in administrative and legislative proceedings.
The boundaries of grand jury secrecy have been defined by balancing the public interest in the confidentiality of grand jury proceedings against the public interest in disclosure in a particular context.157159 In some cases such as disclosure to a second grand jury, the rule permits disclosure without court approval;158160 in other cases such as disclosure to a civil litigant, the rule requires court approval after balancing the conflicting interests represented in a particular request for disclosure.159
Rule 6 expressly declares that "[n]o obligation of secrecy may be imposed on any person except in accordance with" its provisions,160162 and only proscribes disclosures by members of the grand jury, its court reporters and interpreters, the attorney for the government, and any personnel to whom grand jury matters are disclosed so that they may assist the attorney for the government.
Thus,
This implies that a grand jury witness may usually disclose his or her grand jury testimony,161163 and those not listed in Rule 6 generally need not keep the grand jury's secrets even if they learned of the matter from someone bound by the rule of secrecy.162164 Nevertheless, at least one court appears to believe that the Stored Communications Act operates as a sub silentio exception, permitting the imposition of nondisclosure orders upon communications service providers with respect to grand jury subpoenas they receive for customer communications content and records.163
165 Moreover, there is some suggestion that witness nondisclosure orders are "routinely issued" to federal grand jury witnesses.166
Matters
Grand jury secrecy shrouds "matter[s] occurring before the grand jury."164167 In most instances, it does not bar disclosure of information because the information might be presented to the grand jury at some time in the future.165168 The rule protects the workings of the grand jury not the grist for its mill. The fact of disclosure to the grand jury, rather than the information disclosed, is the object of protection, but the two are not always easily separated. Clearly, grand jury secrecy does not bar disclosure of information previously presented to a grand jury but sought for an unrelated purpose by a requester unaware of its earlier presentation. On the other hand, it does cover instances where information is sought because it has been presented to the grand jury. In between, the distinctions become more difficult and the cases do not reflect a single approach.166
169 For instance, there is some dispute over whether "ministerial" records relating to the grand jury are beyond the cloak of secrecy.170
Rule 6(e) also shields ancillary proceedings and records to avoid frustration of its purpose during the course of litigation concerning the proper scope of the rule.167
The rule does not preclude171
Disclosure
Rule 6 expressly authorizes disclosure of matters occurring before the grand jury under a number of circumstances. Some require court approval; others do not. The areas beyond the cloak of grand jury secrecy may include instances where: (1) the individual with the information is not among those listed in the Rule as bound to maintain the grand jury's secrets;168172 (2) disclosure does not constitute disclosure of "matters occurring before the grand jury;"169";173 (3) subsequent use of the information presented to the grand jury is not "disclosure;"170 (4) the disclosure is to an attorney for the government or a government employee for use in the performance of the attorney's duties;171 (5) disclosure is "directed by the court preliminary to or in connection with a judicial proceeding;"172 (6) a defendant seeks to dismiss an indictment because of grand jury irregularities;173 (7) an attorney for the government discloses the information to another grand jury;174 (8) disclosed to state officials for purposes of enforcing state law;175 (9) disclosure is expressly permitted by statute;176 and (10) continued secrecy would be inconsistent with history of the grand jury's relationship with the court and of the common law origins of the rule.177
Government";174 or (4) the disclosure is one of the explicit exceptions listed in Rule 6(e)(3).175
Government Attorneys and Employees
Explicit exceptions aside, government attorneys and other employees may benefit from access to matters occurring before the grand jury in a number of instances. For example, grand jury secrecy does not prevent a government attorney (who acquired information and prepared documents while assisting a grand jury) from reviewing and using the information and documents, without disclosing them to anyone else, in preparation for civil litigation.178
176
Moreover, disclosure to government attorneys and employees assisting the grand jury is likewise possible without court approval is likewise possible underunder Rule 6(e)(3)(A).179177 The Supreme Court has made it clear that such disclosures are limited to attorneys and employees assisting in the criminal process which is the focus of the grand jury's inquiry.180178 Grand jury material may be disclosed without court approval under Rule 6(e)(3)(A) to enable state police officers to assist a federal grand jury investigation, but apparently not private contractors.181
179
The rule, however, permits disclosure of grand jury evidence of certain foreign and terrorist criminal activities to various law enforcement officials without prior judicial approval. More specifically, ruleRule 6(e)(3)(D) authorizes disclosure of grand jury information concerning foreign nations, their agents and activities to federal, state, local, tribal and foreign officials without court approval, although the court must be notified after the fact.182
Rule 6(e)(3)(E)(i) permits court approved disclosure of grand jury matters "preliminarily to or in connection with a judicial proceeding."183181 Historically, the courts concluded, with some dissent, that the exception applied not only to the trial which followed the grand jury's investigation but to a variety of proceedings range from state bar and police disciplinary investigations,184182 to parole hearings,185183 state criminal investigations,186 Congressional184 congressional inquiries,187185 federal administrative proceedings,188186 civil litigation,189187 and other grand jury investigations.190188 In United States v. Baggot, however, the Supreme Court provideprovided guidance as to when disclosure might be considered "preliminarily to or in connection with" an appropriate proceeding and some indication of what kinds of proceedings might be considered "judicial":
[T]he term "in connection with," in (C)(i) [now (E)(i)] ... refer[s] to a judicial proceeding already pending, while "preliminary to" refers to one not yet initiated.... The "judicial proceeding" language ... reflects a judgment that not every beneficial purpose, or even every valid governmental purpose, is an appropriate reason for breaching grand jury secrecy. Rather, the rule contemplates only uses related fairly directly to some identifiable litigation, pending or anticipated. Thus, it is not enough to show that some litigation may emerge form the matter in which the material is to be used, or even that litigation is factually likely to emerge. The focus is on the actual use to be made of the material. If the primary purpose of disclosure is not to assist in preparation or conduct of a judicial proceeding, disclosure under (C)(i) [now (E)(i)] is not permitted.191
189
Using this criterion, Baggot concluded that disclosure of grand jury matter to the government for purposes of a tax audit, after which any tax liability could be enforced nonjudicially, could not be considered "preliminary to or in connection with a judicial proceeding" and thus could not be permitted under (C)(i).192
[now (E)(i)].190
Baggot found it unnecessary to address "the knotty question of what, if any, sorts of proceedings other than the garden-variety civil actions or criminal prosecutions might qualify as judicial proceedings under (C)(i)."193191 The case's description of disclosures in an administrative context, however, hardly supports the notion that "judicial proceedings" include those before administrative tribunals.194
Court -approved disclosures generally require "a strong showing of particularized need."195193 Petitioners seeking disclosure "must show that the material they seek is needed to avoid a possible injustice in another judicial proceeding, that the need for disclosure is greater than the need for continued secrecy, and that their request is structured to cover only material so needed."196
194
Since any examination begins with a preference for preservation of the grand jury's secrets, the particularized need requirement cannot be satisfied simply by demonstrating that the information sought would be relevant or useful or that acquiring it from the grand jury rather than from some other available source would be more convenient.197
195
While the test remains the same whether the government or a private party seeks disclosure,198196 "the concerns that underlie the policy of grand jury secrecy are implicated to a much lesser extent when the disclosure merely involves government attorneys."199
197
In the balance to be struck in the process of determining whether "the need for disclosure is greater than the need for continued secrecy,"200198 the district court enjoys discretion to judge each case on its own facts,201199 but some general trends seem to have developed.
