Keeping Secrets: The Unsettled Law of Judge-Made Exceptions to Grand Jury Secrecy

by H. Brent McKnight Jr.

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Abstract

Federal Rule of Criminal Procedure 6(e) functionally binds everyone who is present during grand jury proceedings (except witnesses) to secrecy. But questions arise when courts are asked to make exceptions to grand jury secrecy outside those enumerated in the rule, such as exceptions for Congress or for the release of historically significant grand jury records.

This Note examines the propriety of judge-made exceptions to grand jury secrecy. Contrary to some courts authorizing disclosure outside of Rule 6(e), this Note argues that the text and development of Rule 6(e), along with limitations on courts’ inherent authority over grand jury procedure, caution against this practice. The tension between the current practice of some courts and the apparent meaning of Rule 6(e) renders the law of grand jury secrecy unsettled. To clarify the law, the Advisory Committee on Criminal Rules should add a residual exception to Rule 6(e) that would not only give courts flexibility and discretion but also a clear source of authority on which to authorize disclosures.

Keeping Secrets: The Unsettled Law of Judge-Made Exceptions to Grand Jury Secrecy

by H. Brent McKnight Jr.

Click here for a PDF file of this article

Abstract

Federal Rule of Criminal Procedure 6(e) functionally binds everyone who is present during grand jury proceedings (except witnesses) to secrecy. But questions arise when courts are asked to make exceptions to grand jury secrecy outside those enumerated in the rule, such as exceptions for Congress or for the release of historically significant grand jury records.

This Note examines the propriety of judge-made exceptions to grand jury secrecy. Contrary to some courts authorizing disclosure outside of Rule 6(e), this Note argues that the text and development of Rule 6(e), along with limitations on courts’ inherent authority over grand jury procedure, caution against this practice. The tension between the current practice of some courts and the apparent meaning of Rule 6(e) renders the law of grand jury secrecy unsettled. To clarify the law, the Advisory Committee on Criminal Rules should add a residual exception to Rule 6(e) that would not only give courts flexibility and discretion but also a clear source of authority on which to authorize disclosures.