[*] Associate Professor of Law, Georgia State University. B.A., Lafayette College, 1964; LL.B., New York University, 1967. I am indebted to my colleagues Professor Kathryn Urbonya and Associate Professor Ellen Podgor for their insightful comments. A special thanks goes to my research assistants Rhonda Byers and Paul Vignos for their commitment to this project. Return to text.

[1] See generally THOMAS HOBBES, LEVIATHAN (Cambridge Univ. Press 1991) (1651) (asserting that freedom requires relinquishment of power to avoid pitting each person against the other). Return to text.

[2] See e.g., Hugo L. Black, The Bill of Rights, 35 N.Y.U. L. REV. 865, 870-73 (1960); Loren A. Smith, Introduction To Symposium On Regulatory Takings, 46 S.C. L. REV. 525, 526 (1995) (stating that the very purpose of the Bill of Rights is to protect citizens from government). Return to text.

[3] 250 F.2d 425 (D.C. Cir. 1957). Return to text.

[4] See Maryland & Virginia Milk Producers Ass'n v. United States, 151 F. Supp. 438, 440 (D.D.C. 1956). U.S. District Judge Alexander Holtzoff, the author of the lower court opinion that proposed the approach, was also Secretary to the 1946 Advisory Committee on the Federal Rules of Criminal Procedure. Return to text.

[5] See United States v. Procter & Gamble Co., 356 U.S. 677 (1958); United States v. Baggot, 463 U.S. 476 (1983); United States v. Sells Eng'g, Inc., 463 U.S. 418 (1983). Return to text.

[6] FED. R. CRIM. P. 6(e); see also infra text accompanying note 160-62. Return to text.

[7] 356 U.S. 677 (1958). Return to text.

[8] Act of July 30, 1977, Pub. L. No. 95-78, 91 Stat. 319 (1977) (codified as amended at 18 U.S.C. app. (1994)). Return to text.

[9] See infra note 300. Return to text.

[10] See Preliminary Draft of Proposed Amendments to The Federal Rules of Criminal Procedure, 91 F.R.D. 289, 301-05 (1981). Return to text.

[11] S. REP NO. 354, 95th Cong., 1st Sess. 7 (1977), reprinted in 1977 U.S.C.C.A.N. 527, 531. Return to text.

[12] Preliminary Draft of Proposed Amendments, 91 F.R.D. at 302. Return to text.

[13] 463 U.S. 418 (1983). Return to text.

[14] 463 U.S. 476 (1983). Return to text.

[15] See Sells, 463 U.S. at 434. Return to text.

[16] Graham Hughes, Administrative Subpoenas and the Grand Jury: Converging Streams of Criminal and Civil Compulsory Process, 47 VAND. L. REV. 573 (1994). Return to text.

[17] See generally id. Return to text.

[18] Id. at 610-11. Return to text.

[19] Id. at 657-63. Return to text.

[20] Id. Return to text.

[21] Costello v. United States, 350 U.S. 359, 362 (1956). Return to text.

[22] SARA SUN BEALE & WILLIAM C. BRYSON, GRAND JURY L. & PRAC. § 1:02 (1986):

Although the English grand jury was praised in later years as an important safeguard of individual liberty, its original purposes were to increase the number of criminal prosecutions, to enhance the king's authority, and indirectly to raise revenue for the Crown, which received the property forfeited by persons convicted of crimes.
Return to text.

[23] See Helene E. Schwartz, Demythologizing the Historic Role of the Grand Jury, 10 AM. CRIM. L. REV. 701, 703 (1972) ("[T]he ancestor of our modern grand jury is generally conceded to be the body which was formally made part of the English judicial machinery during the reign of Henry II, as a direct result of that monarch's attempt to assert his dominance over the ecclesiastical and feudal realms."). Return to text.

[24] Susan M. Schiappa, Preserving the Autonomy and Function of the Grand Jury: United States v. Williams, 43 CATH. U. L. REV. 311, 324 (1993). Return to text.

[25] Julius Goebel, Jr., Constitutional History and Constitutional Law, 38 COLUM. L. REV. 555, 560 (1938). Return to text.

[26] Helene Schwartz identifies the Constitutions of Clarendon, announced in 1164, as an earlier documented forerunner. See Schwartz, supra note 23, at 705-07. Return to text.

[27] Presenting evidence against wrongdoers seems to have been recognized before the twelfth century. The Saxon method of bringing offenders to justice included a semi-annual tour by the sheriff through all the towns to punish offenders. GEORGE J. EDWARDS, JR., THE GRAND JURY 5 (1906). In the interim, all citizens were made sureties for the good behavior of each other through the system of frank-pledge. Id. When the sheriff arrived, the people were required to tell him whom to punish. Id. at 5, 8. The Norman kings of England required answers from representatives of local government and also enforced communal responsibility for criminal acts. United States v. Smyth, 104 F. Supp. 283, 288 (N.D. Cal. 1952) Return to text.

[28] A hundred is a subdivision of the shire. BEALE & BRYSON, supra note 22, § 1:02. Each hundred had a court; and, in 1234, by ordinance of Henry II, these courts met every three weeks, and were visited by the king's sheriff twice a year to enforce the frank-pledge system and obtain accusations. SIR FREDERICK POLLOCK & FREDERIC MAITLAND, THE HISTORY OF ENGLISH LAW 557-59 (2d ed. 1952). Return to text.

[29] POLLOCK & MAITLAND, supra note 28, at 560. The vill of the thirteenth century was the civil parish of the nineteenth century, which was originally a purely ecclesiastical district. Id. Return to text.

[30] Id. at 152. Ten years later, forgery and arson were added to this list of crimes. Id. Return to text.

[31] Schiappa, supra note 24, at 326 nn.74 & 76; Schwartz, supra note 23, at 708-09; EDWARDS, supra note 27, at 7. Return to text.

[32] Schiappa, supra note 24, at 326 n.76; Schwartz, supra note 23 at 709. Return to text.

[33] BEALE & BRYSON, supra note 22, § 1:02. Return to text.

[34] Although fining of jurors ended in 1667, Schwartz, supra note 23, at 709 n.41., the practice continued for at least another 100 years in the State of Connecticut, EDWARDS, supra note 27, at 12 n.62. See also BEALE & BRYSON, supra note 22, § 1:02 n.29 (noting that earliest imposition of fines may have been in 1194). Return to text.

[35] Schiappa, supra note 24, at 326 n.76; Schwartz, supra note 23, at 709. Return to text.

[36] EDWARDS, supra note 27, at 20-21. The initial secrecy provisions were thus not for the protection of any interest other than that of bringing the accused to trial. Return to text.

[37] Schwartz, supra note 23, at 708. For example, the ordeal of the boiling water required the accused to grab a rock out of a cauldron of boiling water without getting burned; or if burned, by healing within three days. Another ordeal proved innocence if the accused sank in a pool of water with both hands tied together under the knees; but if the accused sank, the accused usually drowned to death. See generally THEODORE F.T. PLUCKNETT, A CONCISE HISTORY OF THE COMMON LAW 113-15 (5th ed. 1956); H. LEA, SUPERSTITION AND FORCE, 222-61 (2d ed. 1958); ROBERT BARTLETT, TRIAL BY FIRE AND WATER: THE MEDIEVAL JUDICIAL ORDEAL (1986). Return to text.

[38] Schwartz, supra note 23, at 709. Return to text.

[39] Id. The Saladin Tithe was a levy for financing the Third Crusade against the Moslem general Saladin. The tithe fell particularly heavily upon the Jewish community, who were forced to contribute 60,000 pounds (which represented one quarter of all the property they owned in England and which was held, ultimately, on the king's behalf). See Judith A. Shapiro, Note, The Shetar's Effect on English Law—A Law of the Jews Becomes the Law of the Land, 71 GEO. L.J. 1179, 1188 n.82 (1983). Return to text.

[40] EDWARDS, supra note 27, at 25. Return to text.

[41] The oath stated "that they will lawful presentment make of such chapters as shall be delivered to them in writing and in this they will not fail for any love, hatred, fear, reward, or promise, and that they will conceal the secrets, so help them God and the Saints." Id. (citation omitted) (emphasis added). Return to text.

[42] Id. at 24-25. Return to text.

[43] Id. at 27. Return to text.

[44] "The ancestry of the due process clause is universally traced to chapter 39 of the Magna Carta . . . ." Robert E. Riggs, Substantive Due Process in 1791, 1990 WIS. L. REV. 941, 948. Chapters 39 and 40 were combined and renumbered as chapter 29 in the Magna Carta published in 1225. Id. at 949 n.30. Return to text.

[45] Id. at 951. Return to text.

[46] EDWARDS, supra note 27, at 26. Return to text.

[47] Id. Return to text.

[48] Id. Return to text.

[49] Id. Return to text.

[50] Edward Coke, author of the Institutes, was widely recognized as an authority on law by both the English and Americans during the eighteenth century. See, e.g., Chase J. Sanders, Ninth Life: An Interpretive Theory of the Ninth Amendment, 69 IND. L.J. 759, 800 (1994) (observing that Coke, along with William Blackstone and John Locke, was called a legal philosopher). Return to text.

[51] 2 EDWARD COKE, INSTITUTES OF THE LAWES OF ENGLAND *46. Return to text.

[52] 1 WILLIAM BLACKSTONE, COMMENTARIES *132-39. The Supreme Court later stated that Coke's interpretation of the Magna Carta was misunderstood:

It was not intended to assert that an indictment or presentment of a grand jury was essential to the idea of due process of law in the prosecution and punishment of crimes, but was only mentioned as an example and illustration of due process of law as it actually existed in cases in which it was customarily used.
Hurtado v. California, 110 U.S. 516, 552 (1984). A process that afforded additional due process safeguards beyond those provided by the grand jury, such as the probable cause hearing, in which the defendant had an opportunity to present exculpatory evidence and cross examine prosecution witnesses, was considered a constitutionally acceptable method instigating a prosecution. See id. Return to text.

[53] 4 BLACKSTONE, supra note 52, at *306. The two-trial procedure was in place 40 years before Bracton published his legal treatise in the period 1220-1257. See EDWARDS, supra note 27, at 25. Return to text.

[54] See Lisa H. Wallach, Note, Prosecutorial Misconduct in the Grand Jury: Dismissal of Indictments Pursuant to the Federal Supervisory Power, 56 FORDHAM L. REV. 129, 131 n.15 (1987). Return to text.

[55] Id. Return to text.

[56] The writings of Sir John Hawles (The Englishman's Rights (1680)), John Somers (Lord Chancellor of England, The Security of Inglish-Mens Lives, or the Trust, Power, and Duty of the Grand Jurys of England (1682)), and Henry Care (English Liberties or Free Born Subject's Inheritance (1698)) were printed several times in the colonies. See RICHARD D. YOUNGER, THE PEOPLE'S PANEL: THE GRAND JURY IN THE UNITED STATES, 1634-1941 21 (1963): "When the American colonists clashed with absentee trustees or with representatives of royal authority, they too began to see the grand jury in a different light. Instead of a routine, burdensome institution it became the bulwark of their rights and privileges." Id. For a similar conclusion, see BEALE & BRYSON, supra note 22, § 1:02. Return to text.

[57] For a detailed narrative of the Shaftesbury and Colledge cases, see Schwartz, supra note 23, at 710-20. Return to text.

[58] LESTER B. ORFIELD, CRIMINAL PROCEDURE FROM ARREST TO APPEAL 141 (1947) (quoting Letter from Professor William S. Holdsworth (July 13, 1933) (defending English grand jury shortly before it was drastically curtailed and finally abandoned in England)). Return to text.