"[A]s the considerations justifying [grand jury] secrecy become less relevant, a party asserting a need for grand jury [material] will have a lesser burden in showing justification."200
The need to shield the grand jury's activities from public display is less compelling once it has completed its inquiries and been discharged,202201 especially if the resulting criminal proceedings have also been concluded.203202 Of course, there must still be a counterbalancing demonstration of need,204203 a requirement that becomes more difficult if the grand jury witnesses whose testimony is be disclosed still run the risk of retaliation.205
"Courts have consistently distinguished the requests for documents generated independent of the grand jury investigation from the request for grand jury minutes or witness transcripts reasoning that the degree of exposure of the grand jury process inherent in the revelation of subpoenaed documents is lesser than the degree of disclosure attributable to publication of witness transcripts."206
204
Because they necessarily reveal less of matters occurring before the grand jury, federal courts regularly distinguish documents generated independent of the grand jury from grand jury witness statements.205207206 In the same vein, they are more disposed to the interests supporting disclosure if the petitioner's opponent already enjoys the benefit of the information sought.208
208
Rule 6(e)(3)(E)(ii) permits court approved disclosure upon a defendant's request "showing grounds may exist for a motion to dismiss the indictment because of matters occurring before the grand jury," and upon a showing of particularized need.210
210
Grand jury matters may be disclosed to another federal grand jury without court approval under Rule 6(e)(3)(C). Prior to enactment of this part of the Rule, disclosure to another federal grand jury was possible upon a showing of particularized need "preliminary to or in connection with a judicial proceeding" under (E)(i). Neither particularized need nor court approval are apparently any longer required and disclosure is permitted whether the two panels are sitting within the same district or not.212
212
Where the grand jury matters may show evidence of a violation of state law, the attorney for the government may petition the court for disclosure to state, military, or foreign law enforcement authorities under Rule 6(e)(3)(E)(iii), (iv), (v).214
A criminal defendant is entitled to inspect and copy that portion of the transcript of his or her own testimony before a grand jury which relates to a crime with which he or she has been charged.215 And, under214 Under the Jencks Act, after a witness has testified against a defendant at trial, the defendant is entitled to request and receive a copy of the witness' relevant grand jury testimony.216
215
Congress has expressly authorized the disclosure of grand jury matters in connection with enforcement of some of the banking laws.217216 In the case of civil penalties for bank fraud, false statements and embezzlement and civil forfeiture for money laundering, the attorney for the government may receive information concerning grand jury matters from the attorney who assisted the grand jury or any of his or her assistants.217 Bank regulatory agency personnel may receive grand jury information concerning such misconduct upon a motion by the government showing substantial need.
218
But Congress's intent to breach the general rule of secrecy must be clear. Thus, the disclosure of grand jury matters is not authorized by those provisions of the Clayton Act which in certain antitrust instances compel the U.S. Attorney General to provide state Attorneys General with "any investigative files or other materials which are or may be relevant or material" to a cause action under the act.218
Several courts, conscious of a responsibility over the grand jury subpoenas and indictments and of the common law origins of Rule 6(e), have permitted or asserted that under the proper circumstances they would permit disclosure without reference to any particular express exception within Rule 6(e) or elsewhere.219 Others, for much the same reasons,220 Others consider Rule 6(e) the exclusive source of disclosure authority.221 Still others have noted that under the appropriate circumstances, a court might restrict disclosure of grand jury matters even in instances where Rule 6(e) would ordinarily permit disclosure.220
"A knowing violation of Rule 6 ... may be punished as a contempt of court."221223 Since the Rule speaks of punishment, it might be fair to assume that it contemplates criminal contempt. AndWhile it does, but the courts have also held that violations of grand jury secrecy may subject offenders to civil contempt and to the injunctive power of the court.222224 Government employees and members of the bar who improperly disclose the grand jury's secrets may be subject to disciplinary proceedings.223225 Under some circumstances, improper disclosure of grand jury matters may also violate the obstruction of justice provisions of 18 U.S.C. § 1503 (corruptly impeding or endeavoring to impede the administration of justice in connection with a judicial proceeding).224
There are four possible outcomes of convening a grand jury—(1) indictment,227 (2) a vote not to indict, to find "no bill" or "no true bill," or to endorse the indictment "ignoramus,"228 (3) discharge or expiration without any action,229 (4) submission of a report to the court.
In an indictment the grand jury accuses a designated person with a specific crime. It contains a "plain, concise and definite written statement of the essential facts constituting the offense charged"231 and bears the signature of the attorney for the government, and of the grand jury foreperson.225 The "constitution232 The "constitutional requirements for an indictment [are], first, that it contains the elements of the offense charged and fairly informs a defendant of the charge against which he must defend, and second, [that it] enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense."226
233
Every defendant to be tried for a federal capital or "otherwise infamous crime" has a constitutional right to demand that the process begin only after the concurrence of 12twelve of his or her fellow citizens reflected in an indictment.227234 It is a right, however, which the defendant may waive in noncapital cases and be charged under an information filed by the prosecutor without grand jury involvement.228235 Misdemeanors may, but need not, be tried by indictment.229
236
The grand jury may indict only upon the vote of 12twelve of its members,230237 and upon its conclusion that there is probable cause to believe that the accused committed the crime charged.231
The decision to indict rests with the grand jury. It may indict in the face of probable cause, but it need not; it cannot be required to indict nor punished for failing to do so.232239 On the other hand, the prosecution is free to resubmit a matter for reconsideration by the same grand jury or by a subsequent panel and a grand jury panel is free to reexamine a matter notwithstanding the prior results of its own deliberations or those of another panel.233240 Moreover, the defendant will not be heard to complain that the panel was not informed of its prerogative to decline to indict even if presented with probable cause.234
241
Reports242
The law regarding the last alternative available to the grand jury, the authority to send forward "reports" or "presentments," is somewhat obscure. At common law "indictments" were returned by the grand jury based upon evidence presented to the grand jury, while "presentments" were "the notice taken by the grand jury of any offense from their own knowledge or observation, without any bill of indictment laid before them at the suit of the king."236243 It is clear that in the limited case of the special grand juries convened under 18 U.S.C. §§ 3331-3334, the grand jury has statutory authority to present a report on organized crime to the court.244.237 Most federal grand jury panels, however, have no express authority to issuepresent reports.
They nevertheless appear to have common law authority to prepare reports, at least under some circumstances.238245 The district court which empanels the grand jury receives such communications and enjoys the discretion to determine the extent to which the reports should be sealed, expunged or disclosed. Some of the factors considered in making that determination include "whether the report describes general community conditions or whether it refers to identifiable individuals; whether the individuals are mentioned in public or private capacities; the public interest in the contents of the report balanced against the harm to the individuals named; the availability and efficacy of remedies; whether the conduct described is indictable;"239";246 and whether the report intrudes upon the prerogatives of state and local governments.240
The court has the power to discharge a grand jury panel at any time within its term for any reason it sees fit.241248 The court's authority to discharge a panel, quash its subpoenas, seal or expunge its reports or dismiss its indictments affords a check on "runaway" grand jury panels.242
Defendants have urged dismissal of their indictments based upon a wide array of alleged grand jury irregularities. They are rarely successful, if the indictment is valid on its face. The courts will dismiss an indictment which fails to charge a federal crime, as for instance, when it fails to include an essential element of the crime it purports to charge.243250 Otherwise, the irregularities which warrant dismissal are few and the obstacles which must be overcome to establish them substantial.
The courts are most hospitable to dismissal motions predicated upon constitutional violations. Thus, indictments returned by grand jury panels whose selection has been tainted by racial or sexual discrimination will be dismissed.244251 The courts will likewise dismiss indictments which charge a defendant on basis of his or her immunized testimony taken pursuant to an order entered in lieu of his or her Fifth Amendment self-incrimination privilege;245252 which are tainted by violations of the Speech or Debate privilege in the case of a Member of Congress,253,246 or of the right of the accused to counsel of his choice;247254 which are based solely on evidence secured in violation of the Fourth Amendment;248255 which the government knowingly secured through the presentation of false or perjured testimony;249256 or which are returned after a witness is called before the grand jury for the sole purpose of building perjury prosecution against the witness;250257 or which charge violation of a statute that is unconstitutional on its face.251
258
Courts will also dismiss a grand jury indictment in the name of due process for government misconduct unrelated to grand jury irregularities, for instance, where the prosecution sought indictment selectively for constitutionally impermissible reasons;252 or259 for reasons of vindictive retaliation;253260 where the prosecution has secured the indictment through outrageous conduct which shocks the conscience of the court;254261 or where the prosecution has unjustifiably delayed seeking an indictment to the detriment of the defendant.255
262
In the absence of one of these rarely found causes for constitutional challenge, a facially valid indictment returned by a legally constituted grand jury is almost uniformly immune from dismissal.256 "263 The Supreme Court in Bank of Nova Scotia v. United States held that "a district court may not dismiss an indictment for errors in grand jury proceedings unless such errors prejudiced the defendants."264 Thus, a district court may not exercise its supervisory powers over the grand jury to dismiss an indictment, absent misconduct before the grand jury amounting to a clear transgression of statute or Supreme Court precedent.265
v. United States, [however,] makes it clear that the supervisory power can be used to dismiss an indictment because of misconduct before the grand jury, at least where the misconduct amounts to a violation of one of those few, clear rules which were carefully drafted and approved by this Court and by Congress to ensure the integrity of the grand jury functions."257
Bank of Nova Scotia also makes it clear, nevertheless, that such supervisory authority to dismiss an indictment is only appropriately exercised where "'it is established that the violations substantially influenced the grand jury's decision to indict' or if there is 'grave doubt' that the decision was free from such substantial influence."258 If the error is harmless the indictment may not be dismissed;259 "a district court may not dismiss an indictment for errors in grand jury proceedings unless such errors prejudiced the defendants."260266 Timing is also important. After a trial jury has found sufficient evidence to convict a defendant, a claim of prejudice based on grand jury irregularities may lose most of its force.261
Finally, the supervisory power to dismiss an indictment beyond those areas where it is reinforced by the Constitution, statute, or rule is exceptionally limited.262267 As a consequence of these limitations, the courts have refused to dismiss indictments in the face of a wide range of objections.268
As a consequence of these limitations, usually indictments will not be dismissed simply because:
In addition to dismissal of the indictment at the request of the accused, the government may move for dismissal of the indictment under Rule 48(a). of the Federal Rules of Criminal Procedure.269 Although the rule requires "leave of court," prosecutorial discretion is vested in the executive and the court cannot effectively compel prosecution. The authority of the courts to deny dismissal is therefore limited to instances where dismissal would be "clearly contrary to manifest public interest."279270 In most instances, dismissal at the government's behest is without prejudice, and the prosecutor may seek to reindict for the same offense as long as neither speedy trial, the double jeopardy clause, or due process pose a bar.280
271
Footnotes1. |
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| 2. |
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| 3. |
"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a | |||||||||||
| 4. |
William Searle Holdsworth, 2 History of English Law, 158-61 (1903). Fla. St. U. L. Rev. 1, 5–6 (1996).
