The Federal Grand Jury
Released: 2015-05-07T00:00:00

Introduction

"The grand jury [has] a unique role in our criminal justice system." 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."

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.

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, and thereby increase the flow of fines and forfeitures into his treasury.

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.

The Fifth Amendment right to grand jury indictment is only constitutionally required in federal cases. In a majority of the states, prosecution may begin either with an indictment or with an information or complaint filed by the prosecutor.

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, 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.

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 which it is sitting. 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.

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," and its inquiries "may be triggered by tips, rumors, evidence proffered by the prosecutor, or the personal knowledge of the grand jurors."

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," 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."

Selection

Federal law requires the various United States District Courts to order one or more grand juries to be summoned when the public interest requires. In addition, the Attorney General may request the District Court to summon a special grand jury in any of the larger districts or when he or she believes the level of criminal activity in the district warrants it.

Historically, the sheriff selected the members of the grand jury. The practice of having the sheriff of the county select the members of the grand jury continued for some time in England and in colonial America, although grand jurors were elected in some colonies. At one time, federal law addressed matters governing the selection, qualifications and exemptions of federal grand jurors largely by reference to the law of the state in which the grand jury was to be convened. These matters are now the responsibility of the court, governed by the Jury Selection and Service Act of 1968, and the selection plan established for the district in which the grand jury is to be convened.

Federal grand jurors must be citizens of the United States, 18 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.

Discrimination in selection on the basis of race, color, religion, sex, national origin, or economic status is prohibited. Grand jurors must be "selected at random from a fair cross section of the community in the district or division wherein the court convenes." 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.

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."

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. The case law also seems to focus on any contamination of the panel as a whole and to rely upon each grand juror's faithfulness to his or her oath to avoid the adverse consequences of individual bias.

Grand jury panels consist of 16 to 23 members, 16 of whom must be present for a quorum, and 12 of whom must concur to indict. The size of grand jury panels is a remnant of the common law, but the common law treatises and the cases provide little indication of why those particular numbers were chosen. Of course, when the grand jury's accusations were based primarily upon the prior knowledge of the panel's members, larger panels were more understandable.

The movement, which led to abolition of the right to indictment in many of the states, also resulted in a reduction in the size of most state grand jury panels. 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.

The selection of 23 members for a panel which requires only the presence of 16 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.

Tenure

After selection, the court swears in members of the grand jury; names a "foreperson and deputy foreperson" and instructs the panel. Federal grand juries sit until discharged by the court, but generally for no longer than 18 months, with the possibility of one six month extension. 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.

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. 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.

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.

The attorney for the government will ordinarily arrange for the appearance of witnesses before the grand jury, will suggest the order in which they should be called, and will take part in questioning them. The grand jury most often turns to prosecutor legal advice and to draft most of the indictments, which the grand jury returns.

Subpoenas

Grand jury witnesses usually appear before the grand jury under subpoena. The rule calls for subpoenas to be available in blank for the "parties" to proceedings before the court, but "no one is meaningfully a party in a grand jury proceeding." Nevertheless, there seems little question that subpoenas may be issued and served at the request of the panel itself, although the attorney for the government usually "fills in the blanks" on a grand jury subpoena and arranges the case to be presented to the grand jury. Unjustified failure to comply with a grand jury subpoena may result in a witness being held in civil contempt, convicted for criminal contempt, or both. A witness who lies to a grand jury may be prosecuted for perjury, or for making false declarations before the grand jury.

Conversely, others with information they wish to provide it to the grand jury are prohibited from doing so except through the court or the attorney for the government. 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. Nor does a potential defendant nor a grand jury target nor their counsel have any right to present exculpatory evidence to the grand jury nor substantive objection.

Grand jury appearances, however, are more likely to be fought than sought. Resistance is futile most often. Absent self-incrimination or some other privilege, the law expects citizens to cooperate with efforts to investigate crime. In the name of this expectation, a witness may be arrested, held for bail, and under some circumstances incarcerated. 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.

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. Thus as a rule, the grand jury is entitled to every individual's evidence even though testimony may prove burdensome, embarrassing, or socially or economically injurious for the witness.

