The Tradition of Grand Jury Secrecy
Grand jury secrecy dates back to at least 17th century England, when grand jury proceedings were closed to the public and records thereof kept confidential. Douglas Oil Co. v. Petrol Stops Nw., 441 U.S. 211, 218 n.9 (1979) (citing Richard M. Calkins, Grand Jury Secrecy, 63 Mich. L. Rev. 455, 457 (1965)). The rationale for secrecy was that suspected criminals might flee if they learned that a grand jury inquiry into their conduct was underway. Mark Kadish, Behind the Locked Door of an American Grand Jury: Its History, Its Secrecy, and Its Process, 24 Fla. St. U. L. Rev. 1, 13 (1996). Later, criminal justice experts began to see secrecy of all aspects of the grand jury—including its subjects, witnesses, evidence, and deliberations—as necessary to avoid influencing potential trial jurors and witnesses and to allow the evidence to be fully developed. Id. at 15. This tradition of expansive grand jury secrecy was exported from England to the American colonies and recognized in the common law. See Midland Asphalt Corp. v. United States, 489 U.S. 794, 802 (1989); Costello v. United States, 350 U.S. 359, 362 (1956). When courts considered motions by defendants alleging insufficient evidence to support the indictment or grand jury misconduct, they recognized the importance of grand jury secrecy, concluding that it could be disregarded only “sparingly” “in the furtherance of justice” and “to protect public or private rights.” United States v. Perlman, 247 F. 158, 161 (S.D.N.Y. 1917); United States v. Farrington, 5 F. 343, 346 (N.D.N.Y. 1881).
In 1944, the Supreme Court adopted the Federal Rules of Criminal Procedure, including Rule 6(e), which codifies grand jury secrecy. Historical Note, Fed. R. Crim. P. (Jan. 2, 2024). The Advisory Committee notes to the rule made clear that it was intended to “continue[] the traditional practice of secrecy on the party of members of the grand jury, except when the court permits a disclosure.” Fed. R. Crim. P. 6, Notes of Advisory Committee on Rules—1994. The rule as it presently reads states, “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 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).” Fed. R. Crim P. 6. It includes exceptions allowing disclosure to attorneys for the government for use in performing their duties; government personnel whom those attorneys consider “necessary to assist in performing that attorney’s duty to enforce federal criminal law”; government attorneys enforcing the Financial Institutions Reform, Recovery and Enforcement Act of 1989; and other federal grand juries. Id. Rule 6(e) also allows disclosure of “grand-jury matter involving foreign intelligence” to appropriate federal personnel. Id. In addition, courts may authorize disclosure under Rule 6 in connection with a judicial proceeding at the request of a defendant or the government. Id.
Federal courts have interpreted Rule 6(e) broadly to prohibit the disclosure of anything that might reveal what took place in the grand jury room. Perhaps least surprisingly, the content of witnesses’ testimony before the grand jury cannot be disclosed. In re Disclosure of Testimony Before the Grand Jury (Troia), 580 F.2d 281 (8th Cir. 1978). This applies not just to verbatim transcripts but also to summaries of the testimony or evidence presented. United States v. Index Newspapers LLC, 766 F.3d 1072, 1085 (9th Cir. 2014); In re Grand Jury Subpoena, 920 F.2d 235, 241 (4th Cir. 1990). More broadly, courts have held that information about the composition and focus of the grand jury—including the identities of witnesses and jurors, targets and subjects of the investigation, and even dates and times of grand jury sessions—cannot be disclosed. Murphy v. Exec. Off. for U.S. Att’ys, 789 F.3d 204, 211 (D.C. Cir. 2015); Hodge v. FBI, 703 F.3d 575, 580 (D.C. Cir. 2013); In re Subpoena to Testify Before Grand Jury, 864 F.2d 1559, 1564 (11th Cir. 1989). Courts also have held that documents presented to a grand jury may be protected from disclosure if their production would “tend to reveal some secret aspect of the grand jury’s investigation.” See, e.g., In re Special Grand Jury, 450 F.3d 1159, 1177 (10th Cir. 2006); In re Sealed Case, 801 F.2d 1379 (D.C. Cir. 1986). Indeed, one court has concluded that “confidential documentary information not otherwise public obtained by the grand jury by coercive means” is presumptively protected from disclosure. In re Grand Jury Subpoenas, 454 F.3d 511, 512 (6th Cir. 2006). Other courts, however, have opined that “it is doubtful whether mere documentary information was ever included within the scope of Rule 6(e).” In re Grand Jury Investigation of Ven-Fuel, 441 F. Supp. 1299, 1303 (M.D. Fla. 1977); see also Illinois v. Sarbaugh, 552 F.2d 768, 772 n.2 (7th Cir. 1977); Golden Quality Ice Cream Co. v. Deerfield Specialty Papers, Inc., 87 F.R.D. 53, 59 (E.D. Pa. 1980). Thus, whether documents are protected from disclosure under Rule 6(e) must be assessed on a case-by-case basis, under one of several different tests that courts have developed for that purpose. See, generally, Andrea M. Nervi, FRCrP 6(e) and the Disclosure of Documents Reviewed by a Grand Jury, 57 U. Chi. L. Rev. 221 (1990).
