Interviewing witnesses, obtaining materials, ancillary proceedings

Federal rules and the majority of states, either expressly or impliedly, allow grand jury witnesses to disclose what transpired when they testified.

“There are no restrictions on witnesses before the grand jury,” said media attorney Kevin T. Baine of Williams & Connolly in Washington, D.C. “If anybody is called as a witness to the grand jury — whether as a witness to a crime, or a reporter, or someone suspected of a crime — that person is completely free to walk out of the grand jury room, stand in front of a TV camera and recite in detail everything that happened in that grand jury room.”

In fact, President Clinton appeared on national television on the same day he testified before the grand jury and revealed his status as a witness. “I’m not saying it’s inconceivable that a judge could ever gag a witness, but I’m not aware of it ever happening,” Baine said.

But in September, the California Court of Appeal in Santa Clara County upheld a warning given to grand jury witnesses not to disclose their testimony, or anything they learned during their appearance before the grand jury, until the transcript is made public.

The case arose after a newspaper unsuccessfully tried to interview grand jury witnesses in connection with the criminal investigation of a local judge. The San Jose Mercury News complained that a witness declined to talk to one of its reporters after a prosecutor told the reporter, within earshot of the witness, that anyone who spoke publicly about his testimony could be thrown in jail. Another prospective witness refused to be interviewed without the district attorney’s permission. The appeals court ruled that the admonition read to all witnesses was not an unconstitutional “prior restraint” on the press. (San Jose Mercury News, Inc. v. Criminal Grand Jury of Santa Clara County)

The ruling appears to conflict with a 1990 U.S. Supreme Court case, Butterworth v. Smith (see sidebar, page 5), which holds that all grand jury witnesses have a First Amendment right to disclose the contents of their testimony, at least once the grand jury has concluded its activities. But because the court in San Jose Mercury News limited its discussion to the single issue of prior restraint, it expressly declined to analyze the constitutionality of the warning under Butterworth.

One thing is certain: witnesses are completely free to discuss anything they knew prior to testifying before the grand jury. That doesn’t mean they will be willing to do so, however — especially when a prosecutor may threaten to throw them in jail for talking, San Jose Mercury News lawyer James Chadwick noted.

Obtaining materials

The general rule of secrecy also applies to materials used in the course of grand jury proceedings, and even ancillary proceedings. It applies to civil — or watchdog — grand juries as well as criminal ones.

As previously noted, Rule 6(e)(6) of the Federal Rules of Criminal Procedure provides that records, orders and subpoenas pertaining to grand jury proceedings are kept sealed from the public “to the extent and for such time as is necessary to prevent disclosure of matters occurring before a grand jury.”

The U.S. Court of Appeals in Philadelphia (3rd Cir.) held in 1997 that there is no presumptive First Amendment or common law right of access to court documents involving materials presented before a grand jury. The court in that case determined that a sentencing memorandum that mentioned the names of grand jury witnesses, in apparent violation of the federal rules, and other pertinent documents were sufficiently related to the grand jury proceedings to justify sealing them. (United States v. Smith)

The same court later relied on Smith to deny a newspaper’s request to unseal court documents related to an apparent contempt proceeding against federal prosecutors for leaking secret grand jury information to the media. (In re Newark Morning Ledger Co.)

Grand juries that act as government watchdogs often issue to a court reports of their findings and recommendations, which then become public records. In 1988, the Supreme Court of California concluded that a grand jury could not disclose as part of its report “raw evidentiary materials,” including hearing transcripts and interviews conducted by the prosecutor, gathered during a watchdog investigation that failed to yield any indictments.

Numerous media organizations had challenged a lower court judge’s refusal to file the report and his sealing of the evidentiary materials, arguing such actions violated the public’s right to scrutinize public affairs. But the state high court, emphasizing the importance of grand jury secrecy, upheld the trial judge’s actions. (McClatchy Newspapers v. Superior Court)

Ancillary proceedings

Under federal rules, not only are grand jury proceedings themselves closed to the public, but so are hearings on matters “affecting a grand jury proceeding.” Such ancillary proceedings often involve matters such as motions to quash grand jury subpoenas, motions requesting immunity from prosecution and motions to compel testimony. Federal courts therefore first must determine whether a particular proceeding is related to or affects a grand jury proceeding. This is done on a fact-specific, case-by-case basis.