In the Assize of Clarendon and the later Assize of Northampton (1176), "twelve knights of the hundred or, if there are no knights, ... twelve free and lawful men, ... and ... four men from each township of the hundred" were assembled and "by their oath" identified from their own knowledge those reputed to have committed crimes. Plucknett, supra note 4, at 112; 3 Stephen, supra note 4, at 251; 1 Holdsworth, supra note 4, at 147.
"Assize" refers to "[a] session of a court or council." Assize, Black's Law Dictionary (12th ed. 2024). In the Assize of Clarendon and the later Assize of Northampton (1176), "twelve knights of the hundred or, if there are no knights, ... twelve free and lawful men, ... and ... four men from each township of the hundred" were assembled and "by their oath" identified from their own knowledge those reputed to have committed crimes. Plucknett, supra note 4, at 112; 1 Stephen, supra note 4, at 251; 1 Holdsworth, supra note 4, at 147. "Assize" literally means "to sit together" and comes from the practice of gathering several knights or men of high repute to sit together and resolve some dispute or other legal matter from their own investigations or knowledge. Later the term was used (a) to designate the decree or statute that ordered the group to assemble, (b) to refer to the assemblage itself, and finally (c) to identify the court, time or place where the trial judges assembled throughout the countryside to hear cases. Black's Law Dictionary, 120-21 (1990). | |||||||||||
| 5. |
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| 7. |
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| 8. | .
The Fifth Amendment right to grand jury indictment is not binding upon the states, Hurtado v. California, 110 U.S. 516 (1884); Romansky v. Superintendent Greene SCI, 933 F.3d 293, 297–98 (3d Cir. 2019); Ashburn v. Korte, 761 F.3d 741, 758 (7th Cir. 2014); Stevenson v. City of Seat Pleasant, 743 F.3d 411, 418 n.4 (4th Cir. 2014); Peterson v. California, 604 F.3d 1166, 1170 (9th Cir. 2010); Goodrich v. Hall, 448 F.3d 45, 49 (1st Cir. 2006); Williams v. Haviland, 467 F.3d 527, 531 (6th Cir. 2006); | |||||||||||
| 9. |
Ariz. Const. Art. II, §30; Ariz.R.Crim.P. 2.2; Ark. Const. amend. 21, §1; Cal. Const. Art. I, §14, Cal.Penal Code §737; Colo. Const. Art. II, §8, Colo.Rev.Stat. §16-5-101; Conn. Gen.Laws Ann. §§54-45, 54-46; Fla. Const. Art. I, §15; Hawaii Const. Art. I, §10; Hawaii Rev.Stat.Ann. §801-1; Idaho Const. Art. I, §8; Ill. Const. Art.I, §7, Ill. Comp.Stat.Ann. ch.725 §5/111-2; Ind.Stat. Ann. §35-34-1-1; Iowa R. Crim.P. 2.4; Kan.Stat.Ann. §22-3201; La. Const. Art. I, §15; Md. Const. Decl. of Rts. Art. 21, Md. Ann.Code, Crim.P. §4-102; Mich. Comp.Laws Ann. §767.1; Minn.R.Crim.P. 17.01; Mo. Const. Art. I, §17; Mont. Const. Art. II, §20, Mont.Code Ann. §46-11-101; Neb. Const. Bill of Rts. §10; Neb.Rev.Stat. §29-1601; Nev. Const. Art.I, §8; N.M. Const. Art. II, §14; N.D. R.Crim.P. 7; Okla. Const. Art. II, §17; Or. Const. Art. VII, §5; R.I. Const. Art. I, §7; S.D. Const. Art. VI, §10; S.D.Comp.Laws Ann. §23A-6-1; Utah Const. Art. I, §13; Vt.R.Crim.P. 7; Wash. Const. Art. I, §25; Wis.Stat. Ann. §967.05; Wyo. Const. Art. I, §13, Wyo.R.Crim.P. 3. Several states do continue to recognize a right to grand jury indictment in felony cases, Ala. Const.I, §8; Alaska Const. Art. I, §8; Del. Const. Art. I, §8; Ga.Code Ann. §§17-7-70; Ky. Bill of Rts. §12; Me.Const. Art. I, §7; Mass.Gen.Laws Ann. ch. 263, §4; Miss. Const. Art.III, §27; N.H.Rev.Stat.Ann. §601:1; N.J. Const. Art.I, ¶8; N.Y. Const. Art. I, §6; N.C. Const. Art. I, §22; Ohio Const. Art. I, § 10; Pa.Const. Art. I, §10; S.C. Const. Art. I, §11; Tenn. Const. Art. I, §14; Tex. Const. Art. I, §10; Va.Code §§19.2-216, 19.2-217; W.Va. Const. Art. III, §4. And a few others require it in cases punishable by death or life imprisonment, Ala.Const. I, §8; Conn. Gen.Laws Ann. §54-45 (offenses punishable by death or life imprisonment committed prior to May 26, 1983); Fla. Const. Art. I, §15; La. Const. Art.I, §15; Minn. R. Crim. P. §17.01; R.I. Const. Art. I. §7. |
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| 10. |
"The obituary of the English grand jury might well read: Born in 1166 to increase accusations of crime, lived to be termed the palladium of justice, and died in 1933 of inutility on a wave of economy." Elliff, Notes on the Abolition of the English Grand Jury, 29 Journal of Criminal Law & Criminology 3 (1938), quoted in Calkins, Abolition of The Grand Jury Indictment in Illinois, 1966 University of Illinois Law Forum 423, 428. |
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| 11. |
Kuckes, the Useful, Dangerous Fiction of Grand Jury Independence, 41 American Criminal Law Review 1 (2004); Simmons, Re-Examining the Grand Jury: Is There Room for Democracy in the Criminal Justice System, 82 Boston University Law Review 1 (2002); Brenner, Is the Grand Jury Worth Keeping? 81 Judicature 190 (1998); Leipold, Why Grand Juries Do Not (and Cannot) Protect the Accused, 80 Cornell Law Review 260 (1995); Poulin, Supervision of the Grand Jury: Who Watches the Guardian?, 68 Washington University Law Quarterly 885, 927 (1990); Braun, The Grand Jury—Spirit of the Community?, 15 Arizona Law Review 893, 915 (1973); Schwartz, Demythologizing the Historic Role of the Grand Jury, 10 American Criminal Law Review 701, 770 (1972); contra, Antell, Modern Grand Jury: Benighted Supergovernment, 51 American Bar Association Journal 153, 154; Campbell, Eliminate the Grand Jury, 64 Journal of Criminal Law & Criminology 174 (1973). |
