C. Grand jury proceedings and records
“Since the 17th century, grand jury proceedings have been closed to the public.” United States v. Maravilla, 566 Fed. Appx. 704, 707 (10th Cir. 2014) (citing Douglas Oil Co. of Cal. V. Petrol Stops Nw., 441 U.S. 211, 218 n.9 (1979)). Likewise, “records of such proceedings have been kept from the public eye.” Id. (citing Douglas Oil Co. of Cal. V. Petrol Stops Nw., 441 U.S. 211, 218 n.9 (1979)).
In general, grand jury proceedings are not subject to the traditional presumption in favor of public access to judicial proceedings. In re Grand Jury Subpoenas, No. 15-mc-71 (VEC), 2016 U.S. Dist. LEXIS 146148, at *6 (S.D.N.Y. Oct. 18, 2016) (citing Doe No. 4 v. Doe No. 1 (In re Grand Jury Subpoena), 103 F.3d 234, 242 (2d Cir. 1996)). The Court in In re Grand Jury Subpoena, upheld closure of hearing on propriety of government subpoenas and surveillance undertaken pursuant to grand jury proceedings. 103 F. 3d 234 (2d Cir. 1996) (holding that the overriding interest in secrecy of grand jury proceedings—at least until they are complete—outweighs the qualified right of access); see also In re Rosahn, 671 F. 2d 690 (2d Cir. 1982) (reversing closure of contempt proceedings of grand jury witness).
In deciding whether or not to disclose grand jury testimony, the Second Circuit relies on the Supreme Court’s Douglas Oil balancing test. In re Petition of Craig, 131 F.3d 99, 104 (2d Cir. 1997). The Supreme Court in Douglas Oil required that “[p]arties seeking grand jury transcripts under Rule 6(e) 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.” Douglas Oil Co. of California v. Petrol Stops Nw., 441 U.S. 211, 222 (1979). In applying the Douglas Oil test, the Second Circuit has found instances in which disclosure of grand jury documents was inappropriate. See, e.g., In re Grand Jury Subpoena, 103 F.3d 234 (2d Cir. 1996) (holding that although appellants may have had a qualified right to access the proceeding it was overcome by the government's interest in maintaining the secrecy of the grand jury process”); Kamasinski v. Judicial Review Council, 44 F.3d 106, 111 (2d Cir. 1994) (concluding that a “limited ban on disclosure of the fact of filing or the fact that testimony was given does not run afoul of the First Amendment,” and “the ban on disclosure is constitutional only so long as the [government] acts in its investigatory capacity”).
There is no First Amendment right of access to grand jury proceedings, as they have traditionally been closed to the public, and public access does not play a significant positive role in the functioning of grand jury proceedings. See Press-Enter. Co. v. Super. Ct., 478 U.S. 1, 8–9 (1986).
“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 Nw., 441 U.S. 211, 219 (1979).
The Supreme Court has explained that a party seeking disclosure of grand jury materials must make a showing of a “particularized need” by demonstrating that (1) the materials are needed to avoid an injustice in another proceeding; (2) the need for disclosure is greater than the need for continued secrecy; and (3) the request is structured to cover only needed materials. United States v. Moussaoui, 483 F.3d 220, 235 (4th Cir. 2007) (quoting Douglas Oil Co. v. Petrol Stops Nw., 441 U.S. 211, 222 (1979)).
In an appeal involving a motion to quash a grand jury subpoena, the Fourth Circuit conducted oral argument in camera and sealed its decision to maintain the confidentiality of grand jury proceedings. See In re Grand Jury Subpoena John Doe, No. 05GJ1318, 584 F.3d 175, 178 n.1 (4th Cir. 2009) (deferring to the district court, in its supervisory capacity for the grand jury proceedings, to determine when the opinions (or any part thereof) should be unsealed and made public).
See generally, Rule 6(e) of the Federal Rules of Criminal Procedure governing secrecy of grand jury proceedings.
The First Amendment does not require public access to grand jury materials submitted to aid the district court during sentencing. See United States v. Foggo, 595 F. Supp. 2d 672, 680–81 (E.D. Va. 2009).
In general, courts have little authority over the proceedings of a grand jury. In re Grand Jury Proceedings, 115 F.3d 1240, 1243 (5th Cir. 1997).
