Public access to criminal trials is a fundamental principle of our justice system. As the Supreme Court articulated in 1980:
[Supreme Court precedent] recognized that open trials are bulwarks of our free and democratic government: public access to court proceedings is one of the numerous “checks and balances” of our system, because “contemporaneous review in the forum of public opinion is an effective restraint on possible abuse of judicial power.”
Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 592 (1980).
But when it comes to grand juries, that principle falls away. Grand juries are secret.
This secrecy can lead to confusion for witnesses who are called to testify before a grand jury. This post will outline the basics of grand jury secrecy and explore its limits.
What is a Grand Jury?
A grand jury decides whether a person or entity should be indicted for a crime.
The rule governing grand juries is Federal Rule of Criminal Procedure 6. If you practice criminal law, take a minute and read it here.
A federal grand jury has 16 to 23 members. Rule 6(a)(1). They are drawn from the same jury pool as regular juries but they sit for much longer periods, often 18 months. The grand jury likely won’t meet every day but may meet for a few days each week—all depending on the case load.
A grand jury will hear testimony from witnesses, review documents provided by the prosecutor and hear jury instructions that define the law. Then the jurors vote on whether a target should be indicted.
There are a few key differences between a grand jury and a regular jury.
Different from a regular jury, neither the defendant nor his lawyer is present for the presentation of evidence. In theory, the target of the investigation can testify before the grand jury to offer his side of the story but this rarely happens for strategic reasons. More important, though, he target cannot put on any evidence to convince the grand jury not to indict–in a regular trial, of course, the defendant gets a chance to present evidence and arguments to convince the jury not to convict.
Also, the standard to indict someone is much lower than the standard to convict someone. It is whether the government has proven probable cause that a crime has been committed and the target committed the crime, not beyond a reasonable doubt.
Grand Jury Secrecy
The key rule governing grand jury secrecy is Rule 6(e).
It first says:
no obligation of secrecy may be imposed on any person except in accordance with Rule 6(e)(2)(B).
Rule 6(e)(2)(B) reads:
[T]he 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). [Note: these sections cover disclosure made to certain government officials.]
So, the prosecutor, the jurors and the court reporter may not disclose what happens in a grand jury.
The witnesses who testify before a grand jury, however, are under no obligation of secrecy.
This is important because the prosecutor will often ask witnesses to keep confidential what was said during the grand jury proceedings. The prosecutor may make this “request” in a way that makes it sound like an obligation. But it’s not. If you are a witness and you testify before a grand jury, you can tell anyone about what you said and what you heard during the grand jury, including the target.
Rule 6(e) goes on to list a handful of exceptions where disclosure is appropriate, including when the court authorizes the disclosure, when a valid petition is filed, and when attorneys for the government disclose the information in certain limited circumstances.
A leading treatise outlines six reasons for grand jury secrecy:
(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 witnesses 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.
1 Fed. Prac. & Proc. Crim. § 106, Grand Jury Secrecy (4th ed.)
The USAM on Grand Jury Secrecy
The U.S. Attorney’s Manual contains a section on grand jury secrecy.
The USAM reiterates that sharing among attorneys for the government is allowed under the federal rules, particularly because one of the roles of Main Justice attorneys is to assist AUSAs in investigations.
However, the manual explains, however, that “attorney for the government” does not necessarily mean any attorney that works for the government. The manual describes a case where a government lawyer did not fit the bill:
In United States v. Forman, 71 F.3d 1214 (6th Cir. 1995), the court of appeals held that an attorney employed in the Tax Division of the Department of Justice who had gained access to grand jury materials but had not been assigned to review the materials or to participate in the grand jury proceedings was not “an attorney for the government” because he was not an “authorized” assistant to the Attorney General with respect to the grand jury materials that he disclosed to the target of the investigation.
So, while sharing among government attorneys may be permitted, it is not a free pass to share with anyone inside the government who happens to be a lawyer. It is only permitted when they are helping one another in certain situations or working on their own grand jury cases.
Prosecutions over Grand Jury Leaks
Grand jury secrecy doesn’t come up very often in federal prosecutions, but every once in a while someone is prosecuted for violating these rules. Charges for leaks are usually for contempt of court under 18 U.S.C. §401:
A court of the United States shall have power to punish by fine or imprisonment, or both, at its discretion, such contempt of its authority, and none other, as—
(1) Misbehavior of any person in its presence or so near thereto as to obstruct the administration of justice;
(2) Misbehavior of any of its officers in their official transactions;
(3) Disobedience or resistance to its lawful writ, process, order, rule, decree, or command.
In September 2015, a federal grand juror was convicted of misdemeanor contempt of court for failing to keep testimony private. Lori Cubit was a federal grand juror who disclosed information to her family members and others regarding what she learned about the investigation of gang violence in Portland. She leaked the identities of people who had been charged, what they had been charged with, and the existence of and evidence that she heard from federal law enforcement’s use of wiretaps.
What she told to her close friends and family eventually spread, and caused several search warrants and arrests to be cancelled. She was given a year of probation and 100 hours of community service as punishment.
In a more extreme case from the 1990s, Robert Girardi was given the maximum sentence of 8 years and 1 month for leaking grand jury testimony. Like Ms. Cubit, Mr. Girardi told his friends about what he heard during grand jury proceedings as a juror. However, Mr. Girardi’s friends were mob members and the proceedings were about the mob. He told his friends details about their own cases as well as the cases of others, and also sold grand jury information for $2000 a month. Mr. Girardi was charged with contempt of court, bribery, and obstruction of justice.
The Investigation of Kathleen Kane
The investigation into Pennsylvania Attorney General Kathleen Kane is a state case but deals with grand jury secrecy. Ms. Kane won the election for Pennsylvania’s Attorney General by criticizing the handling of the Jerry Sandusky investigation. She was recently charged with leaking grand jury information to a newspaper and then lying about it under oath.
As the New York Times reported:
[Ms. Kane] was both the first woman and the first Democrat to be elected attorney general in Pennsylvania since the office became elective in 1980.
But she quickly became mired in vicious disputes with some former top prosecutors, with charges flying back and forth about cases mishandled or improperly dropped. As she re-examined the handling of the Sandusky case, her investigators also discovered that numerous officials in the attorney general’s office and other state agencies had shared pornographic and racially offensive emails; a Supreme Court justice was forced to resign as a result.
But in August [2015], the Montgomery County district attorney charged Ms. Kane with illegally leaking information to the news media about grand jury proceedings in a 2014 case, then lying about it. That case had involved former state prosecutors with whom she was feuding.
I have no idea of Ms. Kane is guilty or not. It’s hard to read the