D. Grand jury proceedings

Overview

“Since the 17th century, grand jury proceedings have been closed to the public, and records of such proceedings have been kept from the public eye.” Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 218 n.9 (1979). Courts applying the Press-Enterprise test have made clear that there is no First Amendment right of public access to grand jury proceedings – for example, the court inU.S. v. Smith, 123 F.3d 140, 148 (3rd Cir. 1997), found that “grand jury proceedings are not subject to a First Amendment right of access under the [Press-Enterprise] test of ‘experience and logic.’” Participants, except witnesses, generally are forbidden from disclosing matters related to the grand jury, even after the grand jury’s activities have concluded.

The same is true of proceedings on matters affecting a grand jury proceeding, “to the extent necessary to prevent disclosure of a matter occurring before a grand jury.” Fed. R. Crim P. 6(e)(5). Suchancillary proceedings often involve matters such as motions to quash grand jury subpoenas, motions requesting immunity from prosecution and motions to compel testimony. If a court “can allow some public access without risking disclosure of grand jury matters … Rule 6(e)(5) contemplates that this shall be done.” In re Dow Jones & Company, Inc., 142 F.3d 496, 502 (D.C. Cir. 1998).

Exceptions to this secrecy exist in some states. California Penal Code Section 939.1, for example, provides that where the court “finds that the subject matter of the investigation affects the general public welfare” it “may make an order directing the grand jury to conduct its investigation in a session or sessions open to the public.”

6th Cir.