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I’ve been following US news lately, and am quite confused about something that keeps coming up: why can’t grand jury testimony be released?

William Barr and others keep mentioning that a lot of the Mueller Report can’t be released because of this being true. Does this apply only to testimony in hearings about people who weren’t indicted or does it apply to all grand jury testimony? Why do these rules exist?

31

Federal grand jury testimony is kept secret due to grand juries operating under far less strict legal standards and proceedings than a typical jury trial, as their primary duty is not to convict an individual but to grant authority to the US Attorney General to pursue charges against an individual, as per the Fifth Amendment:

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 grand jury panel is led by the prosecution, not an impartial judge. The defendant is forbidden from presenting their case against the prosecution; in fact, the defendant will frequently not even be notified a grand jury has been convened against them. The grand jury is instructed to return an indictment if 12 of the 16-23 members find "probable cause" of a crime, not the "beyond reasonable doubt" standard of a typical trial where 12 jurors must unanimously agree.

This means, in their duty to grant authority to federal government to pursue charges, the grand jury is inherently one-sided. The defendant does not have the opportunity to defend themselves until the regular trial, at which point any relevant information used in the grand jury panel will have to be re-introduced to the case as part of normal legal proceedings.

The preliminary and non-enforceable nature of grand jury panels was part of the rational for the Supreme Court upholding the secrecy of grand juries in Douglas Oil Co. of Cal. v. Petrol Stops Northwest in 1979. Justice Powell writing for the majority stated:

First, if preindictment proceedings were made public, many prospective witnesses would be hesitant to come forward voluntarily, knowing that those against whom they testify would be aware of that testimony. Moreover, witnesses who appeared before the grand jury would be less likely to testify fully and frankly, as they would be open to retribution as well as to inducements. There also would be the risk that those about to be indicted would flee, or would try to influence individual grand jurors to vote against indictment. Finally, by preserving the secrecy of the proceedings, we assure that persons who are accused but exonerated by the grand jury will not be held up to public ridicule.

There are court cases prior to that ruling that do allow for the disclosure of grand jury transcripts with certain restrictions, such as the 1958 case United States v. Procter & Gamble Co. which allows a private party to obtain transcripts if their defense would be greatly prejudiced without access to those transcripts, the 1966 case Dennis v. United States which found the First Amendment protections that enables grand jury panel witnesses to publicly discuss their testimony allows for public dissemination of their testimony, or the Jencks Act which releases grand jury testimony of a witness to the defense after said witness testifies in open trial, however these disclosures primarily deal with the use of grand jury testimony in further legal proceedings, and do not yet include any release of on the basis of public interest alone.

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Grand juries are used to determine if there is enough evidence to bring a case to trial. Even if they decide there is enough evidence to bring a case to trial, the State may not be able to prove that the accused committed a crime. We all (well, at least most people) agree that if a person is not found guilty then the State shouldn't punish them. If the grand jury decides that there is not enough evidence, then the State certainly can't prove beyond reasonable doubt that the accused is guilty. Releasing the grand jury testimony to the public would only serve to harm the accused's reputation and good name, in essence a way to punish the accused without the State having to prove anything. It's for this reason that grand juries are generally convened in secret, with the subjects of them rarely knowing that there's even a trial about them. The goal is to prevent people from unfairly having their reputations tarnished and reduce the harm that can be done by the government.

In this particular case, I think that the benefit to the nation likely outweighs the unfair harm done by the State, but that's not really something that we want to generalize.

