Order Code 95-1135 A
The Federal Grand Jury
Updated January 22, 2008
Charles Doyle
Senior Specialist
American Law Division

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The Federal Grand Jury
Summary
The federal grand jury exists to investigate crimes against the United States and
to secure the constitutional right of grand jury indictment. Its responsibilities require
broad powers.
As an arm of the United States 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.
Ordinarily, 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 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
may ordinarily disclose its secrets only when 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 report, the court enjoys narrowly exercised discretion to dictate
expungement or permit distribution of the report.

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Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Organizational Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Selection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Tenure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Proceedings Before the Grand Jury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Grand Jury and the Prosecutor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Subpoenas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Common Law Privileges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Constitutional Privileges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Statutory and Other Limitations of Grand Jury Subpoena Authority . 26
Secrecy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Those Who Need Not Keep the Grand Jury’s Secrets . . . . . . . . . . . . . 29
Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Disclosure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Enforcement of Grand Jury Secrecy . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Final Grand Jury Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Refusal to Indict . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Discharge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Selected Bibliography . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Books and Articles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Notes and Comments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52

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The Federal Grand Jury
Introduction
“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. But the exclusive power to accuse is also 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 for a serious federal crime.3
What follows is a brief general description of 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 targets of a grand jury investigation.
Background
The grand jury is an institution of antiquity. 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.
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,4 and thereby
1 United States v. R. Enterprises, Inc., 498 U.S. 292, 297 (1991).
2 United States v. Cox, 342 F.2d 167, 186 n.1 (5th Cir. 1965)(Wisdom, J., concurring),
quoting American Bar Association, FEDERAL GRAND JURY HANDBOOK 8 (1959) (reprinted
in Federal Grand Jury: Hearings Before the Subcomm. on Immigration, Citizenship, and
International Law of the House Comm. on the Judiciary, 94th Cong., 2d Sess. 277, 283
(1976)).
3 “No person shall be held to answer for a capital, or otherwise infamous crime, unless on
a presentment or indictment of a grand jury. . . .” U.S. Const. Amend. V. A defendant is free
to waive grand jury indictment for any crime that does not carry the death penalty; and the
government may prosecute misdemeanors and other minor federal crimes by either by
indictment or by information, F.R.Crim.P. 7.
4 Most commentators, after making reference to earlier similar institutions in ancient
Greece, Rome, Scandinavia, Normandy and/or among the Saxons, trace the emergence of
the modern grand jury to the issuance of the Assize of Clarendon by Henry II in 1166, 1

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increase the flow of fines and forfeitures into his treasury.5
From the power to accuse, the power to refuse to accuse eventually developed.
By the American colonial period, the grand jury had become both an accuser and a
protector. It was the protector the Founders saw when they enshrined the grand jury
within the Bill of Rights and the reason it has been afforded extraordinary
inquisitorial powers and exceptional deference.6
The Fifth Amendment right to grand jury indictment is only constitutionally
required in federal cases.7 In a majority of the states prosecution may begin either
with an indictment or with an information or complaint filed by the prosecutor.8
Stephen, A HISTORY OF THE CRIMINAL LAW OF ENGLAND, 251-52 (1883); 1 Holdsworth,
HISTORY OF ENGLISH LAW, 147-48 (1903); Stubbs, SELECT CHARTERS AND OTHER
ILLUSTRATIONS OF ENGLISH CONSTITUTIONAL HISTORY, 143 (1888); 2 Pollack & Maitland,
HISTORY OF ENGLISH LAW, 642 (1923); Plucknett, A CONCISE HISTORY OF THE COMMON
LAW 112 (1956); Schwartz, Demythologizing the Historic Role of the Grand Jury, 10
AMERICAN CRIMINAL LAW REVIEW 701, 703 (1972); Boudin, The Federal Grand Jury, 61
GEORGETOWN LAW JOURNAL 1 (1972); Kadish, Behind the Locked Door of an American
Grand Jury: Its History, Its Secrecy, and Its Process, 24 FLORIDA STATE UNIVERSITY LAW
REVIEW 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 at 112; 3 Stephen, supra at 251; 1 Holdsworth, supra 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 country side to hear cases. BLACK’S LAW DICTIONARY, 120-21 (1990).
5 Plucknett, supra at 112. At common law, anyone convicted and “attained” for treason or
felony forfeited all his land and goods to the Crown, 4 Blackstone, COMMENTARIES 376-81
(1813 ed.); 1 Hale, HISTORY OF PLEAS OF THE CROWN, 354-67 (1778 ed.).
6 3 Story, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES, 658 (1833 ed.);
United States v. Williams, 504 U.S. 36, 47-8 (1992)(“In fact the whole theory of [the grand
jury’s] function is that it belongs to no branch of the institutional Government, serving as
a kind of buffer or referee between the Government and the people”).
7 The Fifth Amendment right to grand jury indictment is not binding upon the states,
Hurtado v. California, 110 U.S. 516 (1884); Gautt v. Lewis, 489 F.3d 993, 1103 n.10 (9th
Cir. 2007); Goodrich v. Hall, 448 F.3d 45, 49 (1st Cir. 2006); Williams v. Haviland, 467 F.3d
527, 531 (6th Cir. 2006); Lanfranco v. Murray, 313 F.3d 112, 118 (2d Cir. 2002); ( Freeman
v. City of Dallas, 242 F.3d 642, 667 (5th Cir. 2001); Holman v. Gilmore, 126 F.3d 876, 884
(7th Cir. 1997); Cooksey v. Delo, 94 F.3d 1214, 1217 (8th Cir. 1996); Minner v. Kerby, 30
F.3d 1311, 1318 (10th Cir. 1994);cf., Rose v. Mitchell, 443 U.S. 545, 557 n.7 (1979).
8 Ala. Const.I, §8; Ala.R.Crim.P. 2.1, 2.2(e); 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.

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Although abolition of the right to indictment in the states and abolition of the
grand jury itself in England were primarily matters of judicial efficiency,9 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.10
Organizational Matters
Jurisdiction
The authority of a federal grand jury is sweeping, but it is limited to the
investigation of possible violations of federal criminal law triable in the district in
2.4; Kan.Stat.Ann. §22-3201; La. Const. Art.I, §15; Md.Ann.Code, Crim.P. §1-101; 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;
Ore. 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,
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; R.I. Const.
Art. I. §7.
9 “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.
10 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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which it is sitting.11 This does not include the power to investigate conduct known
to have no connection to the court’s jurisdiction, but does encompass the authority
to inquire whether such a connection may exist.12
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 “investigate merely on suspicion
that the law is being violated, or even just because it wants assurance that it is not,”13
and its inquiries “may be triggered by tips, rumors, evidence proffered by the
prosecutor, or the personal knowledge of the grand jurors.”14
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,”15 its “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.”16
Selection
The various United States District Courts are instructed to order one or more
grand juries to be summoned when the public interest requires.17 In addition, the
Attorney General may request the District Court to summon a special grand jury in
11 Brown v. United States, 245 F.2d 549, 554-55 (8th Cir. 1957); United States v. Brown, 49
F.3d 1162, 1168 (6th Cir. 1995); see also, 2 Brenner & Shaw, FEDERAL GRAND JURY: A
GUIDE TO LAW AND PRACTICE, §3.2 (2d ed. 2006)(noting that the jurisdiction of the court
with which the grand jury is associated includes both territorial and extraterritorial
jurisdiction).
12 United States v. Brown, 49 F.3d at 1168 (6th Cir. 1995); United States v. Williams, 993
F.2d 451, 454-55 (5th Cir. 1993); In re Marc Rich & Co., 707 F.2d 663, 667 (2d Cir. 1983);
Blair v. United States, 250 U.S. 273, 283 (1919); United States v. Neff, 212 F.2d 297, 301-
302 (3d Cir. 1954).
13 United States v. Williams, 504 U.S. 36, 48 (1992), quoting, United States v. R.
Enterprises, Inc., 498 U.S. 292, 297 (1991) and United States v. Morton Salt Co., 338 U.S.
632, 642-43 (1950); see also, In re Grand Jury, John Doe No. G.J. 2005-2, 478 F.3d 581,
584 (4th Cir. 2007).
14 Branzburg v. Hayes, 408 U.S. 665, 701 (1972); United States v. York, 428 F.3d 1325,
1332 (11th Cir. 2005).
15 Blair v. United States, 250 U.S. 273, 282 (1919).
16 Branzburg v. Hayes, 408 U.S. at 701; see also, United States v. R. Enterprises, Inc., 498
U.S. 292, 297 (1991)(The grand jury may “inquire into all information that might possibly
bear on its investigation until it has identified an offense or has satisfied itself that none has
occurred”); In re Grand Jury, John Doe No. G.J. 2005-2, 478 F.3d 581, 584 (4th Cir. 2007).
17 F.R.Crim.P. 6(a).

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any of the larger districts or when he or she believes the level of criminal activity in
the district warrants it.18
Historically, the responsibility of choosing those to be named to the grand jury
fell to the sheriff.19 Selection of the members of the grand jury by the sheriff of the
county continued for some time and was used generally in colonial America,
although grand jurors were elected in some colonies.20
At one time, the law governing the selection, qualifications and exemptions of
federal grand jurors was determined largely by reference to the law of the state in
which the grand jury was to be convened.21 These matters are now the responsibility
of the court, governed by the Jury Selection and Service Act of 1968,22 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, eighteen years of age
or older and 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
facing pending felony charges and those convicted of a felony (if their civil rights
have not been restored) are ineligible.23
Discrimination in selection on the basis of race, color, religion, sex, national
origin, or economic status is prohibited,24 and grand jurors must be “selected at
18 18 U.S.C. 3331. The districts eligible by size (those with estimated populations of more
than 4 million) appear to include: the District for Arizona; the Central and Northern Districts
for California; the District for Colorado, the Middle and Southern Districts for Florida; the
Northern District for Georgia; the Northern District for Illinois; the District for Maryland;
the District for Massachusetts; the Eastern District for Michigan; the District for Minnesota;
the District for New Jersey; the Eastern and Southern Districts for New York; the Northern
and Southern Districts for Ohio; the Eastern and Western Districts for Pennsylvania; the
District for South Carolina, the Northern, Southern, and Western Districts for Texas; the
Eastern District of Virginia; and the Western District for Washington, 28 U.S.C. 81-131;
State and County QuickFacts, available on Jan. 2, 2008 at
[http://quickfacts.census.gov./index.html].
Special grand juries are distinctive in that they may serve for longer terms than a
regular grand jury and have explicit reporting authority, 18 U.S.C. 3331-3334.
19 1 Holdsworth, HISTORY OF ENGLISH LAW, 148 (1903); 2 Hale, HISTORY OF PLEAS OF THE
CROWN, 154 (1778 ed.).
20 Younger, THE PEOPLE’S PANEL: THE GRAND JURY IN THE UNITED STATES, 1634-1941,
5-26 (1963); Goebel & Naughton, LAW ENFORCEMENT IN COLONIAL NEW YORK: A STUDY
IN CRIMINAL PROCEDURE (1664-1776), 333-34 n.29 (1970); BOOK OF GENERAL LAWS AND
LIBERTYES CONCERNING THE INHABITANTS OF THE MASSACHUSETTS, 47 (1660).
21 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.).
22 28 U.S.C. 1861-1869.
23 28 U.S.C. 1865.
24 28 U.S.C. 1862.

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random from a fair cross section of the community in the district or division wherein
the court convenes.”25 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.26
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.”27
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.28 The
case law also seems to focus on any contamination of the panel as a whole and to rely
25 28 U.S.C. 1861.
26 28 U.S.C. 1867; F.R.Crim.P. 6(b); Carter v. Jury Commission of Greene County, 396
U.S. 320 (1970); Turner v. Fouche, 396 U.S. 346 (1970); United States v. Raszkiewicz, 169
F.3d 459, 462-63 (7th Cir. 1999); Duren v. Missouri, 439 U.S. 357, 364 (1979); United States
v. Artero, 121 F.3d 1256, 1260 (9th Cir. 1997)(“To establish a prima facie case for violation
of the fair cross section requirement a person challenging the venire must show
distinctiveness of the group excluded, unreasonable representation of that group, and that
the underrepresentation of that group was caused by systematic exclusion”); United States
v. Mitchell, 502 F.3d 931, 950 (9th Cir. 2007); United States v. Gonzalez-Velez, 466 F.3d 27,
39 (1st Cir. 2006); United States v. Henderson, 409 F.3d 1293, 1305 (11th Cir. 2005); see
also, Campbell v. Louisiana, 523 U.S. 392 (1998) (white criminal defendant has standing
to raise equal protection and due process challenges to state grand jury practices which
unconstitutionally excluded members of racial minorities).
27 “A preliminary draft of Rule 6(b) would have permitted challenge of grand jurors on the
grounds of bias and prejudice. This was not included in the final draft, apparently on the
view that the grand jury, which merely prefers the charge, should be scrupulously fair but
not necessarily uninformed or impartial. Thus cases have held that an attack for bias will
not lie.” 1 Wright, FEDERAL PRACTICE & PROCEDURE: CRIMINAL 3D, §102 (1999 & 2007
Supp.), citing Estes v. United States, 335 F.2d 609 (5th Cir. 1964); In re Grand Jury, 508
F.Supp. 1210 (S.D.Ala. 1980); United States v. Partin, 320 F.Supp. 275 (E.D. La. 1970);
United States v. Knowles, 147 F.Supp. 19 (D.D.C. 1957).
28 1 Wright, FEDERAL PRACTICE & PROCEDURE: CRIMINAL 3D, §102 (1999 & 2007 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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upon each grand juror’s faithfulness to his or her oath to avoid the adverse
consequences of individual bias.29
Grand jury panels consist of sixteen to twenty-three members,30 sixteen of
whom must be present for a quorum,31 and twelve of whom must concur to indict.32
The size of grand jury panels is a remnant of the common law,33 but the common law
treatises and the cases provide little indication of why those particular numbers were
chosen.34 Of course, when the grand jury’s accusations were based primarily upon
29 In the oath commonly used, grand jurors swear “not to present or indict any persons
through hatred, malice nor ill will; nor leave any person unpresented or unindicted through
fear, favor, or affection, nor for any reward, or hope or promise thereof. . . .” 1 Beale et al.,
GRAND JURY LAW AND PRACTICE, §4:4 (1998); see e.g., United States v. Ziesman, 409 F.3d
941, 949 (8th Cir. 2005)(“it cannot be assumed that grand jurors will violate their oath to
indict no one because of prejudice solely because an individual has lied to them on a matter
material to the grand jury’s investigation”).
30 18 U.S.C. 3321; F.R.Crim.P. 6(a).
31 A grand jury may not be empaneled initially with fewer than 16 members, 18 U.S.C.
3321. This and the statements in section 3321 and Rule 6(a) that federal grand juries shall
consist of 16 to 23 members has apparently lead to the conclusion that after a panel is
convened it is in session only if 16 or more of its members are present, 1 Beale et al.,
GRAND JURY LAW AND PRACTICE, §4:8 (1998); 1 Brenner & Shaw, FEDERAL GRAND JURY:
A GUIDE TO LAW AND PRACTICE, §5:17 (2d ed. 2006); United States Department of Justice,
FEDERAL GRAND JURY PRACTICE, §2.4 (Aug. 2000); United States v. Leverage Funding
Systems, Inc., 637 F.2d 645, 648 (9th Cir. 1980). But for this deeply held view which neither
Congress nor Court have sought to change, an argument might made for a quorum of 12, the
number required for indictment. Otherwise, it might be argued that dissenting panel
members, unable to prevent indictment by their votes, might do so by their absence or
departure.
32 F.R.Crim.P. 6(f).
33 “The sheriff of every county [was] bound to return to every session of the peace, and
every commission of oyer and terminer, and of general gaol delivery, twenty-four good and
lawful men of the county, some out of every hundred, to inquire, present, do, and execute
all those things, which on the part of our lord the king shall then and there be commanded
of them. . . . As many as appear upon this panel are sworn upon the grand jury, to the
amount of twelve at least, and not more than twenty-three. . . .” 4 Blackstone,
COMMENTARIES 276 (1813 ed.); 1 Hale, HISTORY OF PLEAS OF THE CROWN, 161 (1778 ed.).
34 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. . . .” in an effort to
explain why the number 12 was chosen for the size of the petit jury, Williams v. Florida,
399 U.S. 78, 81 (1970). Blackstone alludes to the importance of concurrence of twelve
grand jurors in the indictment, “for so tender is the law of England of the lives of the
subjects, that no man can be convicted at the suit of the king of any capital offense, unless
by the unanimous voice of twenty-four of his equals and neighbors: that is, by twelve at least
of the grand jury. . . and afterwards, by the whole petit jury, of twelve more,” 4 Blackstone,
supra at 279. This, in turn he finds to explain the maximum size of the grand jury panel,
“As many as appear upon this panel are sworn upon the grand jury, to the amount of twelve
at least, but not more than twenty-three; that twelve may be a majority,” id. at 276 (emphasis
added). Blackstone’s view is reflected in some of the earlier cases:
“By the act of congress of March 3, 1865 (13 Stat. 500), it is provided that grand juries

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the prior knowledge of the panel’s members, larger panels were more understandable.

