A federal grand jury witness, recalled to testify before the grand should have a right to examine the transcript of his or her prior testimony. Up to now courts have rarely granted such requests. The Department of Justice has consistently opposed any such disclosures. The D.C. Circuit in a recent ground breaking case has opened the door to permit witnesses to examine their prior testimony, with certain limitations.
Some background is necessary. Federal Grand jury transcripts are secret and are protected from discovery by Rule 6(e), Federal Rule of Criminal Procedure. For an authorized disclosure of grand jury material, a threshold requirement is that the disclosure must be “preliminary to or in connection with a judicial proceeding”. Rule 6(e)(3)(E)(i), Federal Rule of Criminal Procedure. A disclosure to a witness of his or her prior grand jury testimony to prepare for a subsequent grand jury appearance would be in connection with a judicial proceeding. …“[It] is well settled that a grand jury hearing is a judicial proceeding within the scope of Rule 6(e)…” and Rule 6(e)… “may … support disclosure ‘in connection with’ the grand jury’s own proceedings.” In re 1979 Grand Jury Proceedings, 479 F.Supp. 93 (E.D.N.Y 1979). In order to gain access to grand jury transcripts an applicant must show particularized need, and must demonstrate that the need for disclosure outweighs the need for continued secrecy. Douglas Oil Co. v. Petrol Stops N.W., 411 U.S. 211 (1979).
Witness requests to obtain transcripts of their own prior testimony have generally been denied by the courts. See, Bast v United States, 542 F.2d 893, (4h Cir 1976); In re Bianchil, 542 F.2d 98, (1st Cir. 1976). In a divided panel decision the Seventh Circuit held that grand jury witnesses may not obtain copies of the transcripts of their own testimony. United States v Clavely, 565 F.2d 111 (7th Cir. 1977), affirmed by an equally divided en banc panel, 578 F.2d 1219 (7th Cir. 1978). The Ninth Circuit permitted a witness to examine his prior testimony in United States v. Bursey, 466 F.2d 1059 (9th Cir. 1972), finding it unfair that grand jury and prosecutor could review witness’ prior testimony but the witness could not. The court In re Sealed Motion, 880 F.2d 1367, 1368 (D.C. Spec Div. 1989) permitted witnesses to obtain transcripts of their own testimony which was alluded to in the report of a special prosecutor. The unique factual situation of the case is not precedent for the issue discussed in this article. I am also aware of a situation in a recent case in the District of Columbia where the court permitted a witness who was recalled to the grand jury numerous times to examine the transcript of his prior testimony. That matter remains under seal and cannot be further disclosed. The Third Circuit has not directly ruled upon the exact issue, except in an non precedential factual situation in United States v Rose, 215 F.2d 617 (3d Cir. 1954). In summary, until now the right of a witness to obtain the transcript of his or her prior grand jury testimony has been very doubtful. The United States Attorney’s Office in the Eastern District of Pennsylvania adheres to Department of Justice policy, and generally will not give a witness a transcript of his or her prior grand jury testimony, and will oppose a petition to the court by a witness to obtain a transcript.
A recent ground breaking case is In Re Grand Jury, 490 F.3d 978 (D.C. Cir. 2007). That case involved grand jury subpoenas for two corporate employees who were recalled to testify before a grand jury, one for a second time, the other for a fourth time. Both made requests to the district court to review a transcript of their prior testimony. Both applications were denied and both appealed. As a procedural matter the circuit court held that the lower court’s denials of the applications for disclosure was a “final decision” under 28 USC 1291, and were appealable, without first having to suffer contempt for failure to testify before the grand jury.
The court, with concurrence of the parties, decided to weigh the competing interests, for and against disclosure, as the court would do in assessing third party requests for the transcripts, but interestingly did not require the moving parties to meet a particularized need standard, as required by Douglas Oil Co.
Aside from the obvious advantage of being able to prepare for his or her second grand jury appearance, the court noted that a grand jury witness needed to use the prior transcripts to avoid being charged with making false declarations in violation of 18 USC 1623(a) for making two materially inconsistent statements in his or her testimony. Under that statute the government need not prove which statement is false, 18 USC 1623(c). The court also noted that a witness is permitted to recant prior grand jury testimony without legal penalty pursuant to 18 USC 1623(d), but would have difficulty doing so without the aid of the prior transcript.