[59] JOHN SOMERS, THE SECURITY OF INGLISH-MENS LIVES, OR THE TRUST, POWER, AND DUTY OF THE GRAND JURYS OF ENGLAND 12 (London, Benjamin Alsop 1682):

It was absolutely necessary for the support of the Government, and the safety of every Mans life and interest, that some should be trusted to inquire after all such as by Treasons, Felonies, or lesser Crimes, disturbed the peace, that they might be prosecuted, and brought to condign punishment; and it was no less needful for every mans quiet and safety, that the truth of such inquisitions should be put into the hands of Persons of understanding, and integrity, indifferent, and impartial, that might suffer no man to be falsely accused, or defamed, nor the lives of any to be put in jeopardy, by the malicious conspiracies of great or small, or the Perjuries of any profligate wretches: For these necessary honest ends was the institution of Grand Juries.
See also Costello v. United States, 350 U.S. 359, 362 (1956) ("The basic purpose of the English grand jury was to provide a fair method for instituting criminal proceedings against persons believed to have committed crimes."). Return to text.

[60] YOUNGER, supra note 56, at 6. Return to text.

[61] Id. Return to text.

[62] Id. Return to text.

[63] "In the absence of other governmental bodies, the [colonial] grand juries took over a wide range of administrative tasks and operated with a substantial degree of independence." BEALE & BRYSON, supra note 22, § 1:03. Return to text.

[64] Presentment is "an accusation, initiated by the grand jury itself, and in effect an instruction that an indictment be drawn." BLACK'S LAW DICTIONARY 1184 (6th ed. 1990). For a cogent argument of both the present and historical merits of grand jury presentment powers and a comment on the Rocky Flats grand jury investigation that terminated before indictment, see Renee B. Lettow, Note, Reviving Federal Grand Jury Presentments, 103 YALE L.J. 1333 (1994). Return to text.

[65] YOUNGER, supra note 56, at 7. Return to text.

[66] Id. Return to text.

[67] Id. at 10-11. Return to text.

[68] Id. at 9. Return to text.

[69] Id. at 16. Return to text.

[70] Id. at 16-17. Return to text.

[71] Id. at 12. Return to text.

[72] Id. at 13. Return to text.

[73] Id. at 15-16. Return to text.

[74] For a more detailed discussion of the early grand juries in America, see id. at 6-26. Return to text.

[75] Id. at 27. Return to text.

[76] Zenger was then charged by information, imprisoned for eight months under an impossibly high bond, and tried for seditious libel under a law which held that the greater the truth the greater the libel. Albert W. Alschuler & Andrew G. Deiss, A Brief History of the Criminal Jury in the United States, 61 U. CHI. L. REV. 867, 871-73 (1994). Return to text.

[77] Richard S. Arnold, Trial by Jury: The Constitutional Right to a Jury of Twelve in Civil Trials, 22 HOFSTRA L. REV. 1, 14 (1993):

[The king] issued mandates to colonial governors, who then attempted to circumvent the right to trial by jury by expanding admiralty jurisdiction . . . [in which cases were tried by judges who were] appointed and removed by royal governors, who insisted on verdicts they favored in order for the judge to remain on the bench.
Return to text.

[78] YOUNGER, supra note 56, at 27. Return to text.

[79] Id. at 34. Return to text.

[80] Id. Return to text.

[81] That omission prompted at least Massachusetts, New Hampshire, and New York to call for an amendment to the Constitution preventing federal prosecutions except by indictment before a grand jury. Schiappa, supra note 24, at 329-30; Lettow, supra note 64, at 1338 n.20 (citing 2 THE BILL OF RIGHTS: A DOCUMENTARY HISTORY 677, 761, 855 (Bernard Schwartz ed., 1971)); YOUNGER, supra note 56, at 45-46. The Fifth Amendment, ratified in 1791—only two years after the Constitution—closely tracks an amendment drafted by John Hancock and forwarded to Congress by the Massachusetts convention. BEALE & BRYSON, supra note 22, § 1:04. The amendment drafted by Hancock provided "[t]hat no person shall be tried for any Crime by which he may incur an infamous punishment or loss of life until he be first indicted by a Grand Jury, except in such cases as may arise in the Government & regulation of Land & Naval forces." Id. The Fifth Amendment provides: "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or pubic danger." U.S. CONST. amend. V. Return to text.

[82] 1 Stat. 73 (1789). Return to text.

[83] "It was decided by Chief Justice Marshall, in [United States] v. Hill [Case No. 15,364], in 1809, that neither the 29th section of the [J]udiciary [A]ct of 1789 (1 Stat. 88), nor the [A]ct of May 13th, 1800 (2 Stat. 82), applied to grand juries in the federal courts." United States v. Reed, 27 F. Cas. 727 (N.D.N.Y. 1852) (No. 16,134). But see YOUNGER, supra note 56, at 46 ("The Judiciary Act of 1789 provided that grand juries were to attend each session of the circuit and district courts.").

In fact, Congress has never passed a comprehensive act establishing the scope and powers of the federal grand jury. The next act to mention grand juries, the Act for the Punishment of Certain Crimes against the United States, enacted on April 30, 1790, required the government to furnish a copy of the indictment and list of witnesses and jurors at least three days before trial to a person accused of treason and two days before trial to a person accused of other capital offenses. Ch. 9, § 29, 1 Stat. 112, 118 (1790). The Act also established a three-year statute of limitations on indictments for treason or other capital offenses, except for willful murder or forgery. Id. § 32, at 119. The Act does not include any definition of the grand jury to which it refers. Similarly, the Act for Regulating Processes in the Courts of the United States, and providing Compensations for the Officers of the said Courts, and for Jurors and Witnesses, enacted on May 8, 1792, assumes the existence of a grand jury and pays three dollars to the United States Marshall who summons a grand jury, and fifty cents to each grand juror for attending in court plus five cents per mile for travel. Ch. 36, § 3, 1 Stat. 275, 276-77 (1792). In 1826, Congress passed an Act to Regulate the Summoning of Grand Jurors, in the District Courts, which reserved to the district judges the authority to order the impaneling of grand juries. Ch. 86, § 1, 4 Stat. 188, 188-89 (1826). In 1895, Congress first established the size of federal grand juries and the necessity for the concurrence of at least twelve grand jurors to find an indictment or presentment. Act Regulating Proceedings in Criminal Cases and for Other Purpose, ch. 86, § 1, 13 Stat. 500, 500 (1865). Congress first began considering omnibus grand jury legislation in 1973, but could not develop a strong enough consensus to enact a general bill; the last omnibus reform proposal was the ABA Bill that disappeared in the markup process in 1986. See ABA CRIMINAL JUSTICE, ABA GRAND JURY POLICY AND MODEL ACT (1977-82) (2d ed. 1982). Return to text.

[84] Ten amendments were ratified and adopted as the Bill of Rights in 1791. Return to text.

[85] U.S. CONST. amend. V. Return to text.

[86] Wood v. Georgia, 370 U.S. 375, 390 (1962). Return to text.

[87] PLUCKNETT, A CONCISE HISTORY OF ENGLISH LAW 112 (5th ed. 1956) (observing that inquisition established by Clarendon Assize was an effective way of getting information out of an unwilling populace). Return to text.

[88] Bracton, writing in the period 1220-1257, gives the oath sworn to by the twelve men who informed the king of serious crimes:

Hear this, ye justices, that I will speak the truth as to that on which you shall question me on the lord king's behalf, and I will faithfully do that which you shall command me on the lord king's behalf, and for nothing will I fail so to do to the utmost of my power, so help me God and these holy relics.

HENRY BRACTON, 2 ON THE LAWS AND CUSTOMS OF ENGLAND 329 (George E. Woodbine ed. & Samuel E. Thorne trans., Belknap Press 1968). Return to text.

[89] See EDWARDS, supra note 27, at 20-21. According to Bracton, the twelve men who informed the king were

told in private that if anyone in their hundred or wapentake is suspected of some crime they are to arrest him at once if they can. If they cannot, let them give his name, and the names of all those who are under suspicion, privately to the justices in a schedule and the sheriff will be ordered to arrest them at once and bring them under arrest before the justices, that the latter may do justice upon them.
BRACTON, supra note 88, at 329 (citations omitted). Return to text.

[90] Writing during the reign of Edward I, Britton stated that the grand jurors were required to swear "that they will lawful presentment make of such chapters as shall be delivered to them in writing, and that in this they will not fail for any love, hatred, fear, reward, or promise, and that they will conceal the secrets, so help them God, and the Saints." 1 BRITTON 22 (Francis M. Nichols trans., Gaunt & Sons 1983) (1865). Return to text.

[91] At Lord Shaftesbury's indictment hearings before the grand jury, the Lord Chief Justice Pemberton stated to the jury foreman:

I will tell you, I take the Reason of that use for Grand Juries to examine the Witnesses privately and out of Court, to comply with the Conveniencies of the Court. . . . Therefore Gentlemen, there can be no kind of Reason why this Evidence should not be given in Court. What you say concerning keeping your Counsels, that is quite of another Nature, that is, your Debates, and those things, there you shall be in private for to consider of what you hear publickly.

Proceedings against Anthony Earl of Shaftesbury, 33 Car. 2 (1681), in 2 STATE- TRYALS 828, 830-31 (Timothy Goodwin et al., London 1719). Return to text.

[92] See id. at 833:

At the Grand Jury called to indict Lord Shaftesbury, the Lord Chief Justice Pemberton said to one of the Grand Jurors: as to your Counsels, that is, your Debates, you are bound to conceal them: As to the King's secrets, so long as he will have them kept secret, you are bound to keep them so too; but it doth not deprive the King of the Benefit of having it publick, if he have a Desire for it; you don't break your Oath, if the King will make it publick; you do not make it publick; 'tis the King does it.
But see SOMERS, supra note 59, at 79 (arguing that oath of secrecy allowed jurors, "sifting out all the Circumstances which the Law requires," to prevent false accusations, especially when judges censured jurors' questions, calling them "trifles, impertinent, and unfit for the Witnesses to speak to"). Return to text.

[93] Compare the 1649 oath given in England, "Ye shall truly inquire, and due presentment make of all such things as you are charged withall on the Queen's behalf, the Queen's councell, your owne, and your fellowes, you shall well and truly keepe; and in all other things the truth present, so help you God, and by the contents of this Booke," EDWARDS, supra note 27, at 99 (quoting BOOK OF OATHS (London, 1649)) (emphasis added), and the English oath in 1682,

You shall diligently enquire, and true Presentment make of all such Articles, matters and things as shall be given you in charge: And of all other matters and things as shall come to your own knowledge, touching this present Service. The Kings Council, your Fellows, and your own, you shall keep Secret: You shall present no person for Hatred or Malice; neither shall you leave anyone unpresented for Favour, or Affection, for Love, or Gain, or any hopes thereof; but in all things you shall present the Truth, the whole Truth, and nothing but the Truth to the best of your knowledge; so help you God,

SOMERS, supra note 59, at 25-26 (emphasis added), and the 1908 oath that required in part that "[t]he United States' counsel, your fellows', and your own you shall keep secret," Atwell v. United States, 162 F. 97, 98 (1908), with the 1945 oath given to the federal grand jury attached to the District Court for the Middle District of Pennsylvania,

You, as foreman of this inquest, for the body of the Middle District of Pennsylvania, do swear, that you will diligently inquire, and true presentment make, of such articles, matters, and things as shall be given you in charge or otherwise come to your knowledge, touching the present service; the Government's counsel, your fellows' and your own you shall keep secret; you shall present no one for envy, hatred or malice; neither shall you leave any one unpresented for fear, favor or affection, hope of reward or gain, but shall present all things truly as they come to your knowledge, according to the best of your understanding, so help you God,
Hon. Albert Williams Johnson, Charge to Grand Jury, 4 F.R.D. 243, 245 (1945) (emphasis added). Return to text.