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| 12. | Ariz. Const. art. II, § 30; Ariz. R. Crim. P. 2.1, 2.2; Ark. Const. art. 2, § 8; Cal. Const. art. I, § 14, Cal. Penal Code § 737 (2025); Colo. Const. art. II, § 8, Colo. Rev. Stat. § 16-5-101 (2025); Conn. Gen. Stat. 54-45, 54-46 (2025); Fla. Const. art. I, § 15; Hawaii Const. art. I, § 10; Haw. Rev. Stat. Ann. § 801-1 (2025); Idaho Const. art. I, § 8; Ill. Const. art. I, § 7, 725 Ill. Comp. Stat. Ann. § 5/111-2 (West 2025); Ind. Stat. Ann. § 35-34-1-1 (2024); Kan. Stat. Ann. § 22-3201(2025); La. Const. art. I, § 15; Md. Const. Decl. of Rts. art. 21, Md. Ann. Code, Crim. Proc. § 4-102 (West 2025); Mich. Comp. Laws § 767.1 (2025); Minn. R. Crim. P. 17.01; Mo. Const. art. I, § 17; Mont. Const. art. II, § 20, Mont. Code Ann. § 46-11-101 (2025); Neb. Const. Bill of Rts. § 10; Neb. Rev. Stat. § 29-1601 (2025); Nev. Const. art. I, § 8; N.M. Const. art. II, § 14; N.D. R. Crim. P. 7; Okla. Const. art. II, § 17; Or. Const. art. VII, § 5; R.I. Const. art. I, § 7; S.D. Const. art. VI, § 10; S.D. Code Ann. § 23A-6-1 (2024); Utah Const. art. I, § 13; Vt. R. Crim. P. 7; Wash. Const. art. I, § 25; Wash. Rev. Code § 10.37.015 (2025); Wis. Stat. § 967.05 (2025); Wyo. Const. art. I, § 13, Wyo. R. Crim. P. 3. Several states continue to recognize a right to grand jury indictment in felony cases, e.g., Alaska Const. art. I, § 8; Del. Const. art. I, § 8; Ky. Bill of Rts. § 12; Me. Const. art. I, § 7; Mass. Gen. Laws ch. 263, § 4 (2024); Miss. Const. art. III, § 27; N.H. Rev. Stat. Ann. § 601:1 (2025); N.Y. Const. art. I, § 6; N.C. Const. art. I, § 22; Ohio Const. art. I, § 10; Pa. Const. art. I, § 10; S.C. Const. art. I, § 11; Tenn. Const. art. I, § 14; Tex. Const. art. I, § 10; Va. Code Ann. § 19.2-217 (2024). And a few others require it in cases punishable by death or life imprisonment, Ala. Const. art. I, § 8; Conn. Gen. Stat. § 54-45 (offenses punishable by death or life imprisonment committed prior to May 26, 1983); Fla. Const. art. I, § 15; La. Const. art. I, § 15; Minn. R. Crim. P. § 17.01; R.I. Const. art. I. § 7. "The obituary of the English grand jury might well read: 'Born in 1166 to increase accusations of crime, lived to be termed the palladium of justice, and died in 1933 of inutility on a wave of economy.'" Nathan T. Elliff, Notes on the Abolition of the English Grand Jury, 29 J. Crim. L. & Criminology 3 (1938). Maris Medina, From Bulwark to Puppet: A Call to Democratize the Archaic Grand Jury, 29 Pub. Lint, L. Rep. 292 (2024); Brett Raffish, Making the Fourth Amendment "Real" in Grand Jury Proceedings, 19 Geo. J. L. & Pub. Pol'y 529 (2021); Thaddeus Hoffmeister, The Grand Jury Legal Advisor: Resurrecting the Grand Jury's Shield, 98 J. Crim. & Criminology 1171 (2008); Niki Kuckes, the Useful, Dangerous Fiction of Grand Jury Independence, 41 Am. Crim. L. Rev. 1 (2004); Ric Simmons, Re-Examining the Grand Jury: Is There Room for Democracy in the Criminal Justice System, 82 B. U. L. Rev. 1 (2002); Susan W. Brenner, Is the Grand Jury Worth Keeping? 81 Judicature 190 (1998); Andrew D. Leipold, Why Grand Juries Do Not (and Cannot) Protect the Accused, 80 Cornell L. Rev. 260 (1995); Anne Bowen Poulin, Supervision of the Grand Jury: Who Watches the Guardian?, 68 Wash. U. L. Q. 885, 927 (1990); Richard L. Braun, The Grand Jury—Spirit of the Community?, 15 Ariz. L. Rev. 893, 915 (1973); Schwartz, supra note 4, at 770; contra, Melvin P. Antell, Modern Grand Jury: Benighted Supergovernment, 51 ABA J. 153, 154 (1965); William J. Campbell, Eliminate the Grand Jury, 64 J. Crim. L. & Criminology 174 (1973). | |||||||||||
| 13. |
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Blair, 250 U.S. at 282. | ||||||||||||
| 17. |
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| 18. |
F.R.Crim.P. 6(a). |
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| 19. | Fed. R. Crim. P. 6(a)(1). | |||||||||||
|
1 Holdsworth, History of English Law, 148 (1903); 2 Hale, History of Pleas of the Crown, 154 (1778 ed.). |
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| 21. |
1 Holdsworth, supra note 4, at 148; 2 Hale, supra note 5, at 154. | |||||||||||
1 Stat. 88 (1789); 2 Stat. 82 (1800); 5 Stat. 394 (1840); 21 Stat. 43 (1879); 36 Stat. 1164 (1911); 28 U.S.C. §§ 411, 412 (1946 ed.). | ||||||||||||
28 U.S.C. §§ 1861 Id. § 1865. Id. Id. § 1862; United States v. Savage, 970 F.3d 217, 259 n.40 (3d Cir. 2020). | ||||||||||||
| 24. |
28 U.S.C. 1865. |
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| 25. |
28 U.S.C. 1862. |
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| 26. |
28 U.S.C. 1861. |
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| 27. |
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"A preliminary draft of Rule 6(b) would have permitted challenge of grand jurors on the grounds of bias | ||||||||||||
| 29. |
1 Wright & Leipold, Federal Practice & Procedure: Criminal §102 (2008 & 2014 Supp.); see also, United States v. Moore, 811 F. Supp. 112, 117 (W.D.N.Y. 1992); United States v. Finley, 705 F. Supp. 1297, 1306 (N.D. Ill. 1988); United States v. Burke, 700 F.2d 70, 82 (2d Cir. 1983); United States v. Serubo, 604 F.2d 807, 816 (3d Cir. 1979); United States v. York, 428 F.3d 1325, 1332-333 (11th Cir. 2005)(parallel citations omitted)("York has failed to establish that publicity surrounding his case 'substantially influenced' the ultimate decision to indict him and thereby caused him actual prejudice. Bank of Nova Scotia v. United States, 487 U.S. 250, 256 (1988)(dismissal of indictment due to error in grand jury proceedings is only appropriate where 'it is established that the violation substantially influenced the grand jury's decision to indict,' or if there is 'grave doubt' that the decision to indict was free from the substantial influence of such violations'"). |
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| 30. | , 320 F. Supp. 275, 282 (E.D. La. 1970)).
