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August 1990                                                       

                     THE FEDERAL GRAND JURY:  
           EXCEPTIONS TO THE RULE OF SECRECY (PART I)                  


                       Austin A. Andersen
          Special Agent, Legal Instructor, FBI Academy 
AN HISTORICAL PERSPECTIVE                                         

     The modern grand jury was foreshadowed in feudal England 
Clarendon in order to shift the power to prosecute from the  
Church to the Crown. (1)  Under the Assize, prosecutions were 
nitiated through an inquiry made by a body of 12 laymen, who
or submit to the ``ordeal by water.'' (2)  Under the third option, 
nto a body of water; if they floated, however, they were found
little doubt that the grand jury was initially intended to be an 
nstrument of inquisition rather than a bulwark against

     Although the Assize was designed to augment secular 
authority rather than to safeguard individuals from unfounded 
accusations, the practice of using persons from the locale of the 
crime to determine whether charges should be lodged against a 
member of the community eventually provided a measure of 
nsulation against royal abuse of the criminal justice system. In
order to serve as a ``shield'' to protect individuals from the 

     Part I of this article discusses the transplantation of 
underlying policy for secrecy concerning matters occurring before 
Federal grand juries.  It also analyzes exceptions to the rule of 
notes those instances when State and local police officers may 
nvestigations.  Part II explores the difficulties commonly
encountered in complying with the secrecy requirement and in 

EVOLUTION OF THE MODERN GRAND JURY                                

     Viewed as protection from autocratic oppression, the grand 
n American communities during the colonial rule of George III.
These local juries not only enabled the colonists to refuse to 
means of protecting citizens against persecution by partisan 
zealots. (5)  After the United States achieved independence from 
Britain, the use of grand juries was enshrined in the fifth 
amendment of the Constitution, which begins, ``No person shall be 
on a presentment or indictment of a grand jury....'' (6)  The 
language of the fifth amendment, however, does not make the 
nstitution of a grand jury incumbent upon the States.  Moreover,
the Supreme Court has held that the procedure in which a neutral 
the Federal Government, remain free to proceed with felony 
Nevertheless, most States have incorporated into their 
constitutions provisions for grand juries--as well as grand jury 
l933. (10)

     Although the fifth amendment is silent on the issue of 
l945, when Congress codified Federal grand jury practice, including 
Criminal Procedure (F.R.C.P.). Rule 7, F.R.C.P., specifies that 
be prosecuted by indictment. It also states that an offense 
ndictment or information.

     Rule 6(a), F.R.C.P., vests in the U.S. district court full 
by the public interest.  The Federal grand jury is composed of 16 
to 23 jurors, with 12 votes needed for an indictment. (12)  A 
applicable, allowing the prosecutor the freedom to use evidence 
true bill. (13)  All proceedings, except the deliberation and 
voting of the jurors, must be recorded, and any recordings, 
notes, or transcripts are placed in the custody of the attorney 
for the government.  The indictment is normally returned to a 
Federal magistrate in open court, but it may be sealed until the 

     In part, secrecy of the grand jury is achieved by placing 
limitations on who may be a participant.  Rule 6(d) restricts 
attendance at grand jury proceedings to attorneys for the 
needed, and a stenographer or operator of a recording device.  No 
attorney may not be present inside the grand jury room, the 
time, either before or in the course of responding to 
questions. (15)
     The general rule of secrecy, as set forth in Rule 6(e)(2), 
F.R.C.P., forbids a grand juror, an interpreter, a stenographer, 
an operator of a recording device, a typist who transcribes 
to whom disclosure is made by the attorney for the purpose of 
assisting in the enforcement of Federal criminal law, from 
courts often use interchangeably with ``grand jury material''), 
except as otherwise provided for in the rules. (16)  A knowing 
violation of the rule is punishable as a contempt of court. (17)
REASONS FOR GRAND JURY SECRECY                                    

     According to the U.S. Supreme Court, the general policy 
for freedom to pursue its ``dual function of determining if 
there is probable cause to believe that a crime has been
committed and of protecting citizens against unfounded criminal
virtual independence from external distraction, the grand jury
nquest, a body with powers of investigation and inquisition,
the scope of whose inquiries is not to be limited narrowly by
questions of propriety or forecasts of the probable result of
the investigation, or by doubts whether any particular
ndividual will be found properly subject to an accusation of
crime.'' (19)

     In recognizing that the proper functioning of the grand
Court, in United States v. Proctor & Gamble, provided even more

     .  ``To prevent the escape of those whose indictment may be 

     .  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

     .  to prevent subornation of perjury or tampering with the 
        witnesses who may testify before the grand jury and
        later appear at the trial of those indicted by it;

     .  to encourage free and untrammeled disclosures by persons
        who have information with respect to the commission of

     .  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.'' (20)

     In 1983, the Supreme Court identified three types of danger 
associated with the disclosure, absent a court order, of grand 
attorneys for use in related civil proceedings:        
     .  Disclosure increases the risk of inadvertent or illegal
        further release of information to unauthorized persons
        and thus may threaten the willingness of witnesses to
        testify fully and candidly;