A grand jury subpoena may even "trump" a pre-existing protective court order under some circumstances. 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." In the context of grand jury subpoenas, as in most others, federal evidentiary privileges are governed by the Federal Rules of Evidence.

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."

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; accountant-client; researcher-source; parent-child; employer-stenographer; banker-depositor; draft counselor-client; police observation post location; probation officer-probationer; insurance company-client; academic peer review; medical peer review; unwaivable confidentiality of child abuse and juvenile records; agricultural loan mediation; union officials-union members; Secret Service protective function; litigation settlement negotiations; private investigator-client.

A second group consists of recognized or developing but qualified privileges, whose effectiveness against a grand jury subpoena may be uncertain at best. Members of the group include privileges for:

critical self-evaluation; journalists (not generally recognized for grand jury purposes); presidential communications; state legislators; federal statutory privileges; state secret/national security; bank examiners; state recognized privileges; state tax returns; intra-agency, government deliberative process; and ombudsman.

The handful of privileges that provide the grounds for quashing a grand jury subpoena include:

attorney-client; attorney work product; clergyman-communicant; informer identity; spousal immunity; spousal communications; and psychotherapist-patient.

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 a client to an attorney made in order to obtain legal assistance." 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. Nor, as a general rule, does the privilege cover the identity of the client nor details concerning payment of the attorney's fee, and thus the privilege will usually not constitute grounds to quash a grand jury subpoena directed to secure that information.

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."

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." Like the attorney-client privilege, it is subject to a crime/fraud exception. 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."

Constitutional Privileges

The cases which give rise to attorney-client and attorney work product claims not infrequently include Sixth Amendment invocations as well. At first blush, the Sixth Amendment right to the assistance of counsel might be thought to afford but scant ground upon which to base a motion to quash a grand jury subpoena since the right does not ordinarily attach until an individual has been accused of a crime, e.g., after indictment. This is in fact a very real limitation, but one which admits to exception where either the client has already been indicted or arrested or where the vitality of the right requires pre-attachment recognition.

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. 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.

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, is even more rare. Under extreme circumstances, it will provide the grounds to avoid a contempt citation or to quash a federal grand jury subpoena. Generally it will not.

The Fourth Amendment prohibits unreasonable governmental searches and seizures. 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 be heard on a motion to quash before complying makes the grand jury subpoena in many respects less intrusive than the warrant.

Even "forthwith" subpoenas, where the opportunity to quash may be minimized, have generally been thought to pass constitutional muster, either because the party to whom they were address complied, i.e., consented, or because the circumstances presented exigencies similar to those to which Fourth Amendment demands have traditionally yielded.

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."

A subpoena is "unreasonable or oppressive" if (1) it commands the production of things clearly irrelevant to the investigation being pursued; (2) it fails to specify the things to be produced with reasonable particularity; or (3) it is unreasonable in terms of the relative extent of the effort required to comply.

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, a handwriting exemplar, to sign a consent form authorizing the disclosure of bank records, or for juveniles to produce a DNA sample and a complete set of fingerprints. Consequently, the courts will not quash an otherwise valid subpoena issued for any those purposes.

Although the Fifth Amendment privilege against self-incrimination precludes requiring a witness to testify at his or her criminal trial, it does not "confer an absolute right to decline to respond in a grand jury inquiry." Once before the grand jury, a witness may decline to present self-incriminating testimony. The right does not include the option to protect pre-existing, voluntarily prepared personal papers on the ground that they are self-incriminatory, 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. 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.

The Fifth Amendment due process clause, 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. Nor may the grand jury subpoena be used as a discovery device for civil cases in which the government has an interest.

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." The privilege precludes questioning before the grand jury of a Member's legislative acts.

Statutory and Other Limitations of Grand Jury Subpoena Authority

Federal law prohibits the use of evidence tainted by illegal wiretapping. The prohibition provides just cause for the refusal of a grand jury witness to respond to inquiries based on illegal wiretapping information. 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. There is some limited support for the proposition that a claim of foreign sovereign immunity may not be interposed to avoid compliance with a grand jury subpoena.

The courts are divided over the question of whether a statute that classifies information as confidential thereby takes the information beyond the reach of a federal grand jury subpoena, or otherwise confines its authority.

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, 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.