The movement which lead 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.35
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.36
The selection of twenty-three members for a panel which requires only the
presence of sixteen 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.37
Tenure
After selection, members of the grand jury are sworn in,38 the court names a
“foreperson and deputy foreperson,”39 and instructs the grand jury.40 Federal grand
in the courts of the United States ‘shall consist of not less than sixteen and not exceeding
twenty-three persons, . . . and that no indictment shall be found without the concurrence of
at least twelve grand jurors.’ The earlier authorities show that the accusing body now called
the grand jury originally consisted of twelve persons, and all were required to concur. The
number was subsequently enlarged to twenty-three, which was the maximum. Undoubtedly
one reason why both at common law and by act of congress more jurors are required to be
summoned, and by the act of congress to be impaneled than are necessary to find a bill, is
to prevent, on the one hand, the course of justice from being defeated if the accused should
have one or more friends on the jury; and on the other hand, the better to protect persons
against the influence of unfriendly jurors on the panel.” United States v. Williams, 28
F.Cas.666, 670 (No. 16,716) (C.C.D.Minn. 1871).
“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;
possible to be sure of having a few over, so that if the accused should have a friend or two
upon the panel, the course of justice might not be defeated; possible to prevent a dissolution
of the jury by the death or sickness or absence of one or more of the jurors, or it may be for
all these reasons combined.” State v. Ostrander, 18 Iowa 435, 443 (1865).
35 See, 1 Beale et al., GRAND JURY LAW AND PRACTICE, §4:8 n.7 (1998 & 2007-2008 Supp.)
for a survey of state provisions, only a half dozen of which reduce the size of grand jury
panels below twelve.
36 One of the few to do so recommended reduction to panels of seven, nine or eleven, with
the concurrence of seven required for indictment, Sullivan & Bachman, If It Ain’t Broke,
Don’t Fix It: Why the Grand Jury’s Accusatory Function Should Not Be Changed, 75
JOURNAL OF CRIMINAL LAW & CRIMINOLOGY 1047, 1068-69 (1984).
37 F.R.Crim.P. 6(a)(2).
38 Hale v. Hensel, 201 U.S. 43, 60 (1906); for a model grand jury oath see, note 28, supra.
39 F.R.Crim.P. 6(c).
40 Although there is no requirement that the court charge the jury, it is a practice of long
standing, Charge to the Grand Jury, 30 F. Cas. 992 (No. 18255) (C.C.D.Cal. 1872)(Field,
J.); 1 Beale et al., GRAND JURY LAW AND PRACTICE, §4:5 (1998) (model grand jury charge);

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juries sit until discharged by the court, but generally not for longer than 18 months
with the possibility of one six month extension.41 Special grand juries convened in
large districts or in districts with severe crime problems also serve until discharged
or up to 18 months but may be extended up to 36 months and in some cases beyond.42
Proceedings Before the Grand Jury
Grand Jury and the Prosecutor
The grand jury does not conduct its business in open court nor does a federal
judge preside over its proceedings.43 The grand jury meets behind closed doors with
only the jurors, attorney for the government, witnesses, someone to record testimony,
and possibly an interpreter present.44
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.45
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,
United States v. Navarro-Vargas, 408 F.3d 1184, 1208 (9th Cir. 2005)(upholding the
constitutionality of the model charge).
41 F.R.Crim.P. 6(g).
42 18 U.S.C. 3331, 3333.
43 “Although the grand jury normally operates, of course, in the courthouse and under
judicial auspices, its institutional relationship with the Judicial Branch has traditionally
been, so to speak, at arm’s length. Judges’ direct involvement in the functioning of the
grand jury has generally been confined to the constitutive one of calling the grand jurors
together and administering their oaths of office.” United States v. Williams, 504 U.S. 36, 47
(1992); In re Grand Jury Proceedings (John Roe, Inc.), 142 F.3d 1416, 1425 (11th Cir.
1998); In re Impounded, 241 F.3d 308, 312 (3d Cir. 2001).
44 At one time, only members of the grand jury could be present when the panel was
deliberating or voting, F.R.Crim.P. 6(d)(18 U.S.C.App. (1994 ed.)) the rule has been
changed to permit the presence during deliberations and voting of interpreters assigned to
assist hearing or speech impaired jurors, F.R.Crim.P. 6(d).
45 United States v. Zarattini, 552 F.2d 753, 756 (7th Cir. 1977); In re April 1956 Term Grand
Jury, 239 F.2d 263, 268-69 (7th Cir. 1957).

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and will take part in questioning them.46 The prosecutor is the most common source
of legal advice and will draft most of the indictments returned by the grand jury.47
Subpoenas
Grand jury witnesses usually appear before the grand jury under subpoena.48
The rule calls for subpoenas to be available in blank for the “parties” to the
proceedings before the court, but “no one is meaningfully a party in a grand jury
proceeding.”49 Nevertheless, there seems little question that subpoenas may be
issued and served at the request of the panel itself,50 although the attorney for the
government ordinarily “fills in the blanks” on a grand jury subpoena and arranges the
case to be presented to the grand jury.51 Unjustified failure to comply with a grand
46 United States v. Wiseman, 172 F.3d 1196, 1204-205 (10th Cir. 1999); United States v.
Wadlington, 233 F.3d 1067, 1075 (8th Cir. 2000); Lopez v. Department of Justice, 393 F.3d
1345, 1349 (D.C. Cir. 2005).
47 United States v. Sigma Intern, Inc., 196 F.3d 1314, 1323 (11th Cir. 1999)(“A prosecutor’s
job is to present evidence of criminal activity to a grand jury. In so doing, the prosecutor
may explain why a piece of evidence is legally significant. . .”); see generally, 1 Beale et al.,
GRAND JURY LAW AND PRACTICE §4.15 (1998 & 2007-2008 Supp.).
48 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 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).
F.R.Crim.P. 17(a), (g).
49 In re Snoonian, 502 F.2d 110, 112 (1st Cir. 1974).
50 United States v. Calandra, 414 U.S. 338, 343 (1974); cf., United States v. Williams, 504
U.S. 36, 48-9 (1992).
51 Lopez v. Department of Justice, 393 F.3d 1345, 1349 (D.C. Cir. 2005)(“the term ‘grand
jury subpoena’ is in some respects a misnomer, because the grand jury itself does not decide
whether to issue the subpoena; the prosecuting attorney does”); Coronado v. Bank Atlantic
Bancorp, Inc., 222 F.3d 1315, 1320 (11th Cir. 2000). Subpoenas duces tecum will in fact
frequently permit alternative means of compliance under which the witness is given the
option of presenting the documents to the attorney for government who is assisting the grand
jury, see e.g., the appendices in In re Grand Jury Proceedings (B&J Peanut Co.), 887
F.Supp. 288, 291 (M.D.Ga. 1995), and United States v. International Paper Co., 457

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jury subpoena may result in a witness being held in civil contempt,52 convicted for
F.Supp. 571, 577 (S.D.Tex. 1978). But see, United States v. Wadlington, 233 F.3d 1067,
1075 (8th Cir. 2000)(“The Government rests on its authority to subpoena witnesses in
advance of their presentation to the grand jury in order to allow for the efficient presentation
of evidence and to save time for grand jurors. See United States v. Universal Mfg. Co., 525
F.2d 808, 811-12 (8th Cir. 1975)(holding that the Government may have advance access to
documents and other evidentiary matter subpoenaed by or presented to a federal grand jury);
see also In re Possible Violations of 18 U.S.C. §§201, 371, 491 F.Supp. 211, 213 (D.D.C.
1980)(holding that the Government may call a grand jury witness to its offices pursuant to
subpoena on the day of grand jury proceedings for a consensual interview so that
government attorneys may identify the nature of the proposed testimony). . . . Rule 17(a) of
the Federal Rules of Criminal Procedure states that a subpoena ‘shall command each person
to whom it is directed to attend and give testimony at the time and place specified therein.’
This language has been interpreted to mean that witnesses may be subpoenaed to give
testimony at formal proceedings, such as grand jury proceedings, preliminary hearings, and
trials. It does not authorize the Government to use grand jury subpoenas to compel
prospective grand jury witnesses to attend private interviews with government agents”);
Lopez v. Department of Justice, 393 F.3d at 1349 (“the prosecutor may issue the subpoena
without the knowledge of the grand jury, but his authority to do so is grounded in the grand
jury investigation, not the prosecutor’s own inquiry. Federal prosecutors have no authority
to issue grand jury subpoenas independent of the grand jury”).
52 “Whenever a witness in any proceeding before. . . any. . . grand jury of the United States
refuses without just cause shown to comply with an order of the court to testify or provide
other information. . . the court. . . may summarily order his confinement at a suitable place
until such time as the witness is willing to given such testimony or provide such information.
. . .” 28 U.S.C. 1826(a).
“[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, 631-32 (1988). Civil
contempt is imposed “for the obvious purpose of compelling the witnesses to obey the
orders to testify. . . . However, the justification for coercive imprisonment as applied to civil
contempt depends upon the ability of the contemnor to comply with the court’s order.
Where the grand jury has been finally discharged a contumacious witness can no longer be
confined since he then has no further opportunity to purge himself of contempt.” Shillitani
v. United States, 384 U.S. 364, 368, 371 (1966).
In the case of civil contempt under section 1826, the recalcitrant witness must be
released after eighteen months even if the grand jury has not been discharged, In re Grand
Jury Proceedings of the Special April 2002 Grand Jury, 347 F.3d 197, 206 (7th Cir. 2003).
While fear is no 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, 1374-375 (9th Cir. 1990); In re Grand Jury
Proceedings of Dec., 1989, 903 F.2d 1167, 1169 (7th Cir. 1990); In re Grand Jury
Proceedings, 862 F.2d 430, 432 (2d Cir. 1988).

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criminal contempt,53 or both.54 A witness who lies to a grand jury may be prosecuted
for perjury,55 or for making false declarations before the grand jury.56

Conversely, others with information they wish to convey to the grand jury are
prohibited from doing so except through the court or the attorney for the
government.57 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.58 Nor does a potential defendant nor a grand jury target nor their
53 “A court of the United States shall have power to punish by fine or imprisonment, at its
discretion, such contempt of its authority, and none other, as . . . (3) Disobedience or
resistance to its lawful writ, process, order, rule, decree, or command,” 18 U.S.C. 401.
54 United States v. Marquardo, 149 F.3d 36, 39-41 (1st Cir. 1998); In re Grand Jury
Proceedings (Goodman), 33 F.3d 1060, 1061 (9th Cir. 1994); In re Grand Jury Witness, 835
F.2d 437, 440 (2d Cir. 1987); United States v. Ryan, 810 F.2d 650, 653 (7th Cir. 1987);
United States v. Alvarez, 489 F.Supp.2d 714, 719-20 (W.D. Tex. 2007).
55 “Whoever. . . having taken an oath before a competent tribunal, officer, or person, in any
case in which a law of the United States authorizes an oath to be administered, that he will
testify. . . truly, . . . willfully and contrary to such oath states. . . any material matter which
he does not believe to be true . . . is guilty of perjury and shall . . . be fined under this title
or imprisoned not more than five years, or both. . . .” 18 U.S.C. 1621.
56 “(a) Whoever under oath. . . in any proceeding before. . . any . . . grand jury of the United
States knowingly makes any false material declaration. . . shall be fined under this title or
imprisoned not more than five years, or both. . . .
“(c). . . . In any prosecution under this section, the falsity of a declaration . . . shall be
established sufficient for conviction by proof that the defendant while under oath made
irreconcilably contradictory declarations material to the point in question in any proceeding
before. . . any . . . grand jury. It shall be a defense . . . . that the defendant at the time he
made each declaration believed the declaration was true.
“(d) Where, in the same continuous . . . grand jury proceeding in which a declaration
is made, the person making the declaration admits such declaration to be false, such
admission shall bar prosecution under this section if, at the time the admission is made, the
declaration has not substantially affected the proceeding, or it has not become manifest hat
such falsity has been or will be exposed. . . .” 18 U.S.C. 1623.
57 In re Application of Wood, 833 F.2d 113, 116 (8th Cir. 1987); In re New Haven Grand
Jury, 604 F.Supp. 453, 455-56 (D.Conn. 1985). Section 1504 of title 18 of the United States
Code provides, “Whoever attempts to influence the action or decision of any grand. . . juror
of any court of the United States upon any issue or matter pending before such juror, or
before the jury of which he is a member, or pertaining to his duties, by writing or sending
to him any written communication, in relation to issue or matter, shall be fined under this
title or imprisoned not more than six months, or both. Nothing in this section shall be
construed to prohibit the communication of a request to appear before the grand jury.”
58 United States v. Williams, 504 U.S. 36, 52 (1992); United States v. Mandujano, 425 U.S.
564, 581 (1976); United States v. Fritz, 852 F.2d 1175, 1178 (9th Cir. 1988); United States
v. Pabian, 704 F.2d 1533, 1538-539 (11th Cir.1983); United States v. Arena, 894 F. Supp.
580, 585 (N.D.N.Y. 1995); but see, In re Application of Wood, 833 F.2d 113, 116 (8th Cir.
1987)(court may permit a matter to be presented to the grand jury by a private individual,
if the prosecutor declines to do so; the decision to prosecute, however, rests with the
attorney for the government, should the grand jury vote to indict).
It has been suggested that targets be afforded the opportunity to appear before the

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counsel have any right to present exculpatory evidence to the grand jury nor
substantive objection if the government fails to do so.59
Grand jury appearances, however, are more likely to be fought than sought.
Resistance is ordinarily futile. Absent self-incrimination or some other privilege, the
law expects citizens to cooperate with efforts to investigate crime.60 In the name of
this expectation a witness may be arrested, held for bail, and under some
circumstances incarcerated.61 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.62
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.63 Thus
as a general 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.64
grand jury as a matter of right, Arnella, Reforming the Federal Grand Jury and the State
Preliminary Hearing to Prevent Conviction Without Adjudication, 78 MICHIGAN LAW
REVIEW 463, 569 (1980).
59 United States v. Williams, 504 U.S. 36, 51-4 (1992); United States v. Mahalick, 498 F.3d
475, 479-80 (7th Cir. 2007).
60 Blair v. United States, 250 U.S. 273, 280-81 (1919); Barry v. United States ex rel.
Cunningham, 279 U.S. 597, 617 (1929); Stein v. New York, 346 U.S. 156, 184 (1953).
61 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, 49-51 (2d Cir. 2003); Bacon v. United States, 449 F.2d 933, 936-41 (9th Cir. 1971). See
generally, Arrest and Detention of Material Witnesses: Federal Law in Brief and Section
12 of the USA PATRIOT and Terrorism Prevention Reauthorization Act (H.R.3199), CRS
REP. RL33077 (Sept. 8, 2005); Boyle, The Material Witness Statute Post September 11:
Why It Should Not Include Grand Jury Witnesses, 48 NEW YORK LAW SCHOOL LAW REVIEW
12 (2003).
62 United States v. Mandujano, 425 U.S. 564, 572 (1976).
63 E.g., In re Sealed Case (Lewinsky), 162 F.3d 670, 674 n.4 (D.C. Cir. 1998)(“[Exception
as noted below,] [n]o grand jury witness may refuse to answer questions on the ground that
the questions are based on illegally obtained evidence”).
64 United States v. Calandra, 414 U.S. 338, 345 (1974)(“In Branzburg v. Hayes, [408 U.S.
665,] 682 and 688, the Court noted ‘[c]itizens generally are not constitutionally immune
from grand jury subpoenas . . .’ and that ‘the longstanding principle that the public . . . has
a right to every man’s evidence . . . is particularly applicable to grand jury proceedings.’
The duty to testify may on occasion be burdensome and even embarrassing. It may cause
injury to a witness’ social and economic status. Yet the duty to testify has been regarded
as ‘so necessary to the administration of justice’ that the witness’ personal interest in
privacy must yield to the public’s overriding interest in full disclosure”); Grand Jury
Proceedings (Williams) v. United States, 995 F.2d 1013, 1016 (11th Cir. 1993).

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A grand jury subpoena may even “trump” a pre-exist protective court order
under some circumstances.65 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.
Common Law Privileges. 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.”66 In the context of grand jury
subpoenas, as in most others, federal evidentiary privileges are governed by the
Federal Rules of Evidence.67
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.”68
65 The question of whether a protective order arising out of federal civil litigation takes
precedence over a grand jury subpoena for material covered by the order has divided the
federal courts of appeal. One approach requires the demonstration of a compelling need or
of extraordinary circumstances before the secrecy of a protective order can be breached,
while others take the position that grand jury subpoenas trump protective orders. In re
Grand Jury Subpoena (Roach), 138 F.3d 442 (1st Cir. 1998) describes the split among the
circuits over precisely when a pre-existing protective order should take precedence over a
grand jury subpoena. The Fourth, Ninth, and Eleventh Circuits have adopted a per se rule
under which “the existence of an otherwise valid protective order [is] not sufficient grounds
to quash the subpoena duces tecum issued by the grand jury,” 138 F.3d at 444, citing In re
Grand Jury Subpoena, 836 F.2d 1468, 1478 (4th Cir. 1988); In re Grand Jury Subpoena, 62
F.3d 1222, 1224 (9th Cir. 1995); and In re Grand Jury Proceedings, 995 F.2d 1013, 1020
(11th Cir. 1993). The Second Circuit has espoused a balancing test thought to prefer the
protective order over the grand jury subpoena, 138 F.3d at 444-45, citing Martindell v.
International Tel. & Tel. Corp., 594 F.2d 291, 295 (2d Cir. 1979); see also, In re Grand Jury
Subpoena Dated April 19, 1991, 945 F.2d 1221, 1223-224 (2d Cir. 1991). The First Circuit
has endorsed a modified per se rule under which “[a] grand jury’s subpoena trumps a Rule
26(c) protective order unless the person seeking to avoid the subpoena can demonstrate the
existence of exceptional circumstances that clearly favor subordinating the subpoena to the
protective order,” 138 F.3d at 445. The Third Circuit agrees with the First, In re Grand
Jury, 286 F.3d 153, 157-58 (3d Cir. 2002). See generally, Return to Certainty: Why Grand
Jury Subpoenas Should Supersede Civil Protective Orders, 10 SUFFOLK JOURNAL OF TRIAL
AND APPELLATE ADVOCACY 43 (2005).
66 United States v. Calandra, 414 U.S. at 346; United Stats v. Nixon, 418 U.S. 683, 709
(1974); In re Grand Jury Subpoenas 04-124-03 and 04-124-05, 454 F.3d 511, 520 (6th Cir.
2006); In re Grand Jury, 475 F.3d 1299, 1304 (D.C. Cir. 2007).
67 F.R.Evid. 1101(c), (d)(2), 501; In re Grand Jury Investigation, 399 F.3d 527, 530 (2d Cir.
2005); In re Impounded, 241 F.3d 308, 313 (3d Cir. 2001).
68 F.R.Evid. 501. (“Except as otherwise required by the Constitution of the United States
or provided by Act of Congress or in rule prescribed by the Supreme Court pursuant to
statutory authority, the privilege of a witness, person, government, State, or political
subdivision thereof shall be governed by the principles of the common law as they may be