Under both federal and state law, a general rule of secrecy shrouds the proceedings of grand juries. Shields v. Twiss, 389 F.3d 142, 147 (5th Cir. 2004). Maintaining the confidentiality of grand jury proceedings protects several important interests of the government and private citizens. First, it prevents individuals under potential indictment from fleeing the jurisdiction or tampering with jurors or witnesses appearing before the grand jury. Second, people with information about crimes would be less willing to appear and speak frankly. Third, the rule avoids injuring the reputation of persons accused of a crime whom the grand jury does not indict. And fourth, secrecy encourages grand jurors to investigate suspected crimes without inhibition and to engage in unfettered deliberations. In re Grand Jury Investigation, 610 F.2d 202, 213 (5th Cir. 1980).
However, both federal and state law permit discovery of grand jury material when the party seeking discovery demonstrates a “particularized need” for the material. Shields v. Twiss, 389 F.3d 142, 147 (5th Cir. 2004); see also In re Grand Jury Testimony, 832 F.2d 60, 62 (5th Cir. 1987) (stating that grand jury materials can be released where a party demonstrates with particularity a “compelling” necessity for the materials.) The party seeking discovery has the burden of showing (1) that the material is needed to avoid a possible injustice in another judicial proceeding; (2) that the need for disclosure is greater than the need for secrecy; and (3) that its request is structured to cover only the material so needed. Shields v. Twiss, 389 F.3d at 147. A party should also show that the information cannot readily be acquired through some other means. In re Petition for Disclosure of Evidence Taken Before the Special Grand Jury Convened on May 8, 1978, 650 F.2d 599, 600 (5th Cir. 1981). These requirements must be satisfied even if the grand jury whose materials are sought has concluded its operations. United States v. Miramontez, 995 F.2d 56, 58 (5th Cir. 1993). Ordinarily, the media will not be able to obtain grand jury testimony unless it is a party to the case (and even then only in rare circumstances).
The desire to use grand jury testimony to impeach defendants and refresh their recollections in a related civil case has been held to be a “particularized need” sufficient to overcome the presumption of secrecy, State of Texas v. U.S. Steel Corp., 546 F.2d 626, 631 (5th Cir. 1977), but the party seeking disclosure must first demonstrate a witness’s actual inability to recall or inconsistent testimony in order to overcome the interest in protecting the secrecy of grand jury proceedings. In re Grand Jury Testimony, 832 F.2d 60, 63 (5th Cir. 1987). In general, depositions of witnesses must be taken in a civil case before a party can seek the witnesses’ grand jury testimony. Id.
Appellate review of decisions regarding disclosure of grand jury materials is reviewed under an abuse of discretion standard. In re Grand Jury Testimony, 832 F.2d at 62.
The Freedom of Information Act does not include federal courts, so grand jury records cannot be obtained through FOIA requests. U.S. v. Miramontez, 995 F.2d at 59 n.3.
Matters occurring before a grand jury can be disclosed when so directed by a court before or in connection with a judicial proceeding. But the policy of grand jury secrecy must be given great weight. In re Petition for Disclosure of Evidence Taken Before the Special Grand Jury Convened on May 8, 1978, 650 F.2d at 600. Allegations of public interest alone will not usually constitute sufficient need. Id. at 602.
If the media reveals information about secret grand jury proceedings, it is possible for parties to the proceedings to be held in contempt. Importantly, however, this does not apply to witnesses who testify before the grand jury proceedings. In re Grand Jury Investigation, 610 F.2d 202, 217 (5th Cir. 1980).
To establish a violation of grand jury secrecy rules based on media reports about grand jury proceedings, a party must show that the news reports contained information about matters occurring before the grand jury which was disclosed by a party to the grand jury proceedings. In re Grand Jury Investigation, 610 F.2d 202, 214 (5th Cir. 1980). “Matters occurring” before the grand jury include not only information drawn from transcripts of grand jury proceedings, but also anything which may reveal what transpired before the grand jury or what will transpire, such as statements which reveal the identity of persons who will be called to testify, or a report that indicates when the grand jury will return an indictment. Id. at 216-17.
However, the disclosure of information obtained from a source independent of the proceedings does not violate the rule, nor does a general statement of opinion about an individual’s criminal liability, even if such statement is based on knowledge of the grand jury proceedings. In re Grand Jury Investigation, 610 F.2d 202, 217 (5th Cir. 1980). In order for a party to be held in contempt, the news reports must indicate that the source of the information is one whose disclosure would violate the federal rule of grand jury secrecy, such as a grand juror, an interpreter, a typist transcribing the proceedings, or an attorney for the government. As noted above, the rule does not forbid disclosure by a witness who testifies before the grand jury. Id. However, it is not necessary for the media report to expressly identify the source of the information if the nature of the information disclosed furnishes the connection. Id. at 218.
