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Question for Those Who Know About Grand Jury Confidentiality Rules:

A reader asks:

I would like to submit a question for discussion at your blog. As I former prosecutor, I have an amusing series of old "war stories." Some of these stories involve events that occurred in front of a grand jury. In light of Rule 6 of the Ohio Rules of Criminal Procedure (and, for our AUSA brothers, Rule 6(e) of the Federal Rules of Criminal Procedure), how much would I be allowed to tell?

Let me make up an example (a complete frabrication, not based on anything that actually happened). I asked a witness, "Whose idea was it to [commit the crime]?" The witness shrugged his shoulders, raised his right hand, and said, "Me."

If this story were based on an actual event, would telling it put me in violation of rule 6?

I take it that the reader is contemplating telling stories without identifying the names of the cases or the witnesses, or otherwise saying much that would make it clear what case was involved (though I suppose that there's always a risk that listeners could figure it out, especially if the case is recent and if they know other things that would identify the case for them). If you are familiar with the grand jury confidentiality rules and have an answer to this, please post it in the comments.

Peter Thompson (mail):
Having just been on a Grand Jury, and been instructed by the attorney, the reader would be skirting very closely to the edge. If, in telling the story, someone could identify the witness in the trial, or from other details given, identify the trial, then the reader *WOULD* be in violation.

The story presented does beg telling, though. I wish the reader luck with their determination on the rule 6.

Cheers,
Peter
11.29.2005 1:38pm
Stan (mail) (www):
The ABA Journal ( I think November) has an article relating to case discussions.
11.29.2005 1:38pm
Steve:
I think there is an ethical issue insofar as loose talk about grand jury proceedings, even if it technically comoports with the letter of the law, tends to bring discredit upon the system. It's hard to send the message that grand jury secrecy is critical when former prosecutors are going around sharing stories about stuff that happened before the grand jury, even if the specific proceeding is unidentifiable. Thing is, the people who hear the story won't understand the distinction, and they'll walk away thinking grand jury proceedings must not be such a big secret after all.
11.29.2005 1:49pm
Public_Defender:
I think there is an ethical issue insofar as loose talk about grand jury proceedings, even if it technically comoports with the letter of the law, tends to bring discredit upon the system.
One can only hope!

Of course, the ex-prosecutor must follow the letter of the law, but the grand jury system deserves to be discredited. It was designed as a public shield against government prosecution, but it has been perverted into a prosecution discovery tool. As Judge Kozinski recently pointed out, grand jury nullification was supposed to be part of the system.

Unfortunately, grand jury secrecy serves mostly to let the government hide its dirty laundry. It also gives prosecutors a nearly unfettered power to rummage through private information. It deserves to be mocked and discredited.
11.29.2005 2:14pm
Anon96 (mail):
As the person who posed the question, I don't even remember the names of the defendants, the victims, and when or where the crimes took place. All of my potential stories are over 5 years old, took place in a medium sized county, and were not high profile.

If it is impossible to identify the crime or any of the parties and if the information is more procedural than factual is this really communicating any secret material?

As far as bringing discredit to the system, I think that too much secrecy has its own risk.
11.29.2005 2:18pm
Steve:
I see nothing wrong with lobbying to change the grand jury rules, etc., but that doesn't seem to be the issue here. The reader who raised this issue doesn't want to change the rules, he just wants to be sure he follows them.
11.29.2005 2:23pm
Bobby B (mail):
Technically, under the Fed Rules, the answer is, no, you cannot speak of it. At all. Even without identifying info.

As with every hard and fast rule, however, reality intrudes. If there's no way to ID it, you're never going to be called on it, unless you announce to someone who hates you (and understands Bar procedure) who you were and what you're speaking of, and they then decide to make a complaint.
11.29.2005 2:50pm
The Original TS (mail):
Anon96,

The question you're really asking is how to define a "matter occuring before a grand jury." There is a rule that matter uncovered during a grand jury investigation can be used in, say, civil suit so long as there is no disclosure of the nexus between the grand jury proceeding and the evidence. By extension, a humorous incident that had no material relationship with the case and is related anonymously and unidentifiably may fall under this rubric.