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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.
Thus, the federal courts have said that for purposes of federal law no evidentiary
privilege exists in cases of:
• physician-patient;69
• accountant-client;70
• researcher-source;71
• parent-child;72
• employer-stenographer;73
• banker-depositor;74
• draft counselor-client;75
• police observation post location;76
interpreted by the courts of the United States in the light of reason and experience.
However, in civil actions and proceedings, with respect to an element of a claim or defense
as to which State law supplies the rule of decision, the privilege of a witness, person,
government, State, or political subdivision thereof shall be determined in accordance with
State law”).
69 Merrill v. Waffle House, Inc., 227 F.R.D. 467, 471 (N.D.Tex. 2005), quoting, Whalen v.
Roe, 429 U.S. 589, 602 n.28 (1977)(“physician-patient privilege is unknown to the common
law”); United States v. Bek, 493 F.3d 790, 801-802 (7th Cir. 2007); Northwestern Memorial
Hospital v. Ashcroft, 362 F.3d 923, 927 (7th Cir. 2004); Galarza v. United States, 179 F.R.D.
291, 294 (S.D.Cal. 1998); Gilbreath v. Guadalupe Hospital Foundation Inc., 5 F.3d 785,
791 (5th Cir. 1993).
70 United States v. Arthur Young & Co., 465 U.S. 805, 817 (1984); United States v. Bisanti,
414 F.3d 168, 170 (1st Cir. 2005); In re Grand Jury Proceedings(Tullen), 220 F.3D 568, 571
(7th Cir. 2000); Inspector General v. Glenn, 122 F.3d 1007, 1012 (11th Cir. 1997).
71 In re Grand Jury Proceedings (Scarce), 5 F.3d 397, 403 (9th Cir. 1993); United States v.
Doe, 460 F.2d 328, 333-34 (1st Cir. 1972); but see, Cusumano v. Microsoft Corp., 162 F.3d
708, 714-15 (1st Cir. 1998)(recognizing qualified journalist-like privilege).
72 United States v. Dunford, 148 F.3d 385, 390-91 (4th Cir. 1998); In re Grand Jury, 103
F.3d 1140. 1146 (3d Cir. 1997); United States v. Duran, 884 F.Supp. 537, 541 (D.D.C.
1995); contra, In re Grand Jury Proceedings, Unemancipated Minor Child, 949 F.Supp.
1487, 1497 (E.D.Wash. 1996).
73 United States v. Schoenheinz,548 F.2d 1389, 1390 (9th Cir. 1977).
74 American Elec. Power Co., 191 F.R.D. 132, 141 (S.D.Ohio 1999); Delozier v. First
National Bank, 109 F.R.D. 161, 163-64 (E.D.Tenn. 1986); Harris v. United States, 413 F.2d
316, 319-20 (9th Cir. 1969).
75 In re Verplank, 329 F.Supp. 433, 436-37 (S.D.N.Y. 1970).
76 United States v. Foster, 986 F.2d 541, 542-44 (D.C.Cir. 1993).

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• probation officer-probationer;77
• insurance company-client;78
• academic peer review;79
• medical peer review;80
• unwaivable confidentiality of child abuse and juvenile records;81
• agricultural loan mediation;82
• union officials-union members;83
• Secret Service protective function;84
• litigation settlement negotiations;85
• private investigator-client;86
A second group consists of recognized but qualified privileges, whose
effectiveness against a grand jury subpoena may be uncertain at best. Members of
the group include privileges for:
• journalists (not generally recognized for grand jury purposes);87
77 United States v. Simmons, 964 F.2d 763, 768-79 (8th Cir. 1992).
78 Linde Thompson Langworthy Kohn & Van Dyke v. RTC, 5 F.3d 1508, 1514 (D.C.Cir.
1993); Petersen v. Douglas County Bank & Trust Co., 967 F.2d 1186, 1188 (8th Cir. 1992).
79 University of Pennsylvania v. EEOC, 493 U.S. 182, 188-95 (1990); Leon v. County of San
Diego, 202 F.R.D. 631, 637 (S.D.Cal. 2001).
80 Virmani v. Novant Health Inc., 259 F.3d 284, 286-93 (4th Cir. 2001); Mattice v. Memorial
Hospital, 203 F.R.D. 381, 384-86 (N.D.Ind. 2001)(collecting cases); Braswell v. Haywood
Regional Medical Center, 352 F.Supp.2d 639, 651 (W.D.N.C. 2005); Agster v. Maricopa
County, 422 F.3d 836, 839 (9th Cir. 2005); Adkins v. Christie, 488 F.3d 1324, 1330 (11th Cir.
2007).
81 Pearson v. Miller, 211 F.3d 57, 69 (3d Cir. 2000).
82 In re Grand Jury Subpoena Dated Dec. 17, 1996, 148 F.3d 487, 492-93 (5th Cir. 1998);
other than in cases of grand jury subpoenas, two lower federal courts have recognized a
qualified mediation privilege, Sheldone v. Pennsylvania Turnpike Comm., 104 F.Supp.2d
511, 512-18 (W.D.Pa. 2000); Folb v. Motion Picture Industry Pension & Health Plans, 16
F.Supp.2d 1164, 1170-181 (C.D.Cal. 1998).
83 In re Grand Jury Subpoenas Dated Jan. 20, 1998, 995 F.Supp. 332, 334-37 (E.D.N.Y.
1998).
84 In re Sealed Case (Secret Service), 148 F.3d 1073, 1079 (D.C.Cir. 1998).
85 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).
86 United States Department of Education v. National Collegiate Athletic Association, 481
F.3d 936, 938 (7th Cir. 2007).
87 Branzburg v. Hayes, 408 U.S. 665 (1972); In re Grand Jury Proceedings (Scarce), 5 F.3d
397, 403 (9th Cir. 1993); Storer Communications, Inc. v. Giovan, 810 F.2d 580, 584-85 (6th
Cir. 1987); see also, In re Grand Jury Subpoena, Judith Miller, 397 F.3d 964, 968-73
(D.C.Cir. 2005)(holding that no First Amendment privilege existed in a grand jury context,
but noting disagreement within the panel over whether a qualified common law journalist

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• critical self-evaluation;88
• presidential communications;89
• state legislators;90
• federal statutory privileges;91
• state secret/national security;92
• bank examiners;93
• state recognized privileges;94
• intra-agency, government deliberative process;95 and
• ombudsman.96
privilege (unavailable under the facts before court) might exist), but see, New York Times
v. Gonzales, 382 F.Supp.2d 457, 493 (S.D.N.Y. 2005)(recognizing common law privilege
in a grand jury context).
88 Freiermuth v. PPG Industries, Inc., 218 F.R.D. 694, 697 (N.D.Ala. 2003)(citing the
circuits that have refused to recognize the privilege); In re Kaiser Aluminum and Chemical
Co., 214 F.3d 586, 593 (5th Cir. 2000) (declining to recognize privilege when asserted
against the government); Bredice v. Doctor’s Hospital, Inc., 50 F.R.D. 249, 251
(D.D.C.1970), aff’d, 479 F.2d 920 (D.C.Cir. 1973)(privilege recognized); Reichhold
Chemicals, Inc. v. Textron, Inc., 157 F.R.D. 522, 524-25 (N.D.Fla. 1994); In re Grand Jury
Proceedings (File Sealed), 861 F.Supp. 386, 389-91 (D.Md. 1994)(privilege not applicable
to grand jury matters).
89 In re Sealed Case (Espy), 121 F.3d 729, 742-57 (D.C.Cir. 1997)(recognizing qualified
privilege may be available to quash grand jury subpoena); In re Lindsay, 158 F.3d 1263,
1266 (D.C.Cir. 1998); Cheney v. United States District Court, 542 U.S. 367, 382-90(2004).
90 Orange v. City of Suffolk, 855 F.Supp. 620, 622-24 (E.D.N.Y. 1994).
91 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).
92 United States v. Reynolds, 345 U.S.1, 6-7 (1953)(recognizing privilege); Al-Haramain
Islamic Foundation v. Bush, 507 F.3d 1190, 1196 (D.C. Cir. 2007); El-Masri v. United
States, 479 F.3d 296, 303 (4th Cir. 2007); Crater Corp. v. Lucent Technologies, Inc., 255
F.3d 1361, 1370 (Fed.Cir. 2001); In re Sealed Case (Epsy), 121 F.3d at 736; Bareford v.
General Dynamics Corp., 973 F.2d 1138, 1141 (5th Cir. 1993); cf., Tenet v. Doe, 544 U. S.
1, 9 (2005)(holding that the “well-established” state secrets privilege has not replaced the
Totten rule).
93 Schneiber v. Society for Savings Bancorp, Inc., 11 F.3d 217, 220 (D.C.Cir. 1993)
(recognizing privilege); Principle v. Crossland Savings, FSB, 149 F.R.D. 444, 447
(E.D.N.Y. 1993).
94 In re Production of Records to Grand Jury, 618 F.Supp. 440 (D.Mass. 1985)(social
worker communications); In re Grand Jury Subpoena, 144 F.Supp.2d 540, 541-42 (W.D.Va.
2001)(state tax records).
95 Dept. of Interior v. Klamath Water Users, 532 U.S. 1, 7-9 (2001); Judicial Watch, Inc. v.
Food & Drug Administration, 449 F.3d 141, (D.C. Cir. 2006); United States v. Zingsheim,
384 F.3d 867, 872 (7th Cir. 2004); Tigue v. U.S. Department of Justice, 312 F.3d 70, 76 (2d
Cir. 2002); United States v. Fernandez, 231 F.3d 1240, 1246-247 (9th Cir. 2000); Texaco
Puerto Rico v. Department of Consumer Affairs, 60 F.3d 867, 884-85 (1st Cir.1995).
96 Kientzy v. McDonnell Douglas Corp., 133 F.R.D. 570, 571 (E.D.Mo. 1991)(recognizing
privilege).

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The handful of privileges that provide the grounds for quashing a grand jury
subpoena include:
• attorney-client;97
• attorney work product;98
• clergyman-communicant;99
• informer identity;100
• spousal immunity;101
• spousal communications;102 and
• psychotherapist-patient.103
Perhaps 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
97 In re Green Grand Jury, 492 F.3d 976, 979 (8th Cir. 2007); In re Grand Jury Subpoena,
419 F.3d 329, 338-39 (5th Cir. 2005); In re Grand Jury Subpoena Under Seal, 415 F.3d 333,
338 (4th Cir. 2005); In re Grand Jury Subpoena (Newparent, Inc.), 274 F.3d 563, 571 (1st
Cir. 2001); In re Subpoenaed Grand Jury Witness, 171 F.3d 511, 513 (7th Cir. 1999); Ralls
v. United States, 52 F.3d 223, 225-27 (9th Cir. 1995);cf., Swidler & Berlin v. United States,
524 U.S. 399, 410-11 (1998) (holding that the attorney-client privilege survives the death
of the client where the privilege had been asserted in the face of a grand jury subpoena).
98 In re Green Grand Jury, 492 F.3d 976, 979 (8th Cir. 2007); In re Grand Jury Subpoena,
419 F.3d 329, 339 (5th Cir. 2005); In re Grand Jury Subpoena Dated March 19, 2002 and
August 2, 2002, 318 F.3d 379, 383-86 (2d Cir. 2003); United Kingdom v. United States, 238
F.3d 1312, 1321 (11th Cir. 2001); cf., In re Grand Jury Proceedings (John Doe Co.), 350
F.3d 299, 301-4(2d Cir. 2003)(holding the work product privilege had not been waived or
forfeited).
99 In re Grand Jury Investigation, 918 F.2d 374, 384-85 (3d Cir. 1990).
100 In re Grand Jury Investigation (Detroit Police Department Special Cash Fund), 922 F.2d
1266, 1270-272 (6th Cir. 1991); Does I thru XXII v. Advanced Textile Corp., 214 F.3d 1058,
1072 (9th Cir. 2000); Commonwealth of Puerto Rico v. United States, 490 F.3d 50, 62-4 (1st
Cir. 2007)(recognizing a more broadly stated law enforcement privilege); In re United States
Department of Homeland Security, 459 F.3d 565, 569-70 (5th Cir. 2006)(same).
101 Trammel v. United States, 445 U.S. 40, 53 (1980); United States v. Thompson, 454 F.3d
459, 464 (5th Cir. 2006); United States v. Vo, 413 F.3d 1010, 1016 (9th Cir. 2005); United
States v. Jarvison, 409 F.3d 1221, 1231 (10th Cir. 2005); United States v. Bad Wound, 203
F.3d 1072, 1075 (8th Cir. 2000); United States v. Yerardi, 192 F.3d 14, 17-8 (1st Cir. 1999);
United States v. Morris, 988 F.2d 1335, 1338-341 (4th Cir. 1993).
102 Blau v. United States, 340 U.S. 332 (1951); United States v. Darif, 446 F.3d 701, 705
(7th Cir. 2006); United States v. Griffin, 440 F.3d 1138, 1143-144 (9th Cir. 2006); United
States v. Jarvison, 409 F.3d 1221, 1231 (10th Cir. 2005); United States v. Bey, 188 F.3d 1,
4-5 (1st Cir. 1999).
103 Jaffee v. Redmond, 518 U.S. 1 (1996)(recognizing a generally applicable federal privilege
in another context and leaving development of the dimensions of the privilege for another
day); United States v. Chase, 340 F.3d 978, 985 (9th Cir. 2003) (refusing to recognize a
dangerous patient exception to the federal privilege and noting a circuit split on the issue);
In re Grand Jury Investigation (Doe), 114 F.Supp.2d 1054, 1055 (D.Ore. 2000)(holding that
a grand jury target had waived his psychotherapist-patient privilege).

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a client to an attorney made in order to obtain legal assistance.”104 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.105 Nor, as
a general rule, does the privilege cover the identity of the client nor details
concerning payment of the attorney’s fee,106 and thus the privilege will usually not
constitute grounds to quash a grand jury subpoena directed to secure that
information.107
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.”108
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.”109 Like the attorney-client privilege it is subject to a
104 Fisher v. United States, 425 U.S. 391, 403 (1976); In re Grand Jury Proceedings #5, 401
F.3d 247, 250 (4th Cir. 2005); In re Grand Jury Subpoena (Newparent, Inc.), 274 F.3d 563,
571 (1st Cir. 2001); In re Grand Jury, 475 F.3d 1299, 1304 (D.C. Cir. 2007).
105 In re Grand Jury Investigation, No. 06-1474, 445 F.3d 266, 274 (3d Cir. 2006)(“The
government must make a prima facie showing that (1) the client was committing or
intending to commit a fraud or crime, and (2) the attorney-client communications were in
furtherance of that alleged crime or fraud ”); see also, In re Green Grand Jury Proceedings,
492 F.3d 976, 979 (8th Cir. 2007); In re Grand Jury Subpoena, 419 F.3d 329, 335 (5th Cir.
2005); In re Grand Jury Proceedings, 417 F.3d 18, 22 (1st Cir. 2005); In re Grand Jury
Subpoena (No. 00-1622), 223 F.3d 213, 217-19 (3d Cir. 2000); In re Grand Jury
Subpoenas(Jane Roe and John Doe), 144 F.3d 653, 659-62 (10th Cir. 1998); cf., United
States v. Zolin, 491 U.S. 554, 562-63 (1989).
106 Gerald B.Lefcourt, P.C. v. United States, 125 F.3d 79, 86-88(2d Cir. 1997); United
States v. Ellis, 90 F.3d 447, 450-51 (11th Cir. 1996).
107 Ralls v. United States, 52 F.3d 223, 225-26 (9th Cir. 1995); In re Grand Jury Proceedings
No.92-4, 42 F.3d 876, 878-79 (4th Cir. 1994); Vingelli v. United States (DEA), 992 F.2d 449,
451-54 (2d Cir. 1993).
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 No. 92-4,
42 F.3d 887, 880 (4th Cir. 1994).
108 In re Grand Jury Subpoenas (Anderson), 906 F.2d 1485, 1488, 1489, 1492 (10th Cir.
1990); In re Grand Jury Proceedings (Goodman), 33 F.3d 1060, 1063-64 (9th Cir. 1994);
Ralls v. United States, 52 F.3d 223, 225-26 (9th Cir. 1995); In re Subpoenaed Grand Jury
Witness, 171 F.3d 511, 514 (7th Cir. 1999).
109 In re Grand Jury Subpoena Dated July 6, 2005, F.3d , (2d Cir. Nov. 16, 2007);
In re Sealed Case, 29 F.3d 715, 718 (D.C.Cir. 1994); In re Sealed Case, No. 98-3032, 146
F.3d 881, 884-87 (D.C.Cir. 1998); In re Subpoenaed Grand Jury Witness (“Tom Hagen”),