“Several courts have . . . held that the first amendment right of access does not comprehend grand jury proceedings, since grand juries have traditionally conducted their investigations in closed hearings, and secrecy is necessary in order for the grand jury to carry out its investigative function.” United States v. Corbitt, 879 F.2d 224, 237 n. 15 (7th Cir. 1989) (citing Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 9, 106 S. Ct. 2735, 2741 (1986) (dictum; “there are some kinds of government operations that would be totally frustrated if conducted openly. A classic example is that ‘the proper functioning of our grand jury system depends upon the secrecy of grand jury proceedings’”)).
Federal Rule of Criminal Procedure 6(e) “codifies the centuries-old requirement that grand jury proceedings be kept secret.” In re Eye Care Physicians of Am., 100 F.3d 514, 518 (7th Cir. 1996) (citing Matter of Grand Jury Proceedings, 942 F.2d 1195, 1198 (7th Cir. 1991)). “Our judicial system has recognized that the proper functioning of grand jury proceedings depends upon their absolute secrecy.” Id.; Lucas v. Turner, 725 F.2d 1095, 1100 (7th Cir. 1984). See also N.D. Ind. Local. Crim. R. 6-1 (procedures for grand juries; “[w]hile a grand jury is in session, no one may be in the hall leading to the rooms or areas used by the grand jury or anyplace where witnesses before the grand jury can be seen or heard”); S.D. Ind. Local Crim. R. 10-1.
One seeking disclosure of grand jury proceedings must demonstrate “‘compelling necessity’ for the material,” even when the grand jury has concluded its operations. In re Eye Care Physicians, 100 F.3d at 518 (quoting Hernly v. United States, 832 F.2d 980, 983-84 (7th Cir. 1987)); Lucas, 725 F.2d at 1107.
“Yet the rule of grand jury secrecy is not absolute. For instance, the secrecy requirement does not apply to grand jury witnesses, who are permitted to publicly disclose the questions they were asked and the answers they gave.” Carlson v. United States, 109 F.Supp.3d 1025, 1028-29 (N.D. Ill. 2015), aff’d, 837 F.3d 753 (7th Cir. 2016) (citing Fed. R. Crim. P. 6(e)(2)); see also Worrell Newspapers of lnd., Inc. v. Westhafer, 739 F. 2d 1219, 1223 (7th Cir. 1984), aff’d, 469 U.S. 1200 (1985) (“[T]he secrecy provision in Rule 6(e) applies, by its terms, only to individuals who are privy to the information contained in a sealed document by virtue of their positions in the criminal justice system”).
“The party seeking disclosure of grand jury materials must show a ‘compelling necessity’ or ‘particularized need’ for the grand jury materials; where an appropriate showing has been made, the district court must take care to disclose materials ‘discretely and limitedly.’” Corbitt, 879 F.2d at 239 n. 17.
In Carlson, the court unsealed transcripts of testimony from a 1942 grand jury investigation of newspaper's alleged Espionage Act violations during World War II ; author and historical organizations sought disclosure for scholarly purposes, the government identified no specific reason that release would threaten national security or otherwise cause harm, and no witnesses or other third parties had come forward to express concerns about release. “Because grand-jury transcripts are, in their very nature, judicial documents (just as a transcript of a trial would be), there is no need for them to become part of the judicial proceeding through admission into evidence” in order to be subject to the access right asserted by plaintiff. Carlson v. United States, 837 F.3d at 760 The court held that “the disclosure of sealed grand jury materials is ‘committed to the discretion of the trial judge,’” and this inherent power was not abrogated by the Federal Rules of Criminal Procedure (in particular Rule 6(e)). Id. at 761-67.
The presumption of openness that attaches to criminal proceedings in general does not apply to grand jury proceedings. Ex parte Birmingham News Co., 624 So. 2d 1117, 1128 (Ala. Crim. App. 1993). The standard for determining when the traditional secrecy of the grand jury may be broken is deliberately stringent: parties seeking disclosure of grand jury transcripts 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. Id. (citing Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 222 (1979)). The Supreme Court of Alabama further stated that “[p]ut simply, the secrecy of the grand jury proceeding will not be broken except where the party seeking disclosure can show a ‘compelling necessity’ or a ‘particularized need.’” Ex parte Birmingham News Co., 624 So. 2d at 1128.
There is no precedent in Alabama for discovery of the names and addresses of the grand jury members. Ex parte State, 738 So. 2d 1140, 1142 (Ala. Crim. App. 1998) (“The ramifications of disclosing the names of grand jury members are too great to comprehend. It is safe to conclude that the number of indictments would decrease drastically and the function of the grand jury would be greatly hindered if the grand jurors’ names were not secret. The secrecy of the grand jury proceedings is well-grounded in this country’s jurisprudence and has protected the grand jury system.”).