Jurisdictional Variation: Secrecy Obligations for Grand Jury Witnesses
On its face, Federal Rule of Criminal Procedure 6(e) does not prohibit grand jury witnesses (as opposed to the grand jurors themselves, government attorneys, or certain personnel) from making disclosures of any type. In the past, some prosecutors have asked witnesses not to disclose their testimony, included secrecy obligations in a witness’s proffer letter or plea agreement, or asked a court for an order prohibiting a witness from making disclosures. See R. Michael Cassidy, Silencing Grand Jury Witnesses, 91 Ind. L.J. 823, 827–28 (2016). However, as a general matter, federal grand jury witnesses are free to leave the grand jury room and give a press conference about their experiences, should they desire to do so.
This is not the case for some state grand jurors. For example, Alabama’s grand jury secrecy statute prohibits “past or present grand jury witness[es]” from disclosing (or even attempting to disclose) “any knowledge or information pertaining to any grand juror’s questions, considerations, debates, deliberations, opinions or votes on any case, evidence, or other matter taken within or occurring before any grand jury of this state.” Ala. Code § 12-16-215. Similarly, Nevada law bars any “witness or other person invited or allowed to attend the proceedings of a grand jury” from disclosing evidence presented there, events occurring or statements made there, information obtained there, or the results of the grand jury investigation. Nev. Rev. Stat. § 172.245. South Dakota and Washington also have grand jury secrecy provisions that apply to grand jury witnesses. S.D. Codified Laws § 23A-5-16; Wash. Rev. Code § 10.27.090.
On the other end of the spectrum, some state grand jury secrecy provisions expressly allow grand jury witnesses to disclose the substance of their own testimony. Oklahoma law provides that “[n]o witness shall be prohibited from disclosing his testimony before the multicounty grand jury except for cause shown in a hearing before the presiding judge. In no event may a witness be prevented from disclosing his testimony to his attorney.” Okla. Stat. tit. 22, § 355. The Pennsylvania statute similarly states that “[a] grand jury witness may disclose his or her testimony unless the attorney for the Commonwealth obtains an order from the supervising judge that the interests of justice dictate otherwise.” 234 Pa. Code § 556.10. New York law also permits a witness to disclose that witness’s own testimony. N.Y. Penal Law § 215.70. Although not as expansive, Louisiana law permits grand jury witnesses to discuss their testimony “with counsel for a person under investigation or indicted, with the attorney general or the district attorney, or with the court.” La. Code Crim. Proc. art. 434. South Carolina also expressly allows grand jury witnesses to discuss their testimony with counsel, as does Nevada, although, as set forth above, it restricts other types of disclosures a witness might make. S.C. Code Ann. § 14-7-1720; Nev. Rev. Stat. § 172.245.
Thus, although the vast majority of states and the federal system do not bind grand jury witnesses to secrecy, in a handful of states disclosures by such a witness might violate the relevant grand jury secrecy rule or statute.