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crime/fraud exception.110 Unlike that privilege, however, “the work product privilege
belongs to both the client and the attorney, either one of whom may claim it. An
innocent attorney may claim the privilege even if a prima facie case of fraud or
criminal activity has been made as to the client.”111
Constitutional Privileges. The cases which give rise to attorney-client and
attorney work product claims not infrequently include Sixth Amendment invocations
as well.112 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, i.e., after indictment.113 This is in fact a very real limitation,
but one which admits to exception where either the client has already been indicted
or where the vitality of the right requires pre-attachment recognition. 114
171 F.3d 511, 514 (7th Cir. 1999); In re Grand Jury Subpoena (Newparent, Inc), 274 F.3d
563, 574 (1st Cir. 2001); In re Grand Jury Subpoena Dated March 19, 2002 and August 2,
2002, 318 F.3d 379, 382-84(2d Cir. 2003); In re Grand Jury Proceedings #5, 401 F.3d 247,
250 (4th Cir. 2005).
110 In re Green Grand Jury Proceedings, 492 F.3d 976, 979-80 (8th Cir. 2007); In re Grand
Jury Subpoena, 419 F.3d 329, 335 (5th Cir. 2005); In re Grand Jury Proceedings #5, 401
F.3d 247, 251 (4th Cir. 2005); In re Sealed Case (RNC), 223 F.3d 775, 778-79 (D.C.Cir.
2000); In re Richard Roe, Inc., 168 F.3d 69, 70-72 (2d Cir. 1999).
111 In re Grand Jury Subpoena (No. 99-41150 et al.), 220 F.3d 406, 408 (5th Cir. 2000); In
re Grand Jury, 419 F.3d 329, 333 n.3 (5th Cir. 2005); In re Grand Jury Proceedings (Rogers
& Wells), 43 F.3d 966, 972 (5th Cir. 1994); In re Grand Jury Proceedings Thursday Special
Grand Jury, 33 F.3d 342, 349 (4th Cir. 1994).
112 “In all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance
of Counsel for his defence.” U.S.Const. Amend.VI.
113 “[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), quoting
United States v. Gouveia , 467 U.S. 180, 189 (1984) and Kirby v. Illinois, 406 U.S. 682, 689
(1972); United States v. Hayes, 231 F.3d 663, 675 (9th Cir. 2000); In re Grand Jury
Investigation (Kiernan), 182 F.3d 668, 671 (9th Cir. 1999); United States v. Waldon, 363
F.3d 1103, 1112 n.3 (11th Cir. 2004). The right may well apply with regard to questioning
of a witness before the grand jury concerning the facts of the witness’ prior conviction then
pending on appeal, United States v. Kennedy, 372 F.3d 686, 692-93 (4th Cir. 2004).
114 “The preindictment investigation of Kravit could violate the Sixth Amendment therefore,
only if it affected his representation of Van Engel at the later stages of the case, in particular
the trial.” United States v. Van Engel, 15 F.3d 623, 630 (7th Cir. 1993).
“The district court’s exercise of its discretion to quash the subpoena because it created
a serious interference with Reyes-Requena’s relationship with his attorney is justified for
several reasons. Reyes-Requena’s Sixth Amendment rights had attached. The prosecution
against him was moving swiftly – an indictment issued within three weeks of Reyes-
Requena’s detention hearing. DeGeurin’s representation of Reyes-Requena was effectively
stalled during the two-to-three week interval that he contested the subpoena. The
government made no effort to explain, even rhetorically, why it was necessary to subpoena
DeGeurin during that critical juncture in his representation of the defendant. The
government made not a single argument in the district court or before this court to suggest
that a brief delay in the process, until a lull in the Reyes-Requena prosecution or until after

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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, 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.115 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.116
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,117 is even more rare. Under extreme circumstances, it will provide the
his conviction would have been imprudent.” In re Grand Jury Subpoena for Reyes-Requena,
913 F.2d 1118, 1128 (5th Cir. 1990).
115 United States v. Bergeson, 425 F.3d 1221, 1224-227 (9th Cir. 2005); In re Grand Jury
Proceedings (Goodman), 33 F.3d 1060, 1062-63 (9th Cir. 1994); In re Grand Jury Matter
(Special Grand Jury Narcotics), 926 F.2d 348, 351 (4th Cir. 1991).
116 Conn v. Gabbert, 526 U.S. 286, 292 (1999); United States v. Mandujano, 425 U.S. 564,
581 (1976); United States v. McKenna, 327 F.3d 830, 838 (9th Cir. 2003). Although the
lower federal courts have generally recognized the right of a grand jury witness to suspend
his or her testimony in order to consult with an attorney immediately outside the grand jury
room, In re Grand Jury Subpoena (McDougal), 97 F.3d 1090, 1092-93 (8th Cir. 1996);
Gabbert v. Conn, 131 F.3d 793, 801 (9th Cir. 1997), rev’d on other grounds, 526 U.S. 526
(1999), as the Supreme Court observed in Conn the Court itself has never held that such an
accommodation is constitutionally required, Conn v. Gabbert, 526 U.S. at 292; In re Grand
Jury Investigation (Kiernan), 182 F.3d 668, 671 n.3 (9th Cir. 1999).
Subject to various limitations, a number of states permit state grand jury witnesses to
have an attorney present when they testify: Ariz. R.Crim.P. 12.6, Ariz.Rev.Stat.Ann. §21-
412 (only targets of investigation); Colo.Rev.Stat.Ann. §16-5-204(4)(d); Conn.Gen.Stat.
Ann. §54-47f; Fla.Stat.Ann. §905.17; Ill.Comp.Laws Ann. ch.725, §5/112-4.1; Ind.Code
Ann. §35-34-2-5.5; Kan.Stat.Ann. §22-3009; La.Code Crim.P.Ann. art.433 (only targets of
an investigation); Mass. Gen.Laws Ann. ch.277 §14A; Mich.R.Crim.P. 6.005(I), Mich.
Comp.Laws Ann. §767.3; Minn.R.Crim.P. 18.04 (only witnesses who have waived or been
granted immunity); Neb.Rev.Stat. §29-1411; Nev.Rev.Stat. §172.239; N.M.Stat. §31-6-4;
N.Y.Crim.P.Law §190.52 (only witnesses who have waived immunity); Okla.Stat.Ann.
tit.22 §340; Pa.Stat.Ann. tit.42 §4549; S.D.Cod.Laws Ann. §23A-5-11; Utah Code Ann.
§77-10a-13; Va.Code Ann. §19.2-209; Wash.Rev.Code Ann. §10.27.120 (unless the witness
has been granted immunity); Wis.Stat.Ann. §968.45.
117 “Congress shall make no law respecting an establishment of religion, or prohibiting the
free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the
people peaceably to assemble, and to petition the Government for a redress of grievances.”
U.S.Const. Amend.I.

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grounds to avoid a contempt citation or to quash a federal grand jury subpoena,118
ordinarily it will not.119
The Fourth Amendment prohibits unreasonable governmental searches and
seizures.120 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. The opportunity to
118 “[N]ews gathering is not without its First Amendment protections, and grand jury
investigations if instituted or conducted other than in good faith, would pose wholly
different issues for resolution under the First amendment. Official harassment of the press
undertaken not for purposes of law enforcement but to disrupt a reporters’ relationship with
his news sources would have no justification. Grand juries are subject to judicial control
and subpoenas to motions to quash. We do not expect courts will forget that grand juries
must operate within the limits of the First Amendment. . . .” Branzburg v. Hayes, 408 U.S.
665, 707-8 (1972).
119 Branzburg v. Hayes, 408 U.S. 665 (1972)(freedom of the press); Cohen v. Cowles Media
Co., 501 U.S. 663, 669 (1991)(“the First Amendment does not relieve a newspaper reporter
of the obligation shared by all citizens to respond to a grand jury subpoena and answer
questions relevant to a grand jury subpoena, even thought the reporter might be required to
reveal a confidential source”); In re Grand Jury Subpoena, Judith Miller, 438 F.3d 1141,
1145-150 (D.C.Cir. 2006)(declining to recognize either a First Amendment or common law
privilege under the facts before it); In re Grand Jury Subpoena American Broadcasting
Companies, Inc., 947 F.Supp. 1314, 1318-321 (E.D.Ark. 1996); In re Grand Jury 87-3
Subpoena Duces Tecum, 955 F.2d 229, 231-34 (4th Cir. 1992)(freedom of expression);
National Commodity and Barter Ass’n v. United States, 951 F.2d 1172, 1174-175 (10th Cir.
1991)(“when a party makes a prima facie showing of First Amendment infringement, the
government must show a compelling need to obtain the documents identifying petitioner’s
members. Further, the government must show that the records sought bear a substantial
relationship to this compelling interests . . . . A good-faith criminal investigation into
possible evasion of reporting requirements through the use of a private banking system that
keeps no records is a compelling interest”); In re the Grand Jury Empaneling of the Special
Grand Jury, 171 F.3d 826, 835 (3d Cir. 1999)(freedom of religion). The Department of
Justice has issued guidelines relating to subpoenas issued to media and its representatives,
28 U.S.C. §50.10, but they do create enforceable legal rights, In re Grand Jury Subpoena,
Judith Miller, 438 F.3d 1141, 1152-153 (D.C. Cir. 2006).
Reporters, academics and others have periodically suggested adjustments in the law
in this area, e.g., Papandrea, Citizen Journalism and the Reporter’s Privilege, 91
MINNESOTA LAW REVIEW 515 (2007); Langley & Levine, Branzburg Revisited:
Confidential Sources and First Amendment Values, 57 GEORGE WASHINGTON LAW REVIEW
13 (1988); Rood & Grossman, The Case for a Federal Journalist’s Testimonial Shield
Statute, 18 HASTINGS CONSTITUTIONAL LAW QUARTERLY 779 (1981), an effort which may
not be without its own pitfalls, see, Are Oliver Stone and Tom Clancy Journalists:
Determining Who Has Standing to Claim the Journalist’s Privilege, 69 WASHINGTON LAW
REVIEW 739 (1994); Using the Shield as a Sword: an Analysis of How the Current
Congressional Proposals for a Reporter’s Shield Law Wound the Fifth Amendment, 20 ST.
JOHN’S JOURNAL OF LEGAL COMMENTARY 339 (2006).
120 “The right of the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but
upon probable cause, supported by Oath or affirmation, and particularly describing the place
to be searched, and the persons or things to be seized.” U.S.Const. Amend. IV.

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be heard on a motion to quash before complying makes the grand jury subpoena in
many respects less intrusive than the warrant.121
Even “forthwith” subpoenas, where the opportunity to quash may be
minimized,122 have generally been thought to pass constitutional muster, either
because the party to whom they were address complied, i.e., consented,123 or because
the circumstances presented exigencies similar to those to which Fourth Amendment
demands have traditionally yielded.124
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.”125
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
121 Zurcher v. Stanford Daily, 436 U.S. 547, 575-76 (Stewart, J. dissenting). Of course, the
government may respond to a motion to quash by seeking and executing a search warrant
for the same material, if it can convince a magistrate that it has probable cause, United
States v. Comprehensive Drug Testing, Inc.,473 F.3d 915, 929-31 (9th Cir. 2006).
122 Forthwith subpoenas command the witness to appear immediately, thereby reducing the
possibility of filing a timely motion to quash or to seek the assistance of counsel, and raising
questions as to when a forthwith subpoena is really an arrest or search warrant available
without the necessities of the Fourth Amendment.
123 United States v. Suskind, 4 F.3d 1400, 1401 (6th Cir. 1993), adopting Part IV of its
previously vacated opinion reported at 965 F.2d 80, 85-7 (6th Cir. 1992); United States v.
Allison, 619 F.2d 1254, 1257 (8th Cir. 1980).
124 United States v. Lartey, 716 F.2d 955, 962 (2d Cir. 1983)(evidence suggested that delay
might well have resulted in the destruction or alteration of the subpoenaed records); United
States v. Wilson, 614 F.2d 1224, 1228 (9th Cir. 1980)(evidence indicated that delay might
have afforded an opportunity to forge documents); United States v. Triumph Capital Group,
Inc, 211 F.R.D. 31, 55-56 (D.Conn. 2002)(exigent circumstances – the threat that evidence
sought would be destroyed – justified use a forthwith grand jury subpoena).
125 United States v. R. Enterprises, Inc., 498 U.S. 292, 301 (1991), quoting United States
v. Mechanik, 475 U.S 66, 75 (1986)(O’Connor, J., concurring in the judgment); In re Grand
Jury Proceedings, 115 F.3d 1240, 1244 (5th Cir. 1997); In re Grand Jury Subpoenas, 438
F.Supp.2d 111, 1120-121 (N.D.Cal. 2006).

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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.126
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,127 a handwriting
exemplar,128 to sign a consent form authorizing the disclosure of bank records,129 or
for juveniles to produce a DNA sample and a complete set of fingerprints.130
Consequently, the courts will not quash an otherwise valid subpoena issued for any
those purposes.
Although the Fifth Amendment privilege against self-incrimination131 precludes
requiring a witness to testify at his or her criminal trial,132 it does not “confer an
126 United States v. R. Enterprises, Inc., 498 U.S. 292, 299-301 (1992); In re Grand Jury,
John Doe No. G.J. 2005-2, 478 F.3d 581, 585 (4th Cir. 2007)(internal citations omitted)(“In
the absence of such a privilege, a subpoena may still be unreasonable or oppressive under
Rule 17(c) if it is irrelevant, harassing, overly vague, or excessively broad. Additionally,
some courts have recognized that Rule 17(c) enables district courts to quash a subpoena that
intrudes gravely on significant interests outside of the scope of a recognized privilege, if
compliance is likely to entail consequences more serious than even severe inconveniences
occasioned by irrelevant or overbroad request for records”); In re Grand Jury Subpoenas,
906 F.2d 1485, 1496 (10th Cir. 1990); In re Grand Jury Subpoena Duces Tecum Dated
November 15, 1993, 846 F.Supp. 11, 12-4 (S.D.N.Y. 1994)(quashing as overbroad a grand
jury subpoena for all computer hard disk drives and floppy diskettes without any particular
reference to their content). In R. Enterprises, the Court held that the party seeking to quash
bears the burden of establishing that a particular subpoena is unreasonable because it is
unduly burdensome or because of its want of specificity or relevancy and that a motion to
quash on grounds of relevancy “must be denied unless there is no reasonable possibility that
the category of materials the Government seeks will produce information relevant to the
general subject of the grand jury’s investigation.” 498 U.S. at 301; In re Sealed Case (Espy),
121 F.3d 729, 759 (D.C.Cir. 1997); In re Grand Jury Subpoena, 175 F.3d 332, 339 (4th Cir.
1999); In re Green Grand Jury Proceedings, 371 F.Supp.2d 1055, 1057 (D.Minn. 2005).
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 No.92-4, 42 F.3d 876, 880 (4th Cir. 1994).
127 United States v. Dionisio, 410 U.S. 1 (1973).
128 United States v. Mara, 410 U.S. 19 (1973).
129 Doe v. United States, 487 U.S. 201 (1988).
130 In re Green Grand Jury Proceedings, 371 F.Supp.2d 1055, 1056-58 (D.Minn. 2005); but
see, In re Shabazz, 200 F.Supp.2d 578, 581-85 (D.S.C. 2002)(applying Fourth Amendment
analysis to a motion to quash a grand jury subpoena duces tecum for a saliva sample sought
for DNA testing purposes).
131 “. . . [N]or shall any person . . . be compelled in any criminal case to be a witness against
himself. . . .” U.S.Const. Amend.V.
132 Cf., Griffin v. California, 380 U.S. 609, 613-14 (1965)(prosecutors are constitutionally
barred from making uninvited comments on the defendants failure to testify to the jury);
United States v. Garzon, 119 F.3d 1446, 1451 (10th Cir. 1997).

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absolute right to decline to respond in a grand jury inquiry.”133 Once before the grand
jury, a witness may decline to present self-incriminating testimony.134 The right does
not include the option to protect pre-existing, voluntarily prepared personal papers
on the ground that they are self-incriminatory,135 but a witness may refused to
produce that documents where the act of production (rather than the mere content of
the documents) would itself be incriminating.136 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.137
The Fifth Amendment due process clause,138 with and like the unreasonable or
oppressive standard of Rule 17, 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.139 Nor may the grand jury subpoena be used as a
133 United States v. Mandujano, 425 U.S. 564, 572 (1976). Nor is a witness entitled to
Miranda warnings even if he or she is a target of the grand jury’s investigation, 425 U.S. at
579; United States v. Byram, 145 F.3d 405, 409 (1st Cir. 1996); United States v. Gomez, 237
F.3d 238, 241-42 (3d Cir. 2000); United States v. Quam, 367 F.3d 1006, 1008 (8th Cir.
2004).
134 United States v. Gomez, 237 F.3d 238, 240 (3d Cir. 2000). The Fifth Amendment,
however, ordinarily does not permit a grand jury witness to refuse to answer on grounds his
testimony will expose him to prosecution under foreign law, In re Grand Jury Proceedings
of the Special April 2002 Grand Jury, 347 F.3d 197, 208 (7th Cir. 2003), citing, United
States v. Balsys, 524 U.S. 666, 673-700 (7th Cir. 2003); United States v. Alvarez, 489
F.Supp.2d 714, 721-23 (W.D. Tex. 2007).
135 United States v. Hubbell, 530 U.S. 27, 35-6 (2000), citing, Fisher v. United States, 425
U.S. 391, 409 (1976) and United States v. Doe, 465 U.S. 605, 612 (1984); In re Grand Jury
Subpoena Dated April 18, 2003, 383 F.3d 905, 909 (9th Cir. 2004).
136 United States v. Hubbell, 530 U.S. at 40-3; In re Grand Jury Witness, 92 F.3d 710, 712-
13 (8th Cir. 1996); In re Grand Jury Subpoena Dated April 18, 2003, 383 F.3d 905, 909-10
(9th Cir. 2004).
137 Braswell v. United States, 487 U.S. 99 (1988); cf., Bellis v. United States, 417 U.S.85
(1974)(upholding the contempt citation of an attorney for failure to comply with a grand
jury subpoena for his law firm’s business records); In re Grand Jury Witness, 92 F.3d 710,
712 (8th Cir. 1996).
138 “. . .[N]or shall any person . . . be deprived of life, liberty, or property, without due
process of law . . . .” U.S.Const. Amend. V.
139 In re Green Grand Jury Proceedings, 492 F.3d 976, (8th Cir. 2007)(“The government may
not use the grand jury’s investigative powers for the sole or dominant purpose of a preparing
a pending indictment for trial. If the grand jury proceedings are directed toward other
charges or persons, its scope cannot be narrowly circumscribed and any collateral fruits
from bona fine inquires may be utilized by the government”); United States v. Anderson,
441 F.3d 1162, 1189 (10th Cir. 2006); United States v. Flemmi, 245 F.3d 24, 28 (1st Cir.
2001)(“if a grand jury’s continuing indagation results in the indictment of parties not
previously charged, the presumption of regularity generally persists. So too when the grand
jury’s investigation leads to the filing of additional charges against previously indicted

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discovery device for civil cases in which the government has an interest.140

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.”141 The
privilege precludes questioning before the grand jury of a Member’s legislative
acts.142