Grand jury proceedings are confidential pursuant to Ariz. Rev. Stat. § 13-2812. It is a class 1 misdemeanor for a person to disclose “the nature or substance of any grand jury testimony or any decision, result or other matter attending a grand jury proceeding, except in the proper discharge of official duties, at the discretion of the prosecutor to inform a victim of the status of the case or when permitted by the court in furtherance of justice.”
Historically, answers given to questions propounded by a grand jury were not public records. Davis v. Cir. Ct. of Pulaski County, First Div., 244 Ark. 142, 149, 424 S.W.2d 149, 153 (1968); see also Collins v. State, 200 Ark. 1027, 143 S.W.2d 1 (1940) (“[T]he grand jury is an inquisitorial body, the proceedings of which are intended to be kept secret, and cannot be examined and reviewed by a trial court upon a motion to set aside or quash an indictment, except for cause specified by the statute.” (citing State v. Fox, 122 Ark. 197, 182 S.W. 906 (1916)).
Traditionally in Georgia, the public has no First Amendment right of access to grand jury proceedings and records, since such proceedings have been historically and presumptively secret. Members of a grand jury in Georgia take a statutorily-prescribed oath to keep deliberations of the grand jury secret. O.C.G.A. § 15-12-67(b). A stenographer attending grand jury proceedings is required to take an oath to keep secret all things and matters learned while in attendance upon the grand jury and is incompetent to testify concerning any matter learned while in attendance upon the grand jury. O.C.G.A. § 15-12-83. As a matter of public policy, admissions and communications among grand jurors are excluded as evidence. O.C.G.A. § 15-12-73. Documents and recorded testimony received by a grand jury are not subject to public access. In re Gwinnett Cty. Grand Jury, 284 Ga. 510, 512 (2008).
However, proceedings ancillary to a grand jury may not be closed without meeting the exacting closure standards established by the Supreme Court of Georgia in R.W. Page Corp v. Lumpkin, 249 Ga. 576 (1982). Thus, in Zugar v. State, 194 Ga. 285, 289–91 (1942), in requiring that grand jury indictments be returned in open court, the Georgia Supreme Court declared that:
It is a fundamental part of our judicial system that the general public be permitted to witness court proceedings sufficiently to guarantee that there may never be practiced in this State secret or star-chamber court proceedings, the deliberations of the juries alone excepted . . . . It is not enough to know that in this State there is hardly a chance that bogus indictments for personal spite will be filed in our courts. The preservation of the honor and purity of the courts, the confidence and respect of the public in those courts, and the good name of the citizens must not be left to chance.
Id. at 291; see also State v. Brown, 293 Ga. 493 (2013) (same).
When a grand jury is engaged in its civil duty of inspecting or investigating a county office, O.C.G.A. § 15-12-71(b)(3) authorizes the grand jury to “prepare reports or issue presentments” and O.C.G.A. § 15-12-80 authorizes the grand jury “to recommend to the court the publication of the whole or any part of their general presentments and to prescribe the manner of publication” and “[w]hen the recommendation is made, the judge shall order the publication as recommended.” In re Gwinnett Cty. Grand Jury, 284 Ga. at 511.
Records of grand jury proceedings and identities of grand jurors are exempt from disclosure. I.C.A.R. 32(g)(7). This is consistent with the Idaho Supreme Court’s admonition that “[g]rand jury proceedings are intended, to the extent possible, to be secret.” In re Petition for Review of Hearing Comm. of Prof’l Conduct Bd., 140 Idaho 800, 805, 102 P.3d 1119, 1124 (Idaho 2004):
All grand jurors are required to take an oath that includes the following provision:
You will keep your own counsel, and that of your fellows, and of the government, and will not, except when required in the due course of judicial proceedings, disclose the testimony of any witness examined before you, nor anything which you or any other grand juror may have said nor the manner in which you or any other grand juror may have voted in any matter before you.
I.C. §§ 19–1011 through 1012. A grand juror who violates that oath commits a misdemeanor. I.C. § 18–4403. In addition, Idaho Code § 19–1111 limits the persons who can be present during grand jury sessions. Finally, Idaho Criminal Rule 6.3(b) provides that upon the conclusion of each matter presented to the grand jury, the clerk is to seal the record of the proceedings and that the record is not to be examined by anyone or transcribed except upon order of the district judge.