[94] See discussion infra part IV. Return to text.

[95] See supra note 56. Return to text.

[96] John Somers was appointed attorney-general in 1692, a member of the Privy Council and Lord Keeper of the Great Seal of England in 1693, Lord Chancellor in 1697, and in that same year was created Baron of Evesham. 4 LORD CAMPBELL, LIVES OF THE LORD CHANCELLORS AND KEEPERS OF THE GREAT SEAL OF ENGLAND 499, 501 (7th ed. 1885); 5 id. at 22. Return to text.

[97] 5 id. at 22 Return to text.

[98] SOMERS, supra note 59, at 43:

[T]he Kings Counsel, which by the Oath of the Grand Inquest is to be kept secret, includeth all the persons offered to them to be indicted, and all the matters brought in Evidence before them, all circumstances whatsoever whereof they are informed, which may any way conduce to the discovery of Offences; all intimations given them of Abbettors and Encouragers of Treasons, Felonies, or Perjuries and Conspiracies, or of the Receivers, Harbourers, Nourishers, and Concealers of such Criminals.
Return to text.

[99] Id.:

Likewise the Oath which enjoins the Council of their Fellows, and their own to be kept, implies that they shall not reveal any of their personal knowledge concerning Offences or Offenders; nor their intentions to indict any man thereupon; nor any of the Proposals and Advices amongst them of ways to enquire into the truth of any matter before them, either about the Crimes themselves, or the accusers and Witnesses, or the party accused, nor the debates . . . .
Return to text.

[100] Id. at 46: "[S]o it was necessary to prevent the Flight of Criminals; if the Evidence against one that is accused should be publicly known, . . . his Confederates and Accomplices might easily have notice of their danger, and take opportunity to escape from Justice." Return to text.

[101] Id. at 46-47:

Yet the reason will be still more manifest for keeping secret the accusations and the Evidence by the Grand Inquest, if it be well considered, how useful and necessary it is for discovering truth in the Examinations of Witnesses in many, if not in most cases that may come before them; when if by this Privacy Witnesses may be examined in such manner and Order, as prudence and occasion direct; and no one of them be suffered to know who hath been examined before him, nor what questions have been asked him, nor what answers he hath given, it may probably be found out whether a witness hath been biased in his testimony by malice or Revenge, or the fear or favour of men in Power, or the love or hopes of Lucre and gain in present or future, or Promises of impunity for some enourmous Crime.
Return to text.

[102] Id. at 48-49:

Yet further, their private Examinations may discover truth out of some disagreement of the Witnesses, when separately interrogated, and every of the Grand Inquest ask them Questions for his own satisfaction about the matters which have come to his particular knowledge, and this freely without Awe or Control of Judges, or distrust of his own parts, or fear to be checked for asking impertinent questions.
Return to text.

[103] Id. at 52:

[S]o that the Witness could not guess what they should be asked first, or last, nor one conjecture what the other had said, . . . and then compare all their several answers together, they might possibly discern marks enough of falsehood, to show that their Testimonies ought not to be depended upon, where life is in question.
See also supra note 102. Return to text.

[104] Id. at 48-49:

Yet the same secrecy of Kings Council is no less necessary to reserve the guilty for punishment; when the Evidence against any party accused is not manifest and full, it may be kept without Prejudice under Secrecy until further Enquiry; and if sufficient proof can afterwards be made of the Offence, an Indictment may be found by a Grand Inquest, and the party brought to answer for it . . . .
Return to text.

[105] "From hence may certainly be concluded that Secrecy in the Examinations and Enquiries of Gr. Juries is in all respects for the Interest and advantage of the King." Id. at 54. Return to text.

[106] Id. at 63-64:

The Prosecutors themselves, notwithstanding their big words, and assuming to themselves to be for the King, if their Prosecution shall be proved to be malicious, or by Conspiracy against the Life or Fortune of the Accused, they are therein against the King . . . . 'Tis esteemed in the Law one of the most odious Offences against the King, to attempt in his name to destroy the Innocent, for whose Protection he himself was ordained.
Return to text.

[107] "[T]he King's only benefits in finding out and punishing Offenders by Courts of Justice are the preservation and support of the Government, the protection of the Innocent, revenging their wrongs, and preventing further mischiefs by the terrors of exemplary punishments." Id. at 57. Return to text.

[108] Id. at 48; see also supra note 103. Return to text.

[109] SOMERS, supra note 59, at 47-48:

And the Falseness, Malice or ill Design of another, may be justly suspected from his studiousness and difficulty in answering, his Artifice and cunning in what he relates, not agreeable to his way of breeding and parts, his reserved, indirect, and evasive Replies to easie Questions, his pretences of doubtfulness and want of remembering things of such short dates, or such Notoriety, that 'tis not credible he could be ignormant or forgetful of them.
Return to text.

[110] U.S. CONST. amend. V. Return to text.

[111] See, e.g., United States v. Smith, 27 F. Cas. 1186 (C.C.D.N.Y. 1806) (challenging indictment based upon illegal evidence); United States v. Farrington, 5 F. 343 (N.D.N.Y. 1881) (motioning to quash indictment because of insufficiency of evidence); United States v. Kilpatrick, 16 F. 765 (W.D.N.C. 1883) (motioning to quash indictment because of illegal evidence); United States v. Cobban, 127 F. 713 (D. Minn. 1904) (plea in abatement challenging sufficiency of evidence upon which indictment was based). Return to text.

[112] See, e.g., United States v. Wells, 163 F. 313 (D. Idaho 1908) (plea in abatement based upon misconduct of the prosecutor before grand juror); United States v. Rintelen, 235 F. 787 (S.D.N.Y. 1916) (plea in abatement based upon allegation that district attorney expressed to grand jury his opinion on questions of law and fact involved). Return to text.

[113] 27 F. Cas. 1186 (C.C.D.N.Y. 1806). Return to text.

[114] Id. at 1191. Return to text.

[115] Id. at 1187. Citing Lord Hale for the classification of pleas in abatement, the prosecution argued, without authority, that the only remedy for grand jury abuse was petit jury adjudication. Id. Return to text.

[116] Id. at 1188. Return to text.

[117] Id. The court eventually denied the plea on the merits. Id. at 1191. Return to text.

[118] Id. at 1191; see also United States v. Farrington, 5 F. 343, 346 (N.D.N.Y. 1881):

[A]uthorities . . . assert the right and duty of the court to exercise a salutary supervision over the proceedings of a grand jury. It is only practicable to do this by removing the veil of secrecy whenever evidence of what has transpired before them becomes necessary to protect public or private rights.

See also United States v. Kilpatrick, 16 F. 765, 768, 777 (W.D.N.C. 1883):

As the grand jury is an informing and accusing body, which makes its investigations and holds its deliberations in secret, and is irresponsible for its official action upon matters of fact, except before the tribunal of public opinion, it is very important that its powers, duties, and methods of procedure should be well understood, and be strictly confined within the conservative and salutary limits imposed by law, which experience has shown to be necessary to subserve the public good, and to accomplish a just and impartial administration of the criminal law.
Return to text.

[119] United States v. Terry, 39 F. 355, 357 (N.D. Cal. 1889) (allowing inquiry into sufficiency of evidence before grand jury "would afford opportunity to tamper with the jury; and . . . lessen the respect due to the forms and solemnities of judicial proceedings"). Return to text.

[120] United States v. Cobban, 127 F. 713, 718 (D. Minn. 1904) ("A more serious objection [than one to the traditional secrecy of grand jury investigations] is that a defendant may thus learn what testimony exists against him, and be prepared to overcome it upon the trial by perjury."). Return to text.

[121] Accord In re Special 1952 Grand Jury, 22 F.R.D. 102, 106 (E.D. Pa. 1958) ("In every case the court is called upon to balance two policies, the one requiring secrecy, the other disclosure."). Return to text.

[122] See McKinney v. United States, 199 F. 25 (8th Cir. 1912) (and sources cited therein); Cox v. Vaught, 52 F.2d 562 (10th Cir. 1931) (and sources cited therein). Return to text.

[123] See United States v. Garrson, 291 F. 646, 649 (S.D.N.Y. 1923):

Under our criminal procedure the accused has every advantage. While the prosecution is held rigidly to the charge, he need not disclose the barest outline of his defense. He is immune from question or comment on his silence; he cannot be convicted when there is the least fair doubt in the minds of any one of the twelve. Why in addition he should in advance have the whole evidence against him to pick over at his leisure, and make his defense, fairly or foully, I have never been able to see. No doubt grand juries err and indictments are calamities to honest men, but we must work with human beings and we can correct such errors only at too large a price. Our dangers do not lie in too little tenderness to the accused. Our procedure has been always haunted by the ghost of the innocent man convicted. It is an unreal dream. What we need to fear is the archaic formalism and the watery sentiment that obstructs, delays, and defeats the prosecution of crime.

See also In re Atwell, 140 F. 368, 376 (W.D.N.C. 1905), rev'd on other grounds, 162 F. 97 (4th Cir. 1908):

The defendant in a criminal action is no more entitled as a matter of right to know the evidence of the prosecution until it is disclosed on the trial than is the prosecution to be put in possession of the evidence which the defendant has in mind to offer in his defense.
Return to text.

[124] See United States v. Bolles, 209 F. 682 (W.D. Mo. 1913) (comparing grand jury function to function of petit jury); see also United States v. Garsson, 291 F. 646, 649 (S.D.N.Y. 1923). Return to text.

[125] 241 F. 524 (D.R.I. 1917). Return to text.

[126] The article was entitled "Prominent Physicians Involved in Federal War on Cocaine Dealers." Id. at 525. The story named three people who had been arrested as a result of the grand jury investigation, and reported that two of them might become prosecution witnesses and that other prominent citizens would probably be arrested in the future. Id. Return to text.

[127] Id. Return to text.

[128] Id. at 528: "That a person may have observed some act done by officials of the law, which he was not sworn to keep secret, does not justify him in publishing it at large. It is the duty of a citizen to assist, and not to frustrate, the work of the administration of justice." Return to text.

[129] See supra notes 98-104 and accompanying text. Return to text.

[130] Providence Tribune, 241 F. at 526. Return to text.

[131] Id. Return to text.

[132] See supra notes 98-104 and accompanying text. Return to text.

[133] 55 F.2d 254 (D. Md. 1931). Return to text.

[134] 4 F. Supp. 283 (E.D. Pa. 1933). Return to text.

[135] Amazon, 55 F.2d at 258. Return to text.

[136] Id. at 261. Return to text.

[137] Id. at 263-64. Return to text.

[138] Id. at 263. The court's conclusory statement that oppressive government action is too rare to require the protective procedure of a grand jury is contrary to the concerns of the founders and certainly dubious in times of crisis. See, e.g., Korematsu v. United States, 323 U.S. 214, 216 (1944) (using "pressing public necessity" to seize property of all persons of Japanese ancestry in certain West Coast areas and intern owners in concentration camps). For a discussion of the abuse of the grand jury for "political crimes" prosecutions, see generally Federal Grand Jury: Hearings on H.R.J. Res. 46 and H.R. 1277 Before the Subcomm. on Immigration, Citizenship, and International Law of the House Comm. on the Judiciary, 94th Cong., 2d Sess. (1976) (investigating reform after allegations of abuse). The hearing included a report that analyzed certain cases where grand jury abuse allegedly occurred. Id. at 730-35. For information on abuse of the grand jury by the Federal Bureau of Investigation, see Right to Privacy Proposals Of The Privacy Protection Study Commission: Hearings on H.R. 10076 Before Subcomm. of the House Comm. on Government Operations, 95th Cong., 2d Sess., 18-31 (1978). Whether the grand jury fulfills its function is beyond the scope of this Article, but for an interesting comment on that issue, see Andrew D. Leipold, Why Grand Juries Do Not (and Cannot) Protect the Accused, 80 CORNELL L. REV. 260 (1995). Return to text.