The court expressed considerable interest in the government’s argument about witness intimidation. The court recognized that witness intimidation is a serious problem in the criminal justice system, and credited the government’s argument that if a witness could routinely obtain the transcript of his or her prior testimony, an interested third party with influence over the witness, could pressure the witness to permit that party to gain access to the transcript, citing Justice Brennan’s dissent in United States v. John Doe, Inc., 481 U.S. 102, 125 (1987). In this regard, the court cited without quoting, In re Alvarez, 351 F. Supp. 1089, 1090-91 (S.D. Cal. 1972). In Alvarez the court said, “…[I]t is also true that [a witness] may claim [to interested third parties] without fear of contradiction that he gave no useful testimony. In absence of a transcript, this denial cannot be refuted.” The court also credited the government’s argument that a witness’s fear of being forced to disclose the transcript to an intimidating third party could deter the witness from testifying freely in the first place.
As a former career federal prosecutor I am sympathetic to the application of the foregoing arguments in certain investigations. Prosecutors believe that witnesses in an organized crime case are often supplied lawyers who are more loyal to the crime family than the client, and will report back to the family if the witness gives testimony implicating the higher ups in the family. Joel Friedman, former Attorney in Charge of the Philadelphia Strike Force on Organized Crime, and now in practice in Philadelphia said, “If the witness is entitled to a transcript of his or her testimony organized crime bosses will expect disclosure to them, and any refusal to do so will be regarded as a betrayal.” Patrick L. Meehan, United States Attorney for the Eastern District of Pennsylvania said, “While it is true that the grand jury secrecy rules generally do not prevent the witness from telling anyone about the witness’ experience before the grand jury, there is material difference about what a witness may choose to speak about concerning his/her grand jury experience and the actual questions and answers as they appear on a grand jury transcript.” Prosecutors feel the same scenario occurs in a union corruption case where union members called to testify are represented by attorneys hired by the union leaders. The lower court in the John Doe case felt that the problem of intimidation extended to corporate employees called to testify in an investigation of corporate corruption who would fear retaliation by corporate higher ups. Prosecutors feel the grand jury secrecy regarding non disclosure of the witnesses statements permits witness candor that would not be possible if the witness could readily obtain a copy of his or her testimony.
After weighing the interests of the witness and the government, the Court held that the witness was entitled to review the transcripts of his or her prior testimony in the privacy of the United States Attorney’s Office or some other secure private location. The court reasoned that even if an interested third party confronted the witness with questions about the substance of his or her testimony, the witness’ response would not change if the witness had simply reviewed his or her testimony in private. The court specifically did not rule on whether the witness was entitled to a copy of the transcript, but read in the context of the opinion, it is unlikely that a copy would be supplied to a witness. The court left to the discretion of the district court whether to allow the witnesses’ attorneys to accompany them, or whether the witness or the attorneys could take notes.
Creed C. Black, Jr., a Philadelphia defense attorney was critical of these restrictions. “Once you accept that the witness has a right to read his own transcript, it’s hard to justify putting blinders on counsel. The task of advising federal grand jury witnesses is tough enough. The federal grand jury system won’t crumble over permitting the lawyer to read the transcript with his or her client. There should be a presumption of access by counsel. If the government fears some compromise of its investigation, the courts can make exceptions in extraordinary cases.”
In a similar situation, in a formal non-public investigative proceeding, the SEC may deny a witness a transcript of his or her testimony, but will always permit a witness to examine a transcript of the testimony. See 17 CFR 203.6.
As a former federal prosecutor, I agree with the court’s limited ruling, and especially permitting the district court to decide whether the attorneys should accompany their clients. I am of the opinion the witness alone should review his or her prior testimony. This will be sufficient to refresh recollection yet still protect the secrecy of the grand jury. I predict the decision of the D.C. Circuit in John Doe will be adopted by other courts with similar restrictions on the disclosure of transcripts.
The author served as United States Attorney for the Eastern District of Pennsylvania from 1978-1983, and as Career Attorney in the Department of Justice Organized Crime Section, for ten years, most of which as Chief of the Chicago Strike Force.