Jurisdictional Variation: Types of InformationSubject to Secrecy
As discussed above, the Federal Rules of Criminal Procedure impose secrecy fairly broadly on all “matters occurring before the grand jury.” Many states use this same or substantially similar language to describe the scope of the obligations they impose, including Massachusetts, Pennsylvania, and the District of Columbia. E.g., Alaska R. Crim. P. 6; Colo. R. Crim. P. 6.2; Del. R. Crim P. Super. Ct. 6; D.C. Crim. R. 6; Haw. R. Pen. P. 6; 725 Ill. Comp. Stat. 5/112-6; Iowa R. Crim. P. 2.3; Kan. Stat. Ann. § 22-3012; Ky. R. Crim. P. 5.24; La. Code Crim. P. art. 434; Me. R. Crim. P. 6; Mass. R. Crim. P. 5; Mont. Code Ann. § 46-11-317; N.H. R. Crim. P. 8; N.J. Ct. R. 3:6-7; N.D. Cent. Code § 29-10.1-30; Ohio R. Crim. P. 6; Okla. Stat. tit. 22, § 355; Or. Rev. Stat. § 132.060; 234 Pa. Code § 556.10; R.I. R. Crim. P. 6; S.D. Codified Laws § 23A-5-16; Utah Code Ann. § 77-10a-13; Vt. R. Crim. P. 6; W. Va. Code § 52-2-15; Wyo. Stat. Ann. § 7-5-308. But other states employ different wording that could lead to arguments about the scope of secrecy.
Arguably broader than federal grand jury secrecy rules, Alabama bars disclosure of “any knowledge or information pertaining to any grand juror’s questions, considerations, debates, deliberations, opinions or votes on any case, evidence, or other matter taken within or occurring before any grand jury of this state.” Ala. Code § 12-16-215. It also prohibits dissemination of “any knowledge of the form, nature or content of any physical evidence presented to any grand jury of this state or any knowledge of the form, nature or content of any question propounded to any person within or before any grand jury or any comment made by any person in response thereto or any other evidence, testimony or conversation occurring or taken therein.” Ala. Code § 12-16-216. Michigan’s statute is also potentially broader in that it explicitly includes “exhibits or secret proceedings obtained or used in connection with any grand jury inquiry” along with testimony. Mich. Code Crim. P. § 767.4a. Similarly, Nevada’s statute applies to “information obtained by the grand jury” in addition to evidence presented to the grand jury, events or statements made there, and results of the investigation. Nev. Rev. Stat. § 172.245.
On the more narrow side, Arkansas’s statute only prohibits disclosure of “[w]hatever the member or any other grand juror may have said,” “[i]n what manner any grand jury may have voted,” and “[a]ny evidence given before the grand jury.” Ark. Code Ann. § 16-85-514. California, South Carolina, and Washington similarly focus grand jury secrecy on grand juror statements, votes, and evidence, including testimony. Cal. Penal Code § 924.1; S.C. Code Ann. § 14-7-1720; Wash. Rev. Code § 10.27.090. Other states—including Florida, Idaho, and Minnesota—subject only the grand jury deliberations and votes to secrecy, not the evidence presented before the grand jury. Fla. Stat. § 905.24; Idaho Crim. R. 6.3; Minn. R. Crim. P. 18.07. Georgia, as discussed above, limits grand jury secrecy to “the deliberations of the grand jury.” Ga. Code Ann. § 15-12-67. In contrast, Missouri law does not focus on deliberations and votes, instead prohibiting grand jurors from disclosing “any evidence given before the grand jury, nor the name of any witness who appeared before them.” Mo. Rev. Stat. § 540.320.
So, depending on the state in which a criminal defendant is indicted, the grand jury proceedings may be subject to stricter or looser confidentiality rules than those embodied in the Federal Rules of Criminal Procedure. And those grand jury secrecy rules, in turn, may impact what recourse, if any, a defendant has for a disclosure of grand jury information.
Jurisdictional Variation: Exceptions to Secrecy
As set forth above, Federal Rule of Criminal Procedure 6 contains several express exceptions to its secrecy requirements. Some states mirror these exceptions and some do not.