Consistent with the secrecy of grand jury proceedings, Idaho Criminal Rule 6.3(c) provides, “The district judge may place conditions upon the use, dissemination or publication of the proceedings of the grand jury, and any violation of any such condition by a party granted access to the record shall constitute contempt of the order of the district judge.” The rule refers to a violation of the conditions by “a party granted access to the record.” The reference to “a party granted access” is consistent with the requirement that each person seeking access must obtain court permission.
Indiana Code 35-34-2-4(i) provides for the secrecy of grand jury proceedings:
“Grand jury proceedings shall be secret, and no person present during a grand jury proceeding may, except in the lawful discharge of his duties or upon written order of the court impaneling the grand jury or the court trying the case on indictment presented by the grand jury, disclose:
(1) the nature or substance of any grand jury testimony; or
(2) any decision, result, or other matter attending the grand jury proceeding.
However, any court may require any person present during a proceeding to disclose the testimony of a witness as direct evidence in a prosecution for perjury.”
Although grand jury proceedings “shall be secret,” the presence of an unauthorized person in the grand jury room is not per se grounds for dismissing the indictment. State v. Hardy, 406 N.E.2d 313, 316 (Ind. Ct. App. 1980). Rather, the defendant must show prejudice to his or her substantial rights. Id. Additionally, the Indiana Court of Appeals has held that grand jury proceedings under Indiana Code Section 35-34-2-4(i) include grand jury subpoenas. Pigman v. Evansville Press, 537 N.E.2d 547, 552 (Ind. Ct. App. 1989) (holding that grand jury subpoenas are excepted from public disclosure).
Indiana Code 35-34-2-10(b) provides for the secrecy of grand jury witness testimony:
“(b) The transcript of testimony of a witness before a grand jury may be produced only:
(1) for the official use of the prosecuting attorney; or
(2) upon order of:
(A) the court which impaneled the grand jury;
(B) the court trying a case upon an indictment of the grand jury; or
(C) a court trying a prosecution for perjury;
but only after a showing of particularized need for the transcript.”
However, grand jury transcripts may be disclosed if there is a showing of a “particularized need.” See Hinojosa v. State, 781 N.E.2d 677, 680 (Ind. 2003) (footnote and citations omitted) (“[W]e note that the general rule regarding grand jury transcripts is that they be kept secret. Ind. Code § 35-34-2-4(i) (1998). Indiana does not even recognize an absolute right of the accused to the pre-trial examination of grand jury minutes. In fact, it is a criminal offense to ‘knowingly and intentionally’ disclose information acquired in a grand jury proceeding unless compelled by law. Ind. Code § 35-34-2-10(a) (1998). However, the Legislature has created an exception to the general rule of secrecy by granting trial judges the discretion to release evidence in certain circumstances where a ‘particularized need’ can be shown. See Ind. Code § 35-34-2-10(b) (1998).”
Kansas law specifies who may be present during a grand jury proceeding. According to K.S.A. 22-3010, authorized persons are the “[p]rosecuting attorneys, special counsel employed by the grand jury, the witness under examination and his counsel, [and] interpreters when needed.” In addition, an official reporter may be present “for the purpose of taking the evidence.” The law stipulates that “no person other than the jurors may be present while the grand jury is deliberating or voting.” K.S.A. 22-3010.
Apart from the grand jury, the Kansas attorney general’s office and county and district attorneys have authority to conduct inquisitions to investigate “any alleged violation of the laws.” K.S.A. 22-3101(1) (2007); State v. Cathey, 741 P.2d 738, 744 (Kan. 1987). The purpose of an inquisition may be either to determine probable cause for a criminal prosecution or to gain sworn testimony following an indictment. According to the Kansas Supreme Court, an inquisition is like a “one-person grand jury” and may be closed. Cathey, 741 P.2d at 744.
A Kansas statute limits the conditions under which records of grand jury proceedings may be disclosed, providing that:
[A] juror, attorney, interpreter, reporter or any typist who transcribes recorded testimony may disclose matters occurring before the grand jury only when so directed by the court preliminarily to or in connection with a judicial proceeding or when permitted by the court at the request of the defendant upon a showing that grounds may exist for a motion to dismiss the indictment because of matters occurring before the grand jury. … The court may direct that an indictment shall be kept secret until the defendant is in custody or has given bail, and in that event the clerk shall seal the indictment and no person shall disclose the finding of the indictment except when necessary for the issuance and execution of a warrant or summons.