Secrecy

Federal grand juries conduct their business in a secrecy defined by rules which limit who may attend, and the circumstances under which matters involving the conduct of their business may be disclosed. Grand jury secrecy predates the arrival of the grand jury in this country and the Supreme Court has said that "the proper functioning of our grand jury system depends upon" it. 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.

Conversely, circumstances may exist under which evidence of what occurred before the grand jury could prevent a miscarriage of justice or serve some other public interest. These conditions may develop in any environment in which evidence unearthed by the grand jury might be relevant. They can arise in the federal criminal trials which often follow from a grand jury investigation, in state criminal investigations and proceedings, in civil litigation, and in administrative and legislative proceedings.

The boundaries of grand jury secrecy have been defined by balancing the public interest in the confidentiality of grand jury proceedings against the public interest in disclosure in a particular context. 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.

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, 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 usually disclose his or her grand jury testimony, and those not listed in Rule 6 generally need not keep the grand jury's secrets even if they learned of the matter from someone bound by the rule of secrecy. Nevertheless, at least one court appears to believe that the Stored Communications Act operates as a sub silentio exception, permitting the imposition of nondisclosure orders upon communications service providers with respect to grand jury subpoenas they receive for customer communications content and records.

Matters

Grand jury secrecy shrouds "matter[s] occurring before the grand jury." In most instances, it does not bar disclosure of information because the information might be presented to the grand jury at some time in the future. The rule protects the workings of the grand jury not the grist for its mill. The fact of disclosure to the grand jury, rather than the information disclosed, is the object of protection, but the two are not always easily separated. Clearly, grand jury secrecy does not bar disclosure of information previously presented to a grand jury but sought for an unrelated purpose by a requester unaware of its earlier presentation. On the other hand, it does cover instances where information is sought because it has been presented to the grand jury. In between, the distinctions become more difficult and the cases do not reflect a single approach.

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.

Disclosure

The rule does not preclude disclosure of matters occurring before the grand jury under a number of circumstances. Some require court approval; others do not. The areas beyond the cloak of grand jury secrecy may include instances where: (1) the individual with the information is not 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 "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.

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 jury) from reviewing and using the information and documents, without disclosing them to anyone else, in preparation for civil litigation.

Moreover, disclosure to government attorneys and employees assisting the grand jury without court approval is likewise possible under 6(e)(3)(A). 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. 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.

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.

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." Historically, the courts concluded, with some dissent, that the exception applied not only to the trial which followed the grand jury's investigation but to a variety of proceedings range from state bar and police disciplinary investigations, to parole hearings, state criminal investigations, Congressional inquiries, federal administrative proceedings, civil litigation, and other grand jury investigations. 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.

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).

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)." The case's description of disclosures in an administrative context, however, hardly supports the notion that "judicial proceedings" include those before administrative tribunals.

Particularized Need

Court approved disclosures generally require "a strong showing of particularized need." 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."

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.

While the test remains the same whether the government or a private party seeks disclosure, "the concerns that underlie the policy of grand jury secrecy are implicated to a much lesser extent when the disclosure merely involves government attorneys."

In the balance to be struck in the process of determining whether "the need for disclosure is greater than the need for continued secrecy," the district court enjoys discretion to judge each case on its own facts, but some general trends seem to have developed.

The need to shield the grand jury's activities from public display is less compelling once it has completed its inquiries and been discharged, especially if the resulting criminal proceedings have also been concluded. Of course, there must still be a counterbalancing demonstration of need, a requirement that becomes more difficult if the grand jury witnesses whose testimony is be disclosed still run the risk of retaliation.

"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."

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. 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.

Defendant's Motion to Dismiss209

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.

Second Grand Jury211

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.

State, Military, or Foreign Law Enforcement213

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).

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. And, under the Jencks Act, after a witness has testified against a defendant at trial, the defendant is entitled to request and receive a copy of the witness' relevant grand jury testimony.

Congress has expressly authorized the disclosure of grand jury matters in connection with enforcement of some of the banking laws. 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 U.S. Attorney General to provide state Attorneys General with "any investigative files or other materials which are or may be relevant or material" to a cause action under the act.

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. Others, for 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.