[139] Amazon, 55 F.2d at 261. See also Leipold, supra note 138, at 261:

It is obvious that the basis of all but the last of these reasons for secrecy is protection of the grand jury itself, as the direct independent representative of the public as a whole, rather than of those brought before the grand jury. Of course, these latter are intended directly to share in the benefits from this rule of secrecy, but it is to be noted that none of the reasons for it are founded upon an inherent right in the individual who is being investigated to the same constitutional safeguards that are unquestionably his when he is brought to trial for a given crime.
Return to text.

[140] Amazon, 55 F.2d at 262-64; accord United States v. Olmstead, 7 F.2d 756, 759 (W.D. Wa. 1925) (and sources cited therein). Return to text.

[141] A presumption of regularity is difficult to rebut without access to the grand jury transcripts. See United States v. American Medical Ass'n, 26 F. Supp. 429, 431 (D.D.C. 1939). The defendants in American Medical Ass'n filed a plea in abatement alleging prosecutorial misconduct before the grand jury, but did not have the requisite proof. Id. The court, in refusing to grant the plea, stated:

[t]he defendants complain that with the lips of jurors sealed and the transcript closed to them they cannot obtain the true facts except by aid of the court. But it must be remembered that sound reasons of public policy in the administration of justice lie back of the rules which forbid free access to these channels of information.

Id. Not only is the presumption difficult to rebut, but one commentator concludes that jurors defer to prosecutors' judgments on the critical issue they are asked to decide, whether or not an indictment should issue. See Leipold, supra note 138, at 264. Return to text.

[142] See supra notes 108-09 and accompanying text. Return to text.

[143] Wood v. Georgia, 370 U.S. 375, 390 (1962). Return to text.

[144] See sources cited supra note 124. Return to text.

[145] 4 F. Supp. 283 (E.D. Pa. 1933). Return to text.

[146] Id. at 284. Return to text.

[147] Id. at 283. Return to text.

[148] Id. Return to text.

[149] Id. at 284 (citing United States v. Farrington, 5 F. 343 (N.D.N.Y. 1881) (granting disclosure to the defendant to quash the indictment); Atwell v. United States, 162 F. 97 (4th Cir. 1908) (refusing to hold a grand juror in contempt for disclosing information to defense counsel upon which to base a Motion to Quash the indictment); United States v. Perlman, 247 F. 158 (S.D.N.Y. 1917) (granting disclosure for use in perjury trial against a grand jury witness); Metzler v. United States, 64 F.2d 203 (9th Cir. 1933) (allowing disclosure of grand jury testimony in a criminal trial)). Return to text.

[150] "It is sufficient to say that the rule of [grand jury] secrecy has long since been relaxed by permitting disclosure whenever the interest of justice requires. . . . It is my considered judgment that the ends of justice can be furthered by permitting the disclosure of this testimony." Id. Return to text.

[151] Id. at 284-85. Return to text.

[152] Id. at 284: "The inquisitorial power of the grand jury is the most valuable function which it possesses to-day and, far more than any supposed protection which it gives to the accused, justifies its survival as an institution." Return to text.

[153] In John Somers' seventeenth-century explanation of the grand jury, secrecy protected the grand jury's capacity for finding the truth. See SOMERS, supra note 59, at 46-47; see also supra note 101. Each enumerated secrecy interest served that purpose regardless of whether the particular interested party was the monarch, the institution, or the people called before the grand jury. See supra notes 99-109 and accompanying text. The common rationale driving each enumerated secrecy interest showed that any relaxation of the secrecy rule would hinder the truth- seeking function of the grand jury. See supra notes 100-03 and accompanying text. It follows then, that any practice which might stifle that ultimate function is a legitimate interest in grand jury secrecy. Exercise of the grand jury powers to elicit testimony, which may be used in a proceeding with lesser safeguards than that which screens the grand jury's actions, thus becomes a primary interest in secrecy because such a practice would encourage misuse of those powers. Return to text.

[154] In Hurtado v. California, 110 U.S. 516 (1884), the court determined that the Due Process Clause of the Fourteenth Amendment did not require states to initiate criminal proceedings by the grand jury process, yet it did not address the issue of fundamental fairness presented by parallel proceedings. Id. at 534-35.

Similarly, cases in which the courts provided no due process safeguards in the grand jury process did not present the unique issues that arise when the extraordinarily broad powers of the grand jury are used to gain evidence for a civil proceeding. See, e.g., McKinney v. United States, 199 F. 25, 28-29 (8th Cir. 1912) (finding that "[d]ue process of law within the meaning of the Constitution does not even embrace such an important safeguard as exemption from compulsory self-incrimination, much less mere rules of procedure like those pertaining to evidence before grand juries"); United States v. Mandujano, 425 U.S. 564, 581 (1976) (stating that neither target nor witness has a right to have counsel present in grand jury room); United States v. Calandra, 414 U.S. 338, 351-52 (1974) (stating that Fourth Amendment exclusionary rule does not apply to grand juries); United States v. Washington, 431 U.S. 181, 189 (1977) (finding no requirement that target be informed of status as target); United States v. Williams, 504 U.S. 36, 50-51 (1992) (stating that prosecutor is under no obligation to present exculpatory evidence to grand jury).

One of the more alarming concerns in this context is the potential use of compelled, immunized, and self-incriminating grand jury testimony in a civil trial. See, e.g, Pillsbury Co. v. Conboy, 459 U.S. 248 (1983) (finding that immunized grand jury testimony did not possess immunity in subsequent civil trial, even where grand jury transcript formed basis for civil deposition questions; defendant must be granted new immunity by federal prosecutor for civil trial or invoke Fifth Amendment right against self-incrimination); Helene Schwartz, Note, Recent Development: Disclosure and Civil Use of Immunized Testimony, 35 VAND. L. REV. 1211 (1982).

Other concerns include the potential use of biased and untested testimony, see Mandujano, 425 U.S. at 581 (finding that neither target nor witness has right to have counsel present in grand jury room), and the potential use of illegally seized evidence to form the basis of civil discovery, see Calandra, 414 U.S. at 351-52 (stating that Fourth Amendment exclusionary rule does not apply to grand juries). Return to text.

[155] In 1940, Congress authorized the Supreme Court to develop rules to regulate criminal procedure in the federal courts. Act of June 29, 1940, 54 Stat. 688 (codified as amended at 28 U.S.C. §§ 2071-72 (1994)). In 1941, the Court appointed the "Advisory Committee on Rules of Criminal Procedure, Supreme Court of the United States," which included "eighteen representative members of the Bar including defense counsel, district attorneys, prosecutors, judges, former judges, and law professors." 1 MADELEINE J. WILKEN & NICHOLAS TRIFFIN, DRAFTING HISTORY OF THE FEDERAL RULES OF CRIMINAL PROCEDURE xi (1991). The Advisory Committee worked in cooperation with city and state bar committees, as well as circuit and district court committees. 1 id. at xii. The Committee submitted two preliminary drafts and a final reported draft to the Supreme Court, which prescribed the "truly final" version of the Rules on December 26, 1944. 1 id. at xii-xv. The Attorney General then reported the Court's final version to Congress on January 3, 1945. 1 id. at xv. The Rules became effective on March 21, 1946. 1 id. Return to text.

[156] FED. R. CRIM. P. 2; see also Hon. Harold Judson, Assistant Solicitor General of the United States, Improvement in Criminal Procedure From the Viewpoint of The Department of Justice, 5 F.R.D. 39, 42 (1945). Return to text.

[157] Alexander Holtzoff, Special Assistant to the Attorney General of the United States; Secretary of the Advisory Committee on Federal Rules of Criminal Procedure, Reform of Federal Criminal Procedure, 3 F.R.D. 445, 446 (1944):

The formulation and regulation of criminal procedure has broad implications and wide ramifications. It involves more than merely the manner of drawing pleadings and details of practice. In a larger sense, it must necessarily crystallize a philosophy of administration of criminal justice. It must arrive at a nice and well-balanced adjustment between two basic factors. On the one hand, it must be conducive to a simple, effective, and expeditious prosecution of crimes. Perpetrators of crimes must be detected, apprehended and punished. The conviction of the guilty must not be unduly delayed. Criminals should not go unwhipped of justice because of technicalities having no connection with the merits of the accusation. The protection of the law-abiding citizen from the ravages of the criminal is one of the principal functions of government. Any form of criminal procedure that unnecessarily hampers and unduly hinders the successful fulfillment of this duty must be discarded or radically changed. On the other hand, the converse factor consists in the necessity of preserving and safeguarding the fundamental rights of the accused. These rights, which are derived from the basic Anglo-Saxon principles of fair play and are in part embodied in the Constitution of the United States, are intended, first, to protect the innocent against an erroneous conviction, and, second, to assure the use of civilized standards in dealing even with the guilty. No system of criminal procedure may be deemed successful unless it properly balances these two opposing forces.
Return to text.

[158] Improvement in Criminal Procedure, 5 F.R.D. at 42-43:

The purpose of any rules of criminal procedure should be to see that any individual accused of crime is given a fair and speedy hearing. There are two interests to be served in criminal proceedings: (1) the interest of the individual accused, and (2) the interest of the public which has been harmed. A fair criminal procedure will insure that neither interest suffers at the expense of the other. . . . The advantages which [the new Rules] offer in achieving simply and efficiently the ends of justice, while carefully protecting and preserving the fundamental rights of defendants under our system of jurisprudence, should impress themselves inevitably upon lawyers throughout the country.

When the new Rules were substantially completed, the former Attorney General praised them and advocated approval. Hon. Homer Cummings, The Third Great Adventure, 3 F.R.D. 283, 284 (1943). Return to text.

[159] Reform of Federal Criminal Procedure, 3 F.R.D. at 447:

The simplification of procedure has been accomplished, however, without sacrifice of any safeguards that properly surround a defendant in a criminal case. In fact, in some respects the new rules have cemented and strengthened the protection accorded the defendant. Return to text.

[160] FED. R. CRIM. P. 6(d)-(e).

161 18 U.S.C. § 687 (1946) (current version at 18 U.S.C. app. (1994)):

Who May be Present. Attorneys for the government, the witness under examination, interpreters when needed, and, for the purpose of taking the evidence, a stenographer may be present while the grand jury is in session, but no person other than the jurors may be present while the grand jury is deliberating or voting.

For an early analysis of cases construing Rule 6(d), see Lester B. Orfield, The Federal Grand Jury, 22 F.R.D. 343, 378-82, 423-25 (undated). For a more recent analysis, see Andrea G. Nadel, Annotation, Presence of Persons Not Authorized by Rule 6(d) of Federal Rules of Criminal Procedure During Session of Grand Jury as Warranting Dismissal of Indictment, 68 A.L.R. FED. 798 (1984). Return to text.

[162] 18 U.S.C. § 3771 (1953) (including Rule 6(e)) (current version at 18 U.S.C. app. (1994)):

Disclosure of matters occurring before the grand jury other than its deliberations and the vote of any juror may be made to the attorneys for the government for use in the performance of their duties. Otherwise a juror, attorney, interpreter or stenographer may disclose matters occurring before the grand jury only when so directed by the court preliminary to or in connection with a judicial proceeding or when permitted by the court at the request of the defendant upon a showing that grounds may exist for a motion to dismiss the indictment because of matters occurring before the grand jury.
Return to text.

