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Grand Jury Secrecy: Plugging the Leaks in an Empty Bucket

NCJ Number
178077
Journal
American Criminal Law Review Volume: 36 Issue: 3 Dated: Summer 1999 Pages: 339-356
Author(s)
Daniel C. Richman
Date Published
1999
Length
18 pages
Annotation
This essay examines the status of the law relating to the grand-jury secrecy provisions of Rule 6(e) of the Federal Rules of Criminal Procedure, as well as the implications of grand jury secrecy for the prosecution of white-collar crime.
Abstract
The discussion notes that the scope of Rule 6(e)'s secrecy requirement is uncertain regarding the leaking of information about prospective witnesses who might testify at a grand jury, about expected testimony, and about negotiations regarding immunity for testimony. It is also unclear about whether documents produced to the grand jury under the compulsion of subpoena should be considered matters occurring before the grand jury within the meaning of the rule. The discussion also notes that Rule 6(e) doctrine is unsettled on many issues due to the norms established by the rule and to the process by which those norms are articulated. However, a more fundamental problem is the absence of a clear idea why a special regime of grand jury secrecy is necessary. Independent Counsel Kenneth Starr's investigation is noted as raising several of these issues. The discussion concludes that open debate on investigative secrecy would be useful both inside and outside the grand jury context and that one result might be the enactment of legislation that would apply to purely prosecutorial investigations and that would complement Rule 6(e). Sustained legislative attention might require enforcers, legislators, and other interested parties to specify what interests need to be protected and why they need to be protected. Footnotes