Of course, something that's revealed in an indictment or at trial doesn't fall under 6(e) so I'm guessing it'd be OK to reveal your hypo!
11.29.2005 2:51pm
Anon96 (mail):
I wish to take issue with Public Defender. Secrecy can also protect suspects. During the questioning of witnesses, it is possible for it to become apparent that no crime was committed. It is also possible that the evidence is so weak that the grand jury refuses to indict. In both of these situations, the secrecy of grand jury proceedings means that the suspect is not subjected to publicity regarding the investigation…which would happen if the case was presented in open court in a preliminary hearing (or some other similar proceeding).
11.29.2005 2:51pm
Anon96 (mail):
What is the result if NO identifying information is given...that is, the entire story consisted of: "I had a witness who confessed to the crime under investigation in response to one of my first questions. I was shocked and unprepared for this answer. The members of the grand jury laughed at the funny look on my face."

Indeed, this is information that would be useful in helping new prosecutors prepare for their first presentations to grand juries. "This is never going to happen...so WHEN it does, this is what you have to do..."
11.29.2005 2:58pm
Aaron:
As a former prosecutor, I love war stories...and I am still stymied by the rule of GJ secrecy. My advice is, don't. Just don't. Besides, if your experience was anything like mine, you have plenty of other good cocktail party material from your trial cases.
11.29.2005 3:13pm
Anon96 (mail):
Actually, it has more to do with writing possible memoirs than in cocktail hour stories.
11.29.2005 3:22pm
Aaron:
Then by all means, refrain! A book would be hard evidence of your crime, while you could impeach a cocktail partier's testimony by claiming that said partier was intoxicated, and therefore, unreliable :-)
11.29.2005 3:46pm
Anon96 (mail):
Soft evidence because of hard liquor! Of course, I could always take pre-emptive action in front of the state disciplinary board (since this would involve state GJs) and present them with the manuscript.

But I am not a crusader. I will (as always) take the safest route.
11.29.2005 4:10pm
Greedy Clerk (mail):
It is also possible that the evidence is so weak that the grand jury refuses to indict.

Sure that's possible, but does it ever happen?

11.29.2005 4:59pm
NickM (mail) (www):
Greedy - ask Karl Rove.

Nick
11.29.2005 5:06pm
Anon96 (mail):
It's not the grand jury I am worried about. It is the Disciplinary Counsel of the Ohio Supreme Court.

Actually, my hypothetical example may have been a bad one. I was doing some quick LEXIS research on this issue and it is possible that a confession by a suspect/ defendant/witness might fall into an exception to Rule 6(e).

In any event, I could probably tell my stories in a way that only used information that was actually found in the indictments...and as such would no longer be treated as secret.
11.29.2005 6:36pm
A.S.:
Greedy Clerk: Yes, sometimes` a grand jury refuses to indict, even when the prosecutor asks them to. This is called a "no bill". A recent example occurred in the Tom DeLay proceedings, where the prosecutor asked a second grand jury to re-indict DeLay after some technicalities were presented about the indictment by the original grand jury. That second grand jury refused to re-indict DeLay. The prosecutor then went to a THIRD grand jury, and had the third grand jury re-indict DeLay.

NickM: In the Plame proceedings, the prosecutor did not (yet) ask the grand jury to indict Rove; he only asked the grand jury to indict Libby.
11.29.2005 7:03pm
Chico's Bail Bonds (mail):
A.S., how do you know that Fitzgerald did not try to indict Rove? I remeber someone asking Fitzgerald at his press conference whether the grand jury refused to return anything. He did not answer either way. Do you know something I don't?
11.30.2005 12:44am
Malibu Drew:
As a former grand juror, I'm pretty frustrated by the total prohibition on discussing grand juries proceedings. I've read on Volokh and other sites a lot of conjecture about what goes on in the juries. While some of it is accurate, there do seem to be a few myths floating around. Allowing jurors to speak about their experiences in a generalized way would only add to the information in the debates about the usefulness of grand juries and suggestions for jury reform. Wouldn't that be a net good?

Additionally, there is something slightly tyrannical about a government entity that dragoons its citizens into service for weeks and months at a time, all in the name of civic duty, and then forbids those citizens from publicly commenting on their service.

I realize the likelihood of a juror being prosecuted for commenting on proceedings might be remote, but why is that a risk that I or any other juror should have to take?
11.30.2005 2:40am
Jan (mail):
Public_Defender: Here, here!

Grand Juries are outdated and should be chucked. They no longer serve the purpose of "checking" overzealous prosecutors in the days when citizens didn't have a right to legal counsel. And I pity the poor soul who is not a good communicator and has to answer questions without the assistance of an attorney.

I for one, if ever called, would plead the fifth - not because I might incriminate myself (such a condemning statement!) but because I simply don't think it is a fair process and don't believe in it.
11.30.2005 11:18am