     .  It threatens the integrity of the grand jury process
        itself if there is a tendency for the government 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;

     .  The use of grand jury materials by government agencies
        in civil or administrative settings threatens to 
        subvert the limitations applied outside the grand 
        jury context on the government's powers of discovery 
	and investigation. (21)

EXCEPTIONS TO THE RULE OF SECRECY                                 

     The exceptions to the rule of secrecy specifically set forth 
n the text of Rule 6(e), F.R.C.P., are categorized according to
the reason for disclosure.  Under the appropriate circumstances, 
they provide various investigative options for Federal and State 
law enforcement officers to gain access to grand jury material.   


     By failing to mention witnesses in the categories of 
attorneys--expressly prohibited from disclosing matters 
occurring before the grand jury, Rule 6(e) eradicated the 
unequivocal is the admonition that ``[no] obligation of secrecy 
may be imposed on any person except in accordance with this 
the elimination of any potential for hardship created by the 
nability of a witness to reveal testimony to counsel retained to
attorneys or other government personnel to muzzle witnesses 
concerning their testimony before the Federal grand jury have 
obligations of secrecy. (25)                                         

     Relieving witnesses from the obligation of secrecy lessens 
to a degree the control of the prosecutor by allowing prospective 
of the investigation.  Therefore, a number of States have enacted 
Constitution. (26)  While the grand jury is in session, however, 
the Court suggested that the State's interests in preserving 
Attorneys for the Government                                      

     Rule 6(e)(3)(A)(i) provides an exception to the rule of 
law.''  This exception is based on the prosecutor's practical
need to know what evidence is before the grand jury, as well as
the grand jury's need for the prosecutor's assistance and
s defined as ``the Attorney General, an authorized assistant of
the Attorney General, a United States Attorney, [and] an
authorized assistant of the United States Attorney.'' (28)  The
Although the prosecuting attorney for the government has access
to the transcript of matters occurring before the grand jury,
the ability to disclose this material to others is limited by
the remaining exceptions set forth in Rule 6(e). Rule
for the government to another Federal grand jury.  This
exception implies the ability of one government attorney to

     However, a government attorney may not under this exception 
make a discretionary disclosure of grand jury material to another 
only ``when so directed by a court preliminarily to or in 
connection with a judicial proceeding.'' (31)  Such court-ordered 
``compelling necessity,'' with the primary purpose of the 
nvestigations. (33)
Government Personnel Assisting the Attorney for the Government    

     Rule 6(e)(3)(A)(ii) permits disclosure by the attorney for 
the government of matters occurring before the grand jury to 
by Federal investigators; assistance to the attorney generally 
consists of investigation or analysis in support of the grand  
the attorney includes not only Federal but also State and local 
Federal criminal statutes (as opposed to use in civil, 
administrative, or internal agency matters).
     Disclosure under this exception is made at the attorney's 
s, however, subject to the following three restrictions:

     .  Any person to whom matters are disclosed cannot use that
        grand jury material for any other purpose other than to
        assist the attorney in matters concerning the
        enforcement of Federal criminal law;

     .  The attorney must promptly provide the district court
        before which the grand jury was empaneled with a list of
        the names of all persons to whom disclosure has been

     .  The attorney must certify that each person on the list
        has been advised of the obligation of secrecy. (35)

     An issue often arising under this exception is whether a 
assist a government attorney may divulge that material to other 
Federal criminal investigations.  Because the conditions of this 
exception require the attorney not only to provide the court with 
the names of persons on the disclosure list (36) but also to 
certify that each person was advised of the obligation of 
authority of the government attorney in order to make a further 

Disclosure to Domestic Law Enforcement Agencies                   

     It is often desirable for Federal and State authorities to 
cooperate in investigations where jurisdictions overlap, such as 
organized crime or political corruption.  Therefore, Rule 6(e) 
Federal grand jury matters to the personnel of law enforcement 
agencies of ``a state or subdivision of a state'' when the 
assistance of such personnel would be beneficial to the Federal 
nvestigation. (37)  This disclosure is governed by the discretion
of the government attorney and is subject to the same 
the attorney.  That is, all officers receiving such material 
must be advised of the obligation of secrecy and the name of each 
ndividual to whom disclosure is made must be promptly provided
to the court. (38)                                                   

     The 1985 amendment to Rule 6(e) also made it possible for a 
State or subdivision of a State evidence developed during a
law.  It is important to note, however, that this disclosure
(39) is accomplished by an order of the court rather than the
State law will be made ``in such manner, at such time, and under

Disclosure to the Defendant                                       

     Upon order of the court, disclosure of grand jury material 
may be made pursuant to a request of the defendant upon a
ndictment based on matters which occurred before the grand
that upon request, defendants are entitled to a pre-trial
of witnesses for the government after they have testified on

