Grand jury secrecy represents one of the oldest continuous legal traditions in Anglo-American jurisprudence. While the grand jury itself has evolved significantly over the centuries, the principle of maintaining secrecy around its proceedings has remained a cornerstone of the institution. This article examines the historical origins of grand jury secrecy, its development through English common law to the American legal system, the codification of secrecy rules, and the contemporary legal principles that govern this important aspect of criminal procedure.
Historical Origins
Ancient Precursors
The concept of citizen groups providing accusations or conducting investigations has ancient origins. Some historians trace early versions of the grand jury to Athens, Greece, where citizens developed accusations against suspected wrongdoers. Others identify elements of citizen investigation in early Teutonic peoples, including Anglo-Saxons and Scandinavians. The French also developed a similar concept in the "King's Audit," which involved citizens who were sworn to provide fiscal information related to the kingdom's operations.
Medieval England and the Birth of the Grand Jury
The historical roots of the grand jury as we know it today are deeply embedded in the common law, with connections to pre-Norman England, Athens, and the Assize of Clarendon issued by King Henry II. Some legal historians, notably Richard Helmholz, trace the grand jury's specific origins to the Assize of Clarendon in 1166, enacted during the reign of Henry II of England. Others note that a form of grand jury may have been used during the reign of Æthelred the Unready (978-1016).
Henry II's primary impact on developing the English monarchy was increasing the jurisdiction of royal courts at the expense of feudal courts. To make the royal criminal justice system more effective, Henry employed the inquest method used by William the Conqueror in the Domesday Book, where important men in each shire were sworn (juré) to report to the sheriff all crimes committed since the last circuit court session.
During the reign of Henry II (1154-1189), the king assembled 12 "good and lawful men" in each village to reveal the names of those suspected of crimes. The oath taken by these early jurors provided that they would carry out their duties faithfully, would not aggrieve anyone through enmity nor show deference through love, and importantly, would conceal the matters they had heard. This early requirement for confidentiality represents one of the first documented instances of grand jury secrecy.
By 1290, these accusing juries were given expanded authority to inquire into the maintenance of bridges and highways, defects of jails, and whether the Sheriff had improperly detained anyone who should have been brought before the justices.
"Le Grand Inquest" further evolved during the reign of Edward III (1368), when the "accusatory jury" increased in number from 12 to 23 members, with a majority needed to return an indictment.
Secrecy Principles in Early Grand Juries
The principle of secrecy in grand jury proceedings developed gradually but became firmly established by the late medieval period. Several key factors drove the evolution of grand jury secrecy:
1. Protection of the innocent accused from disclosure of accusations before a determination of probable cause
2. Ensuring freedom for grand jurors in their deliberations, free from outside influence
3. Prevention of witness tampering or subornation of perjury
4. Encouraging full and frank disclosures by witnesses with information about crimes
5. Protecting those exonerated from the stigma of investigation
Grand Juries in Colonial America
In the American colonies, the grand jury appears to have been first mentioned in the Charter of Liberties and Privileges of 1683, passed by the first assembly elected in the New York colony. This provision established "That in all Cases Capital or Criminal there shall be a grand Inquest who shall first present the offence."
The Massachusetts Bay Colony impaneled the first grand jury in America in 1635 to consider cases of murder, robbery, and wife beating. By the early 1700s, colonial grand juries had demonstrated their independence from royal authority, famously refusing to indict leaders of the Stamp Act protests in 1765 and declining to bring libel charges against the editors of the Boston Gazette that same year.
During the American Revolution, grand juries played an indispensable role by challenging the Crown and Parliament. They actively supported independence by indicting British soldiers, refusing to indict colonists who criticized the crown, proposing boycotts, and advocating support for the war after the Declaration of Independence.
The grand jury's importance in American jurisprudence was confirmed when it was included in the Fifth Amendment to the Constitution, which states that "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury..." The Supreme Court has recognized that the Framers, most trained in English law and traditions, "accepted the grand jury as a basic guarantee of individual liberty" and as a "barrier to reckless or unfounded charges."