The exception that most states include in their own grand jury secrecy provisions is, perhaps unsurprisingly, for disclosures authorized by a court. For example, New York prohibits grand jury disclosures “except in the proper discharge of . . . official duties or upon written order of the court.” N.Y. Penal Law § 215.70. Similarly, California shields grand jury evidence from dissemination “except when required by a court.” Cal. Penal Code § 924.1. Dozens of other states include similar provisions. E.g., Alaska R. Crim. P. 6; Ariz. Rev. Stat. § 13-2812; Ark. Code Ann. § 16-85-514; Del. R. Crim P. Super. Ct. 6; D.C. Crim. R. 6; Fla. Stat. § 905.27; 725 Ill. Comp. Stat. 5/112-6; Ind. Code § 35-34-2-4; Kans. Stat. § 22-3012; Maine R. Crim. P. 6; Mass. R. Crim. P. 5; Mont. Code Ann. § 46-11-317; N.H. R. Crim. P. 8; Ohio R. Crim. P. 6; R.I. R. Crim. P. 6.
Exceptions that permit government personnel to use grand jury information within the course of their official duties are also fairly common. Some jurisdictions, such as the District of Columbia, track the language of the federal rule’s exception almost exactly, permitting disclosure to “an attorney for the government for use in performing that attorney’s duty” and “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 and District of Columbia criminal law.” D.C. Crim. R. 6; see also Del. R. Crim. P. Super. Ct. 6; 725 Ill. Comp. Stat. 5/112-6; Me. R. Crim. P. 6; N.H. R. Crim. P. 8. Other states take slightly different approaches, like Texas, which more narrowly defines which government personnel can be given such a disclosure:
In performing the attorney’s duties, the attorney representing the state may disclose or permit a disclosure of a record made under Article 20A.201 or a typewritten transcription of that record, or may make or permit a disclosure otherwise prohibited by Article 20A.203, to a grand juror serving on the grand jury before which the record was made, another grand jury, a law enforcement agency, or a prosecuting attorney, as the attorney representing the state determines is necessary to assist the attorney in the performance of the attorney’s duties.
Tex. Code Crim. Proc. art. 20A.204. Kentucky, meanwhile, allows disclosure only by “counsel” “as may be necessary in preparing the case for trial or other disposition.” Ky. R. Crim. P. 5.24. Maryland permits dissemination of grand jury testimony by a “governmental unit or person making a disclosure authorized by law.” Md. Cts. & Jud. Proc. Code § 8-507. Overall, a few dozen jurisdictions have some sort of secrecy exception for disclosures by government personnel, with the contours of those exceptions varying from jurisdiction to jurisdiction. E.g., Ala. Code § 12-16-216; Alaska R. Crim. P. 6; Az. Rev. Stat. § 13-2812; Ind. Code § 35-34-2-4; La. Code Crim. P. art. 434; Mass. R. Crim. P. 5; Minn. R. Crim. P. 18.07; Mont. Code Ann. § 46-11-317; N.D. Cent. Code § 29-10.1-30; Okla. Stat. tit. 22, § 355; 234 Pa. Code § 556.10; Utah Code Ann. § 77-10a-13.
The “foreign intelligence” exception to Federal Rule 6 has not been widely adopted in other jurisdictions, although arguably such disclosures could fall within some of the government personnel exceptions discussed above. But the District of Columbia does include such a provision, stating that:
An attorney for the government may disclose any grand-jury matter involving foreign intelligence, counterintelligence (as defined in 50 U.S.C. § 3003), or foreign intelligence information (as defined in Rule 6(e)(3)(D)(iii)) to any federal law enforcement, intelligence, protective, immigration, national defense, or national security official to assist the official receiving the information in the performance of that official’s duties. An attorney for the government may also disclose any grand jury matter involving, within the United States or elsewhere, a threat of attack or other grave hostile acts of a foreign power or its agent, a threat of domestic or international sabotage or terrorism, or clandestine intelligence gathering activities by an intelligence service or network of a foreign power or by its agent, to any appropriate federal, state, state subdivision, Indian tribal, or foreign government official, for the purpose of preventing or responding to such threat or activities.
D.C. Crim. R. 6.
Like the other jurisdictional variations discussed above, differences in the exceptions to secrecy in a grand jury statute or rule can significantly impact whether a defendant can obtain relief in relation to a specific grand jury disclosure.
Novel Jurisdictional Variations
A few jurisdictions include novel provisions in their grand jury secrecy rules that could potentially impact criminal defense strategy.