[163] When the drafting committee was preparing the original 1946 Federal Rules of Criminal Procedure, it did not occur to them to make provisions for the civil use of grand jury materials, and nothing in the drafting history shows a common law interest in the civil use of the grand jury process. See 7 WILKEN & TRIFFIN, supra note 155, at 241-43. Return to text.

[164] See United States v. Huston, 28 F.2d 451, 452 (N.D. Ohio 1928) (allowing prosecution to assist with presentation of evidence but finding that its participation in deliberation or vote-taking by the members of the grand jury was not allowed at time of adoption of Fifth Amendment). But cf. United States v. Wells, 163 F. 313, 324 (D. Idaho 1908): "The rights of the defendants are to be measured by the grand jury system as it existed and was understood at the time of its adoption. At the common law the prosecutor had no right to attend the sessions." Note, however, that Wells cited as authority George J. Edwards, Jr.'s The Grand Jury, which suggested that the common law never guaranteed the power of a prosecutor to present an indictment before a grand jury. EDWARDS, supra note 24, at 114-17. See also Richard M. Calkins, Grand Jury Secrecy, 63 MICH. L. REV. 455, 457 (1965) (observing that grand juries commonly received evidence outside presence of prosecutor). Return to text.

[165] "It has become the practice for the United States Attorney to attend grand jury hearings . . . ." Orfield, supra note 161, at 346 (referring to history of enactment of Federal Rule of Criminal Procedure 6(e)). Return to text.

[166] 18 U.S.C. § 3771 (1953) (including Rule 6) (current version at 18 U.S.C. app. (1994)). Return to text.

[167] Id. "Government attorneys are entitled to disclosure of grand jury proceedings, other than the deliberations and the votes of the jurors, inasmuch as they may be present in the grand jury room during the presentation of evidence. The rule continues this practice." FED. R. CRIM. P. 6(e) advisory committee's note. Return to text.

[168] FED. R. CRIM. P. 6(e) advisory committee's note. Return to text.

[169] "The necessity for disclosure of grand jury proceedings is left to the discretion of the judge in those situations where disclosure is permitted by the terms of the rule." 4 WILKEN & TRIFFIN, supra note 155, at 21 (citing Note to Subdivision 6(e), Notes of Advisory Committee on Rules, second preliminary draft). Return to text.

[170] 18 U.S.C. § 3771 (1953) (codified as amended 18 U.S.C. app. (1994)). Return to text.

[171] BEALE & BRYSON, supra note 22, § 8:01. Return to text.

[172] See Richard Neumeg, Annotation, Who Are "Government Personnel" Within Meaning of Rule 6(e)(3)(A)(ii) of the Federal Rules of Criminal Procedure to Whom Matters Occurring Before Grand Jury May Be Disclosed, 54 A.L.R. FED 805 (1981); see also Bruce I. McDaniel, Annotation, What Is "What Is Judicial Proceeding" Within Rule 6(e)(3)(C)(i) of the Federal Rules of Criminal Procedure Permitting Disclosure of Matters Occurring Before Grand Jury When So Directed by Court Preliminarily to or in Connection with Such Proceeding, 52 A.L.R. FED. 411 (1981). Return to text.

[173] Rule 7 became Rule 6 in the Second Preliminary Draft distributed in 1944. See generally WILKEN & TRIFFIN, supra note 155 (contrasting Rule 7(e) in volumes 1-3 with Rule 6(e) in volume 4); see also United States v. Sells 463 U.S. 418, 468 (1983) (Burger, J., dissenting). Return to text.

[174] See 1 WILKEN & TRIFFIN, supra note 155, at 20-21. Return to text.

[175] See generally 2 id. at 58-61; 3 id. at 352-57. Return to text.

[176] "As the proposed rule now reads, it would prevent the United States Attorney [from] obtaining a transcript from his own reporter, consulting with his Assistants, or conferring with agents of the F.B.I. and the like. Will that further the administration of justice?" 2 id. at 59 (quoting Letter from Joseph T. Votava, U.S. Attorney for the District of Nebraska, to Alexander Holtzoff, Secretary, Advisory Committee on the Federal Rules of Criminal Procedure (July 22, 1943)). See also 3 id. at 353 (quoting Letter from Hon. Orie L. Phillips, U.S. Circuit Judge for the Tenth Circuit, to the ABA Institute on Rules of Criminal Procedure (Aug. 24, 1943)); 3 id. at 354 (quoting Letter from Robert S. Rubin, Special Counsel, Securities and Exchange Commission, to Alexander Holtzoff, Secretary, Advisory Committee on the Federal Rules of Criminal Procedure (Sept. 14, 1943)) ("Nor is it clear whether the United States Attorney has to obtain an order of court before he can get a copy of the transcript of the grand jury proceedings."); 3 id. at 355 (quoting Letter from Hon. Joseph F. Deeb, U.S. Attorney for the Western District of Michigan, to Alexander Holtzoff, Secretary, Advisory Committee on the Federal Rules of Criminal Procedure (Sept. 10, 1943)) ("[S]ome exception should be made because as the rule now stands, the stenographer may be precluded from giving, without an order of the Court, a transcript of his notes to the United States Attorney."); 3 id. (quoting Letter from Hon. Paul J. McCormick, U.S. District Judge for the Southern District of California, to the Judicial Conference for the Ninth Circuit (Sept. 9, 1943)) ("If the rule contemplates a restriction on the United States Attorney's use of the transcript, I believe that he should be excepted from the provision requiring the permission of the court."). Return to text.

[177] See, e.g., In Re Grand Jury Proceedings, 4 F. Supp. 283 (E.D. Pa. 1933); see also Breck P. McAllister, The Big Case: Procedural Problems in Antitrust Litigation, 64 HARV. L. REV. 27 (1950) (describing three large antitrust actions that began in 1944 and 1947); Urban A. Lavery, The Administrative Process: Factual Analysis of the "Report of Attorney General's Committee on Administrative Procedure", 1 F.R.D. 651, 653-54 (undated) (listing 51 administrative agencies and federal departments in existence that have been exercising administrative powers since 1789). Return to text.

[178] Securities Exchange Commission Special Counsel Robert S. Rubin wrote: "I believe that the clause 'preliminarily to or in connection with another judicial proceeding' (lines 64-66), may cause considerable difficulty in application. For example, is it intended that judicial proceedings should include civil actions? I think such use of grand jury proceedings would be most inappropriate." 3 WILKEN & TRIFFIN, supra note 155, at 354 (quoting Letter from Robert S. Rubin, Special Counsel, Securities and Exchange Commission, to Alexander Holtzoff, Secretary, Advisory Committee on the Federal Rules of Criminal Procedure (Sept. 14, 1943)). Rubin noted that:

The Commission has specifically directed me to request the amendment of proposed Rule 7(d) in order to permit attendance before the grand jury of representatives of the government agency which investigated the case to assist the United States Attorney or other attorney for the government. Such a change certainly would be of immeasurable aid both to the United States Attorney and the grand jury.

3 id. at 352. U.S. District Judge Paul J. McCormick wrote that "Rule 7, subdivision (e), provides that an attorney may disclose matters occurring before the grand jury only when so directed by the court. As a matter of common practice the United States Attorney uses the grand jury transcript rather freely with investigators and attorneys for the various governmental agencies." 3 id. at 355 (quoting Letter from Hon. Paul J. McCormick, U.S. District Judge for the Southern District of California, to the Judicial Conference for the Ninth Circuit (Sept. 9, 1943)). Return to text.

[179] "This proposal should be clarified so it will not be construed to mean that any attorney working for the Government can appear before a Grand Jury, by adding the words 'any attorney authorized to prosecute criminal cases.' " 3 id. at 355 (quoting Letter from Victor E. Anderson, U.S. Attorney for the District of Minnesota, to Alexander Holtzoff, Secretary, Advisory Committee on the Federal Rules of Criminal Procedure (Aug. 20, 1943)). Return to text.

[180]

Disclosure of matters occurring before the grand jury other than its deliberations and the vote of any juror may be made to the attorneys for the government for use in the performance of their duties. Otherwise a juror, attorney, interpreter or stenographer may disclose matters occurring before the grand jury only when so directed by the court preliminarily to or in connection with a judicial proceeding or when permitted by the court at the request of the defendant upon a showing that grounds may exist for a motion to dismiss the indictment because of matters occurring before the grand jury. The court may direct that an indictment shall be kept secret until the defendant is in custody or has given bail, and in that event the clerk shall seal the indictment and no person shall disclose the finding of the indictment except when necessary for the issuance and execution of a warrant or summons.

4 id. at 15-16 (quoting 2d Preliminary Draft of Rule 6(e), formerly Rule 7(e)). Return to text.

[181] "Disclosure of matters occurring before the grand jury other than its deliberations and the vote of any juror may be made to the attorneys for the government for use in the performance of their duties." 4 id. (quoting 2d Preliminary Draft of Rule 6(e), formerly Rule 7(e)). Consequently, the drafters dropped the earlier draft language that permitted access to the grand jury by the attorney for the government to rebut a claim by a defendant seeking to quash an indictment. Because the new language broadened the government attorney's access for all criminal law purposes, it no longer needed to address the individual limited exceptions allowing access. Return to text.

[182] 18 U.S.C. § 687 (1946) (current version at 18 U.S.C. app. (1994)). Return to text.

[183] The notes to the Federal Rules of Criminal Procedure were the last project on which the Advisory Committee worked. The Committee intended them "to indicate . . . which provisions of the Rules are restatements of existing law, to define the extent of any changes, and to the extent that any of these Rules, involve innovations, to ascertain their background and source." 1 WILKEN & TRIFFIN, supra note 155, at xv-xvi (citation omitted). As Wilken and Triffen point out, "[t]he [Advisory Committee's] Introductory Statement . . . also makes very clear that the Supreme Court had no hand in supervising or revising the preparation of the Notes and did not approve or sponsor them." 1 id. at xvi. Return to text.

[184] FED. R. CRIM. P. 6(e) advisory committee's note. Return to text.

[185] The first sentence of the 1946 version of Rule 6(e) provided for automatic disclosure to attorneys for the government, while the second sentence of the 1946 version of Rule 6(e) provided for court-ordered disclosure. Rules of Criminal Procedure for the District Courts of the United States (1946), reprinted in 7 WILKEN & TRIFFIN, supra note 155, at 139-40. Return to text.

[186] See supra notes 176, 174-75. Return to text.

[187] See supra note 157 and accompanying text; see also supra note 158. Return to text.

[188] See William W. Barron, Proceedings of the Institute on Federal Rules of Criminal Procedure, 5 F.R.D. 150, 151 (1945):

Rule 6(e) . . . imposes no obligation of secrecy on a witness. . . .

This is a step forward. Inexperienced prosecutors have been known to caution witnesses not to talk to anybody about the case. Defense counsel have sometimes omitted proper preparation for trial because of doubt of their right to examine witnesses before trial or because of the refusal of witnesses on advice of the prosecutor to talk. Certainly defense counsel in his investigation of the facts of the offense charged against his client, has every right to talk to every witness who can shed light on those facts. This right should be protected and enforced by the court whenever necessary for the due and seemly administration of justice.

Return to text.

[189] The Advisory Committee was specifically requested to create such an exception: "I would like to urge the Committee to change the present Rule 6(e) so as to permit disclosure of such matters in connection with federal administrative proceedings." 6 WILKEN & TRIFFIN, supra note 155, at 12 (quoting Letter from Robert S. Rubin, Special Counsel, Securities and Exchange Commission, to Alexander Holtzoff, Secretary, Advisory Committee on the Federal Rules of Criminal Procedure (May 24, 1944)). Return to text.