Codification of Grand Jury Secrecy Rules
The secrecy principles that had developed through common law were eventually codified in the United States. Federal Rule of Criminal Procedure 6(e) now governs grand jury secrecy in federal courts. The rule states the following key principles:
Federal Rule of Criminal Procedure 6(e)
Rule 6(e)(2)(B) explicitly requires that the following people must not disclose matters occurring before the grand jury:
(i) a grand juror;
(ii) an interpreter;
(iii) a court reporter;
(iv) an operator of a recording device;
(v) a person who transcribes recorded testimony;
(vi) an attorney for the government; or
(vii) other government personnel to whom disclosure is made.
The rule provides specific exceptions for disclosure under certain circumstances, including to government attorneys performing their duties, other government personnel assisting the attorney, preliminary to or in connection with a judicial proceeding, at a defendant's request to dismiss an indictment, or for state criminal law enforcement.
The Advisory Committee notes on the 1944 adoption of Rule 6 stated that it "continues the traditional practice of secrecy on the part of members of the grand jury, except when the court permits a disclosure." Notably, from the beginning, the rule recognized that "witnesses are not under an obligation of secrecy" - a principle that continues today.
Legal Principles of Grand Jury Secrecy
The Supreme Court and various federal courts have established and refined the legal principles governing grand jury secrecy through a series of significant decisions. These rulings have balanced the need for secrecy against competing interests such as a defendant's right to a fair trial and the need for transparency in certain circumstances.
Core Legal Principles
1. **Presumption of Secrecy**: The Supreme Court has recognized the "long established policy that maintains the secrecy of the grand jury in federal courts." This presumption of secrecy is a foundational principle.
2. **Limits on Disclosure**: Courts have generally held that "courts can authorize disclosure of grand jury matters only if one of the express exceptions in Rule 6(e) applies." However, some federal courts have determined that the list of exceptions is not exclusive and that courts have "inherent authority" to permit disclosure in circumstances not expressly provided for in the Rule.
3. **Balancing Tests**: When considering whether historical grand jury records should be released, courts have balanced "the public interest in grand jury secrecy against the historical interests in disclosure."
4. **Contempt Sanctions**: Violations of grand jury secrecy can result in contempt charges. Under 18 U.S.C. §401, a court has the power to punish contempt of its authority, including disobedience of its lawful orders or rules.
5. **Witness Exception**: While Rule 6(e) imposes secrecy on jurors, court personnel, and prosecutors, witnesses who testify before a grand jury are notably not under any obligation of secrecy. A witness "can tell anyone about what you said and what you heard during the grand jury, including the target."
6. **Protection of Deliberations**: Rule 6(d)(2) specifies that "No person other than the jurors, and any interpreter needed to assist a hearing-impaired or speech-impaired juror, may be present while the grand jury is deliberating or voting." This represents the most stringent secrecy protection, with virtually no exceptions.
State Variations in Grand Jury Secrecy
While Federal Rule of Criminal Procedure 6(e) establishes the secrecy standard for federal grand juries, states have developed their own rules and statutes governing grand jury secrecy. These state rules vary in terms of the types of information they protect and the kinds of exemptions they provide.
For example, some state rules apply secrecy obligations to grand jury witnesses, while others do not. Most state rules explicitly provide that violations of grand jury secrecy are punishable by contempt, making this remedy widely accepted nationwide.
Historical Evolution of Grand Jury Secrecy in Modern Times
Grand jury usage and secrecy rules have evolved differently across jurisdictions. In England, the grand jury was partially abolished in 1933 and completely eliminated in 1948. In contrast, the United States continues to preserve the grand jury system, with the Fifth Amendment safeguarding the right to a grand jury indictment for serious crimes in federal courts.
However, even in the United States, the federal criminal code permits prosecutors to initiate cases without grand jury indictments if the accused waives this right, except in capital cases. Additionally, the Supreme Court has held that the Fifth Amendment grand jury requirement does not apply to state courts, giving states flexibility in their use of grand juries.
Recognized Purposes for Disclosing Grand Jury Testimony
While secrecy is the foundational principle of grand jury proceedings, Federal Rule of Criminal Procedure 6(e) and case law recognize several important exceptions where disclosure is permitted or even necessary. These exceptions reflect a careful balancing of competing interests and recognition that absolute secrecy would sometimes impede justice rather than serve it.
