Download This PaperKeeping Secrets: The Unsettled Law of Judge-Made Exceptions to Grand Jury Secrecy
45 Pages Posted: 6 Apr 2020 Last revised: 23 Oct 2020
Date Written: March 11, 2020
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.
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