Fed. R. Crim. P. 6(a); 18 U.S.C. § 3321. | |||||||||||
| 31. |
18 U.S.C. 3321; F.R.Crim.P. 6(a). |
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| 32. |
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| 33. |
F.R.Crim.P. 6(f). |
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| 34. |
Fed. R. Crim. P. 6(f). | |||||||||||
| 35. | The Supreme Court has referred to "Lord Coke's explanation that the number of twelve is much respected in holy writ, as 12 apostles, 12 stones, 12 tribes, etc. , e.g., United States v. Williams, 28 F. Cas. 666, 670 (C.C.D. Minn. 1871) ("By the act of congress of March 3, 1865 (13 Stat. 500), it is provided that grand juries in the courts of the United States United States v. Williams, 28 F.Cas.666, 670 (No. 16,716) (C.C.D.Minn. 1871). " (citation omitted) (quoting Act Regulating Proceedings in Criminal Cases and for Other Purpose, ch. 86, § 1, 13 Stat. 500, 500 (1865)). See Iowa v. Ostrander, 18 Iowa 435, 443 (1865) "The requiring of twenty-three to be summoned, though we have found no reasons stated in the books, was probably in order to make sure of obtaining a full jury of twelve; | |||||||||||
| 36. |
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One of the few to do so recommended reduction to panels of seven, nine or eleven, with the concurrence of seven required for indictment Fed. R. Crim. P. 6(a)(2). Hale v. Henkel, 201 U.S. 43, 60 (1906), overruled by Murphy v. Waterfront Comm'n of N.Y. Harbor, 378 U.S. 52 (1964). Fed. R. Crim. P. 6(c). | ||||||||||||
| 38. |
F.R.Crim.P. 6(a)(2). |
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| 39. |
Hale v. Hensel, 201 U.S. 43, 60 (1906); for a model grand jury oath see, footnote 29, supra. |
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| 40. |
F.R.Crim.P. 6(c). |
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| 41. | Fed. R. Crim. P. 6(g). 18 U.S.C. §§ 3331, 3333. | |||||||||||
| 42. |
F.R.Crim.P. 6(g). |
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| 43. |
18 U.S.C. 3331, 3333. |
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| 44. |
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At one time, only members of the grand jury could be present when the panel was deliberating or voting, | ||||||||||||
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| 48. | United States v. Wahib, 578 F. Supp. 3d 951, 957 ("As legal advisor to the grand jury, the prosecutor must give the grand jury sufficient information concerning the relevant law to enable it intelligently to decide whether a crime has been committed."). | |||||||||||
| 49. | A subpoena is an order of the court demanding that an individual appear at one of its proceedings and produce evidence on a matter then under consideration. There are two kinds of subpoenas—subpoenas ad testificandum and subpoenas duces tecum. The first is simply a command to appear and testify; the second not only demands the witness's presence at a certain time and place but also requires him to bring certain evidence with him. Federal law with regard to subpoenas in criminal cases is governed in large measure by Rule 17 of the Federal Rules of Criminal Procedure: A subpoena must state the court's name and the title of the proceeding, include the seal of the court, and command the witness to attend and testify at the time and place the subpoena specifies. The clerk must issue a blank subpoena—signed and sealed—to the party requesting it, and that party must fill in the blanks before the subpoena is served. * * *
The court (other than a magistrate judge) may hold in contempt a witness who, without adequate excuse, disobeys a subpoena issued by a federal court in that district. A magistrate judge may hold in contempt a witness who, without adequate excuse, disobeys a subpoena issued by that magistrate judge as provided in 28 U.S.C. § 636(e). | |||||||||||
In re | ||||||||||||
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| 52. |
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| 53. |
"[C]ivil contempt ... is remedial, and for the benefit of the complainant. [C]riminal contempt ... is punitive to vindicate the authority of the court.... [T]he relief ... is remedial if the defendant stands committed unless and until he performs the affirmative act required by the court's order.... " Hicks v. Feiock, 485 U.S. 624, 631
In the case of civil contempt under
While fear is not just cause for failure to obey a grand jury subpoena, the witness's fear is a factor to be considered in determining whether civil contempt is likely to induce compliance. In re Grand Jury Proceeding (Doe), 13 F.3d 459, 461 (1st Cir. 1994); In re Grand Jury Proceedings, 914 F.2d 1372, 1374 | |||||||||||
| 54. |
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| 55. |
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| 56. |
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| 57. |
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It has been suggested that targets be afforded the opportunity to appear before the grand jury as a matter of right, Peter Arnella, Reforming the Federal Grand Jury and the State Preliminary Hearing to Prevent Conviction Without Adjudication, 78 | ||||||||||||
| 60. |
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| 61. |
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18 U.S.C. §§ 3144, 3142. The procedure applies to witnesses "in a criminal proceeding," a class which includes material grand jury witnesses, United States v. Awadallah, 349 F.3d 42, 49 Mandujano, 425 U.S. at 572. | ||||||||||||
| 63. |
United States v. Mandujano, 425 U.S. 564, 572 (1976). |
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| 64. | E.g., In re Sealed Case (Lewinsky), 162 F.3d 670, 674 n.4 (D.C. Cir. 1998) ("No | |||||||||||
| 65. |
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| 66. | ." (alterations in original) (quoting Blair, 250 U.S. at 281)).
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| 67. |
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| 68. |
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| 69. | In re Grand Jury Investigation, 918 F.2d 374, 384-85 (3d Cir. 1990). | |||||||||||
| 70. |
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| 71. |
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| 72. | In re Grand Jury Proceedings | |||||||||||
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| 75. |
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In re | ||||||||||||
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| 78. |
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| 80. |
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| 81. |
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| 82. |
Pearson v. Miller, 211 F.3d 57, 69 (3d Cir. 2000). |
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| 83. | Roberts v. Legacy Meridian Park Hosp., Inc., 299 F.R.D. 669, 672–73 (D. Or. 2014); Gargiulo v. Baystate Health, Inc., 826 F. Supp. 2d 323, 327 (D. Mass. 2011); Mattice v. Mem'l Hosp., 203 F.R.D. 381, 384–86 (N.D. Ind. 2001) (collecting cases).
| |||||||||||
| 84. | In re Grand Jury Subpoenas Dated Jan. 20, 1998, 995 F. Supp. 332, 334 | |||||||||||
| 85. | In re Sealed Case U.S. Dep't of Educ. v. NCAA, 481 F.3d 936, 938 (7th Cir. 2007); Ubiquiti Networks, Inc. v. Kozumi USA Corp., 295 F.R.D. 517, 525 (N.D. Fla. 2013). | |||||||||||
| 86. |
Scott v. City of Peoria, 280 F.R.D. 419, 423-24 (C.D.Ill. 2011)(recognizing the privilege); Lewis v. Wells Fargo & Co., 266 F.R.D. 433, 439 (N.D.Cal. 2010)("[I]n the Ninth Circuit, at least, such a [self-critical analysis] privilege does not exist"); In re Subpoena Issued to Commodity Futures Trading Commission, 370 F. Supp. 2d 201, 209-12 (D.D.C. 2005) (rejecting privilege but citing division among the lower federal courts); contra, Goodyear Tire & Rubber Co. v. Chiles Power Supply, Inc., 332 F.3d 976, 979-82 (6th Cir. 2003). |
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| 87. |
United States Department of Education v. National Collegiate Athletic Association, 481 F.3d 936, 938 (7th Cir. 2007); Ubiquiti Networks, Inc. v. Kozumi USA Corp., 295 F.R.D. 517, 525 (N.D.Fla. 2013). |
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| 88. |
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| 89. |
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| 90. | 3d 115, 126 (D. D.C. 2023), dismissed, No. 23-5198, 2023 WL 6284257 (D.C. Cir. Sept. 25, 2023) (per curiam) (same).
| |||||||||||
| 91. |
Orange v. City of Suffolk, 855 F. Supp. 620, 622-24 (E.D.N.Y. 1994). |
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| 92. |
Cf., Pierce County v. Guillen, 537 U.S. 129, 143-45 (2003)(scope of federal statutory privilege protecting official documents compiled to identify hazardous highway conditions). |
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| 93. | Pernell v. Fla. Bd. of Governors of the State Univ., 84 F.4th 1339, 1344 (11th Cir. 2023); La Union del Pueblo Entero v. Abbott, 68 F.4th 228, 235 (5th Cir. 2023); Jefferson Cmty. Health Care Ctrs., Inc. v. Jefferson Par., 849 F.3d 615, 624 (5th Cir. 2017); Orange v. City of Suffolk, 855 F. Supp. 620, 622–24 (E.D. N.Y. 1994). | |||||||||||
| 94. |
| |||||||||||
| 95. |
| |||||||||||
| 96. |
In re Grand Jury Subpoena Dated April 18, 2007, 485 F. Supp. 2d 709, 710-11 (E.D. Va. 2007); In re Grand Jury Subpoena, 144 F. Supp. 2d 540, 541-42 (W.D. Va. 2001).
| |||||||||||
| 97. |
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| 98. |
Kientzy v. McDonnell Douglas Corp., 133 F.R.D. 570, 571 (E.D.Mo. 1991)(recognizing privilege). |
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| 99. |
| |||||||||||
In re Grand Jury Subpoena Dated July 6 | ||||||||||||
In re Grand Jury Investigation, 918 F.2d 374, 384 | ||||||||||||
| 102. |
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| 104. |
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| 107. | Subpoena, 745 F.3d 681, 687 (3d Cir. 2014).
