Grand juries play by their own rules

Grand juries are groups of jurors that decide whether there is enough evidence to take a defendant to trial. Since the 17th century, grand jury proceedings have been closed to the public, and records of these proceedings have been kept from the public eye. The secrecy rule, adopted from England, has become an integral part of the American criminal justice system. For this reason, courts have made clear that there is no First Amendment right of public access to grand jury proceedings. Participants, except witnesses, generally are forbidden from disclosing matters related to the grand jury, even after the grand jury’s activities have concluded.

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 same is true of court proceedings on matters affecting the grand jury. For example, contempt hearings for witnesses who have refused to testify in front of a grand jury are often held behind closed doors.

One exception to the rule of grand jury secrecy concerns witnesses. The federal rule governing grand jury secrecy places no restriction on witnesses, and “individuals called as witnesses may disclose whatever they wish to the media.” (U.S. v. Lovecchio). Some courts, however, permit grand jury witnesses to divulge only what they knew before they testified.

Other exceptions to this secrecy exist in some states. For example, where a California court “finds that the subject matter of the investigation affects the general public welfare” it may direct the grand jury to conduct its investigation in public sessions. (Cal. Penal Code § 939.1).

Another installment of the Secret Justice series deals with the problem of grand juries in depth. It can be found at www.rcfp.org/secretjustice/grandjuries/index.html.