  • 2
    +1 for focusing on the prejudicial nature of grand jury testimony, even in cases where no formal indictment is made. This is the most important factor to not releasing such testimony. – Jim Apr 9 at 19:52
  • 4
    @Jim Yeah, and that's why it gets complicated in things like this, where it may be relevant to the voters and the country even if it's not necessarily criminal. I feel like an exception may be warranted in cases of elected officials who are investigated for crimes involving their official duties, where the value to the voters may outweigh the harms. The question then becomes - who decides what's relevant to their official duties? Was Bill Clinton's perjury relevant to abuses of power regarding financing deals made before he was President? It's a tricky thing to balance. – David Rice Apr 9 at 20:04
  • The main reason is to allow the prosecution to compel evidence secretly, but in a controlled and official setting. Many states have replaced this function by simply granting prosecutors subpoena power to compel testimony in depositions at their offices. It is also secret so that if a grand jury declines to indict (which almost never happens at the federal level but isn't uncommon at the state level), the prosecution can try again without anyone knowing that they failed many times previously. – ohwilleke Apr 10 at 22:21
  • @DavidRice Note that most of the cases brought by Mueller before a grand jury will be about non-elected persons. E.g. Flynn, and the other people indicted were all non-elected. Besides Trump, I doubt there is anyone elected targeted by Mueller. And as we all know, a sitting POTUS cannot be indicted, so there has never been a grand jury for Trump. Therefore, your exception won't help in this case. – Sjoerd Jun 13 at 19:44
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There are already two good answers above, so

  1. the need for accountability of the prosecutor to the public
  2. secrecy is there to preserve the reputation of people who are accused but exonerated

but there is one more important reason why grand juries continue to be useful:

  1. Given the secrecy, it is possible to compel everybody to testify, even the people being prosecuted and about to be indicted. The right to not incriminate yourself does exist here because the testimony cannot be used against the defendant at trial!

EDIT: What I wrote in point 3 is not legally true, but in practice, asserting the Fifth in grand jury proceedings would be a dubious tactic. You might as well skip a few moves in the game and go straight to plea bargaining. Consider also this:

It is important to note, however, that a witness does not have any right under the Fifth Amendment to be excused from appearing before a federal grand jury. The privilege against self-incrimination may not be asserted in a blanket fashion. Accordingly, if a prosecutor insists on an appearance by a witness who intends to assert the privilege against self-incrimination, the witness must listen to each question and determine on a question-by-question basis whether or not the answer may tend to incriminate. (See, e.g., In re Grand Jury Subpoena, 739 F.2d 1354, 1359-60 (8th Cir. 1984).) ...... Under federal law and the law of most states, counsel is not permitted to accompany the witness into the grand jury room, and must prepare the witness in advance to assert the privilege, leaving the grand jury room to consult with counsel as needed.

[ https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=2556&context=faculty_scholarship ]

EDIT 2, The case which established the right is recent, Mandujano (1976), here is what another scholarly source says:

[ https://digitalcommons.law.seattleu.edu/cgi/viewcontent.cgi?article=1812&context=sulr ]

The Court then held that "...absent a claim of the privilege, the duty to give testimony remains absolute." ... After the incriminating question is asked, the putative defendant may assert her privilege. The grand jury then has two choices: (1) It can either make another inquiry, or (2) it "can seek a judicial determination as to the bona fides of the witness's Fifth Amendment claim." This plurality holding in Mandujano supports the notion that no witness, even a putative defendant, can quash a grand jury subpoena on the ground that the witness will assert the Fifth Amendment: The witness must appear and assert the privilege as to each question asked.

Grand juries are very interested in hearing from the actual defendant. If the grand jury thinks that a suspect is being candid, the sus pect's candor can make the difference. Conversely, if a grand juror thinks a defendant is less than forthcoming, this failure to testify can also make the difference.

  • I didn't know that you could compel self-incriminating testimony at a grand jury! That's fascinating :-D – David Rice Apr 10 at 21:43
  • @DavidRice Kostas is just plain incorrect. The privilege against self-incrimination under the 5th Amendment is the same in grand jury proceedings as it is in trial jury proceedings. – ohwilleke Apr 10 at 22:18
  • @ohwilleke, see my edits, the 5th amendment rights indeed work very differently in grand jury proceedings. – Kostas Jun 13 at 11:20

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