Grand jury proceedings in Mississippi are confidential, and grand jurors are prohibited from disclosing the nature or substance of their deliberations. “The only persons who may be present in the state grand jury room when a state grand jury is in session, except for deliberations and voting, are the state grand jurors, the Attorney General or his designees, an interpreter if necessary and the witness testifying.” Miss. Code Ann. § 13-7-29.
In Mississippi, “[r]ecords, orders and subpoenas related to state grand jury proceedings shall be kept under seal to the extent and for the time that is necessary to prevent disclosure of matters occurring before a state grand jury.” Miss. Code. Ann. § 13-7-39.
Nevada statutes restrict who may be present when a grand jury is in session.
NRS § 172.235—Who may be present when grand jury is in session:
1. Except as otherwise provided in subsection 2, the following persons may be present while the grand jury is in session:
(a) The district attorney;
(b) A witness who is testifying;
(c) An attorney who is accompanying a witness pursuant to NRS 172.239;
(d) Any interpreter who is needed;
(e) The certified court reporter who is taking stenographic notes of the proceeding;
(f) Any person who is engaged by the grand jury pursuant to NRS 172.205; and
(g) Any other person requested by the grand jury to be present.
2. No person other than the jurors may be present while the grand jury is deliberating or voting.
Grand jury proceedings are deemed secret and only limited disclosures are permitted under NRS § 172.245:
1. The disclosure of:
(a) Evidence presented to the grand jury;
(b) Information obtained by the grand jury;
(c) The results of an investigation made by the grand jury; and
(d) An event occurring or a statement made in the presence of the grand jury other than its deliberations and the vote of a juror, may be made to the district attorney for use in the performance of the district attorney’s duties.
2. Except as otherwise provided in subsection 3, the Attorney General or a member of the Attorney General’s staff, a grand juror, district attorney or member of the district attorney’s staff, peace officer, clerk, stenographer, interpreter, witness or other person invited or allowed to attend the proceedings of a grand jury shall not disclose:
(a) Evidence presented to the grand jury;
(b) An event occurring or a statement made in the presence of the grand jury;
(c) Information obtained by the grand jury; or
(d) The results of an investigation made by the grand jury.
3. A person may disclose his or her knowledge concerning the proceedings of a grand jury:
(a) When so directed by the court preliminary to or in connection with a judicial proceeding;
(b) When permitted by the court at the request of the defendant upon a showing that grounds may exist for a motion to dismiss the presentment or indictment because of matters occurring before the grand jury;
(c) If the person was a witness before the grand jury and is disclosing his or her knowledge of the proceedings to the person’s own attorney; or
(d) As provided in NRS 172.225.
Under NRS § 172.225(6), grand jury transcripts become public as follows:
6. Upon the filing of such a transcript with the county clerk, the transcript and any related physical evidence exhibited to the grand jury become a matter of public record unless the court:
(a) Orders that the presentment or indictment remain secret until the defendant is in custody or has been given bail; or
(b) Upon motion, orders the transcript and evidence to remain secret until further order of the court.
In New Mexico, all deliberations of the grand jury are to be conducted in a private room outside the hearing or presence of any person other than grand jury members. Rule 5-114 NMRA. To this end, the presence of an unauthorized person before a grand jury requires dismissal of the indictment without any requisite showing of prejudice, so as to protect the secrecy of the proceedings and to prevent the possibility of undue influence on witnesses and jurors. Davis v. Traub, 1977-NMSC-049, ¶ 4, 90 N.M. 498, 500, 565 P.2d 1015, 1017. New Mexico courts “presume prejudice in such cases because the structural protections of the grand jury statutes preserve the integrity of the grand jury system and because, as a practical matter, evaluating actual prejudice would require a speculative inquiry and impose a difficult burden on the target and the courts.” Herrera v. Sanchez, 2014-NMSC-018, ¶ 17, 328 P.3d 1176, 1182.
Proceedings of the grand jury, other than its deliberations, are to be recorded and made available to indicted defendants. NMSA 1978, § 31-6-8; State v. Ulibarri, 1999-NMCA-142, ¶ 11, 128 N.M. 546, 550, 994 P.2d 1164, 1168, aff'd, 2000-NMSC-007, ¶ 11, 128 N.M. 686, 997 P.2d 818. Further, “[c]opies of documentary evidence or a summary thereof if directed by the district court exhibited to the grand jury shall be made a part of the record.” NMSA 1978, § 31-6-8. In cases where an indictment is not returned, however, “the notes or transcriptions shall be destroyed unless ordered by the district judge to be preserved for good cause shown, including but not limited to the prosecution of a witness for perjury.” Id.