Enforcement of Grand Jury Secrecy

"A knowing violation of Rule 6 ... may be punished as a contempt of court." 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. Government employees and members of the bar who improperly disclose the grand jury's secrets may be subject to disciplinary proceedings. 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).

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. 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."

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 12 of his or her fellow citizens reflected in an indictment. 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. Misdemeanors may, but need not, be tried by indictment.

The grand jury may indict only upon the vote of 12 of its members, and upon its conclusion that there is probable cause to believe that the accused committed the crime charged.

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. 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. Moreover, the defendant will not be heard to complain that the panel was not informed of its prerogative to decline to indict even if presented with probable cause.

Reports235

The law regarding the last alternative available to the grand jury, the authority to send forward "reports" or "presentments," is somewhat obscure. At common law "indictments" were returned by the grand jury based upon evidence presented to the grand jury, while "presentments" were "the notice taken by the grand jury of any offense from their own knowledge or observation, without any bill of indictment laid before them at the suit of the king." 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. 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. 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;" and whether the report intrudes upon the prerogatives of state and local governments.

Discharge

The court has the power to discharge a grand jury panel at any time within its term for any reason it sees fit. The court's authority to discharge a panel, quash its subpoenas, seal or expunge its reports or dismiss its indictments affords a check on "runaway" grand jury panels.

Indictments Dismissed

Defendants have urged dismissal of their indictments based upon a wide array of alleged grand jury irregularities. They are rarely successful, if the indictment is valid on its face. The courts will dismiss an indictment which fails to charge a federal crime, as for instance, when it fails to include an essential element of the crime it purports to charge. Otherwise, the irregularities which warrant dismissal are few and the obstacles which must be overcome to establish them substantial.

The courts are most hospitable to dismissal motions predicated upon constitutional violations. Thus, indictments returned by grand jury panels whose selection has been tainted by racial or sexual discrimination will be dismissed. 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; which are tainted by violations of the Speech or Debate privilege, or of the right of the accused to counsel of his choice; which are based solely on evidence secured in violation of the Fourth Amendment; which the government knowingly secured through the presentation of false or perjured testimony; or which are returned after a witness is called before the grand jury for the sole purpose of building perjury prosecution against the witness; or which charge violation of a statute that is unconstitutional on its face.

Courts will also dismiss a grand jury indictment in the name of due process for government misconduct unrelated to grand jury irregularities, for instance, where the prosecution sought indictment selectively for constitutionally impermissible reasons; or for reasons of vindictive retaliation; where the prosecution has secured the indictment through outrageous conduct which shocks the conscience of the court; or where the prosecution has unjustifiably delayed seeking an indictment to the detriment of the defendant.

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. " 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."

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." If the error is harmless the indictment may not be dismissed; "a district court may not dismiss an indictment for errors in grand jury proceedings unless such errors prejudiced the defendants." Timing is also important. After a trial jury has found sufficient evidence to convict a defendant, a claim of prejudice based on grand jury irregularities may lose most of its force.

Finally, the supervisory power to dismiss an indictment beyond those areas where it is reinforced by the Constitution, statute, or rule is exceptionally limited. As a consequence of these limitations, usually indictments will not be dismissed simply because:

the prosecutor failed to present evidence favorable to the defendant; the prosecutor failed to properly instruct the panel on applicable law; 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; the accused was called to testify before the grand jury when the prosecutor was aware the witness would invoke his privilege against self-incrimination; the prosecutor presented the grand jury with a signed indictment for its consideration and approval or rejection; of inflammatory press coverage proximate to the grand jury's inquiry; of a breached grand jury secrecy; of the presence of unauthorized individuals while the grand jury conducted its business; of the presentation of hearsay evidence; of the presentation of inaccurate, unreliable, misleading, or false evidence; of the presentation of illegal obtained evidence; of the presentation of evidence secured in violation of the Fourth Amendment; of the presentation of evidence secured by intrusion into the attorney-client relationship; of the presentation of evidence secured in violation of the Constitution's speech and debate clause; an erroneous charge to the grand jury; or no 12 grand jurors heard all the evidence upon which the indictment was based.

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." In most instances, dismissal at the government's behest is without prejudice, and the prosecutor may seek to reindict for the same offense as long as neither speedy trial, the double jeopardy clause, or due process pose a bar.