For example, although Connecticut provides that investigations by grand juries “shall be conducted in private” as a general matter, it authorizes “the panel, by a majority vote,” to “order the investigation or any portion thereof to be public when such disclosure or order is deemed by the panel to be in the public interest.” Conn. Gen. Stat. § 54-47e. This provision has not been extensively interpreted by Connecticut courts, but the Supreme Court of Connecticut has recognized that it “allows the panel to open the entire investigation to the public from the outset.” In re Judicial Inquiry No. 2005-02, 977 A.2d 166, 176 (Conn. 2009). Should they choose to do so, this would be an obvious bar to any claim of a grand jury secrecy violation.
Nebraska law includes an interesting provision specific to grand juries investigating deaths that occurred while an individual was being apprehended or in custody. Neb. Rev. Stat. §§ 29-1401, 29-1407.1. In such cases, a transcript of the grand jury proceedings is to be prepared (including exhibits but not the names of grand jurors or their deliberations) and, if a no true bill is returned, made available for public review upon written request to the clerk of the district court. Id. § 29-1407.1. If a true bill is returned, the parties have five days to file a motion for a protective order to request a delay of the public review of the transcript. Id. If such a motion is granted, any public review of the transcript shall not take place until the conclusion of the criminal prosecution. Id. If it is denied, public review will be available once the trial court’s order is filed and upon written request to the clerk of the district court. Id. Under this provision, there would potentially be no grand jury secrecy obligations that a defendant could claim had been violated.
Also potentially of note are state law provisions that go beyond designating grand jury information as secret to actually bar questioning grand jurors about these issues. For example, Arkansas provides that “[a] grand juror cannot be questioned for anything he or she may say or any vote he or she may give relative to a matter legally before the grand jury, except for a perjury he or she may have committed in making accusation or giving testimony before his or her fellow jurors.” Ark. Code Ann. § 16-85-514. California, Iowa, and Oregon have nearly identical provisions. Cal. Penal Code § 924.3; Iowa R. Crim. P. 2.3; Or. Rev. Stat. § 132.210. These statutes and rules seem to add an extra layer of protection for grand jury secrecy.
Potential Remedies for Violations of Grand Jury Secrecy: Contempt
Federal Rule of Criminal Procedure 6(e) expressly states that “[a] knowing violation of Rule 6 . . . may be punished as a contempt of court.” Other jurisdictions have similar provisions. E.g., D.C. Crim. R. 6; Del. R. Crim. P. Super. Ct. 6; 725 Ill. Comp. Stat. 5/112-6; Ky. R. Crim. P. 5.24; Miss. R. Crim. P. 13.5; R.I. R. Crim. P. 6. Although courts disagree as to whether there is a private right of action for contempt of grand jury secrecy rules, it is generally not disputed that a private party may ask a court to perform a contempt review in these circumstances. Compare In re Sealed Case No. 98-3077, 151 F.3d 1059, 1069 (D.C. Cir. 1998) (allowing civil action to enforce Rule 6(e)), with In re Grand Jury Investigation 90-3-2, 748 F. Supp. 1188, 1203 (E.D. Mich. 1990) (“By its terms, the rule grants no private rights to any identifiable class of persons.”). And courts have held that both criminal and civil contempt may be imposed (though with different procedural protections for the two different categories), such that remedies can include imprisonment, monetary sanctions, or equitable relief. See Finn v. Schiller, 72 F.3d 1182, 1188 (4th Cir. 1996); Barry v. United States, 865 F.2d 1317, 1321 (D.C. Cir. 1989). Generally, the elements of contempt include a (1) willful (2) violation of (3) a clear and reasonably specific order. 18 U.S.C. § 401; United States v. Nynex Corp., 8 F.3d 52, 54 (D.C. Cir. 1993). As one court described the appropriate analysis for allegations of contempt of grand jury secrecy:
It is generally understood that a prima facie case of a violation of Rule 6(e)(2) is made when the media reports disclosed information about “matters occurring before the grand jury” and indicated that the sources of the information included attorneys and agents of the Government. Once a prima facie case is shown, the district court must conduct a “show cause” hearing to determine whether the Government was responsible for the preindictment publicity and whether any information disclosed by the Government concerned matters occurring before the grand jury. At this hearing, the burden shifts to the Government to come forward with evidence to negate the prima facie case. If after such a hearing the trial court determines that remedial action is warranted, it may order the Government to take steps to stop any publicity emanating from its employees.