1. Disclosure to Government Attorneys and Personnel
Under Rule 6(e)(3)(A), grand jury materials may be disclosed to "attorneys for the government for use in performing that attorney's duty" and to government personnel deemed necessary to assist in enforcing federal criminal law. This includes:
- Federal prosecutors working on the case
- Law enforcement officers assisting with the investigation
- Support staff and analysts helping prosecutors evaluate evidence
- State, local, or tribal officials assisting federal prosecutors
2. Judicial Proceedings
Rule 6(e)(3)(E)(i) permits courts to authorize disclosure "preliminarily to or in connection with a judicial proceeding." This exception allows grand jury material to be used when needed in subsequent court proceedings.
3. Defendant's Request
Under Rule 6(e)(3)(E)(ii), disclosure may be permitted "at the request of a defendant who shows that a ground may exist to dismiss the indictment because of a matter that occurred before the grand jury." This provision helps protect defendants' rights by allowing them to challenge potentially improper grand jury proceedings.
4. Subsequent Grand Jury Proceedings
Rule 6(e)(3)(C) permits an attorney for the government to "disclose any grand-jury matter to another federal grand jury." This allows evidence gathered by one grand jury to be presented to another, ensuring continuity in complex investigations.
5. State and Foreign Criminal Investigations
Courts may permit disclosure at the government's request if the matter may disclose a violation of state, tribal, or foreign criminal law, allowing sharing with appropriate officials for the purpose of enforcing those laws (Rule 6(e)(3)(E)(iv)).
6. National Security and Intelligence Matters
Under Rule 6(e)(3)(D), grand jury materials involving foreign intelligence, counterintelligence, or foreign intelligence information may be disclosed to appropriate federal officials for national security purposes. This includes information related to threats of attack, terrorism or sabotage concerns, and clandestine intelligence activities of foreign powers.
7. Military Criminal Proceedings
Rule 6(e)(3)(E)(v) allows courts to permit disclosure "at the request of the government if it shows that the matter may disclose a violation of military criminal law under the Uniform Code of Military Justice," as long as the disclosure is to an appropriate military official.
8. Historical Significance
Some courts have recognized an "inherent authority" to release grand jury materials of exceptional historical significance, balancing the public interest in grand jury secrecy against historical interests in disclosure. However, this remains contested, as the Eleventh Circuit held in Pitch v. United States (2020) that "the list of circumstances in Rule 6(e) was exhaustive, and district courts lacked an inherent power to order the disclosure of grand jury records" beyond the enumerated exceptions.
9. Congressional Oversight
The question of congressional access to grand jury materials has been debated, with some arguing that disclosure to congressional committees "with legitimate oversight functions would not violate separation-of-powers principles." However, Rule 6(e) does not explicitly address this scenario, making it a contested area of law.
10. Witness Self-Disclosure
Notably, "witnesses who testify before a grand jury are under no obligation of secrecy" and can disclose the content of their own testimony to anyone, including the target of the investigation. This significant exception to the general rule of secrecy has been recognized since the adoption of Rule 6 in 1944, which stated that "the rule does not impose any obligation of secrecy on witnesses."
Each of these disclosure purposes reflects careful balancing of competing interests: the historical need for grand jury secrecy against the practical requirements of justice, law enforcement, and governance. Courts generally require a "particularized need" for disclosure that outweighs the public interest in secrecy before granting access to grand jury materials.
Contemporary Debates on Grand Jury Secrecy
Contemporary legal scholars and practitioners continue to debate the appropriate balance between grand jury secrecy and other values such as transparency, legitimacy, and procedural justice. Some argue that maintaining secrecy is essential to the grand jury's function, while others contend that increased transparency would enhance public trust in the criminal justice system.
Critics of the current grand jury system argue that secrecy "reduces the accountability and transparency into the process" and allows prosecutors too much influence. Some advocate for reforms such as allowing defendants to have legal representation during grand jury proceedings and ensuring grand juries are more representative of their communities.
Conclusion
Grand jury secrecy has endured as a fundamental principle in American criminal procedure for over four centuries, tracing its origins to medieval England and ancient systems of justice. While the specific rules governing secrecy have evolved, the core justifications—protecting the innocent, ensuring juror independence, preventing witness tampering, encouraging witness candor, and safeguarding investigations—remain largely unchanged.
The tension between secrecy and transparency continues to shape debates about the grand jury's role in modern society. As new challenges emerge, including questions about releasing historically significant grand jury materials and concerns about accountability, the legal system will need to continue refining the balance between these competing interests while maintaining the grand jury's essential function as a shield against unfounded prosecutions.
The History and Legal Principles of Grand Jury Secrecy
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By
VanHo Law
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