[190] Under Federal Rule of Criminal Procedure 54(c), an "[a]ttorney for the government" includes "the Attorney General, an authorized assistant of the Attorney General, a United States Attorney, [and] an authorized assistant of a United States Attorney." FED. R. CRIM. P. 54(c). To justify a broader construction of Rule 6(e), the Department of Justice eventually combined Rule 6(e) with Rule 54(c), as well as 5 U.S.C. § 310, which gave discretion to the Attorney General to structuring the Department of Justice:

It should be noted that, until the enunciation of the . . . principles of law by our highest court in [United States v. Procter & Gamble Co., 356 U.S. 677 (1958)], the United States Department of Justice had held the view that the . . . Government had the legal right to use the Grand Jury simply to elicit evidence in and for a civil case.

United States v. Procter & Gamble Co., 187 F. Supp. 55, 56 (D.N.J. 1960). Return to text.

[191] John C. Grabow, Congressional Silence and the Search for Legislative Intent: A Venture into "Speculative Unrealities," 64 B.U. L. REV. 737, 758-59 (1984) (citing KENNETH CULP DAVIS, ADMINISTRATIVE LAW TREATISE § 1.3 (2d ed. 1978)). Return to text.

[192] Compare In re April 1956 Term Grand Jury, 239 F.2d 263, 272 (7th Cir. 1956) ("The safeguard of secrecy, in the interest of the public, continues even after the grand jury has completed its efforts and therefore forbids any use in civil proceedings of information derived by or through an examination of records and documents made under the authority of the grand jury.") and United States v. Crolich, 101 F. Supp. 782, 784 (S.D. Ala. 1952) (refusing to disclose grand jury materials to Mobile County Board of Commissioners for investigation of alleged election corruption because county administrative proceedings were not 'judicial proceedings' within meaning of Rule 6(e)) with Doe v. Rosenberry, 255 F.2d 118, 120 (2d Cir. 1958) ("We cannot agree that the Rule should be limited to criminal proceedings; on the contrary we hold that, prima facie, the term 'judicial proceeding' includes any proceeding determinable by a court, having for its object the compliance of any person, subject to judicial control, with standards imposed upon his conduct in the public interest, even though such compliance is enforced without the procedure applicable to the punishment of crime."). See also Application of Kelly, 19 F.R.D. 269, 270 (S.D.N.Y. 1956) (allowing disclosure when federal prosecutor represented that only his staff, FBI agents, and IRS agents would access materials obtained pursuant to grand jury subpoena duces tecum); In re Bullock, 103 F. Supp. 639, 643 (D.D.C. 1952) (allowing limited disclosure of grand jury transcript to D.C. Board of Commissioners to investigate police corruption). Return to text.

[193] Compare United States v. General Motors Corp., 15 F.R.D. 486, 488 (D. Del. 1954) (denying civil disclosure of grand jury transcripts for impeachment because defendant had other discovery tools available that would not jeopardize effective grand jury inquiry and deliberation) and United States v. Radio Corp. of Am., 21 F.R.D. 103, 104 (E.D. Pa. 1957) (denying access to grand jury witness statements because defendant had list of witnesses and could depose them) with United States v. Ben Grunstein & Sons Co., 137 F. Supp. 197, 200 (D.N.J. 1955) (granting defendant's motion for civil discovery of trial witness transcripts because government already had access; "[l]ooking at the parties themselves, the ends of justice would clearly call for a discovery of what plaintiff knows of this relevant testimony, to defendant, in order that the parties may be placed on a parity"). Return to text.

[194] 239 F.2d 263 (7th Cir. 1956). Return to text.

[195] Id. at 265. Return to text.

[196] Id. at 265-67. The Treasury Department had begun an investigation into alleged tax evasion. Id. at 265. The target "furnished to treasury agents its records and suitable accommodations for the agents at its offices, and expended about $20,000 in making the services of its auditors available to said agents . . . ." Id. The target was indicted, tried, and convicted, but the conviction was reversed because of the admission of illegal evidence. Id. The Treasury Department then began a new investigation. Id. Again, the target provided all information requested (approximately a van load). Id. at 265-66. When the Treasury Department issued more subpoenas that sought much of the information reviewed during the first investigation, the target challenged them as unreasonable harassment, an unreasonable search and seizure, and a denial of due process of law. Id. at 266. While the Treasury Department did not attempt to enforce the subpoenas, it did recommend that the Department of Justice begin a grand jury investigation. Id. The Department of Justice then appointed two Treasury Department agents as special assistants to conduct a grand jury investigation. Id. at 266-67. Return to text.

[197] Id. at 267. Return to text.

[198] Id. at 268. Return to text.

[199] Id. at 271-73:

If . . . efforts are directed toward the procuring of evidence for civil proceedings now or hereafter pending against petitioners, and that purpose is accomplished, then the secrecy of the grand jury has been breached. We find nothing in the history of the grand jury to justify the perversion of its functions or machinery by third persons for the purposes of a civil proceeding. The Fifth Amendment's adoption of the grand jury for use in the United States was for the historic purpose of initiating prosecutions for serious crimes. With the grand jury came its time-honored policy of secrecy. The idea that information obtained from the perusal of material in the possession of a grand jury may be used for the purpose of a civil proceeding is in direct conflict with the policy of secrecy of grand jury proceedings.

. . . The application of secrecy to [the grand jury's] proceedings is a safeguard for the grand jury itself, because it tends to prevent it from being used as an instrument for explorations in aid of civil proceedings. . . .

. . . .

. . . [W]e think it is now apparent that, as far as civil proceedings are concerned, the production of these records and documents pursuant to a grand jury subpoena, if followed by their use in any manner for the purposes of such a civil proceeding against petitioners, violates their constitutional rights under . . . provisions of the Fourth and Fifth Amendments.

Return to text.

[200] Id. at 272. Return to text.

[201] 152 F. Supp. 646, 647 (E.D. Va. 1957). Return to text.

[202] Id.:

[I]f books and papers coming to the knowledge of the Government's attorneys in a grand jury investigation develop a demand, and an adequacy of proof, for resort to civil litigation in the public interest, it is certainly proper, indeed incumbent upon them, to use for that purpose the information in their hands.

Accord United States v. Procter & Gamble Co., 14 F.R.D. 230, 233 (D.N.J. 1953) (finding no authority for Procter & Gamble's contention that civil use of grand jury process was illegal and refusing to accept the Procter & Gamble contention as the rule). Return to text.

[203] In re Petroleum Indus. Investigation, 152 F. Supp. at 647. "This is nonetheless true though no process available in a civil action has the competency to discover this data beforehand." Id. Return to text.

[204] 250 F.2d 425 (D.C. Cir. 1957). For the district court's analysis proposing the approach taken in the circuit court, see Maryland & Virginia Milk Producers Ass'n v. United States, 151 F. Supp. 438, 440 (D.D.C. 1956). Judge Holtzoff, the author of the district court opinion, was Secretary to the Advisory Committee on the Federal Rules of Criminal Procedure. See also supra notes 155, 157. Return to text.

[205] Maryland & Virginia Milk Producers Ass'n, 250 F.2d at 425-26. Return to text.

[206] Id.

[T]he United States may use in the trial of any future civil action against the Association only such of the [grand jury] documents, of which it has retained copies, as it could obtain through discovery processes available to civil actions and only such as are enumerated by it as those upon which it will or possibly may rely . . . .

Id. at 426.

This approach is infinitely more equitable than granting automatic disclosure because the defendant will at least have an opportunity to challenge the disclosure before it occurs. "The fundamental requisite of due process of law is the opportunity to be heard. . . . The hearing must be 'at a meaningful time and in a meaningful manner.' " Goldberg v. Kelly, 397 U.S. 254, 267 nn.11-12 (1970) (citations omitted). Return to text.

[207] See generally infra notes 264-67 (explaining that civil agency subpoenas may be challenged prior to compliance and appealed). Return to text.

[208] The order in its entirety is contained in the Appendix to this Article. See also Maryland & Virginia Milk Producers Ass'n, 151 F. Supp. at 438 (underlying district court opinion). Return to text.

[209] Two district court cases adopted the approach taken in Maryland & Virginia Milk Producers Ass'n. See United States v. General Elec. Co., 211 F. Supp. 641, 643 (E.D. Pa. 1962); United States v. Moore, 423 F. Supp. 858, 859 (S.D. W. Va. 1976). Return to text.

[210] Because the courts had no guidance on the emerging civil use of grand jury materials, they borrowed heavily from the criminal context. The "ends of justice" standard came from United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 233-34 (1940), a criminal case in which the Supreme Court stated: "Grand jury testimony is ordinarily confidential. . . . [b]ut after the grand jury's functions are ended, disclosure is wholly proper where the ends of justice require it." Id. at 233-34 (citations omitted); see also United States v. Ben Grunstein & Sons Co., 137 F. Supp. 197, 200 (D.N.J. 1955) (reviewing a False Claims Act case in which "the ends of justice would clearly call for a discovery of what plaintiff knows of this relevant [trial witness] testimony, to defendant, in order that the parties may be placed on a parity"); Herman Schwabe, Inc. v. United Shoe Mach. Corp., 194 F. Supp. 763, 765 (D. Mass. 1958) (granting Sherman Act defendant's civil subpoena duces tecum served on Attorney General to produce plaintiff's ten-year-old grand jury testimony against defendant in original criminal investigation and concluding that "no evidence which is calculated to do justice should be suppressed by either side"); In re Special 1952 Grand Jury, 22 F.R.D. 102, 108 (E.D. Pa. 1958) ("[A]s a matter of justice the defendant has a right to discovery of testimony necessary to enable it to prepare its defense."). Return to text.

[211] See sources cited supra note 210. Return to text.

[213] 356 U.S. 677 (1958). Return to text.

[214] United States v. Procter & Gamble Co., 19 F.R.D. 122, 128-29 (D.N.J. 1956); see also Breck P. McAllister, The Big Case: Procedural Problems in Antitrust Litigation, 64 HARV. L. REV. 27 (1950). Return to text.

[215] 15 U.S.C. §§ 1-7 (1994). The case began as a civil action under § 4 of the Act, with the prosecution alleging criminal conspiracies in violation of §§ 1 and 2 as the basis for the claim. Procter & Gamble, 19 F.R.D. at 123 n.1. Return to text.

[216] Procter & Gamble, 19 F.R.D. at 130. Return to text.

[217] Id. at 123. Return to text.

[218] Id. In fact, the grand jury was never asked to return an indictment. United States v. Procter & Gamble Co., 187 F. Supp. 55, 57 (D.N.J. 1960). Return to text.

[219] See Procter & Gamble, 19 F.R.D. at 123 n.1. Return to text.

[220] United States v. Procter & Gamble Co., 14 F.R.D. 230, 233 (D.N.J. 1953). Return to text.

[221] Id. Return to text.

[222] Id. Return to text.

[223] United States v. Procter & Gamble Co., 1955 Trade Cases (CCH) ¶ 68,228 (D.N.J. 1955); see also Procter & Gamble, 19 F.R.D. at 123. The then-current version of Federal Rule of Civil Procedure 34 provided in part:

Upon motion of any party showing good cause therefor and upon notice to all other parties, and subject to the provisions of Rule 30(b), the court in which an action is pending may (1) order any party to produce and permit the inspection and copying or photographing, by or on behalf of the moving party, of any designated documents . . . not privileged, which constitute or contain evidence relating to any of the matters within the scope of the examination permitted by Rule 26(b) and which are in his possession, custody, or control . . . .

Fed. R. Civ. P. 34 (1957). Return to text.

[224] Procter & Gamble, 19 F.R.D. at 124-25. Return to text.