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| 108. |
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| 109. |
The motion to quash is no more likely to be granted because the prosecutor failed to comply with the guidelines of the United States Attorneys' Manual concerning the issuance of grand jury subpoenas seeking client information, In re Grand Jury Proceedings | |||||||||||
In re Grand Jury Subpoenas | ||||||||||||
| 111. | , 52 F.3d at 225–26; In re Subpoenaed Grand Jury Witness, 171 F.3d 511, 514 (7th Cir. 1999); Guo Wengui v. Clark Hill, PLC, 338 F.R.D. 7, 15 (D.D.C. 2021); Taylor Lohmeyer Law Firm PLLC v. United States, 385 F. Supp. 3d 548, 555 (W.D. Tex. 2019), aff'd, 957 F.3d 505 (5th Cir. 2020).
| |||||||||||
| 112. |
| |||||||||||
In re Search Warrant Issued June 13, 2019, 942 F.3d 159, 174 (4th Cir. 2019). | ||||||||||||
| 114. |
| |||||||||||
| ). 115. |
"[U]ntil such time as the 'government has committed itself to prosecute, and ... the adverse positions of the government and defendant have solidified' the Sixth Amendment right to counsel does not attach." Moran v. Burbine, 475 U.S. 412, 432 (1986) | |||||||||||
| 116. |
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| 117. | Cf. Trump v. Vance, 591 U.S. 786, 805 (2020) ("[G]rand juries are prohibited from engaging in 'arbitrary fishing expeditions' and initiating investigations 'out of malice or an intent to harass.'") (quoting United States v. R. Enters., Inc., 498 U.S. 292, 299 (1991)); United States v. Trump, 91 F.4th 1173, 1197 (D.C. Cir. 2024), vacated and remanded, 603 U.S. 593 (2024). | |||||||||||
Subject to various limitations, a number of states permit state grand jury witnesses to have an attorney present when they testify | ||||||||||||
| 119. |
| |||||||||||
| 120. |
| |||||||||||
| 121. | .
Branzburg , 438 F.3d at 1152–53.
Reporters, academics and others have periodically suggested adjustments in the law in this area, e.g., Christina Koningisor, The De Facto Reporter's Privilege, 127 Yale L.J. 1176 (2018); Mary-Rose Papandrea, Citizen Journalism and the Reporter's Privilege, 91 | |||||||||||
| 122. |
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In some instances, a forthwith subpoena may command performance "forthwith" and not later than some short period thereafter, e.g., In re Grand Jury Subpoenas | ||||||||||||
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| ||||||||||||
| 128. |
Here again, failure to comply with guidelines in the United States Attorneys' Manual or other internal directives will not per se render a grand jury subpoena subject to being quashed, In re Grand Jury Proceedings | |||||||||||
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| ||||||||||||
In re Green Grand Jury Proceedings, 371 F. Supp. 2d 1055, 1056 | ||||||||||||
| ||||||||||||
| 134. |
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Cf | ||||||||||||
| 136. |
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| 137. |
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| 139. |
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| 141. |
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| 142. |
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In re Grand Jury | ||||||||||||
U.S. Const. | ||||||||||||
| 145. | .
In re Grand Jury Subpoenas, 571 F.3d 1200, 1202 | |||||||||||
| 146. |
| |||||||||||
| ||||||||||||
| 148. |
In re Grand Jury Proceedings (Kinamon), 45 F.3d 343, 347-48 (9th Cir. 1995) (interpreting 18 U.S.C. 6002). |
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| 149. | ; cf. United States v. Muhtorov, 20 F.4th 558, 627 (10th Cir. 2021).
| |||||||||||
| 150. |
| |||||||||||
In re Grand Jury Proceedings No. 92-4, 42 F.3d 876, 880 (4th Cir. 1994); In re Grand Jury Proceedings | ||||||||||||
| ||||||||||||
| 153. | The federal circuits disagree over the extent to which federal courts may disclose grand jury matters, apart from Rule 6, based on their inherent supervisory powers. In re Petition for Order Directing Release of Records, 27 F.4th 84, 90 (1st Cir. 2022) ("The Second and Seventh Circuits have held that 'Rule 6(e)(3)(E) is permissive not exclusive'.... On the other side of the split, four circuits have concluded 'that Rule 6(e) is exhaustive, and that district courts do not possess inherent, supervisory power to authorize the disclosure of grand jury records outside of Rule 6(e)(3)'s enumerated exceptions.'") (first quoting Carlson v. United States, 837 F.3d 753, 766–67 (7th Cir. 2016); and then quoting Pitch v. United States, 953 F.3d 1226, 1229 (11th Cir. 2020) (en banc) (first citing In re Petition of Craig, 131 F.3d 99, 101–03 (2d Cir. 1997); then citing McKeever v. Barr, 920 F.3d 842, 850 (D.C. Cir. 2019); then citing United States v. McDougal, 559 F.3d 837, 840 (8th Cir. 2009); and then citing In re Grand Jury, 932 F.2d 481, 488 (6th Cir. 1991)). | |||||||||||
| 154. |
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| 155. |
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| 156. |
Douglas Oil Co. offered an alternative formulation, "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 would be less likely to testify fully and frankly, as they would be open to retribution as well as to 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," Douglas Oil Co. | |||||||||||
| 157. | .
Douglas Oil Co | |||||||||||
| 158. |
F.R.Crim.P. 6(e)(3)(C). |
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| 159. |
F.R.Crim.P. 6(e)(3)(E)(ii). |
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| 160. |
F.R.Crim.P. 6(e)(2). |
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| 161. | Fed. R. Crim. P. 6(e)(3)(C). Fed. R. Crim. P. 6(e)(3)(E)(ii). Fed. R. Crim. P. 6(e)(2). | |||||||||||
| 162. |
| |||||||||||
In re Application of the United States for an Order of Nondisclosure Pursuant to 18 U | ||||||||||||
| 164. |
F.R.Crim.P. 6(e)(2)(B); see generally, What Are "Matters Occurring Before the Grand Jury" Within Prohibition of Rule 6(e) of the Federal Rules of Criminal Procedure, 50 ALR Fed 675; FRCrP 6(e) and the Disclosure of Documents Reviewed by a Grand Jury, 57 University of Chicago Law Review 221 (1990); Beale et al., Grand Jury Law and Practice §5.6 (2008 & 2014 Supp.). |
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| 165. | Samantha S. Soter, Statutory Silence: Reconsidering Orders of Grand Jury Witness Non-Disclosure and Judicial Discretion, 50 Am. J. Crim. L. 101, 101 n.1 (2024). Fed. R. Crim. P. 6(e)(2)(B); see generally, Sara Sun Beale et al., supra note 30, § 5.6. | |||||||||||
| 166. |
| |||||||||||
| 167. | Laws. Comm. for 9/11 Inquiry, Inc. v. Garland, 43 F.4th 276, 286 (2d Cir. 2022) ("The Ninth Circuit has adopted a more relaxed disclosure rule for what it termed 'ministerial' grand jury materials, including orders authorizing the extension of a grand jury, roll sheets reflecting composition and attendance of a grand jury, and the manner in which a grand jury was empaneled. This court has not recognized such a ministerial-record exception to the rules surrounding disclosure of grand jury materials.") (citing In re Special Grand Jury, 674 F.2d 778, 781–82 (9th Cir. 1982)). "(6) Sealed Records. Records, orders, and subpoenas relating to grand jury proceedings must be kept under seal to the extent and as long as necessary to prevent disclosure of a matter occurring before a grand jury | |||||||||||
| 168. |
F.R.Crim.P. 6(e)(2). |
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| 169. |
F.R.Crim.P. 6(e)(2)(B). |
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| 170. | Fed. R. Crim. P. 6(e)(2) ("(A) No obligation of secrecy may be imposed on any person except in accordance with Rule 6(e)(2)(B) [listing those bound not to disclose matters occurring before the grand jury]." Id. | |||||||||||
| 171. |
F.R.Crim.P. 6(e)(2). |
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| 172. |
F.R.Crim.P. 6(e)(3)(E)(i). |
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| 173. |
F.R.Crim.P. 6(e)(3)(E)(ii). |
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| 174. |
F.R.Crim.P. 6(e)(3)(C). |
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| 175. |
F.R.Crim.P. 6(e)(3)(E)(iv). |
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| 176. |
E.g., 18 U.S.C. 3322. |
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| 177. |
McHan v. Commissioner, 558 F.3d 326, 334 (4th Cir. 2009); In re Grand Jury Subpoena, 438 F.3d 1138, 1140 (D.C.Cir. 2006); In re Petition of Craig, 131 F.3d 99, 106 (2d Cir. 1997); In re Grand Jury Investigation (John Doe), 59 F.3d 17, 19-20 (2d Cir. 1995); In re Petition to Inspect & Copy Grand Jury Materials, 735 F.2d 1261, 1270 (11th Cir. 1984). |
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| 178. | As discussed below, Rule 6(e)(3) contains an extensive list of exceptions covering disclosures to government attorneys and employees under a wide variety of circumstances, as well as disclosures in relation to judicial proceedings. | |||||||||||
| 179. |
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| 180. |
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| 179.
