C. Grand jury proceedings and records
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).
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.
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].