Federal Evidence Review

A divided panel adopts “a less demanding standard” for allowing grand jury witnesses access to their grand jury testimony; majority distinguishes prior precedent and higher standard applying to witness requesting a copy of their grand jury testimony, In re: Grand Jury Appeal from the United States District Court for the District of Massachusetts, 566 F.3d 12 (1st Cir. 2009) (No. 08-1880)

Grand jury testimony represents an important area of evidence. Access to grand jury testimony is governed by rules of secrecy under Fed. R. Crim. P. 6. Under what circumstances can a non-target witness have access to his or her prior grand jury testimony? The First Circuit recently addressed this issue, reversing the district court’s denial of a request for access the witness’s grand jury transcript.

In the case, the witness received a federal grand jury subpoena for testimony and documents. After the witness initially indicated he would claim his Fifth Amendment right against self-incrimination, the government obtained an order for use immunity, under 18 U.S.C. §§ 6002, 6003, compelling him to testify. The witness testified before the grand jury for about three hours and fifteen minutes and was questioned by three Assistant U.S. Attorneys. The witness was repeatedly warned that the use immunity order did not protect him from being prosecuted for committing perjury. Some of the events he was questioned about occurred in 1999. The witness was directed to return for further questioning before the grand jury the following week.

The witness requested a delay of two more weeks. During this time, the witness requested a chance to review his grand jury testimony before reappearing before the grand jury. The request was denied. An emergency motion for access to the first grand jury transcript was filed under Fed. R. Crim. P. 6(e)(3)(E)(i) (permitting court disclosure of grand jury materials "preliminarily to or in connection with a judicial proceeding"), or alternatively, based on a particularized need made by the repeated perjury warnings and complexity of the areas under investigation. The witness cited to a recent D.C. Circuit opinion allowing a grand jury witness to review their grand jury transcript, under Fed. R. Crim. P. 6(e)(3)(E)(i). See In re Grand Jury, 490 F.3d 978, 980, 990 (D.C. Cir. 2007).

The government countered that the issue was controlled by First Circuit precedent, under In re Special Proceedings, 373 F.3d 37, 47 (1st Cir. 2004). At a hearing on the same day, the district court noted that "at least at first reading I agree with the reasoning of the D.C. Circuit case," but concluded that it was bound by First Circuit precedent:

“I do not find that there is a particularized need here, that is, as I interpret the case law, as to what is required to show a particularized need; that there are three unusual aspects to this: The first is that the testimony spread over two days or more than one day; the second is that the witness was confronted by the prosecutor and given perjury warnings about the accuracy of some of his statements; and the third is that the subject matter is quite complex. While to some extent those facts are unusual, they're not highly unusual, and I don't think under the [In re] Bianchi, [542 F.2d 98 (1st Cir. 1976)] and In Re: Special Proceedings line of cases are enough to show particularized need.”

In re: Grand Jury Appeal, 566 F.3d at 15 (quoting district court ruling). The emergency motion was denied. At the next grand jury hearing, the witness appeared and refused to answer questions before the grand jury. The government requested civil contempt proceedings, under 28 U.S.C. § 1826. The district court granted the petition for contempt but stayed the order pending any appeal.

On appeal, a divided First Circuit panel adopted “a less demanding standard” for allowing grand jury witnesses access to their grand jury testimony. The majority opinion was authored by Circuit Judge Torruella, and joined by Circuit Judge Stahl. In doing so, the majority did not adopt the D.C. Circuit position but was persuaded by its analysis:

“The appellant contends that the D.C. Circuit's reasoning in Grand Jury supports his claim of a less demanding standard, since he seeks the same access to a transcript of his own testimony that the D.C. Circuit permitted. We agree. To be clear, we do not adopt the D.C. Circuit's holding that a grand jury witness is entitled to access to a transcript of his grand jury testimony. Instead, we hold that, in light of the considerations supporting the D.C. Circuit decision and our own review of our precedent, a less demanding requirement of particularized need applies when a grand jury witness demands access to a transcript, rather than a copy of the transcript.”

In re: Grand Jury Appeal, 566 F.3d at 17-18 (footnote omitted). The majority distinguished its prior precedent as involving “grand jury witnesses seeking copies of their transcript, while the appellant seeks only access, understood as an opportunity to review the transcript.” In re: Grand Jury Appeal, 566 F.3d at 18 (emphasis in original).

The circuit majority noted the interests that weighed in the balance. First, the witness had “an interest in avoiding inaccuracies and inconsistencies that may subject them to a potential perjury prosecution,” which is heightened by multiple appearances before the grand jury over a period of time. The interest in accuracy is both “personal to the witness” and also “systemic, as both the courts and the government have a substantial interest in ensuring the accuracy of grand jury testimony.” In re: Grand Jury Appeal, 566 F.3d at 19.

A counter interest is that traditional grand jury secrecy may be diminished. A witness does not hold an obligation of secrecy. The majority acknowledged concerns that a witness may be intimidated to reveal grand jury testimony but concluded this issue was less likely where the witness was only give access, but not a copy, to the grand jury testimony. Finally, the majority noted that efficiencies were advanced by permitting access to the grand jury transcript. The majority concluded that “the cost of providing a transcript, which must be created anyway, and the slight delay caused by the review of the transcript would not impede an investigation significantly.” In re: Grand Jury Appeal, 566 F.3d at 21.

The majority clarified that access to the grand jury transcript did not authorize note taking:

“We conclude by noting that our ‘less demanding’ standard of particularized need does not apply to appellant's request to take notes. Permitting notetaking blurs the line between the access and copy contexts, since one can imagine an appellant transcribing his transcript and, in effect, creating a copy. Thus, our requirement of a strong showing of particularized need applies equally to the notetaking context.”

In re: Grand Jury Appeal, 566 F.3d at 21 (footnote omitted).

The district court erred in denying access to the grand jury testimony. The less demanding standard for particularized need was met in the case as “the threats of perjury prosecution, combined with the complexity of the witness's testimony, supplies the necessary particularized need to permit access.” In re: Grand Jury Appeal, 566 F.3d at 22. The district court ruling was reversed and the case was remanded to allow the grand jury witness to have access to his first grand jury testimony transcript.

Circuit Judge Howard dissented, noting “the majority's conclusion is contrary to our precedent, unwise as a matter of policy, and insupportable on this record.” In re: Grand Jury Appeal, 566 F.3d at 24 (Howard, J., dissenting).

Given the spirited dissent, and split in the circuits in addressing this issue, it seems unlikely that the majority opinion may be the last word on the appropriate standard to apply for allowing a grand jury witness access to their grand jury testimony. Congress also has authority to amend the Federal Rules of Criminal Procedure and could address an issue that the dissent described as one in which “[n]either the Federal Rules of Criminal Procedure nor Supreme Court precedent specifically address the circumstances in which a non-defendant grand jury witness may access his testimony, regardless of the format of such access.” In re: Grand Jury Appeal, 566 F.3d at 23 (Howard, J., dissenting).