|
In re Capitol Breach Grand Jury, 339 F.R.D. 1, 9 (D.D.C. 2021); In re |
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| 182. | "(D) An attorney for the government may disclose any grand-jury matter involving foreign intelligence, counterintelligence (as defined in 50 U.S.C. § 401a), or foreign intelligence information (as defined in Rule 6(e)(3)(D)(iii)) to any federal law enforcement, intelligence, protective, immigration, national defense, or national security official to assist the official receiving the information in the performance of that official's duties. An attorney for the government may also disclose any grand jury matter involving, within the United States or elsewhere, a threat of attack or other grave hostile acts of a foreign power or its agent, a threat of domestic or international sabotage or terrorism, or clandestine intelligence gathering activities by an intelligence service or network of a foreign power or by its agent, to any appropriate Federal, State, State subdivision, Indian tribal, or foreign government official, for the purpose of preventing or responding to such threat or activities. "(i) Any official who receives information under Rule 6(e)(3)(D) may use the information only as necessary in the conduct of that person's official duties subject to any limitations on the unauthorized disclosure of such information. Any State, State subdivision, Indian tribal, or foreign government official who receives information under Rule 6(e)(3)(D) may use the information only consistent with such guidelines issued by the Attorney General and the Director of National Intelligence. "(ii) Within a reasonable time after disclosure is made under Rule 6(e)(3)(D), an attorney for the government must file, under seal, a notice with the court in the district where the grand jury convened stating that such information was disclosed and the departments, agencies, or entities to which the disclosure was made. "(iii) As used in Rule 6(e)(3)(D), the term "foreign intelligence information" means: (a) information, whether or not it concerns a United States person, that relates to the ability of the United States to protect against—[1] actual or potential attack or other grave hostile acts of a foreign power or its agent; [2] sabotage or international terrorism by a foreign power or its agent; or [3] clandestine intelligence activities by an intelligence service or network of a foreign power or by its agent; or (b) information, whether or not it concerns a United States person, with respect to a foreign power or foreign territory that relates to—[1] the national defense or the security of the United States; or [2] the conduct of the foreign affairs of the United States." F.R.Crim.P. 6(e)(3)(D).
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| 183. |
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| 184. |
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| 186. |
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| 187. |
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In re Grand Jury Proceedings | ||||||||||||
In re Grand Jury Investigation, 414 F. Supp. 74 (S.D.N.Y. 1976). | ||||||||||||
In re 1979 Grand Jury Proceedings, 479 F. Supp. 93 (E.D.N.Y. | ||||||||||||
| 191. | 1979).
| |||||||||||
| ||||||||||||
463 U.S. at 479 n.2; the D.C. Circuit subsequently found the exception extended to the proceedings conducted to determine the extent to which final reports of Independent Counsels should be made public, In re | ||||||||||||
| 194. |
Sells Eng'g, Inc., 463 U.S. at 443. | |||||||||||
| 195. |
United States v. Sells Engineering, Inc., 463 U.S. at 443; Right of Party in Civil Action to Obtain Disclosure, Under Rule 6(e)(3)(C)(i) of the Federal Rules of Criminal Procedure, of Matters Occurring Before Grand Jury, 71 ALR Fed 10. |
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| 196. |
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In re Grand Jury | ||||||||||||
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| 199. |
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Douglas Oil Co | ||||||||||||
In re Grand Jury Proceedings | ||||||||||||
| 202. | Douglas Oil Co., 441 U.S. at 223; In re Capitol Breach Grand Jury Investigations Within D.C., 339 F.R.D. 1, 24 (D.D.C. 2021). | |||||||||||
| 203. |
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| 204. |
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| 205. |
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In re Grand Jury Proceeding Relative to Perl, 838 F.2d | ||||||||||||
Douglas Oil Co., 441 U.S. at 222 n.12; United States ex rel. Stone v. Rockwell | ||||||||||||
Douglas Oil Co., 441 U.S. at 222 n.13; In re Grand Jury Proceedings, 800 F.2d at 1302–03; Fischbach and Moore, Inc., 776 F.2d at 844.
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| 209. |
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| 211. |
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In re Grand Jury Subpoenas | ||||||||||||
| 213. |
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| 215. | Fed. R. Crim. P. 16(a)(1)(A). | |||||||||||
| 216. |
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| 217. |
18 U.S.C. 3322. |
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| 218. | 18 U.S.C. § 3322. Fed. R. Crim. P. 6(e)(3)(C); 18 U.S.C. § 3322. Fed. R. Crim. P. 6(e)(3)(C); 18 U.S.C. § 3322. | |||||||||||
| 219. |
. The Second Circuit offered a "non-exclusive list of factors that a trial court might want to consider when confronted with these highly discretionary and fact-sensitive special circumstance motions [for disclosure of grand jury information on grounds other than those specified in Rule 6(e)(3)]: "(i) the identity of the party seeking disclosure; (ii) whether the defendant to the grand jury proceeding or the government opposes the disclosure; (iii) why disclosure is being sought in the particular case; (iv) what specific information is being sought for disclosure; (v) how long ago the grand jury proceeding took place; (vii) the current status of the principals of the grand jury proceedings and that of their families; (vii) the extent to which the desired material—either permissibly or impermissibly—has been previously made public; (viii) whether witnesses to the grand jury proceedings who might be affected by disclosure are still alive; and (ix) the additional need for maintaining secrecy in the particular case in question," In re Petition of Craig, 131 F.3d 99, 106 (2d Cir. 1997). | |||||||||||
In re Petition for Order Directing Release of Records, 27 F.4th 84, 90 (1st Cir. 2022) ("[T]his is a matter on which our sister circuits are divided. On one side of the split, the Second and Seventh Circuits have held 'that Rule 6(e)(3)(E) is permissive, not exclusive, and ... does not eliminate the district court's long-standing inherent supervisory authority to ... ensure the proper functioning of a grand jury' including by 'unseal[ing] grand jury materials in circumstances not addressed by Rule 6(e)(3)(E).'" (alterations in original) (quoting Carlson v. United States, 837 F.3d 7523, 766–67 (7th Cir. 2016) (citing In re Petition of Craig, 131 F.3d 99, 101–03 (2d Cir. 1997)). On the other side of the split, four circuits have concluded "that Rule 6(e) is exhaustive, and that district courts do not possess inherent, supervisory power to authorize the disclosure of grand jury records outside of Rule 6(e)(3)'s enumerated exceptions.'" (Pitch v. United States, 953 F.3d 1226, 1229 (11th Cir. 2020) (en banc); McKeever v. Barr, 920 F.3d 842, 850 (D.C. Cir. 2019); United States v. McDougal, 559 F.3d 837, 840 (8th Cir. 2009); and In re Grand Jury 89-4-72, 932 F.2d 481, 488 (6th Cir. 1991)) (declining to take a position). | ||||||||||||
| 221. |
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| 222. |
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| 223. |
| |||||||||||
Fed. R. Crim. P. 6(f). 1 Federal Grand Jury Practice Manual, supra note 32, at 14. Fed. R. Crim. P. 6(g). Sara Sun Beale et al., supra note 30, §§ 2.1–2.8. Fed. R. Crim. P. 7(c); United States v. Sweet, 107 F.4th 944, 957 (10th Cir. 2024); United States v. Benjamin, 95 F.4th 60, 66 (2d Cir. 2024), cert. denied, No. 24-142, 2024 WL 5112284 (Dec. 16, 2024) (mem.). | ||||||||||||
| 225. |
The absence of a signature of an attorney for the United States is likewise not fatal, unless it reflects the determination not to go forward with the prosecution, United States v. Chess, 610 F.3d 965, 968 (7th Cir. 2010); United States v. Cox, 342 F.2d 167, 171 | |||||||||||
| 226. |
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| 227. |
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| 228. |
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| 229. |
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| 230. |
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| 231. |
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| 233. |
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| 234. |
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| 235. |
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| 236. |
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| 237. | Some state grand juries have more extensive reporting authority, see e.g., Adding Bite to the Watchdog's Bark: Reforming the California Civil Grand Jury System, 28 | |||||||||||
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| 239. |
| |||||||||||
In re Petition for Disclosure of Evidence Before the October 1959 Grand Jury, 184 F. Supp. 38, 40 (E.D. Va. 1960).