Otherwise, and pursuant to the New Mexico Local Rules of the First Judicial District Court, grand jury records are confidential, and shall not be transcribed, made public or released by the clerk to any person, except upon written order of the court where law or the interests of justice so require. Local Rule (“LR”) 1-303(A). The audio tapes of the court reporter attending any grand jury are deposited with the clerk of the court within fifteen days after attendance. LR1-303(C). These notes or tapes remain confidential and in the custody of the clerk and are subject to rules relating to records in the custody of the clerk. Id. The Supreme Court of New Mexico has identified the public policy interests in maintaining confidentiality around the proceedings:
“(1) That the grand jurors themselves be secure in freedom from apprehension that their opinions and votes will not be subsequently disclosed; (2) that complainants and witnesses will be encouraged to appear before the grand jury and speak freely without fear that their testimony will be made public, subjecting them to possible discomfort or retaliation; (3) that those persons who are indicted will be prevented from escaping prior to arrest or from tampering with witnesses against them; and (4) to prevent disclosure of derogatory information against persons who have not been indicted.”
State v. Morgan, 1960-NMSC-087, ¶ 4, 67 N.M. 287, 289, 354 P.2d 1002, 1004.
Grand jury proceedings are not open to the public. The Pennsylvania Rules of Criminal Procedure provide who may be present at a grand jury proceeding:
(A) The attorney for the Commonwealth, the alternate grand jurors, the witness under examination, and a stenographer may be present while the investigating grand jury is in session. Counsel for the witness under examination may be present as provided by law.
(B) The supervising judge, upon the request of the attorney for the Commonwealth or the grand jury, may order that an interpreter, security officers, and such other persons as the judge may determine are necessary to the presentation of the evidence may be present while the investigating grand jury is in session.
(C) All persons who are to be present while the grand jury is in session shall be identified in the record,shall be sworn to secrecy as provided in these rules, and shall not disclose any information pertaining to the grand jury except as provided by law.
Pa. R. Crim. P. 231.
Rule 229 of the Pennsylvania Rules of Criminal Procedure provides that “[e]xcept as otherwise set forth in these rules, the court shall control the original and all copies of the [grand jury] transcript and shall maintain their secrecy.” (emphasis added). Rule 230 provides that the transcripts may be released to the attorney for the Commonwealth, the criminal defendant, or another investigative agency under certain conditions.
In light of the principle that grand jury proceedings are not open to the public, Pennsylvania’s intermediate appellate court has held that members of the press do not have a First Amendment or common law right of access to search warrants and sealing orders issued in connection with an investigating grand jury, even in cases where the grand jury’s work has concluded. See In re Allegheny County Investigating Grand Jury, 181 A.3d 349, 357-59 (Pa. Super. 2018).
An investigating grand jury report is a public record to which a statutory right of access applies, under certain circumstances. See, e.g., In re Fortieth Statewide Investigating Grand Jury, 190 A.3d 560, 569 (Pa. 2018) (citing 42 Pa. Cons. Stat. § 4552). The judge presiding over the grand jury is required to file the “report as a public record with the court of common pleas established for or embracing the county or counties which are the subject of such report,” but “only if the report is based upon facts received in the course of an investigation authorized by [the grand jury statute] and is supported by the preponderance of the evidence.” 42 Pa. Cons. Stat. § 4552(b). If the judge determines either that the report is not supported by a preponderance of the evidence or that its disclosure would “prejudice fair consideration of a pending criminal matter,” then the report should be sealed. § 4552(b)-(c). The Pennsylvania Supreme Court has held that, in light of the Pennsylvania Constitution’s guarantee of a person’s right to reputation, any person has a right to due process before being accused of misconduct in a publicly released grand jury report. See, e.g., In re Fortieth Statewide Investigating Grand Jury, 190 A.3d at 573-76. The grand jury statute provides that“[i]f the supervising judge finds that the report is critical of an individual not indicted for a criminal offense, the supervising judge may in his sole discretion allow the named individual to submit a response to the allegations contained in the report. The supervising judge may then in his discretion allow the response to be attached to the report as part of the report before the report is made part of the public record . . . .” 42 Pa. Cons. Stat. § 4552(e).
In 2018, the Pennsylvania Supreme Court considered petitions filed by several priests who sought to have their names redacted from a grand jury report detailing allegations of child sex abuse within the Roman Catholic Church. See, e.g., In re Fortieth Statewide Investigating Grand Jury, 190 A.3d at 573-76. The priests argued that disclosure of their names would deprive them of their right to reputation without adequate due process. Id. at 572. The Supreme Court issued two opinions in which it ultimately agreed with the priests and ordered that their names be permanently redacted from the report. See In re Fortieth Statewide Investigating Grand Jury I, 190 A.3d 560 (Pa. 2018); In re Fortieth Statewide Investigating Grand Jury II, --- A.3d ---, 2018 WL 6287910 (Pa. Dec. 3, 2018).