Statutory and Other Limitations of Grand Jury Subpoena Authority.
Federal law prohibits the use of evidence tainted by illegal wiretapping.143 The
prohibition provides just cause for the refusal of a grand jury witness to respond to
inquiries based on illegal wiretapping information.144 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.145 Conflicting authority indicates the difficulty of determining whether
particular statutes that classify information as confidential thereby take the
defendants”); United States v. Brothers Const. Co., 219 F.3d 300, 314 (4th Cir. 2000); United
States v. Alred, 144 F.3d 1405, 1413 (11th Cir. 1998); cf., United States v. Salameh, 152 F.3d
88, 109 (2d Cir. 1998)(“it is improper for the government to use a grand jury subpoena for
the sole and dominant purpose of preparing for trial [under a pending indictment]. However,
where there is some proper dominant purpose for the post-indictment subpoena the
government is not barred from introducing evidence obtained thereby”) (internal citations
and quotation marks omitted).
140 In re Grand Jury Subpoena Under Seal, 175 F.3d 332, 339-40 (4th Cir. 1999); In re
Grand Jury Proceeding No.92-4, 42 F.3d 876, 878 (4th Cir. 1994); cf., United States v. Sells
Engineering, Inc., 463 U.S. 418, 432 (1983)(“If prosecutors in a given case knew that their
colleagues would be free to use the materials generated by the grand jury in a civil case, they
might be tempted to manipulate the grand jury’s powerful investigative tools to root out
additional evidence useful in the civil suit, or even to start or continue a grand jury inquiry
where no criminal prosecution seemed likely. Any such use of grand jury proceedings to
elicit evidence for use in a civil case is improper per se”). The attorney for the government,
however, need not seek court approval to use the knowledge he gained by assisting in a
grand jury in a related civil matter, United States v. John Doe, Inc., 481 U.S. 102 (1987).
141 U.S. Const. Art.I, §6, cl.2.
142 United States v. Rostenkowski, 59 F.3d 1291, 1300 (D.C.Cir. 1995); United States v.
Swindall, 971 F.2d 1531, 1543 (11th Cir. 1992).
143 “Whenever any wire or oral communications has been intercepted, no part of the
contents of such communication and no evidence derived therefrom may be received in
evidence . . . before . . . any grand jury . . . if the disclosure of that information would be in
violation of this chapter [18 U.S.C. 2510-2522].” 18 U.S.C. 2515.
144 Gelbard v. United States, 408 U.S. 41 (1971); In re Grand Jury Proceedings, Doe, 988
F.2d 211, 213 (1st Cir. 1992); In re Grand Jury, 111 F.3d 1066, 1077-79 (3d Cir. 1997); In
re Grand Jury Investigation (John Doe), 437 F.3d 855, 857 (9th Cir. 2006).
145 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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information beyond the reach of a federal grand jury subpoena, or otherwise confine
its authority.146
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,147 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.148
Secrecy
Federal grand juries conduct their business in a secrecy defined by rules which
limit who may attend,149 and the circumstances under which matters involving the
conduct of their business may be disclosed.150 Grand jury secrecy predates the arrival
146 For instance one court has suggested that a grand jury subpoena does not constitute
“court order” sufficient to trigger the exception to the confidentiality requirements of the
Privacy Act, 5 U.S.C. 552a, with respect to records maintained by the federal government,
Doe v. DiGenova, 779 F.2d 74, 85 (D.C.Cir. 1985), while another court has reached a
contrary conclusion, In re Grand Jury Subpoena Issued to the United States Postal Service,
535 F.Supp. 31, 32-33 (E.D.Tenn. 1981). In the course of its opinion the Doe court noted
a similar divergence of views on the question of whether a grand jury subpoena constituted
a court order sufficient to trigger an exception in the Fair Credit Reporting Act (15 U.S.C.
1681), Doe, 779 F.2d at 81 n.16 citing In re Grand Jury Subpoena Duces Tecum Concerning
Credit Bureau, Inc., 498 F.Supp. 1174 (N.D.Ga. 1980) and in re Application of Credit
Information Corp. of New York to Quash Grand Jury Subpoena, 526 F.Supp. 1253 (D.Md.
1981), in contrast to, In re Grand Jury Proceedings, 503 F.Supp. 9 (D.N.J. 1980) and In re
Subpoena Duces Tecum to Testify Before Grand Jury Directed to TRW, Inc., 460 F.Supp.
1007 (E.D.Mich. 1978); compare also, United States v. 218 3rd St., 805 F.2d 256, 60-62 (7th
Cir. 1986), with In re Castiglione, 587 F.Supp. 1210 (E.D.Cal. 1984), with respect to
exceptions to the confidentiality requirements of the Right to Financial Privacy Act (12
U.S.C. 3420). In re August, 1993 Regular Grand Jury, 854 F.Supp. 1380, 1382-385
(S.D.Ind. 1994) recognizes the authority to quash a grand jury subpoena to preserve the
confidentiality of hospital records concerning drug abuse treatment patients under 42 U.S.C.
290dd-2.
147 In re Grand Jury Proceedings No. 92-4, 42 F.3d 876, 880 (4th Cir. 1994); In re Grand
Jury Proceedings (Chesnoff), 13 F.3d 1293, 1296 (9th Cir. 1994).
148 Compare, Whitehouse v. United States District Court, 53 F.3d 1349 (1st Cir. 1995), with,
Stern v. United States District Court, 214 F.3d 4 (1st Cir. 2000).
149 “. . . The following persons may be present while the grand jury is in session: attorneys
for the government, the witness being questioned, interpreters when needed, and a court
reporter or an operator of a recording device . . . No person other than the jurors, and any
interpreter needed to assist a hearing-impaired or speech-impaired juror, may be present
while the grand jury is deliberating or voting.” F.R.Crim.P. 6(d).
150 “(A) No obligation of secrecy may be imposed on any person except in accordance with
Rule 6(e)(2)(B). (B) Unless these rules provide otherwise, the following persons must not
disclose a matter occurring before the grand jury: ( i) a grand juror; (ii) an interpreter; (iii)
a court reporter; (iv) an operator of a recording device; (v) a person who transcribes

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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.151 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.152
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
recorded testimony; (vi) an attorney for the government; or (vii) a person to whom
disclosure is made under Rule 6(e)(3)(A)(ii) or (iii). . .(7) Contempt. A knowing violation
of Rule 6, or of guidelines jointly issued by the Attorney General and the Director of
National Intelligence pursuant to Rule 6, may be punished as a contempt of court.”
F.R.Crim.P. 6(e)(2),(7).
151 United States v. Sells Engineering, Inc., 463 U.S. 418, 424 (1983), quoting, Douglas Oil
Co. v. Petrol Stops Northwest, 441 U.S. 211, 218 (1979).
152 United States v. John Doe, Inc., 481 U.S. 102, 109 n.5 (1987), quoting United States v.
Rose, 215 F.2d 617, 628-29 (3d Cir. 1954) and United States v. Procter & Gamble Co., 356
U.S. 677, 681-82 n.6. (1958); Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 219
n.10 (1979).
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. v. Petrol Stops
Northwest, 441 U.S. at 219. The two are obviously similar and subsequent lower court
decisions seem to show no real preference, Douglas Oil Co. formula, In re Grand Jury
Subpoena, Judith Miller, 493 F.3d 152, 154 (D.C. Cir. 2007); United States v. Aisenberg,
358 F.3d 1327 (11th Cir. 2004)(citing Douglas Oil); In re Newark Morning Ledger Co., 260
F.3d 217, 221 (3d Cir. 2001)(same); Camiolo v. State Farm Fire and Cas.Co., 334 F.3d 345,
355 (3d Cir. 2003)(citing Rose); In re Petition of Craig, 131 F.3d 99, 102 (2d Cir.
1997)(same).

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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.153 In some cases such as disclosure to a second
grand jury, the rule permits disclosure without court approval; 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.
The areas beyond the cloak of grand jury secrecy may include instances where:
(1) the individual with the information is not bound to maintain the grand jury’s
secrets; (2) disclosure does not constitute disclosure of “matters occurring before the
grand jury”; (3) subsequent use of the information presented to the grand jury is not
a “disclosure;” (4) the disclosure is to an attorney for the government or a
government employee for use in the performance of the attorney’s duties; (5)
disclosure is “directed by the court preliminary to or in connection with a judicial
proceeding;” (6) a defendant seeks to dismiss an indictment because of grand jury
irregularities; (7) an attorney for the government discloses the information to another
grand jury; (8) disclosed to state officials for purposes of enforcing state law; (9)
disclosure is expressly permitted by statute; 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.
Those Who Need Not Keep the Grand Jury’s Secrets. Rule 6
expressly declares that “[n]o obligation of secrecy may be imposed on any person
except in accordance with” its provisions,154 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, a grand jury witness may ordinarily disclose his or her grand jury
testimony,155 and those not listed in Rule 6 generally need not keep the grand jury’s
153 Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 218-19 (1979)(“disclosure is
appropriate only in those cases where the need for it outweighs the public interest in
secrecy”); United Kingdom v. United States, 238 F.3d 1312, 1320 (11th Cir. 2001).
154 F.R.Crim.P. 6(e)(2).
155 United States v. Sells Engineering, Inc., 463 U.S. 418, 425 (1983)(“Witnesses are not
under the prohibition unless they also happen to fit into one of the enumerated classes [e.g.,
grand juror, interpreter, court reporter, attorney for the government, etc.]”); Butterworth v.
Smith, 494 U.S. 624 (1990)(holding unconstitutional, as a violation of the First Amendment,
a Florida statute that prohibited a witness from ever disclosing his or her grand jury
testimony); cf., In re Sealed Motion, 880 F.2d 1367, 1373 (D.C. Cir. 1989)(holding that “a
grand jury witness has a general right to a transcript of [his or her own] testimony absent the
government demonstrating countervailing interests which outweigh the right to release of
a transcript”)(contra, In re Grand Jury Subpoena, 72 F.3d 271, 275-76 (2d Cir. 1995),
(holding that grand jury witnesses do not have a presumptive right to a copy of their grand

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secrets even if they learned of the matter from someone bound by the rule of
secrecy.156
Matters. Grand jury secrecy shrouds “matter[s] occurring before the grand
jury.”157 It does not ordinarily bar disclosure of information because the information
might be presented to the grand jury at some time in the future.158 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
jury testimony on demand); In re Grand Jury Proceedings, 417 F.3d 18, 25-8 (1st Cir.
2005)(holding that under narrow circumstances the inherent power of the court to impose
secrecy orders incidental to the matters occurring before them includes the power to impose
such orders upon grand jury witnesses).
156 Fund for Constitutional Government v. National Archives, 656 F.2d 856, 870 n.33 (D.C.
Cir. 1981); United States v. Forman, 71 F.3d 1214, 1217-220 (6th Cir. 1995); In re
Polyprophylene Carpet Antitrust Litigation, 181 F.R.D. 680, 692-94 (N.D.Ga. 1998); Beale
et al., GRAND JURY LAW AND PRACTICE §5.4 (1998). Under some circumstances, however,
such disclosures may constitute violations of 18 U.S.C. 641 (theft of federal property) or
1503 (obstruction of justice), see United States v. Jeter, 775 F.2d 670 (6th Cir. 1985)
(upholding convictions under both sections of a defendant who had sold information,
obtained from carbon paper used to type transcripts of grand jury proceedings, to the targets
of the grand jury investigations).
157 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); 1 Beale et al., GRAND JURY LAW AND
PRACTICE §5.6 (1998).
158 United States v. Eastern Air Lines, Inc., 923 F.2d 241, 244 (2d Cir. 1991); but see, In re
Motions of Dow Jones & Co., 142 F.3d 496, 500 (D.C.Cir. 1998)(“The phrase — ‘matters
occurring before the grand jury’‘— includes not only what has occurred and what is
occurring, but also what is like to occur”); In re Cudahy, 294 F.3d 947, 951(7th Cir.
2002))(“the purpose of Rule 6(e) is to protect the confidentiality of the grand jury’s hearings
and deliberations, and the term matters occurring before the grand jury is interpreted
accordingly. See Martin v. Consultants & Administrators, Inc., 966 F.2d 1078, 1097 (7th
Cir. 1992)(‘the general rule is that Rule 6(e)’s nondisclosure requirement applies to anything
that may reveal what occurred before the grand jury’); In re Sealed Case No. 99-3091, 192
F.2d 995, 1001 (D.C.Cir. 1999)(the phrase matters occurring before the grand jury
encompasses ‘not only what has occurred and what is occurring, but also what is likely to
occur, including the identities of witnesses or jurors, the substance of testimony as well as
actual transcripts, the strategy or direction of the investigation, the deliberations or questions
of jurors, and the like’); United States v. Phillips, 843 F.2d 438, 441 (11th Cir. 1988)(‘the
term matter occurring before the gand jury has been defined to include anything that will
reveal what transpired during the grand jury proceedings’); Standley v. Department of
Justice, 835 F.2d 216, 218 (9th Cir. 1987))(‘anything which may reveal what occurred before
the grand jury’ or ‘information which would reveal the identities of witnesses or jurors, the
substance of testimony, the strategy or direction of the investigation, the deliberations or
questions of the jurors, and the like’)”).

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presented to the grand jury. In between, the distinctions become more difficult and
the cases do not reflect a single approach.159
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,160
but the Rule “requires that records, orders, and subpoenas relating to grand-jury
proceedings remain sealed only to the extent and as long as necessary to prevent the
unauthorized disclosure of such matters. . . [W]hen once-secret grand jury material
becomes sufficiently widely known, it may lose its character as Rule 6(e)
material.”161
Disclosure . The rule contemplates disclosure of matters occurring before the
grand jury under a number of circumstances. Some require court approval; others do
not.
Government Attorneys and Employees. 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
159 See e.g., United States v. Dynavac, Inc., 6 F.3d 1407, 1411-414 (9th Cir. 1993), which
first notes that “Rule 6(e) is intended only to protect against disclosure of what is said or
takes place in the grand jury room . . . it is not the purpose of the Rule to foreclose from all
future revelations to proper authorities the same information or documents which were
presented to the grand jury. Thus, if a document is sought for its own sake rather than to
learn what took place before the grand jury, and if its disclosure will not compromise the
integrity of the grand jury process, Rule 6(e) does not prohibit its release.” The Dynavac
court then goes on to discuss the several, various different tests used by other circuits to
determine when business records subpoena by the grand jury should be considered covered
by Rule 6(e); see also, In re Grand Jury Investigation (Missouri), 55 F.3d 350, 353-54 (8th
Cir. 1995); Kersting v. United States, 206 F.3d 817, 821 (9th Cir. 2000)(“The law, however,
is clear that business records sought for intrinsic value are admissible, even if the same
documents were also presented to the grand jury. The only exception . . . is if the material
reveals a secret aspect of the grand jury’s workings”); In re Cudahy, 294 F.3d 947, 952 (7th
Cir. 2002)(“these formulations do not suggest that the mere fact of the existence of a grand
jury is automatically to be deemed a matter occurring before it. . . unless revelation of its
existence would disclose the identities of the targets or subjects of the grand jury’s
investigation”).
160 “(5) Closed Hearing. Subject to any right to an open hearing in a contempt proceeding,
the court must close any hearing to the extent necessary to prevent disclosure of a matter
occurring before a grand jury.
“(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,” F.R.Crim.P. 6(e)(5), (6). These
provisions have withstood First Amendment challenges in at least three circuits, In re
Newark Morning Ledger Co., 260 F.3d 217 (3d Cir. 2001); In re Motions of Dow Jones &
Co., 142 F.3d 496 (D.C.Cir. 1998); In re Grand Jury Subpoena (John Doe No. 4), 103 F.3d
234 (2d Cir. 1996).
161 In re Grand Jury, Judith Miller, 493 F.3d 152, 154 (D.C. Cir. 2007)(internal quotation
marks omitted).

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jury) from reviewing and using the information and documents, without disclosing
them to anyone else, in preparation for civil litigation.162
Moreover, disclosure to government attorneys and employees assisting the grand
jury without court approval is likewise possible under 6(e)(3)(A).163 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.164
Grand jury material may be disclosed without court approval under (3)(A) to enable
state police officers to assist a federal grand jury investigation, but apparently not
private contractors.165
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, rule 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.166
162 United States v. John Doe, Inc. I, 481 U.S. 102 (1987). But individual use may not
include disclosure to the court before whom the civil litigation is pending without prior
judicial approval, In re Sealed Case (Qui Tam), 250 F.3d 764, 768 (D.C.Cir. 2001)(“The
Government . . . takes the untenable and disturbingly cavalier position a sealed, ex parte,
conveyance of grand jury information to a federal who is acting in his judicial capacity is
not a disclosure within the meaning to the grand jury secrecy rule”).
163 “(A) Disclosure of a grand-jury matter – other than the grand jury's deliberations or any
grand juror's vote – may be made to: (i) an attorney for the government for use in performing
that attorney's duty; (ii) any government personnel – including those of a state, state
subdivision, Indian tribe, or foreign government – that an attorney for the government
considers necessary to assist in performing that attorney's duty to enforce federal criminal
law; or (iii) a person authorized by 18 U.S.C. § 3322 [relating to the disclosure of grand jury
matters to government attorneys in civil forfeiture cases and with court approval to bank
regulatory agencies in certain cases].
“(B) A person to whom information is disclosed under Rule 6(e)(3)(A)(ii) may use that
information only to assist an attorney for the government in performing that attorney's duty
to enforce federal criminal law. An attorney for the government must promptly provide the
court that impaneled the grand jury with the names of all persons to whom a disclosure has
been made, and must certify that the attorney has advised those persons of their obligation
of secrecy under this rule.” F.R.Crim.P. 6(e)(3)(A), (B).
164 United States v. Sells Engineering, Inc., 463 U.S. 418, 427 (1983) (“The Government
contends that all attorneys in the Justice Department qualify for automatic disclosure of
grand jury materials under (A)(i), regardless of the nature of the litigation in which they
intend to use the materials. We hold that (A)(i) disclosure is limited to use by those
attorneys who conduct the criminal matters to which the materials pertain”).
165 In re November 1992 Special Grand Jury for the Northern District of Indiana, 836
F.Supp. 615, 616-17 (N.D.Ind. 1993); but see, United States v. Pimental, 380 F.3d 575, 591-
96 (1st Cir. 2004)(holding that investigators of a “hybrid private/public” insurance
association should be considered government personnel for grand jury disclosure purposes).
166 “(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,

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Judicial Proceedings. Rule 6(e)(3)(E)(i) permits court approved disclosure
of grand jury matters “preliminarily to or in connection with a judicial proceeding.”167
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 variety of
proceedings range from state bar and police disciplinary investigations,168 to parole
hearings,169 state criminal investigations,170 Congressional inquiries,171 federal
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).
See generally, Shaw, The USA PATRIOT Act of 2001, the Intelligence Reform and
Terrorism Prevention Act of 2004, and the False Dichotomy Between Protecting National
Security and Preserving Grand Jury Secrecy, 35 SETON HALL LAW REVIEW 495 (2005);
Collins, And the Walls Came Tumbling Down: Sharing Grand Jury Information with the
Intelligence Community Under the USA PATRIOT Act, 39 AMERICAN CRIMINAL LAW
REVIEW 1261 (2002).
167 “(E) The court may authorize disclosure – at a time, in a manner, and subject to any
other conditions that it directs – of a grand jury matter: (i) preliminary to or in connection
with a judicial proceeding,” F.R.Crim.P. 6(e)(3)(E)(i).
168 Doe v. Rosenbery, 225 F.2d 118 (2d Cir. 1958); In re Special February 1977 Grand Jury
v. Conlisk, 490 F.2d 894 (7th Cir. 1973).
169 United States v. Shillitani, 345 F.2d 290 (2d Cir. 1965).
170 Gibson v. United States, 403 F.3d 166 (D.C.Cir. 1968).
171 Haldeman v. Sirica, 501 F.2d 714 (D.C.Cir. 1974)( impeach inquiry); In re Grand Jury
Investigation of Ven-Fuel, 441 F.Supp. 1299 (M.D.Fla. 1977)( legislative investigation).