Barry, 865 F.2d at 1321. These proceedings may be conducted in camera and ex parte, without the benefit of discovery, given the “risks of even inadvertent disclosure of grand jury matters and the specter of unnecessary detraction from the main business of the grand jury’s investigation.” In re Sealed Case No. 98-3077, 151 F.3d at 1072, 1074–75. The party accused of violating grand jury secrecy will generally submit evidence—such as affidavits, documents, or testimony—that either the information disclosed was not subject to secrecy or that it was not the source of the unauthorized disclosure. Id. at 1068.
In addition to any monetary or equitable relief a court might order in a contempt proceeding, “the procedural costs that an aggrieved party can inflict on the government through Rule 6(e) leak allegations are considerable. The costs are particularly high because, in contrast to most pre-trial claims, these allegations will often call for a personal response by prosecutors and agents forced to defend their integrity before a district judge who may have a keen interest in pursuing contemptuous conduct.” Daniel Richman, Grand Jury Secrecy: Plugging the Leaks in an Empty Bucket, 36 Am. Crim. L. Rev. 339, 351 (1999). So, contempt is not only a remedy expressly anticipated by many grand jury secrecy provisions, but also one with a potentially powerful impact on the government’s pursuit of its case.
Potential Remedies for Violations of Grand Jury Secrecy
Suppression
A criminal defendant aggrieved by a grand jury secrecy violation also can move for suppression of evidence related to the violation. Courts have long recognized that they have a supervisory power to suppress evidence based on misconduct or irregularities before the grand jury. United States v. Jacobs, 547 F.2d 772, 776 (2d Cir. 1976) (collecting cases). And they have stated in the grand jury secrecy context that the reference to contempt proceedings in Rule 6 is “permissive language” and “not exclusive,” such that “other remedies, such as suppression of the grand jury material, may be more appropriate.” United States v. Coughlin, 842 F.2d 737, 740 (4th Cir. 1988). In Coughlin, for instance, a defendant who had pleaded guilty to drug charges answered questions before a grand jury about the model and color of the car he used in the cocaine sale that led to his arrest. Id. A month later, the government introduced his testimony in a civil forfeiture proceeding to establish probable cause to forfeit the car. Id. The district court ordered forfeiture, but the Fourth Circuit reversed, reasoning that one of the purposes of the grand jury secrecy rule is to protect “the integrity of the grand jury, which is under prosecutorial control and has more extensive investigatory powers than other means available to the government, such as civil discovery.” Id. at 739. Unless the government could establish on remand that one of the exceptions to grand jury secrecy applied, “the grand jury testimony should be suppressed. Nondisclosure is impossible at this stage, but suppression would protect the integrity of the grand jury system.” Id. at 740.
Similarly, in Cohen v. Commissioner, prosecutors disclosed grand jury information to agents of the Internal Revenue Service, who used it in a civil tax trial and in reconstructing some taxpayers’ civil tax liability. 42 T.C.M. (CCH) 312 (1981). The Tax Court excluded this information from evidence, reasoning that, “[a]s agency assistance to prosecutors before the grand jury becomes more prevalent, the temptation for the assisting personnel to utilize information presented to the grand jury in their own civil investigation will also increase, unless the offending agency is denied the benefits of the illegality.” Id. The court also considered “the impact on the functioning of future grand juries and on grand jury secrecy of permitting the evidence to be used,” stating that “[a]ny position that undermines grand jury secrecy through reluctant tolerance of repeated and substantial violations of Rule 6(e) could well inhibit the deliberations of other grand juries and the willingness of witnesses to appear and testify freely in the future.” Id. Based on the “intentional and flagrant violations of grand jury secrecy as codified in Rule 6(e) which continued over a period of many years, and has yet to be remedied,” the court suppressed the tainted evidence. Id.
Of course, courts have characterized suppression as a “drastic” remedy that should not be granted in the absence of prejudice to a defendant. United States v. Shinderman, 515 F.3d 5, 11 (1st Cir. 2008); see also United States v. Smith, No. 3:16-cr-86, 2020 WL 3440927, at *3 (D. Alaska June 23, 2020). So, in arguing for suppression, a defendant should be prepared to emphasize that, for instance, the disclosures were extensive, that they included information that was potentially very important to the defendant’s case, and/or that they reached a significant audience, such that they could taint the jury pool for trial. Showing that the violations of grand jury secrecy were not just technical in nature but actually caused concrete harm could go a long way towards helping a defendant obtain the remedy of suppression.