In its first opinion, the Supreme Court made clear that redaction of an accuser’s name from a grand jury report will not always be required. See Fortieth Statewide Investigating Grand Jury I, 190 A.3d at 564. Instead, it distinguished between a grand jury report “that is designed to address general welfare concerns, but may have a collateral impact on reputational rights,” and a report by a grand jury like the one at issue, which had “a primary objective . . . to publicly censure the conduct of specific individuals.” Id. at 573-74. Where the latter is involved, “increased procedural protections are implicated in the interest of fundamental fairness.” Id. at 574. The Supreme Court acknowledged that the Grand Jury Act allowed the priests to submit rebuttal statements for inclusion in the report, see 42 Pa. Cons. Stat. § 4552(e), but decided that such a remedy was “not sufficiently effective” in this instance, because the report itself was 900 pages, and it impugned individual priests as “predator[s] or facilitator[s] alongside more than 300 others amidst the hierarchy of a religious institution.” Fortieth Statewide Investigating Grand Jury I, 190 A.3d at 574. Likewise, the Court held that the Act’s provision for “preponderance-of-the-evidence review by a supervising judge” was “not a sufficient safeguard to obviate the necessity to provide [the priests] an opportunity to respond to the grand jury’s criticism in a meaningful way.” Id. at 575. Given those unique circumstances, the Supreme Court ordered additional argument on the availability of alternative measures, short of permanent redaction, that would comply with due process. Id. at 575-76.
After hearing additional argument, the Supreme Court issued a second opinion holding there were no such available alternative measures under the case’s unique circumstances, most notably that the term of the grand jury that issued the report had expired. See In re Fortieth Statewide Investigating Grand Jury II, 2018 WL 6287910, at *6-7. The Supreme Court noted that the Grand Jury Act did not permit the “extraordinary measure” of reconvening the grand jury to hear additional evidence. See id. at *6. It further concluded that the Grand Jury Act did not permit the supervising judge to hear additional evidence, and that even if it did, “such a process would be fraught with problems rooted in the nature and character of the divergent type of evidence the supervising judge would be forced to evaluate.” Id. at *7. Consequently, pursuant to its “inherent judicial authority” to address “deprivation of an individual’s due process rights,” the Supreme Court ordered that the priests’ names be permanently redacted. Id. at *7-8. The Supreme Court’s decision did not establish a per serule that will always require redaction, so it is unclear what impact, if any, the decision will have on future grand jury reports.
Wisconsin’s statutes do not contain a grand jury process. Instead, a district attorney or any other person may request that a judge convene a “John Doe” proceeding, under Wis. Stat. § 968.26, to determine whether a crime has been committed. John Doe proceedings generally are not open to the public. See Wis. Stat. § 968.26(4)(a): "The judge may enter a secrecy order upon a showing of good cause by the district attorney."
See State ex rel. Jackson v. Coffey, 18 Wis. 2d 529, 118 N.W.2d 939 (Wis. 1963): "Although the sitting of the court for this purpose [John Doe proceeding] need not be public …."
See also State v. Washington, 83 Wis. 2d 808, 266 N.W.2d 597 (Wis. 1978) (holding that John Doe judge did not deny defendant due process when he held contempt proceedings as part of closed John Doe investigation).
But see State ex rel. Newspapers, Inc. v. Circuit Court for Milwaukee County, 65 Wis. 2d 66, 221 N.W.2d 894 (Wis. 1974) (Motion to compel witness to testify or produce documents at John Doe proceeding must be heard in open court); see also State ex rel. Niedziejko v. Coffey, 22 Wis. 2d 392, 126 N.W.2d 96 (Wis. 1964): "Hearings to grant immunity [in John Doe proceedings] must be public and in open court except as provided in sec. 256.14 [predecessor to Wis. Stat. § 757.14]."
See Wis. Stat. § 968.26(4)(b):
If a judge enters a secrecy order under par. (a), the judge shall terminate that secrecy order if any person applies to the judge for the termination and establishes that the good cause shown under par. (a) no longer exists. If a judge terminates a secrecy order entered under par. (a), the identity of the subject of the proceeding under this section may not be disclosed without the subject’s consent, except as provided in par. (c) [if a criminal complaint is filed].