[225] Id. at 125. Return to text.

[226] Id. at 124. Return to text.

[227] Id. at 124-25. Return to text.

[228] See sources cited supra note 210. Although recognizing the need for equity in civil discovery, the court failed to recognize the simple method for achieving that equity presented in Maryland & Virginia Milk Producers Ass'n. See supra text accompanying notes 204-09; see also discussion infra part XIII. Return to text.

[229] Procter & Gamble, 19 F.R.D. at 128. Return to text.

[230] Id. at 125. Although not cited in the district court opinion, the "ends of justice" rationale had already been put forward in a criminal context by the Supreme Court: "Grand jury testimony is ordinarily confidential. . . . But after the grand jury's functions are ended, disclosure is wholly proper where the ends of justice require it." United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 233-34 (1940) (citations omitted). Return to text.

[231] See Procter & Gamble, 19 F.R.D. at 133. Return to text.

[232] Id. at 128:

The court concludes that since plaintiff is using the transcripts containing relevant information, the ends of justice require the court to order plaintiff to produce and permit the inspection and copying by defendants of the transcripts; equal use of the transcripts by defendants will give them the fullest possible knowledge of the facts before trial; none of the reasons for the rule of secrecy applies.
Return to text.

[233] See United States v. Sells Eng'g, Inc., 463 U.S. 418, 434 n.19 (1983) ("The Court [in Procter & Gamble] did not address . . . the conditions under which . . . civil use by the Government could be permitted, since the issue in the case was only whether private parties could obtain access [to grand jury materials]."). Return to text.

[234] United States v. Procter & Gamble Co., 356 U.S. 677, 681 (1958) (citations omitted). Return to text.

[235] Id. Return to text.

[236] Id.; see also United States v. Procter & Gamble Co., 1955 Trade Cases (CCH) ¶ 68,228 (D.N.J. 1955); Procter & Gamble, 19 F.R.D. at 123. Return to text.

[237] Procter & Gamble, 356 U.S. at 682. Return to text.

[238] Id. In Douglas Oil Co. of California v. Petrol Stops Northwest, 441 U.S. 211 (1979), the Supreme Court revisited this standard in a purely civil case. The Court clarified the standard that was required for particularized necessity: "Parties . . . must show that the material they seek is needed to avoid a possible injustice in another judicial proceeding, that the need for disclosure is greater than the need for continued secrecy, and that their request is structured to cover only material so needed." Id. at 222 (citation omitted). Return to text.

[239] Procter & Gamble, 356 U.S. at 682. Return to text.

[240] Id. at 683. Return to text.

[241] Id. Return to text.

[242] Id. at 684: "It is only when the criminal procedure is subverted that 'good cause' for wholesale discovery and production of a grand jury transcript would be warranted." Return to text.

[243] Id. Without any discussion of grand jury secrecy or a standard to justify disclosure, the Court stated: "The fact that a criminal case failed does not mean that the evidence obtained could not be used in a civil case." Id. Return to text.

[244] Id. at 684 (Whittaker, J., concurring). Return to text.

[245] Id. at 685. Return to text.

[246]

In order to maintain the secrecy of grand jury proceedings; to eliminate the temptation to conduct grand jury investigations as a means of ex parte procurement of direct or derivative evidence for use in a contemplated civil suit; and to eliminate, so far as possible, fundamental unfairness and inequality by permitting the Government's attorneys, agents and investigators to possess and use such materials while denying like possession and use by attorneys for the defendants in such a case, I would adopt a rule requiring that the grand jury minutes and transcripts and all copies thereof and memoranda made therefrom, in cases where a "no true bill" has been voted, be promptly upon return sealed and impounded with the clerk of the court, subject to inspection . . . only upon order of the court . . . upon a showing of such exceptional and particularized need as is necessary to establish "good cause" . . . under Rule 34.

Id. Return to text.

[247] See United States v. Procter & Gamble Co., 174 F. Supp. 233, 234 (D.N.J. 1959). Return to text.

[248] See id.; United States v. Procter & Gamble Co., 175 F. Supp. 198 (D.N.J. 1959); United States v. Procter & Gamble Co., 180 F. Supp. 195 (D.N.J. 1959); United States v. Procter & Gamble Co., 25 F.R.D. 485 (D.N.J. 1960); United States v. Procter & Gamble Co., 187 F. Supp. 55 (D.N.J. 1960). Return to text.

[249] Procter & Gamble, 174 F. Supp. at 235. Return to text.

[250] Id. at 235-36. Return to text.

[251] The court granted the defendant's motion to compel discovery from Department of Justice officials concerning the progression of their investigation and their determination to pursue the case as a civil action, stating:

It is the lack of proof in this cause as to what such authoritative determination by the Government was, and when it was made, that made our highest court in Procter & Gamble say that "there is no finding that the grand jury proceeding was used as a short cut to goals otherwise barred or more difficult to reach." But that Court has also held that the use of "criminal procedures to elicit evidence in a civil case . . . would be flouting the policy of the law," and a subversion of criminal procedure, and that this would call for "wholesale discovery" by clear inference of all of the Grand Jury proceedings which were taken after the Government had determined not to proceed criminally. Thus it now becomes necessary, in order to do justice, to determine when the Government did finally determine to proceed against the present defendants solely by the present civil complaint, as it obviously did at some time.

Id. at 240. Return to text.

[252]

As for the Government's objection that a presumption of regularity in the conduct of governmental affairs should be deemed to exist, it should be noted, first, that previous to the decision in Procter & Gamble, the Department of Justice had regularly considered it the proper thing to do, when the occasion arose, to use the Grand Jury to make even a solely civil case under the anti-trust laws. Thus the question here is not whether the Government did the regular thing in fact, but whether this regular thing which it did was in fact lawful, in the light of the rule for the first time laid down by our highest court in Procter & Gamble.

Id. at 237 (citation omitted). Return to text.

[253]

[W]here the Executive Department of the Government has voluntarily sought the aid of the Judicial Department of the Government to enforce the law of the land, as here, and the United States Supreme Court has declared that the law of the land requires a certain "finding," in order to do justice between the parties in that judicial proceeding, it would not seem that the Executive Department could rely on a mere "housekeeping" privilege of its own, to refuse to abide by the law of the land and give evidence as to such "finding."

Id. at 238.

The executive privilege is discussed more fully in United States v. Procter & Gamble Co., 25 F.R.D. 485 (D.N.J. 1960). As explained in that case, the issue was whether "an executive privilege exists to engage in full discussion and deliberation with subordinates as well as Department heads without disclosing same, 'in order to form a proper judgment' as that judgment affects not only the Government's rights but those of opposing parties in the course of litigation." Id. at 489 (citation omitted). Return to text.

[254] United States v. Procter & Gamble Co., 175 F. Supp. 198, 199-200 (D.N.J. 1959). Return to text.

[255] United States v. Procter & Gamble Co., 180 F. Supp. 195, 200 (D.N.J. 1959). Return to text.

[256] In so doing, the court addressed the very real and unique problems faced by the Department of Justice when pursuing cases that involve both criminal and civil liabilities. The court noted that the Sherman Antitrust Act is primarily a criminal statute. See Procter & Gamble, 180 F. Supp. at 203. Section 4 of the Act also provides a civil equitable remedy for the same conduct, however. 15 U.S.C. § 4 (1994). Thus, an investigation would certainly involve conduct that could be construed as either criminal or civil. The choice of remedy is left in the discretion of the prosecutor. The critical question becomes the timing of that choice. To use the criminal grand jury process solely to develop a civil case is, according to the Supreme Court, to flout the policy of law. United States v. Procter & Gamble, 356 U.S. 677, 683 (1958). Return to text.

[257] Procter & Gamble, 180 F. Supp. at 206-07. Return to text.

[258] Id. at 200. While the district court recognized the unique difficulties involved in investigating civil antitrust violations, it failed to recognize that a solution existed that would allow for governmental use of grand jury materials while still protecting the rights of the individual. If the court had applied the rationale of Maryland & Virginia Milk Producers Ass'n, this nine-year battle could have been avoided. Return to text.

[259] Procter & Gamble obtained numerous internal Department of Justice memoranda, many of which noted that the original intent of the investigation against Procter & Gamble was to file a civil suit. United States v. Procter & Gamble Co., 187 F. Supp. 55, 59-60 (D.N.J. 1960). Return to text.

[260] Id. at 58. Return to text.

[261] See supra notes 204-09 and accompanying text; see also discussion infra part XIII. Return to text.

[262] See sources cited supra notes 178-80. Return to text.

[263] For a comprehensive overview of administrative agency powers of investigation, see generally KENNETH CULP DAVIS, ADMINISTRATIVE LAW TREATISE (2d ed. 1978). For a more detailed look at the enforcement programs of selected federal agencies, see NEIL A. KAPLAN ET AL., PARALLEL GRAND JURY AND ADMINISTRATIVE AGENCY INVESTIGATIONS 27-59 (1981). Return to text.

[264] See Administrative Procedure Act, 5 U.S.C. § 702 (1994); see also Urban A. Lavery, The Administrative Process: Factual Analysis of the Report of Attorney General's Committee on Administrative Procedure, 1 F.R.D. 651, 672-73 (1940):

In the whole field of Administrative Law, the functions that can be performed by judicial review are fairly limited. Its objective, broadly speaking, is to serve as a check on the administrative branch of the government. Judicial review is rarely available, theoretically or practically, to compel effective enforcement of the law by administrators. It is adapted chiefly to curbing excess of power, not toward compelling its exercise.
Return to text.

[265] See, e.g., 15 U.S.C. § 49 (1994) (granting subpoena powers to Federal Trade Commission); 15 U.S.C. § 78(u) (1994) (granting subpoena powers to the Securities and Exchange Commission); 26 U.S.C. §§ 7602, 7609 (1994) (granting subpoena powers to Internal Revenue Service); 47 U.S.C. § 409(e) (1994) (granting subpoena powers to Federal Communication Commission). Return to text.

[266] See, e.g., Petition for Certiorari at 12a, United States v. Sells Eng'g, Inc., 463 U.S. 418 (1983) (No. 81-1032) ("In fact, frustration over limitations on civil discovery may have prompted the government to convene the grand jury here.").

Agency subpoenas must be enforced in federal district court and an enforcement order may be appealed. See, e.g., I.R.C. § 7604 (1994). Return to text.

[267] See e.g., In re April 1956 Term Grand Jury, 239 F.2d 263, 271 (7th Cir. 1956). Return to text.

[268] In 1939, Congress appointed a committee to investigate administrative procedures and to suggest improvements. The result of the committee's work was the Federal Administrative Procedure Act. The Chairman of the Advisory Committee on the Federal Rules of Criminal Procedure, Arthur T. Vanderbilt, also was a member of the Attorney General's Committee on Administrative Procedure. Compare Attorney General's Committee on Administrative Procedure, 1 F.R.D. 259 (1941) (appointing Arthur T. Vanderbilt as member), with 7 WILKEN & TRIFFIN, supra note 155, at xi-xii (quoting Letter of Transmittal submitted by Arthur T. Vanderbilt, Chairman, Advisory Committee on the Federal Rules of Criminal Procedure (July 1944)). See also Urban A. Lavery, The Administrative Process: Factual Analysis of the Report of Attorney General's Committee on Administrative Procedure, 1 F.R.D. 651 (1940) (listing all federal administrative agencies and federal departments created before 1940 that were exercising administrative powers). Return to text.

[269] 5 U.S.C. § 1009(a) (1946) (current version at 5 U.S.C. § 702 (1994)); see also Urban A. Lavery, The Practicing Lawyer and the New Federal Administrative Procedure Act, 6 F.R.D. 51 (1946). Return to text.