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administrative proceedings,172 civil litigation,173and other grand jury investigations.174
In United States v. Baggot, however, the Supreme Court provide 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) . . . 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) is not permitted. 463
U.S. 476, 479-80 (1983)(emphasis of the Court).
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).175
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).”176 The case’s
description of disclosures in an administrative context, however, hardly supports the
notion that “judicial proceedings” include those before administrative tribunals.177
172 In re Grand Jury Proceedings (Daewoo), 613 F.Supp. 673 (D.Ore. 1985)(Customs
Service proceedings).
173 In re Grand Jury Investigation, 414 F.Supp. 74 (S.D.N.Y. 1976).
174 In re 1979 Grand Jury Proceedings, 479 F.Supp. 93 (E.D.N.Y. 1973).
175 Interestingly, (C)(i),(now (E)(i)) might have permitted disclosure in Baggot if the tax
payer, rather than the IRS, had sought disclosure in anticipation of a judicial challenge of
the results of the audit: “Of course, the matter may end up in court if Baggot chooses to take
it there, but that possibility does not negate the fact that the primary use to which the IRS
purposes to put the materials it seeks is an extrajudicial one – the assessment of a tax
deficiency by the IRS,” 463 at 481.
176 463 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 North, 16 F.3d 1234, 1244-245 (D.C.Cir. 1989); In
re Espy, 259 F.3d 725, 728 (D.C.Cir. 2001), and to subsequent grand jury proceedings, In
re Grand Jury, 490 F.3d 978, 986 (D.C. Cir. 2007)(citing various circuit court views on
whether a grand jury witness should be permitted to examine or copy his testimony).
177 463 U.S. at 480-81 n.5.

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Particularized Need. Court approved disclosures require “a strong showing
of particularized need.”178 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.”179
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.180
While the test remains the same whether the government or a private party seeks
disclosure,181 “the concerns that underlie the policy of grand jury secrecy are
implicated to a much lesser extent when the disclosure merely involves government
attorneys.”182
In the balance to be struck in the process of determining whether “the need for
disclosure is greater than the need for continued secrecy,”183 the district court enjoys
discretion to judge each case on its own facts,184 but some general trends seem to
have developed.
178 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.
179 Douglas Oil Co. v. Northwest Petrol Stops, 441 U.S. at 222; United States v. Moussaoui,
483 F.3d 220, 235 (4th Cir. 2007); United States v. Aisenberg, 358 F.3d 1327, 1348 (11th Cir.
2004); McAninch v. Wintermute, 491 F.3d 759, 767 (8th Cir. 2007); United States v.
Campbell, 324 F.3d 497, 498-99 (7th Cir. 2003); In re Special Grand Jury 89-2, 143 F.3d
565, 569-70 (10th Cir. 1998); In re Grand Jury Proceedings (Ballas), 62 F.3d 1175, 1179 (9th
Cir. 1995); United States v. Miramontex, 995 F.2d 56, 59 (5th Cir. 1993).
180 In re Grand Jury 95-1, 118 F.3d 1433, 1437 (10th Cir. 1997); In re Grand Jury
Investigation (Missouri), 55 F.3d 350, 354-55 (8th Cir. 1995); Cullen v. Margiotta, 811 F.2d
698, 715 (2d Cir. 1987); Hernly v. United States, 832 F.2d 980, 883-85 (7th Cir. 1987); In
re Grand Jury Proceedings GJ-76-4 & GJ-75-3, 800 F.2d 1293, 1302 (4th Cir. 1986).
181 United States v. John Doe, Inc.I, 481 U.S. 102, 112 (1987); citing, United States v. Sells
Engineering, Inc., 463 U.S. 418, 443-44 (1983); and Illinois v. Abbott & Associates, Inc.,
460 U.S. 557 (1983).
182 United States v. John Doe, Inc. I, 481 U.S. at 112; cf., In re Grand Jury Investigation
(Missouri), 55 F.3d 350, 353-54 (8th Cir. 1995).
183 Douglas Oil Co.v. Northwest Petrol Stops, 441 U.S. at 222; United States v. Nix, 21
F.3d 347, 351 (9th Cir. 1994).
184 In re Grand Jury Proceedings (Ballas), 62 F.3d 1175, 1180 (9th Cir. 1995); United States
v. Aisenberg, 358 F.3d 1327, 1349 (11th Cir. 2004).

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The need to shield the grand jury’s activities from public display is less
compelling once it has completed its inquiries and been discharged,185 especially if
the resulting criminal proceedings have also been concluded.186 Of course, there
must still be a counterbalancing demonstration of need,187 a requirement that becomes
more difficult if the grand jury witnesses whose testimony is be disclosed still run the
risk of retaliation.188
“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.”189
Moreover, the courts seem responsive to requests to disclose matters occurring
before the grand jury in order to resolve some specific inconsistency in the testimony
of a witness or to refresh a witness’s collection during the course of a trial.190 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.191
185 United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 234 (1940); In re Grand Jury
Investigation (Missouri), 55 F.3d 380, 354 (8th Cir. 1995); In re Grand Jury Proceeding
Relative to Perl, 838 F.2d 304, 307 (8th Cir. 1988).
186 United States v. Blackwell, 954 F.Supp. 944, 966 (D.N.J. 1997); In re Grand Jury
Proceedings GJ-76-4 & GJ-75-3, 800 F.2d at 1301 (4th Cir. 1986); In re Shopping Cart
Antitrust Litigation, 95 F.R.D. 309, 312-13 (S.D.N.Y. 1982).
187 United States v. Aisenberg, 358 F.3d 1327, 1348 (11th Cir. 2004); Hernly v. United States,
832 F.2d 980, 985 (7th Cir. 1987); In re Grand Jury Testimony, 832 F.2d 60, 64 (5th Cir.
1987).
188 Cullen v. Margiotta, 811 F.2d 698 (2d Cir. 1987); In re Grand Jury Investigation
(Missouri), 55 F.3d 350, 355 (8th Cir. 1955).
189 In re Grand Jury Proceeding Relative to Perl, 838 F.2d 304, 306-307 (8th Cir. 1988); In
re Grand Jury Investigation (Missouri), 55 F.3d at 354 (8th Cir. 1995); In re Sealed Case,
801 F.2d 1379, 1381 (D.C.Cir. 1986); In re Grand Jury Investigation, 630 F.2d 996, 1000
(3d Cir. 1980).
190 Douglas Oil Co., 441 U.S. at 222 n.12; United States v. Rockwell International Corp.,
173 F.3d 757, 759 (10th Cir. 1999); In re Grand Jury, 832 F.2d 60, 63 (5th Cir. 1987); Lucas
v. Turner, 725 F.2d 1095, 1105 (7th Cir. 1984); United States v. Fischbach and Moore, Inc.,
776 F.2d 839, 845 (9th Cir. 1985). Under much the same logic, a court may afford a grand
jury witness access to his or her earlier testimony prior to a subsequent appearance, In re
Grand Jury, 490 F.3d 978, 986-90 (D.C. Cir. 2007).
191 Douglas Oil Co., 441 U.S. at 222 n.13; In re Grand Jury Proceedings GJ-76-4 & GJ-75-
3, 800 F.2d 1293, 1302-303 (4th Cir. 1986); United States v. Fischbach and Moore, Inc., 776
F.2d 839, 844 (9th Cir. 1985).

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Defendant’s Motion to Dismiss.192 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.193
Second Grand Jury.194 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.195
State, Military, or Foreign Law Enforcement.196 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
enforcement authorities under Rule 6(e)(3)(E)(iii), (iv), (v).197
Express Authority Under Statute or Other Rule. 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.198 And, under the Jencks Act, after a witness has testified against a
192 “(E) The court may authorize disclosure – at a time, in a manner, and subject to any
other conditions that it directs – of a grand jury matter: . . . (ii) at the request of a defendant
who shows that a ground may exist to dismiss the indictment because of a matter that
occurred before the grand jury.” F.R.Crim.P. 6(e)(3)(E)(ii).
193 United States v. Wilkinson, 124 F.3d 971, 977 (8th Cir. 1997); United States v. Perez, 67
F.3d 1371, 1381 (9th Cir. 1995); United States v. Puglia, 8 F.3d 478, 480 (7th Cir. 1993);
United States v. Miramontez, 995 F.2d 56, 59 (5th Cir. 1993); United States v. Gibson, 175
F.Supp.2d 532, 535 (S.D.N.Y. 2001).
194 “(C) An attorney for the government may disclose any grand jury matter to another
federal grand jury.” F.R.Crim.P. 6(e)(3)(C).
195 In re Grand Jury Subpoenas Aug. 1986, 658 F.Supp. 474, 478-80 (D.Md. 1987).
196 “(E) The court may authorize disclosure – at a time, in a manner, and subject to any other
conditions that it directs – of a grand jury matter: . . . (iii) at the request of the government,
when sought by a foreign court or prosecutor for use in an official criminal investigation;
(iv) at the request of the government if it shows that the matter may disclose a violation of
state, Indian tribal, or foreign criminal law, as long as the disclosure is to an appropriate
state, state-subdivision, Indian trial, or foreign government official for the purpose of
enforcing that law; (v) at the request of the government if it shows that the matter may
disclose a violation of military criminal law under the Uniform Code of Military Justice, as
long as the disclosure is to an appropriate military official for the purpose of enforcing that
law,” F.R.Crim.P. 6(e)(3)(E)(iii), (iv),(v).
197 United States v. McVeigh, 157 F.3d 809, 814-15 (10th Cir. 1998).
198 F.R.Crim.P. 16(a)(1)(A).

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defendant at trial, the defendant is entitled to request and receive a copy of the
witness’ relevant grand jury testimony.199
Congress has expressly authorized the disclosure of grand jury matters in
connection with enforcement of some of the banking laws.200 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. Bank regulatory agency personnel may receive grand jury
information concerning such misconduct upon a motion by the government showing
substantial need.
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 United States 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.201
Consistence with the Historical Dimensions of Grand Jury Secrecy.
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.202 Others, for
199 18 U.S.C. 3500; see also F.R.Crim.P. 26.2.
200 18 U.S.C. 3322.
201 Illinois v. Abbott & Associates, Inc., 460 U.S. 557 (1983); see also, In re North, 16 F.3d
1234, 1243 (D.C.Cir. 1994) holding that the statutory obligation of Independent Counsel to
submit a final report of their investigations and prosecutions, 28 U.S.C. 585(b), did not
relieve them of the obligations of government attorneys under Rule 6(e).
202 In re Grand Jury Investigation (John Doe), 59 F.3d 17, 19-20 (2d Cir. 1995)(permitting
access to documents held by the grand jury when sought in response to the legitimate needs
of the entity that created the documents); In re Report & Recommendation of June 5, 1972
Grand Jury, 370 F.Supp. 1219, 1227-230 (D.D.C. 1974) (permitting disclosure of grand jury
material relevant to an impeachment inquiry to the House Judiciary Committee); In re
Grand Jury Investigation of Ven-Fuel, 441 F.Supp. 1299, 1302-304 (M.D.Fla. 1977)
(permitting disclosure of grand jury material a House legislative subcommittee); In re
Petition to Inspect & Copy Grand Jury Materials, 735 F.2d 1261, 1270 (11th Cir.
1984)(upholding disclosure of grand jury matter to an committee of the Eleventh Circuit
Judicial Council investigating allegations of judicial misconduct on the grounds of the
district court’s inherent supervisory power over the grand jury).
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

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much the same reasons, 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.203
Enforcement of Grand Jury Secrecy. “A knowing violation of Rule 6
. . . may be punished as a contempt of court.”204 Since the Rule speaks of
punishment, it might be fair to assume that it contemplates criminal contempt. And
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.205 Government
employees and members of the bar who improperly disclose the grand jury’s secrets
may be subject to disciplinary proceedings.206 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).207
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).
203 In re Grand Jury Subpoena (John Doe No.4), 103 F.3d 234, 240 n.8 (2d Cir. 1996); In
re Grand Jury Proceedings, 417 F.3d 18, 26 (1st Cir. 2006); In re Charlotte Observer, 921
F.2d 47, 50 (4th Cir. 1990), citing, Matter of Special March 1981 Grand Jury, 753 F.2d 575,
577 (7th Cir. 1985); In re Subpoena to Testify Before Grand Jury, 864 F.2d 1559, 1563-64
(11th Cir. 1989); see also, In re Special Grand Jury, 450 F.3d 1159, 1177-178 (10th Cir.
2006)(noting the authority in other circuits but postponing consideration of the question).
204 F.R.Crim.P. 6(e)(7)(“A knowing violation of Rule 6, or of the guidelines jointly issued
by the Attorney General and the Director of National Intelligence under Rule 6, may be
punished as a contempt of court”); Bank of Nova Scotia v. United States, 487 U.S. at 263;
United States v. Holloway, 991 F.2d 370 (7th Cir. 1993); Relief, Remedy, or Sanction for
Violation of Rule 6(e) of Federal Rules of Criminal Procedure Prohibiting Disclosure of
Matters Occurring Before Grand Jury, 73 ALR FED 112.
205 McQueen v. Bullock, 907 F.2d 1544, 1551 (5th Cir. 1990); In re Grand Jury Investigation
(Lance), 610 F.2d 202, 213 (5th Cir. 1980); Barry v. United States, 865 F.2d 1317 (D.C.Cir.
1989); contra, In re Grand Jury Investigation (90-3-2), 748 F.Supp. 1188 (E.D. Mich. 1990).
The Eleventh Circuit panel in Blalock v. United States, 844 F.2d 1546 (11th Cir. 1988), felt
itself bound by precedent of the Fifth Circuit before that circuit was split in two to create
the Eleventh and Fifth, but two of the three members of the panel make it clear that they
would have held otherwise if not bound, 844 F.2d at 1551-553 (Tjoflat & Roettger, JJ.
concurring). See generally, Federal Rule of Criminal Procedure 6(e): Criminal or Civil
Contempt for Violations of Grand Jury Secrecy?, 12 WESTERN NEW ENGLAND LAW REVIEW
245 (1990).
206 Bank of Nova Scotia v. United States, 487 U.S. at 263. The civil relief available against
government for violations of grand jury secrecy does not include the right to monetary
damages or attorneys’ fees, In re Sealed Case, No. 98-3077, 151 F.3d 1059, 1070 (D.C.Cir.
1998); McQueen v. United States, 5 F.Supp.2d 473, 482-83 (S.D.Tex. 1998).
207 United States v. Jeter, 775 F.2d 670, 675-79 (6th Cir. 1985); United States v. Howard,
569 F.2d 1331, 1336 (5th Cir. 1978); United States v. Peasley, 741 F.Supp. 18, 20 (D.Me.
1990); In re Grand Jury Proceedings, Special Grand Jury 89-2, 813 F.Supp. 1451, 1465
n.10 (D.Colo. 1992).

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Final Grand Jury Action
There are four possible outcomes of convening a grand jury – (1) indictment,
(2) a vote not to indict, to find “”no bill”“ or “no true bill”, or to endorse the
indictment “ignoramus”, (3) discharge or expiration without any action, (4)
submission of a report to the court.
Indictment
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” and bears the signature of the attorney for the
government, and of the grand jury foreperson.208 The “constitution 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.”209
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 twelve of his or her fellow citizens reflected in an indictment.210 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.211
Misdemeanors may, but need not, be tried by indictment.212
208 F.R.Crim.P. 7(c)(1), 6(c). The foreperson’s failure to endorse the indictment is not fatal
unless it reflects the absence of a concurrence of twelve grand jurors in the indictment,
Hobby v. United States, 468 U.S. 339, 345 (1984), citing, Frisbie v. United States, 157 U.S.
160, 163-65 (1895).
The signature or assent of the attorney for the government, however, is required before
a prosecution can go forward, United States v. Cox, 342 F.2d 167, 171-72 (5th Cir. 1965);
United States v. Laboy, 909 F.2d 581, 585 (1st Cir. 1990).
209 United States v. Resendiz-Ponce, 127 S.Ct. 782,788 (2007); United States v. Abu-
Shawish, 507 F.3d 550, 553 (7th Cir. 2007); United States v. Kemp, 500 F.3d 257, 280 (3d
Cir. 2007); United States v. Ratcliff, 488 F.3d 639, 643 (5th Cir. 2007).
210 “No person shall be held to answer for a capital, or otherwise infamous crime, unless on
a presentment or indictment of a grand jury. . . .” U.S. Const. Amend. V; Stirone v. United
States, 361 U.S. 212, 215-19 (1960); United States v. Doe, 297 F.3d 76, 88 n,12 (2d Cir.
2002); United States v. Adamson, 291 F.3d 606, 614 (9th Cir. 2002); United States v. Weiss,
469 F.Supp.2d 941, 945 (D. Colo. 2007).
211 F.R.Crim.P. 7(b); Ornelas v. United States, 840 F.2d 890, 892 n.3 (11th Cir. 1988);
United States v. Moore, 37 F.3d 169, 173 (5th Cir. 1995); cf., United States v. Littlefield, 105
F.3d 527, 528 (9th Cir. 1997); Goode v. United States, 305 F.3d 378, 386 (6th Cir. 2002);
United States v. Stewart, 425 F.Supp.2d 727, 736 (E.D. Va. 2006).
212 F.R.Crim.P. 7(a); United States v. Brewer, 681 F.2d 973, 974 (5th Cir. 1982); United
States v. Cocoman, 903 F.2d 127, 129-30 (2d Cir. 1990); United States v. Pitt-Des Moines,
Inc., 168 F.3d 976, 986 (7th Cir. 1999); United States v. Greenpeace, Inc., 314 F.Supp.2d
1252, 1264 (S.D.Fla. 2004).