Dismissal
Even more so than suppression of evidence, dismissal of an indictment for alleged grand jury misconduct is a drastic remedy that may not be granted unless the defendant can show that he was prejudiced. Bank of Nova Scotia v. United States, 487 U.S. 250, 254 (1988). An indictment may be dismissed for prosecutorial misconduct that “is flagrant to the point that there is some significant infringement on the grand jury’s ability to exercise independent judgment.” United States v. Kilpatrick, 821 F.2d 1456 (10th Cir. 1987). In other words, to warrant dismissal, a grand jury error must “have biased the grand jury and impaired its ability to review the case against the accused impartially and independently.” United States v. Hillman, 642 F.3d 929, 934 (10th Cir. 2011).
For instance, in United States v. Friedman, the defendants complained about extensive publicity about the case during the grand jury investigation, which the district court had described as “outrageous.” 854 F.2d 535, 582 (2d Cir. 1988). The Second Circuit recognized that “[a] betrayal of grand jury secrecy, unlike misconduct or error confined to the grand jury room, jeopardizes the defendant’s right to a fair trial before a petit jury.” Id. at 583. It concluded, however, that the defendants could not show sufficient prejudice to warrant dismissal:
Rather, they assert only that the “illicit publicity about impermissible facts is safely to be supposed, and could undoubtedly have been shown, to have infected the grand jury.” In view of the limited nature of appellants’ claim, we have little doubt that the change of venue, and the use of a Hartford jury pool, along with voir dire, removed any possibility of prejudice at trial.
Id. The court also cited to the Supreme Court’s decision in United States v. Mechanik for the principle that the subsequent petit jury verdict against the defendants “mean[t] not only that there was probable cause to believe that the defendants were guilty as charged, but also that they [were] in fact guilty as charged beyond a reasonable doubt.” 475 U.S. 66, 70 (1986). It left open the possibility that a defendant could overcome this principle with a sufficient showing of prejudice, however.
And, of course, Mechanik would not apply when the argument about grand jury misconduct is raised prior to trial, when no jury verdict yet exists to bolster the reasonableness of the indictment. And courts have found cause to dismiss grand jury indictments prior to trial. For example, in State v. Wong, the Hawaii Supreme Court affirmed the dismissal of indictments where the prosecution had presented privileged testimony to the grand jury and omitted exculpatory testimony. 97 Haw. 512, 526 (2002). The court concluded this evidence had “prevented the grand jury from acting fairly and impartially” and the indictments were dismissed. Id. As the US Supreme Court has put it, misconduct before a grand jury can warrant dismissal where it “amounts to a violation of one of the few, clear rules which were carefully drafted and approved by this Court and by Congress to ensure the integrity of the grand jury’s functions.” United States v. Williams, 504 U.S. 36, 46 (1992).
Conclusion
The principle of grand jury secrecy is older than the United States and protects important interests for both criminal defendants and the government itself. That principle has been enshrined in Federal Rule of Criminal Procedure 6(e) as well as a variety of state rules and statutes. Some of these state rules apply to grand jury witnesses, and some do not. These rules also vary in terms of the types of information they apply to and the kinds of exemptions to secrecy for which they provide. But most of these rules explicitly provide that violations of grand jury secrecy are punishable with contempt, and the availability of the contempt remedy is widely accepted nationwide. A criminal defendant can make a prima facie showing of contempt of the grand jury secrecy rules by pointing to media reports disclosing information about “matters occurring before the grand jury” and indicating that information came from the government. Available remedies may include equitable relief, monetary sanctions, or even imprisonment. In addition, grand jury secrecy violations also may be remedied through the suppression of evidence or even dismissal of the indictment, though a showing of prejudice should be expected.
In short, although the exact parameters of grand jury secrecy may vary from jurisdiction to jurisdiction, savvy criminal practitioners who keep abreast of these local differences may be able to protect their clients from the worst violations and ensure that cases are tried where they should be, in the courtroom rather than the court of public opinion.