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| 241. |
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| 242. | An indictment issued after discharge or the expiration of the panel's term is "null from the beginning." United States v. Slape, 44 F.4th 356, 361 (5th Cir. 2022).
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| 243. |
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| 244. |
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| 245. |
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| 247. | The Speech or Debate "privilege is strictly confined to things done in the course of parliamentary proceedings, and does not cover things done beyond the place and limits of duty." Hutchison v. Proxmire, 443 U.S. 111, 126 (1979) (quoting 3 Story, supra note 7, § 863, at 329). | |||||||||||
| 248. |
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| 249. |
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| 251. |
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| 252. |
United States v. Jennings, 991 F.2d 725, 730 (11th Cir. 1993)("In order to prevail in a selective prosecution defense, a defendant must meet the heavy burden of (1) making a prima facie showing that he has been singled out for prosecution although other similarly situated persons who have committed the same acts have not been prosecuted; and (2) demonstrate that the government's selective prosecution was unconstitutional because actuated by impermissible motives such as racial or religious discrimination"); cf., United States v. Estrada-Plata, 57 F.3d 757, 760 (9th Cir. 1995); United States v. Cooks, 52 F.3d 101, 105 (5th Cir. 1995); United States v. Mayer, 503 F.3d 740, 747 (9th Cir. 2007). |
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| 253. | A claim of impermissible selective prosecution requires a showing of discriminatory effect for a discriminatory purpose, United States v. Armstrong, 517 U.S. 456, 465 (1996) ("To establish a discriminatory effect in a race case, the claimant must show that similarly situated individuals of a different race were not prosecuted."); Frederick Douglass Foundation, Inc. v. District of Columbia, 82 F.4th 1122, 1136 (D.C. Cir. 2023); Conley v. United States, 5 F.4th 781, 789 (7th Cir. 2021); United States v. Cannon, 987 F.3d 924, 937 (11th Cir. 2021). | |||||||||||
| 254. |
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| 255. |
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| 256. |
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| 257. |
United States v. Williams, 504 U.S. 36, 46 n.6 (1992)("Rule 6 of the Federal Rules of Criminal Procedure contains a number of such rules, providing, for example, that 'no person other than the jurors may be present while the grand jury is deliberating or voting,' Rule 6(d), and placing strict controls on disclosure of 'matters occurring before the grand jury,' Rule 6(e). Additional standards of behavior for prosecutors (and others) are set forth in the United States Code. (See 18 U.S.C. §§6002, 6003 (setting forth procedures for granting a witness immunity from prosecution; §1623 (criminalizing false declarations before the grand jury); §2515 (prohibiting grand jury use of unlawfully intercepted wire or oral communications); §1622 (criminalization of perjury).... "). |
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| 258. |
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| 259. |
United States v. Williams, 504 U.S. 36, 64 (1992), citing, United States v. Mechanik, 475 U.S. 66, 71-2 (1986) and Bank of Nova Scotia v. United States, 487 U.S. 250, 256 (1988). |
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| 260. |
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| 261. |
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| 262. | Bank of N.S. v. United States, 487 U.S. 250, 256 (1988) (quoting United States v. Mechanik, 475 U.S. 66, 78 (1986) (O'Connor, J., concurring)); Goodrich, 448 F.3d at 50 ("The circumstances justifying dismissal of the indictment after conviction must be so severe, the prosecutorial misconduct so 'blatant,' as to 'call[] into doubt the fundamental fairness of the judicial process'" (quoting United States v. Ortiz de Jesus, 230 F.3d 1, 4 (1st Cir. 2000)); United States v. Jackson, 58 F.4th 541, 554 (1st Cir. 2023) ("[T]he violation substantially influenced the grand jury's decision to indict, or [that] there is grave doubt that the decision to indict was free from the substantial influence of such violations" (citations omitted) (quoting Bank of N.S., 487 U.S. at 256); United States v. Harris, 7 F.4th 1276, 1295 (11th Cir. 2021); United States v. Jackson, 22 F. Supp. 3d 636, 641 (E.D. La. 2014) ("[A]n indictment may be dismissed for prosecutorial misconduct which is so flagrant to the point that there is some significant infringement on the grand jury's ability to exercise independent judgment"). | |||||||||||
| 263. | For example: | |||||||||||
| 264. |
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| 265. |
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| 266. | - prosecutor knowingly presented false testimony to the grand jury absent prejudice to the defendant (United States v. Jackson, 58 F.4th 541, 553–54 (1st Cir. 2023)); | |||||||||||
| 267. |
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| 268. | - plain language in the underlying statute provided constitutionally adequate notice of potential for prosecution (United States v. Dion, 37 F.4th 31, 43–44 (1st Cir. 2022)); | |||||||||||
| 269. | - "multiple mistrials following hung juries" on the charges in the indictment (United States v. Wright, 913 F.3d 364, 375 (3d Cir. 2019)); - pre-indictment delays did not warrant dismissal under speedy trial factors (United States v. Oliva, 909 F.3d 1292, 1306 (11th Cir. 2018) (per curiam)); - indictment challenged on the grounds of extraterritoriality (United States v. Fonseca, 49 F.4th 1, 11 (1st Cir. 2022); United States v. Vasquez, 899 F.3d 363, 371 (5th Cir. 2018)); - reindictment by an untainted grand jury panel following dismissal of an indictment by a panel tainted by the presence of a victim of the offense (Gussie, 51 F.4th at 539); | |||||||||||
| 270. |
United States v. Mechanik, 475 U.S. 66 (1986); United States v. Fowlie, 24 F.3d 1059, 1065-66 (9th Cir. 1994); United States v. Busch, 795 F. Supp. 866, 868 (N.D.Ill. 1992); United States v. Hart, 779 F. Supp. 883 (E.D.Mich. 1991). |
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| 271. |
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| 272. |
United States v. Lombardozzi, 491 F.3d 61, 79 (2d Cir. 2007); United States v. Crockett, 435 F.3d 1305, 1316 (10th Cir. 2006); United States v. Burke, 425 F.3d 400, 412-13 (7th Cir. 2005); United States v. Soto-Beniquez, 356 F.3d 1, 24-5 (1st Cir. 2004); United States v. Haynes, 216 F.3d 789, 798 (9th Cir. 2000); United States v. McDonald, 61 F.3d 248, 252 (4th Cir. 1995); United States v. Claiborne, 765 F.2d 784, 791 (9th Cir. 1985); United States v. Adamo, 742 F.2d 917, 940 (6th Cir. 1984). |
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| 273. | - presence of unauthorized individuals while the grand jury conducted its business (United States v. Mechanik, 475 U.S. 66 (1986); United States v. Fowlie, 24 F.3d 1059, 1065–66 (9th Cir. 1994); United States v. Busch, 795 F. Supp. 866, 868 (N.D. Ill. 1992); but see United States v. Hart, 779 F. Supp. 883, 890 (E.D. Mich. 1991)); - presentation of hearsay evidence (Costello v. United States, 350 U.S. 359, 363–64 (1956); United States v. Bowie, 618 F.3d 802, 817–18 (8th Cir. 2010); Waldon, 363 F.3d at 1109; Wilkerson v. Whitley, 28 F.3d 498, 503 (5th Cir. 1994); Virgin Islands ex rel. A.M., 34 F.3d 153, 161 (3d Cir. 1994)); | |||||||||||
| 274. |
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| 275. |
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| 276. |
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| 277. |
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| 278. |
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| 279. | See generally, 3B Wright & Miller's Federal Practice and Procedure § 801 (4th ed. 2013). | |||||||||||
| 280. |
|