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The grand jury may indict only upon the vote of twelve of its members,213 and
upon its conclusion that there is probable cause to believe that the accused committed
the crime charged.214
Defendants have urged dismissal of their indictments based upon a wide array
of alleged grand jury irregularities. They are rarely successful. 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.215 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;216 which are defective for failure to state an
offense contrary to the Fifth Amendment right of indictment before trial for a
felony;217 which are tainted by violations of the Speech or Debate privilege,218 of the
right of the accused to counsel of his choice;219 which are based solely on evidence
213 F.R.Crim.P. 6(f); United States v. Byron, 994 F.2d 747, 748 (10th Cir. 1993), but some
courts have held that the requirement is not jurisdictional and may be waived or, if harmless,
provides inadequate grounds to vacate a conviction, United States v. Enigwe, 17 F.Supp.2d
390, 392 (E.D.Pa. 1998).
214 United States v. Calandra, 414 U.S. 338, 343 (1974), citing Branzburg v. Hayes, 408
U.S. 665, 686-87 (1972); United States v. Cabrera-Teran, 168 F.3d 141, 143 (5th Cir. 1999).
215 Bank of Nova Scotia v. United States, 487 U.S. 250, 257 (1988); Vasquez v. Hillary, 474
U.S. 254, 260-64 (1986).
216 United States v. Mayer, 503 F.3d 740, 747 (9th Cir. 2007); In re Sealed Case (No. 98-
3054), 144 F.3d 74, 75 (D.C.Cir. 1998); United States v. Nanni, 59 F.3d 1425, 1432-433 (2d
Cir. 1995); Grand Jury Subpoena Dated Dec. 7 and 8, 40 F.3d 1096, 1103 (10th Cir. 1994);
In re Grand Jury Proceedings (Kinamon), 45 F.3d 343, 347-48 (9th Cir. 1995); but see,
United States v. Schmidgall, 25 F.3d 1533, 1538-539 (11th Cir. 1994)(disclosure of
immunized testimony to an indicting grand jury does not require dismissal if the disclosure
is shown to have been harmless).
217 United States v. Mayer, 503 F.3d 740, 747 (9th Cir. 2007); United States v. Cochran, 17
F.3d 56, 57 (3d Cir. 1994), citing, United States v. Russell, 369 U.S. 749, 763-64 (1962);
United States v. Brown, 995 F.2d 1493, 1505 (10th Cir. 1993).
Indictments defective on their face may include those returned after the expiration of
the grand jury’s tenure, but whether apparent from the face of the indictment or not a
purported indictment returned by a grand jury’s whose term has expired is a nullity, United
States v. Fein, 504 F.2d 1170, 1173 (2d Cir. 1974); United States v. Armored Transport Inc.,
629 F.2d 1313, 1316 (9th Cir. 1980); United States v. Clemenic, 886 F.2d 332 (7th Cir. 1989),
opinion appended to United States v. Daniels, 902 F.2d 1238, 1240 (7th Cir. 1990).
218 United States v. Swindall, 971 F.2d 1531, 1543 (11th Cir. 1992); United States v.
Helstoski, 635 F.2d 200, 204-6 (3d Cir. 1980); cf., United States v. Rostenkowski, 59 F.3d
1291, 1298-299 (D.C.Cir. 1995)(noting that at some point presentation of speech or debate
material to a grand jury will contaminate the resulting indictment but declining to identify
that point).
219 United States v. Stein, 495 F.3d 390, 421-25 (S.D.N.Y. 2007).

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secured in violation of the Fourth Amendment;220 or which charge violation of a
statute that is unconstitutional on its face.221
They will also dismiss indictments in the name of due process where the
prosecution sought indictment selectively for constitutionally impermissible
reasons;222 or for reasons of vindictive retaliation;223 where the prosecution has
secured the indictment through outrageous conduct which shocks the conscience of
the court;224 where the prosecution has unjustifiably delayed seeking an indictment
to the detriment of the defendant;225 where the government knowingly secures the
indictment through the presentation of false or perjured testimony;226 or where a
witness is called before the grand jury for the sole purpose of building perjury
prosecution against the witness.227
220 United States v. MacDonald, 435 U.S. 850, 860 n.7 (1978), citing Abney v. United States,
431 U.S. 651, 663 (1977); Cogen v. United States, 278 U.S. 221, 227 (1920); and Heike v.
United States, 217 U.S. 423, 430 (1910); United States v. Mayer, 503 F.3d 740, 747 (9th Cir.
2007).
221 United States v. Mayer, 503 F.3d 740, 747 (9th Cir. 2007).
222 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).
223 United States v. Meyer, 810 F.2d 1242, 1249 (D.C.Cir. 1987), vac’d, 816 F. 2d 695,
reinstated, 824 F.2d 1240; cf., United States v. Cyprian, 23 F.3d 1189, 1196 (7th Cir.
1994)(“prosecution is vindictive, in violation of the Fifth Amendment Due Process Clause,
if it is undertaken in retaliation for the exercise of a legally protected statutory or
constitutional right”); United States v. Aggarwal, 17 F.3d 737, 743-44 (5th Cir. 1994).
224 United States v. Mayer, 503 F.3d 740, 747 (9th Cir. 2007), citing, United States v. Russell,
411 U.S. 423, 432 (1973); United States v. Montoya, 45 F.3d 1286, 1300 (9th Cir. 1995); cf.,
United States v. Sneed, 34 F.3d 1570, 1576-578 (10th Cir. 1994); United States v. LaPorta,
46 F.3d 152, 160 (2d Cir. 1994).
225 United States v. Marion, 404 U.S. 307, 324 (1971); United States v. Mayer, 503 F.3d 740,
747 (9th Cir. 2007); United States v. Benshop, 138 F.3d 1229, 1232 (8th Cir. 1998); United
States v. West, 58 F.3d 133, 136 (5th Cir. 1995); United States v. Manning, 56 F.3d 1188,
1194 (9th Cir. 1995).
226 United States v. Burke, 425 F.3d 400, 412-13 (7th Cir. 2005); United States v. Spillone,
879 F.2d 514, 524 (9th Cir. 1989); United States v. Levine, 700 F.2d 1176, 1180 (8th Cir.
1983); but not where there is no evidence that the government was aware the testimony was
false, United States v. Strouse, 286 F.3d 767, 772 (5th Cir. 2002).
227 United States v. Chen, 933 F.2d 793, 796-97 (11th Cir. 1991)(“[a] perjury trap is created
when the government calls a witness before the grand jury for the primary reason of
obtaining testimony from him in order to prosecute him later for perjury”); United States v.
Brown, 49 F.3d 1162, 1168 (6th Cir. 1995). As with most of the due process grounds, the
perjury trap is most often spoken of in the abstract in a case where the court finds no due
process violation.

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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.228 “Bank of Nova Scotia 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.”229
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.”230 If the error is harmless the indictment may not be dismissed;231 “a
district court may not dismiss an indictment for errors in grand jury proceedings
unless such errors prejudiced the defendants.”232 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 must of its force.233
228 Goodrich v. Hall, 448 F.3d 45, 50 (1st Cir. 2006)(parallel citations omitted)(“‘An
indictment returned by a legally constituted and unbiased grand jury . . . if valid on its face,
is enough to call for trial of the charge on the merits.’” Costello v. United States, 350 U.S.
359, 363 (1956)”).
229 United States v. Williams, 504 U.S. 36, 46 (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). . . .” 504 U.S. at 46 n.6).
230 Bank of Nova Scotia v. United States, 487 U.S. 250, 256 (1988), quoting United States
v. Mechanik, 475 U.S. at 78 (O’Connor, J., concurring); United States v. Vincent, 416 F.3d
593, 601 (7th Cir. 2005)(“Even if errors in the grand jury proceedings would have justified
the district court in dismissing the indictment prior to trial, the petit jury’s subsequent
conviction of Vincent rendered these errors harmless beyond a reasonable doubt”); United
States v. Sigma Industries, Inc., 244 F.3d 841, 874 (11th Cir. 2001); People v. Palomo, 35
F.3d 368, 371-72 (9th Cir. 1994).
231 United States v. Williams, 504 U.S. 56, 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).
232 Bank of Nova Scotia v. United States, 487 U.S. at 254; United States v. Lennick, 18 F.3d
814, 817-18 (9th Cir. 1994).
233 United States v. Mechanik, 475 U.S. 66, 73 (1986); Goodrich v. Hall, 448 F.3d 45, 50
(1st Cir. 2006)(“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”); United States v. Flores-Rivera, 56 F.3d 319
(1st Cir. 1995); United States v. Mills, 995 F.2d 480, 487 (4th Cir. 1993); cf., United States
v. McDonald, 61 F.3d 248, 252-53 (4th Cir. 1995).

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Finally, the supervisory power to dismiss an indictment does not appear to
extend beyond those areas where it is reinforced by the Constitution, statute or rule.234
As a consequence of these limitations, indictments will not ordinarily be dismissed
because:
• the prosecutor failed to present evidence favorable to the defendant;235
• the prosecutor failed to properly instruct the panel on applicable law;236
• the prosecutor failed to advise the witness that he was a target of the investigation
contrary to a suggestion in United States Attorney’s Manual;237
• the accused was called to testify before the grand jury when the prosecutor was
aware the witness would invoke his privilege against self-incrimination;238
• the prosecutor presented the grand jury with a signed indictment for its consideration
and approval or rejection;239
• of inflammatory press coverage proximate to the grand jury’s inquiry;240
• of a breached grand jury secrecy;241
• of the presence of unauthorized individuals while the grand jury conducted its
business;242
234 United States v. Williams, 504 U.S. at 46-7 (“We did not hold in Bank of Nova Scotia,
however, that the courts’ supervisory power could be used, not merely as a means of
enforcing or vindicating legally compelled standards of prosecutorial conduct before the
grand jury, but as a means of prescribing those standards of professional conduct in the first
instance. . . . Because the grand jury is an institution separate from the courts, over whose
functioning the courts do not preside, we think it clear that, as a general matter at least, no
such `supervisory’ judicial authority exists. . . “)(emphasis of the Court).
235 United States v. Williams, 504 U.S. at 45; United States v. Mahalick, 498 F.3d 475, 479
(7th Cir. 2007); Unuited States v. Casas, 425 F.3d 23, 37-8 (1st Cir. 2005); United States v.
Waldon, 363 F.3d 1103, 1109 (11th Cir. 2004); United States v. Angel, 355 F.3d 462, 475 (6th
Cir. 2004); United States v. Haynes, 216 F.3d 789, 798 (9th Cir. 2000);.
236 United States v. Warren, 16 F.3d 247, 252-53 (8th Cir. 1994); United States v. Zangger,
848 F.2d 923, 925 (8th Cir. 1988); United States v. Buchanan, 787 F.2d 477, 487 (10th Cir.
1986).
237 United States v. Hughson, 488 F.Supp.2d 835, 845 (D. Minn. 2007).
238 United States v. Stein, 429 F.Supp.2d 633, 639-40 (S.D.N.Y. 2006), citing, Bank of Nova
Scotia v. United States, 487 U.S. 250, 258-59 (1988).
239 United States v. Singer, 660 F.2d 1295, 1302 (8th Cir. 1981); United States v. Levine, 457
F.2d 1186, 1189 (10th Cir. 1972); United States v. Conley, 826 F.Supp. 1533, 1534 (W.D.Pa.
1993).
240 United States v. York, 428 F.3d 1325, 1331-332 (11th Cir. 2005).
241 United States v. Vincent, 416 F.3d 593, 600 (7th Cir. 2005); United States v. Lamantia,
59 F.3d 705, 707-8 (7th Cir. 1995); United States v. Kilpatrick, 821 F.2d 1456, 1468-469
(10th Cir. 1987), aff’d on other grounds sub nom., Bank of Nova Scotia v. United States, 487
U.S. 250 (1987); United States v. Malatesta, 583 F.2d 748, 753-54 (5th Cir. 1978).
242 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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• of the presentation of hearsay evidence;243
• of the presentation of inaccurate, unreliable, misleading, or false evidence;244
• of the presentation of illegal obtained evidence;245
• of the presentation of evidence secured in violation of the Fourth Amendment;246
• of the presentation of evidence secured by intrusion into the attorney-client
relationship;247
• of the presentation of evidence secured in violation of the Constitution’s speech and
debate clause;248 or
• no twelve grand jurors heard all the evidence upon which the indictment was
based.249
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). 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.”250 In most instances, dismissal at the
243 United States v. Costello, 350 U.S. 359, 363-64 (1956); United States v. Waldon, 363
F.3d 1103, 1109 (11th Cir. 2004); United States v. Roach, 28 F.3d 729, 739 (8th Cir. 1994);
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).
244 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).
245 United States v. Greve, 490 F.3d 566, 570-71 (7th Cir. 2007).
246 United States v. Calandra, 414 U.S. 338, 349-52 (1974); United States v. Salazar, 323
F.3d 852, 856 (10th Cir. 2003); Wilkerson v. Whitley, 28 F.3d 498, 503 (5th Cir. 1994);
Williams v. Poulous, 11 F.3d 271, 290 (1st Cir. 1993); Baylson v. Disciplinary Board, 975
F.2d 102, 110 n.3 (3d Cir. 1992).
247 United States v. Haynes, 216 F.3d 789, 797-98 (9th Cir. 2000)(“Haynes and Denton also
argue that the district court should have exercised its supervisory power to dismiss the
indictment on the ground that the government engaged in various acts of misconduct before
the grand jury. To the extent that their argument is based on privileged testimony
improperly elicited from Fairbanks [defense counsel’s investigator], the challenge fails
because a grand jury is permitted to consider evidence obtained in violation of a privilege,
whether the privilege is established by the Constitution, statute, or the common law. See
United States v. Calandra, 414 U.S. 338, 346 (1974) “).
248 United States v. Williams, 644 F.2d 950, 952 (2d Cir. 1981)(where the violations were
not “wholesale”); United States v. Helstoski, 635 F.2d 200, 205-206 (3d Cir. 1980).
249 United States v. Overmyer, 899 F.2d 457, 465 (6th Cir. 1990); United States v. Cronic,
675 F.2d 1126, 1130 (10th Cir. 1982); United States v. Leverage Funding Systems Inc., 637
F.2d 645, 649 (9th Cir. 1980).
250 Rinaldi v. United States, 434 U.S. 22, 30 (1977); United States v. Romero, 360 F.3d
1248, 1251 (10th Cir. 2004); United States v. Gonzalez, 58 F.3d 459, 461 (9th Cir. 1995);
United States v. Smith, 55 F.3d 157, 159 (4th Cir. 1995); United States v. Cockrell, 353

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government’s behest is without prejudice, and the prosecutor may seek to reindict for
the same offense as long as neither speedy trial nor the double jeopardy clause pose
a bar.251
Refusal to Indict
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.252 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.253 Moreover, the defendant will not be heard
to complain that the panel was not informed of their prerogative to decline to indict
even if presented with probable cause.254
Reports255
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
F.Supp.2d 762, 768 (N.D.Tex. 2005).
251 United States v. Soriano-Jarquin, 492 F.3d 495, 503 (4th Cir. 2007); United States v.
Colombo, 852 F.2d 19, 24-6 (1st Cir. 1988); United States v. Dyal, 868 F.2d 424, 429 (11th
Cir. 1989); United States v. Reardon, 787 F.2d 512, 518 (10th Cir. 1986).
252 Vasquez v. Hillery, 474 U.S. 254, 263 (1986), citing Judge Friendly’s dissent in United
States v. Ciambrone, 601 F.2d 616, 629 (2d Cir. 1979). There Judge Friendly repeats the
words of Judge Wisdom:
By refusing to indict, the grand jury has the unchallengeable power to
defend the innocent from government oppression by unjust prosecution. And it
has the equally unchallengeable power to shield the guilty, should the whims of
the jurors or their conscious or subconscious response to community pressures
induce twelve or more jurors to give sanctuary to the guilty. United States v. Cox,
342 F.2d 167, 189-90 (5th Cir. 1965).
Consistent with the independence of the grand jury, it need not indict everywhere it
finds probable cause, United States v. Ciambrone, 601 F.2d 616, 629 (2d Cir. 1979), cited
in Vasquez v. Hillary, 474 U.S. 254, 263 (1986); United States v. Cotton, 261 F.3d 397, 407
(4th Cir. 2001); United States v. Navarro-Vargas, 408 F.3d 1184, 1206 (9th Cir. 2005).
253 F.R.Crim.P 6(e)(3)(C); United States v. Williams, 504 U.S. 36, 49 (1992); United States
v. Thompson, 251 U.S. 407, 413-14 (1920); In re United States, 441 F.3d 44, 63 (1st Cir.
2006); United States v. Claiborne, 765 F.2d 784, 793-94 (9th Cir. 1985); United States v.
Pabian, 704 F.2d 1533, 1537 (11th Cir. 1983); In re Grand Jury Proceedings, 658 F.2d 782,
783 (10th Cir. 1981); United States v. Gakoumis, 624 F.Supp. 655, 656 (E.D.Pa. 1985).
254 United States v. Marcucci, 299 F.3d 1156, 1159 (9th Cir. 2002).
255 See generally, Beale et al., GRAND JURY LAW AND PRACTICE, §§2.1 to 2.8 (1998 &
2007-2008 Supp.); Brenner & Shaw, FEDERAL GRAND JURY: A GUIDE TO LAW AND
PRACTICE, §3.4 (2d ed. 2006); Stern, Revealing Misconduct by Public Officials Through
Grand Jury Reports, 136 UNIVERSITY OF PENNSYLVANIA LAW REVIEW 73 (1987); Reviving
Federal Grand Jury Presentments, 103 YALE LAW JOURNAL 1333 (1994); The Grand Jury
Report as an Infringement on Private Rights, 23 HASTINGS LAW JOURNAL 561 (1972).