Once determined to be ancillary to a grand jury proceeding, a matter is presumed secret. The press, in theory, can overcome the presumption by showing that the need for disclosure outweighs the need for secrecy. But case law indicates that such an argument has a slim chance of succeeding, especially if the grand jury’s investigation is ongoing.

Federal courts have held that the media had no right of access to papers or proceedings involving: a claim by an anonymous grand jury witness that he was the victim of illegal electronic surveillance by the government (In re Grand Jury Subpoena); allegations of government misconduct in releasing a sentencing memorandum that allegedly violated the grand jury secrecy rule (United States v. Smith); and objections from Monica Lewinsky’s lawyer to a grand jury subpoena and other ancillary matters during the investigation of President Clinton. (In re Dow Jones & Co., Inc.) At the state level, a California appeals court last year extended the rule of grand jury secrecy to motions to quash grand jury subpoenas served on an archdiocese in a priest sex abuse case. (Los Angeles Times v. Superior Court)

That is not to say the press can get no information at all about grand jury ancillary proceedings. In the Dow Jones case, the U.S. Court of Appeals in Washington, D.C., recognized that a local rule of criminal procedure allowed the trial court to open matters “upon a finding that continued secrecy is not necessary to prevent disclosure of matters occurring before the grand jury.” Pursuant to this “limited means for disclosing non-secret matters,” the court suggested that cases before the grand jury could appear on the public docket under a nondescript caption such as “In re Grand Jury Proceedings,” followed by a “miscellaneous” case number. It sent the case back to the trial court to consider this option.

The trial court subsequently refused to create a generic rule that would require public docketing of all grand jury ancillary proceedings. The case then went to the appeals court a second time. In upholding the lower court’s decision, the appeals court noted that the media may seek a redacted public docket in a specific case. If the trial court denies the request, it must give a reason for doing so beyond the fact that it burdens administrators. The court also cannot deny the request based simply on the fear of leaks. The appeals court agreed with the media that the local rule “means what it says in providing a limited right to access with respect to grand jury ancillary proceedings.” (In re Sealed Case, No. 99-3024)

So what does all this mean to journalists seeking access? There is no First Amendment right of access to grand jury proceedings. The longstanding rule of secrecy covers participants, documents, and other materials, as well as matters that are related to grand jury proceedings. It may even apply to witnesses to some extent.

Unless the law specifically permits disclosure, the presumption of secrecy most likely will trump the interest in openness. As one federal district judge noted, in a recent case questioning the government’s authority to hide investigations from the public: “[T]he government has at least some power to control information which is its ‘own creation,’ and to which there is otherwise ‘no First Amendment right of access.’” (Doe v. Ashcroft)

Cases cited in this article:

Butterworth v. Smith, 494 U.S. 624 (1990)

Doe v. Ashcroft, 334 F. Supp. 2d 471 (S.D.N.Y. 2004)

Hoffmann-Pugh v. Keenan, 338 F.3d 1136 (10th Cir. 2003)

In re Dow Jones & Co., Inc., 142 F.3d 496 (D.C. Cir. 1998)

In re Grand Jury Subpoena (John Doe No. 4 v. John Doe No. 1), 103 F.3d 234 (2d Cir. 1996)

In re Newark Morning Ledger Co., 260 F.3d 217 (3d Cir. 2001)

In re Sealed Case No. 99-3024, 199 F.3d 522 (D.C. Cir. 2000)

In re Sealed Case No. 99-3091 (Office of Independent Counsel Contempt Proceeding), 192 F.3d 995 (D.C. Cir. 1999)

Los Angeles Times v. Superior Court, 7 Cal. Rptr. 3d 524 (Cal. Ct. App. 2003)

McClatchy Newspapers v. Superior Court, 751 P.2d 1329 (Cal. 1988)

San Jose Mercury News, Inc., v. Criminal Grand Jury of Santa Clara County, 19 Cal. Rptr. 3d (Cal. Ct. App. 2004)

United States v. Aisenberg, 358 F.3d 1327 (11th Cir. 2004)