     Part II of this article will examine the difficulties 
encountered in disseminating grand jury material to foreign 

(1)  Helmlolz, ``The Early History of the Grand Jury and the 
Canon Law,'' 50 U. of Chi. Law Rev. 613 (1983).                   
(2)  Kuh, ``The Grand Jury `Presentment':  Foul Blow or Fair 
(3)  Id. at 1107.                                                
(4)  The oath appeared as early as 1600.  See Brown, ``The 
Witness and Grand Jury Secrecy,'' 11 American Journal of Criminal 
Law 169, 170-171 (1983).                                          
(5)  Id. at 170-171.                                             
(6)  U.S. Const. amend V.                                        
(7)  Hurtado v. California, 110 U.S. 516 (1884).                 
(8)  Only three States (Alabama, Connecticut, and New 
Hampshire) have no specific secrecy provision, S. Beale & W. 
Bryson 1 Grand Jury Law and Practice 7:04 at 15.                  
(9)  Note ``Grand Jury Secrecy v. The First Amendment:  A Case 
for Press Interviews of Grand Jurors,'' 23 Valparaiso Univ. Law 
Rev. 559, 560-561 (1989).                                         
(10)  Id. at 564.                                                
(11)  See e.g., In Re Grand Jury Proceedings, 4 F.Supp. 283, 
(12)  Rule 6(a)(1), F.R.C.P.                                     
(13)  See Beale & Bryson, supra note 8 at 1:06, at 32.           
(14)  Rule 6(e)(4), F.R.C.P.; this provision allows law 
enforcement officers to locate and arrest indicted individuals 
(15)  See, e.g., In Re Taylor, 567 F.2d 1183 (2d Cir. 1977); 
(16)  Rule 6(e)(2), F.R.C.P.                                     
(17)  Id.                                                        
(18)  Branzburg v. Hayes, 408 U.S. 665, 686-687 (1972).          
(19)  Blair v. United States, 250 U.S. 273, 282 (1919).          
(20)  356 U.S. 677, 681 n.6 (1958), quoting from United States 
v. Rose, 215 F.2d 617, 628-629 (3d Cir. 1954), quoting from 
United States v. Amazon Industrial Chemical Corp, 55 F.2d 254, 
States v. Sells Engineering, Inc., 103 S. Ct. 3133, 3140 (1983).  
(21)  Sells Engineering, supra note 20, at 3142-3143; and United 
States v. John Doe, Inc. I, 107 S. Ct. 1656, 1663-64 (1987).      
(22)  See Notes of Advisory Committee on Rules, Note to 
Subdivision (e), Rule 6, F.R.C.P.                                 
(23)  Rule 6(e)(2), F.R.C.P.                                    
(24)  Supra note 22.                                             

(25)  See, e.g., In Re Grand Jury Summoned October 12, 1970, 321 
F.Supp. 238 (N.D. Ohio 1970); United States v. Radetsky, 535 F.2d 
F.Supp. 1335 (C.D. Cal. 1979).                                    
(26)  Butterworth v. Smith, 110 S.Ct. 1376 (1990).               
(27)  Id.                                                        
(28)  Rule 54(c), F.R.C.P.                                       
(29)  In re Grand Jury Proceedings, 309 F.2d 440 (3d Cir. 1962).  
(30)  Sells Engineering, supra note 20, at 3140.                 
(31)  Rule 6(e)(3)(C)(i), F.R.C.P.  Use of this exception is not 
limited to government attorneys; any party to a judicial 
n the interests of justice.  This exception existed at common
law as well.  In United States v. Socony-Vacuum Oil Co., 310 
U.S. 150, 234 (1940), the Court noted that after the grand 
ends of justice require it.''                                     
(32)  United States v. Baggot, 103 S.Ct. 3140, 3164 (1983).     
(33)  Id. at 3166.  See also, Bradley v. Fairfax, 634 F.2d 1126 
(8th Cir. 1980) (disclosure denied for parole revocation 
(disclosure denied for agency investigation.)                     
(34)  Rule 6(e)(3)(A)(ii), F.R.C.P.                              
(35)  Rule 6(e)(3)(B), F.R.C.P.                                  
(36)  See Notes on Advisory Committee on Rules, 1985 Amendment, 
Rule 6 (e)(3)(A)(ii) which states, in part, ``...because not all 
federal government personnel will otherwise know of this 
obligation [secrecy], the giving of the advice and certification 
thereof is required as to all persons receiving disclosure....''  
(37)  Rule 6(e)(3)(A)(ii), F.R.C.P.                              
(38)  Supra note 36.                                             
(39)  Rule 6(e)(3)(c)(iv), F.R.C.P.                              
(40)  Id.                                                        
(41)  Rule 6(e)(3)(c)(iv), F.R.C.P.                              
(42)  18 U.S.C. 3500.                                            

     Law enforcement officers of other than Federal jurisdiction 
adviser.  Some police procedures ruled permissible under Federal 
constitutional law are of questionable legality under State law 
or are not permitted at all.