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“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.”256 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 report on organized crime.257 Most federal grand jury panels,
however, have no express authority to issue reports.
They nevertheless appear to have common law authority to prepare reports, at
least under some circumstances.258 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;”259
and whether the report intrudes upon the prerogatives of state and local
governments.260
256 4 Blackstone, COMMENTARIES 275 (1813 ed.). Reports, on the other hand, involved
statements of the grand jury on the conduct of the King’s officials and the conditions of the
public jails and highways. Over time, however, grand jury reports came to include those
“presentments” upon which the grand jury had voted to indict but which could not be
considered indictments because the attorney for the government would not sign them, In re
Grand Jury January, 1969, 315 F.Supp. 662 (D.Md. 1970).
257 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 PACIFIC
LAW JOURNAL 1115 (1997).
258 In re Grand Jury Sitting in Cedar Rapids, Iowa, 734 F.Supp. 875, 876 (N.D. Iowa 1990);
United States v. Christian, 660 F.2d 892 (3d Cir. 1981); Application of Jordan, 439 F.Supp.
199 (S.D.W.Va. 1977); United States v. Briggs, 514 F.2d 794 (5th Cir. 1975); In re Report
and Recommendation of June 5, 1972 Grand Jury, 370 F.Supp. 1219 (D.D.C. 1974);
Application of Johnson, 484 F.2d 791 (7th Cir. 1973); In re Presentment of Special Grand
Jury Impaneled January, 1969, 315 F.Supp. 662 (D.Md. 1970); United States v. Cox, 342
F.2d 167, 188-89 (5th Cir. 1965)(Wisdom, J. concurring); In re Petition for Disclosure of
Evidence Before the October 1959 Grand Jury, 184 F.Supp. 38 (E.D.Va. 1960); contra,
Application of United Electrical, Radio & Machine Workers, 111 F.Supp. 858 (S.D.N.Y.
1953).
259 In re Grand Jury Sitting in Cedar Rapids, Iowa, 734 F.Supp. 875, 876 (N.D. Iowa 1990),
quoting In re Report of the Grand Jury Proceedings Filed on June 15, 1972, 479 F.2d 458,
460 n.2 (5th Cir. 1973); In re Grand Jury Proceedings (Rocky Flats), 813 F.Supp. 1451,
1466 (D.Colo. 1992).
260 In re Petition for Disclosure of Evidence Before the October 1959 Grand Jury, 184
F.Supp. 38 (E.D.Va. 1960).

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CRS-48
Discharge
The court has the power to discharge a grand jury panel at any time within its
term for any reason it sees fit.261 The court’s authority to discharge a panel, quash its
subpoenas, seal or expunge its reports or dismiss its indictments afford a check on
“runaway” grand jury panels.262
261 F.R.Crim.P. 6(g)(“A grand jury must serve until the court discharges it. . .”); Korman v.
United States, 486 F.2d 926, 933 (7th Cir. 1973); Petition of A & H Transportation Inc., 319
F.2d 69, 71 (4th Cir. 1963); In re Investigation of World Arrangements, etc., 107 F.Supp.
628, 629 (D.D.C. 1952).
262 What Do You Do With a Runaway Grand Jury? A Discussion of the Problems and
Possibilities Opened Up by the Rocky Flats Grand Jury Investigation, 71 SOUTHERN
CALIFORNIA LAW REVIEW 617 (1998); Roots, If It’s Not a Runaway, It’s Not a Real Grand
Jury, 33 CREIGHTON LAW REVIEW 821 (2000).

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CRS-49
Selected Bibliography
Books and Articles.
Antell, Modern Grand Jury: Benighted Supergovernment, 51 AMERICAN BAR ASSOCIATION JOURNAL
153 (1965)
Arenella, Reforming the Federal Grand Jury and the State Preliminary Hearing to Prevent Conviction
Without Adjudication, 78 MICHIGAN LAW REVIEW 463 (1980)
Bartlett, Defendants’ Right to an Unbiased Federal Grand Jury, 47 BOSTON UNIVERSITY LAW
REVIEW 551 (1967)
Beale, Bryson, Felman & Elston, GRAND JURY LAW AND PRACTICE (1998& 2007-2008 Supp.)
Boudin, Federal Grand Jury, 61 GEORGETOWN LAW JOURNAL 1 (1973)
Boyle, The Material Witness Statute Post September 11: Why It Should Not Include Grand Jury
Witnesses, 48 NEW YORK LAW SCHOOL LAW REVIEW 12 (2003).
Brenner & Shaw, FEDERAL GRAND JURY: A GUIDE TO LAW AND PRACTICE (2d ed. 2006)
Brenner, Is the Grand Jury Worth Keeping? 81 JUDICATURE 190 (1998)
Brown, The Witness and Grand Jury Secrecy, 11 AMERICAN JOURNAL OF CRIMINAL LAW 169 (1983)
Calkins, Abolition of the Grand Jury Indictment in Illinois, 1966 UNIVERSITY OF ILLINOIS LAW FORUM
423
, Grand Jury Secrecy, 63 MICHIGAN LAW REVIEW 455 (1965)
Campbell, Eliminate the Grand Jury, 64 JOURNAL OF CRIMINAL LAW & CRIMINOLOGY 174 (1973)
Cassidy, Toward a More Independent Grand Jury: Recasting and Enforcing the Prosecutor’s Duty
to Disclose Exculpatory Evidence, 13 GEORGETOWN JOURNAL OF LEGAL ETHICS 361 (2000)
Clark, THE GRAND JURY: USE AND ABUSE OF POLITICAL POWER (1975)
Collins, And the Walls Came Tumbling Down: Sharing Grand Jury Information with the Intelligence
Community Under the USA PATRIOT Act, 39 AMERICAN CRIMINAL LAW REVIEW 1261 (2002)
Decker, Legislating New Federalism: The Call for Grand Jury Reform in the States, 58 OKLAHOMA
LAW REVIEW 341 (2005)
Dession, From Indictment to Information — Implications of the Shift, 42 YALE LAW JOURNAL 163
(1932)
Dession & Cohn, The Inquisitorial Functions of Grand Juries, 41 YALE LAW JOURNAL 687 (1932)
Deutsch, The Improper Use of the Federal Grand Jury: An Instrument of Political Activists, 75
JOURNAL OF CRIMINAL LAW & CRIMINOLOGY 1159 (1984)
Diamond, FEDERAL GRAND JURY PRACTICE AND PROCEDURE (1997)
Edwards, THE GRAND JURY (1906)
Farrell, An Overview of How Grand Juries Operate, 31 CHAMPION 26 (July, 2007)
Field, Federal History, Functions, Duties and Powers of Federal Grand Juries, 20 PITTSBURGH
LEGAL JOURNAL 22 (1982)

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CRS-50
Frankel & Naftalis, THE GRAND JURY: AN INSTITUTION ON TRIAL (1977)
Gelber, A Reappraisal of the Grand Jury Concept, 60 JOURNAL OF CRIMINAL LAW, CRIMINOLOGY &
POLICE SCIENCE 24 (1969)
Gerstein & Robinson, Remedy for the Grand Jury: Retain But Reform, 64 AMERICAN BAR
ASSOCIATION JOURNAL 337 (1978)
Glanzer & Taskier, Attorneys Before the Grand Jury: Assertion of the Attorney-Client Privilege to
Protect a Client’s Identity, 75 JOURNAL OF CRIMINAL LAW & CRIMINOLOGY 1070 (1984)
Glynn, The Grand Jury Report as an Infringement of Private Rights, 23 HASTINGS LAW JOURNAL 561
(1972)
Hall, Analysis of Criticism of the Grand Jury, 22 JOURNAL OF CRIMINAL LAW & CRIMINOLOGY 692
(1932)
Henning, Prosecutorial Misconduct in Grand Jury Investigations, 51 SOUTH CAROLINA LAW REVIEW
1 (1999)
Hixson, Bringing Down the Curtain on the Absurd Drama of Entrance and Exists — Witness
Representation in the Grand Jury Room, 15 AMERICAN CRIMINAL LAW REVIEW 307 (1978)
Hughes, Administrative Subpoenas and the Grand Jury: Converging Streams of Criminal and Civil
Compulsory Process, 47 VANDERBILT LAW REVIEW 573 (1994)
Kadish, Behind the Locked Door of an American Grand Jury: Its History, Its Secrecy, and Its Process,
24 FLORIDA STATE UNIVERSITY LAW REVIEW 1 (1996)
Kuckes, The Democratic Prosecutor: Explaining the Constitutional Function of the Federal Grand
Jury, 94 GEORGETOWN LAW JOURNAL 1265 (2006)
, The Useful, Dangerous Fiction of Grand Jury Independence, 41 AMERICAN CRIMINAL LAW
REVIEW 1 (2004)
Kuh, Grand Jury “Presentment”: Foul Blow or Fair Play? 55 COLUMBIA LAW REVIEW 1103 (1955)
Leipold, Why Grand Juries Do Not (and Cannot) Protect the Accused, 80 CORNELL LAW REVIEW 260
(1995)
Misner, In Partial Praise of Boyd: The Grand Jury as Catalyst for Fourth Amendment Change, 29
ARIZONA STATE LAW JOURNAL 805 (1997)
Morse, A Survey of the Grand Jury System, 10 OREGON LAW REVIEW 101 (1931)
Orfield, Federal Grand Jury, 22 FEDERAL RULES DECISIONS 343 (1958)
Poulin, Supervision of the Grand Jury: Who Watches the Guardian?, 68 WASHINGTON UNIVERSITY
LAW QUARTERLY 885 (1990)
Richman, Grand Jury Secrecy: Plugging the Leaks in the an Empty Bucket, 36 AMERICAN CRIMINAL
LAW REVIEW 339 (1999)
Roots, If It’s Not a Runaway, It’s Not a Real Grand Jury, 33 CREIGHTON LAW REVIEW 821 (2000)
Schneider, The Grand Jury: Powers, Procedures and Problems, 9 COLUMBIA JOURNAL OF LAW &
SOCIAL PROBLEMS 681 (1973)
Schwartz, Demythologizing the Historic Role of the Grand Jury, 10 AMERICAN CRIMINAL LAW
REVIEW 701 (1972)

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CRS-51
Shaw, The USA PATRIOT Act of 2001, the Intelligence Reform and Terrorism Prevention Act of 2004,
and the False Dichotomy Between Protecting National Security and Preserving Grand Jury Secrecy,
35 SETON HALL LAW REVIEW 495 (2005)
Silbert, Defense Counsel in the Grand Jury – The Answer to the White Collar Criminal’s Prayers, 15
AMERICAN CRIMINAL LAW REVIEW 293 (1978)
Simmons, Re-examining the Grand Jury: Is There Room for Democracy in the Criminal Justice
System? 82 BOSTON UNIVERSITY LAW REVIEW 1 (2002)
Stern, Revealing Misconduct by Public Officials Through Grand Jury Reports, 136 UNIVERSITY OF
PENNSYLVANIA LAW REVIEW 73 (1987)
Sullivan & Bachman, If It Ain’t Broke, Don’t Fix It: Why the Grand Jury’s Accusatory Function
Should Not Be Changed, 75 JOURNAL OF CRIMINAL LAW & CRIMINOLOGY 1047 (1984)
Tigar & Levy, Grand Jury as the New Inquisition, 50 MICHIGAN STATE BAR JOURNAL 693 (1971)
Trichter & Lewis, The Grand Jury, Putative Grand Jury Witnesses and the Right to Limited Counsel
— A Historical Overview and Modest Proposal, 20 SOUTH TEXAS LAW JOURNAL 81 (1979)
United States Department of Justice, FEDERAL GRAND JURY PRACTICE (Aug. 2000)
United States House of Representatives, Constitutional Rights and the Grand Jury: Hearing Before
the Subcomm. on the Constitution of the House Comm. on the Judiciary, 106th Cong., 2d Sess. (2000)
(at www.house.gov/judiciary/constitution)
, Federal Grand Jury: Hearings Before the Subcomm. on Immigration, Citizenship, and
International Law of the House Comm. on the Judiciary, 94th Cong., 2d Sess. (1976)
, Grand Jury Reform: Hearings Before the Subcomm. on Immigration, Citizenship, and
International Law of the House Comm. on the Judiciary, 95th Cong., 1st Sess. (1977)
, Grand Jury Reform: Hearings Before the Subcomm. on Criminal Justice of the House Comm. on
the Judiciary, 99th Cong., 1st & 2d Sess. (1986)
, Grand Jury Reform: Hearings Before the Subcomm. on Criminal Justice of the House Comm. on
the Judiciary, 100th Cong., 1st Sess. (1987)
, Grand Jury Venue – Northern District of Texas: Hearings Before Subcomm. No. 1 of the House
Comm. on the Judiciary, 93d Cong., 1st Sess. (1973)
, Proposed Amendments to the Federal Rules of Criminal Procedure: Hearings Before the
Subcomm. on Criminal Justice of the House Comm. on the Judiciary, 95th Cong., 1st Sess. (1977)
United States Senate, The Grand Jury Reform Act of 1978: Hearings Before the Subcomm. on
Administrative Practice and Procedure of the Senate Comm. on the Judiciary, 95th Cong., 2d Sess.
(1978)
Vaira, The Role of the Prosecutor Inside the Grand Jury Room: Where Is the Foul Line? 75 JOURNAL
OF CRIMINAL LAW & CRIMINOLOGY 1129 (1984)
Watts, Grand Jury: Sleeping Watchdog or Expensive Antique? 37 NORTH CAROLINA LAW REVIEW
290 (1959)
Whyte, Is the Grand Jury Necessary? 45 VIRGINIA LAW REVIEW 461 (1959)
Wright, FEDERAL PRACTICE AND PROCEDURE: CRIMINAL 3D (1999)
Younger, THE PEOPLES PANEL: THE GRAND JURY IN THE UNITED STATES, 1634-1941 (1963)

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CRS-52
Zacharias, A Critical Look at Rules Governing Grand Jury Subpoenas of Attorneys, 76 MINNESOTA
LAW REVIEW 917 (1992)
Zwerling, Federal Grand Juries v. Attorney Independence and the Attorney-Client Privilege, 27
HASTINGS LAW JOURNAL 1263 (1976)
Notes and Comments.
Adding Bite to the Watchdog’s Bark: Reforming the California Civil Grand Jury System, 28 PACIFIC
LAW JOURNAL 1115 (1997).
Availability of Civil Remedies Under the Grand Jury Secrecy Rule, 47 CATHOLIC UNIVERSITY LAW
REVIEW 237 (1997)
A Critical Appraisal of the Justice Department Guidelines for Grand Jury Subpoenas Issued to
Defense Attorneys, 1986 DUKE LAW JOURNAL 145
The Emasculation of Compelled Testimony: Battling the Effects of Judicially Imposed Limitations on
Grand Jury Investigations of Terrorism and Other Ideological Crimes, 70 SOUTHERN CALIFORNIA
LAW REVIEW 473 (1997)
Extension of Grand Jury Term Under 18 U.S.C.S. §3331 or Under Rule 6(g) of Federal Rules of
Criminal Procedure, as Amended in 1983, 98 ALR FED 901
Federal Rule of Criminal Procedure 6(e): Criminal or Civil Contempt for Violations of Grand Jury
Secrecy? 12 WESTERN NEW ENGLAND LAW REVIEW 245 (1990)
Federal Rule of Criminal Procedure 6(e) and the Disclosure of Documents Reviewed by a Grand
Jury, 57 UNIVERSITY OF CHICAGO LAW REVIEW 221 (1990)
Fourth Amendment — The Presumption of Reasonableness of a Subpoena Duces Tecum Issued by
a Grand Jury, 82 JOURNAL OF CRIMINAL LAW & CRIMINOLOGY 829 (1992)
The Grand Jury as an Investigating Body, 74 HARVARD LAW REVIEW 590 (1961)
The Grand Jury Report as an Infringement on Private Rights, 23 HASTINGS LAW JOURNAL 561 (1972)
Indianhead Poker in the Grand Jury Room: Prosecutorial Suppression of Exculpatory Evidence, 28
VALPARISO UNIVERSITY LAW REVIEW 1377 (1994)
Nineteenth Survey of White Collar Crime: Procedural Issues, 41 AMERICAN CRIMINAL LAW REVIEW
973 (2004)
Preserving Justice and Preventing Prejudice: Requiring Disclosure of Substantial Exculpatory
Evidence to the Grand Jury, 39 AMERICAN CRIMINAL LAW REVIEW 171 (2002)
Return to Certainty: Why Grand Jury Subpoenas Should Supersede Civil Protective Orders, 10
SUFFOLK JOURNAL OF TRIAL AND APPELLATE ADVOCACY 43 (2005)
Reviving Federal Grand Jury Presentments, 103 YALE LAW JOURNAL 1333 (1994)
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
The Right to Grand Jury Indictment, 26 AMERICAN CRIMINAL LAW REVIEW 1457 (1989)
Should a Grand Jury Subpoena Override a District Court’s Protective Order? 64 UNIVERSITY OF
CHICAGO LAW REVIEW 317 (1997)
Thirty-Fifth Annual Review of Criminal Procedure: Grand Jury, 35 GEORGETOWN LAW JOURNAL
ANNUAL REVIEW CRIMINAL PROCEDURE 226 (2006)

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CRS-53
What Actions of the United states Attorney Constitute Usurpation of Authority of Federal Grand Jury,
Thus Warranting Exclusion of Evidence Obtained Thereby, 65 ALR FED 957
What Do You Do With a Runaway Grand Jury? A Discussion of the Problems and Possibilities
Opened Up by the Rocky Flats Grand Jury Investigation, 71 SOUTHERN CALIFORNIA LAW REVIEW 617
(1998).

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