[270] United States v. Morton Salt Co., 338 U.S. 632, 644 (1950). Return to text.

[271] See 3 WILKEN & TRIFFIN, supra note 178, at 352. Return to text.

[272] See generally David E. Brodsky & Nicholas M. De Feis, Note, Facilitating Administrative Agency Access to Grand Jury Material, 91 YALE L.J. 1614 (1982) (analyzing inconsistent and contradictory decisions interpreting Rule 6(e) in context of federal agency access to grand jury materials). Return to text.

[273] 255 F.2d 118 (2d Cir. 1958). See also Brodsky & De Feis, supra note 272, at 1627 n.49 (stating that Rosenberry was the first appellate decision concerning administrative agency access to grand jury materials under Rule 6(e)). Return to text.

[274] Rosenberry, 255 F.2d at 119. Return to text.

[275] Id. Return to text.

[276] Id. Return to text.

[277] See id. Return to text.

[278] Id. Return to text.

[279] Id. at 120. Return to text.

[280] Id. Return to text.

[281] Id. Return to text.

[282] See id.; see also In re Bullock, 103 F. Supp. 639 (D.D.C. 1952) (finding that public interest in preserving integrity of police department outweighed interest in secrecy). Return to text.

[283] See United States v. Procter & Gamble Co., 356 U.S. 677, 682 (1958). In 1979, the Supreme Court revisited this question in Douglas Oil Co. of California v. Petrol Stops Northwest, 441 U.S. 211 (1979), where it expanded the scope of this standard by creating a three-part test a private litigant must meet to gain disclosure. Id. at 222. Return to text.

[284] In re Grand Jury Proceedings, 309 F.2d 440, 443 (3rd Cir. 1962):

The term "attorneys for the government" is restrictive in its application and does not include the attorneys for the administrative agencies. If it had been intended that the attorneys for the administrative agencies were to have free access to matters occurring before a grand jury, the rule would have so provided.
Return to text.

[285] A federal agency "stands in no higher degree of privilege than a private litigant" seeking access to grand jury materials. In re Grand Jury Proceedings, 29 F.R.D. 151, 154 (E.D. Pa. 1961), aff'd, 309 F.2d 440 (3d Cir. 1962). Return to text.

[286] 53 F.R.D. 464 (E.D. Pa. 1971). Return to text.

[287] "An intelligence division agent within the Internal Revenue Service is responsible for criminal investigations: a separate kind of agent—a revenue agent—is responsible for civil investigations." Grand Jury Reform: Hearings on H.R. 94 Before the Subcomm. on Immigration, Citizenship, and International Law, House Comm. on the Judiciary, 95th Cong., 1st Sess. 765 (1977) (statement of Benjamin R. Civiletti, Ass't Att'y Gen., Crim. Div., U.S. Dep't of Justice). Return to text.

[288] Pflaumer, 53 F.R.D. at 466. Return to text.

[289] Id. at 470. Return to text.

[290] Id. at 473-76. Return to text.

[291] Id. at 476 n.31. Judge Becker's quotation from the Advisory Committee's notes used an ellipsis to stop short of the explanation for granting automatic disclosure to attorneys for the government "inasmuch as they may be present in the grand jury room during the presentation of evidence." FED R. CRIM. P 6(e) advisory committee's note. Contrary to Judge Becker's conclusion, there is very little historical support for the assertion that Department of Justice attorneys not directly involved in the grand jury presentation should have automatic access to grand jury material. Return to text.

[292] Pflaumer, 53 F.R.D. at 476. The "aegis" theory was developed under the district court's supervisory power to oversee who was having a look at grand jury materials, when, and for how long. Proposed Amendments to the Federal Rules of Criminal Procedure: Hearings Before the Subcomm. on Criminal Justice of the House Comm. on the Judiciary, 95th Cong., 1st Sess. 34-37 (1977) (statement of Hon. Edward R. Becker, U.S. District Judge, Eastern District of Pennsylvania) [hereinafter Becker Statement]. The acting prosecutor guiding the grand jury proceeding was charged with ensuring that materials disclosed for the criminal case were not leaked or otherwise made available to parties outside of the potential prosecution. Id.

In practice when a citizen turns over his cartons of papers to the grand jury they will be examined by the government personnel assisting the attorneys for the government in the offices of their own agency. We must remember, in that context, that access to these records was made possible because they were subpoenaed to a secret grand jury. We must also note that grand jury material will often be examined pursuant to Rule 6(e) by government and administrative agencies, and yet: (1) the powers of federal administrative agencies are tightly circumscribed by the statutes creating them; (2) federal agencies (including IRS) are not permitted to launch general investigations which do not concentrate on a specific target; (3) agency subpoenas are subjected to greater scrutiny than grand jury subpoenas; (4) the agencies are not usually subject to the direct supervision of the courts; and (5) their activities, unlike those of the United States Attorney in connection with a given prosecution, are ongoing, so that vindication at trial does not serve as a meaningful protection in cases of abuse.

Congress has thus determined not to give administrative agencies powers comparable to the grand jury. Yet the danger exists that the execution may accede to the grand jury's extraordinary powers via Rule 6(e).

Id. at 49-50. Return to text.

[293] See Pflaumer, 53 F.R.D. at 475. Return to text.

[294] Id. at 468. Judge Becker made the specific suggestion to reevaluate and clarify the phrase "attorneys for the government" to resolve "how far the 'Attorney for the government' exception to the secrecy principle may extend in view of the myriad situations in which the United States Attorney works with and through other government agencies in developing factual material for civil and criminal actions." Id. He personally suggested clarification to Judge Maris, with whom he worked in the U.S. Courthouse in Philadelphia, and who was then chairman of the Supreme Court Rules Committee. Becker Statement, supra note 292, at 28. One day, Judge Becker said to Judge Maris, "I wrote this [Pflaumer] opinion, and [R]ule 6(e) ought to be clarified." Id. Judge Becker testified that Judge Maris replied, "Send it to me." Id. Return to text.

[295] Such was the case even six years later: "[P]articularly since there has been no demonstration or suggestion of any apparent urgency for the proposed amendment, the subject of disclosure of grand jury proceedings and grand jury secrecy should be considered as a whole together with the other legislation." Proposed Amendments to the Federal Rules of Criminal Procedure: Hearings Before the Subcomm. on Criminal Justice of the House Comm. on the Judiciary, 95th Cong., 1st Sess. 150-51 (1977) (statement of Bernard J. Nussbaum, Esq., Chicago) [hereinafter Nussbaum Statement]. Return to text.

[296] "The questions concerning grand jury secrecy presented by the proposed substantive change are basic to the function and operation of the grand jury. . . . The issues surrounding Rule 6(e) and the proposed substantive change will be taken up by [the Subcommittee on Immigration, Citizenship, and International Law] during its work on the grand jury reform legislation." H.R. REP. NO. 195, 95th Cong., 1st Sess. 5 (1977), reprinted in Proposed Amendments to the Federal Rules of Criminal Procedure: Hearings Before the Subcomm. on Criminal Justice of the House Comm. on the Judiciary, 95th Cong., 1st Sess. 275 (1977) (Appendix 6). Return to text.

[297] Proposed Amendments to the Federal Rules of Criminal Procedure: Hearings Before the Subcomm. on Criminal Justice of the House Comm. on the Judiciary, 95th Cong., 1st Sess. 1 (1977). Return to text.

[298] Id. at 84 (statement of Prof. Wayne LaFave, University of Illinois, reporter to the Advisory Committee) [hereinafter LaFave Statement]. Return to text.

[299] The 1976 proposal to amend Rule 6(e) stated:

(e) SECRECY OF PROCEEDINGS AND DISCLOSURE.—Disclosure of matters occurring before the grand jury other than its deliberations and the vote of any juror may be made to the attorneys for the government for use in the performance of their duties. For purposes of this subdivision, "attorneys for the government" includes those enumerated in Rule 54(c); it also includes such other government personnel as are necessary to assist the attorneys for the government in the performance of their duties. Otherwise a juror, attorney, interpreter, stenographer, operator of a recording device, or any typist who transcribes recorded testimony may disclose matters occurring before the grand jury only when so directed by the court preliminarily to or in connection with a judicial proceeding or when permitted by the court at the request of the defendant upon a showing that grounds may exist for a motion to dismiss the indictment because of matters occurring before the grand jury. No obligation of secrecy may be imposed upon any person, except in accordance with this rule . . . .

SUBCOMM. ON CRIMINAL JUSTICE OF THE HOUSE COMM. ON THE JUDICIARY, 95TH CONG., 1ST SESS., AMENDMENTS, FEDERAL RULES OF CRIMINAL PROCEDURE 7 (Comm. Print 1977) (new language underlined). Return to text.

[300] H.R. REP. NO. 195, 95th Cong., 1st Sess. 2 (1977) reprinted in Proposed Amendments to the Federal Rules of Criminal Procedure: Hearings Before the Subcomm. on Criminal Justice of the House Comm. on the Judiciary, 95th Cong., 1st Sess. 272 (1977) (Appendix 6).

There are at least three explanations for the four-year drafting period. First, the proposals were first printed in the federal reporters during the summer of 1973 while 5,000 copies of the proposed amendments were circulated to the bench and bar for comments to be received back by February 1974. Those comments led to revisions. LaFave Statement, supra note 298, at 84. Second, Congress was involved with the Federal Rules of Evidence and during that period did not consider the amendments to the Federal Rules of Criminal Procedure. Becker Statement, supra note 292, at 46. Third, the Nixon administration's abuse of the grand jury process to harass its political opponents triggered a series of grand jury reform proposals that overlapped the grand jury provisions of Federal Rule of Criminal Procedure 6. In his June 10, 1976, opening remarks to the first ever congressional hearings on grand jury reform, Joshua Eilberg said,

In recent years . . . increasing evidence has been presented that the historic function of the grand jury has been perverted and that its historic purpose has been disregarded.

It has been almost 3 years since this subcommittee began its study of alleged abuses in the Federal grand jury system.

In March of 1973, we received testimony regarding the so-called Fort Worth Five controversy and listened to witnesses describe the use of grand juries to investigate "political crimes"; the locating of grand jury inquiries, often for political purposes, far from the site of an alleged offense; the use of grants of immunity to elicit testimony; and the use of the court's contempt power to coerce it.

Federal Grand Jury: Hearings on H.J. Res. 46, H.R. 1277 and Related Bills Before the Subcomm. on Immigration, Citizenship, and International Law of the House Comm. on the Judiciary, 94th Cong., 2nd Sess. 2 (1976) (statement of Hon. Joshua Eilberg, Chairman of the Subcommittee). See also generally Reform of the Grand Jury System: Hearings on S. 3274, H.R. 1277, H.R. 6006, H.R. 6207, H.R. 10947, H.R. 11660, H.R. 11870, H.R. 14146, and H.J. 46 Before the Subcomm. on Constitutional Rights of the Senate Comm. on the Judiciary, 94th Cong., 2nd Sess. (1976); Grand Jury Reform: Hearings Before the Subcomm. on Immigration, Citizenship, and International Law of the House Comm. on the Judiciary, 95th Cong., 1st Sess. (1977). Return to text.

[301] Proposed Amendments to the Federal Rules of Criminal Procedure: Hearings Before the Subcomm. on Criminal Justice of the House Comm. on the Judiciary, 95th Cong., 1st Sess. 19-20 (1977) (statement of Terry Philip Segal, Boston attorney and former Assistant U.S. Attorney for Massachusetts and the District of Columbia). Return to text.

[302] Proposed Amendments to the Federal Rules of Criminal Procedure, Hearings Before the Subcomm. on Criminal Justice of the House Comm. on the Judiciary, 95th Cong., 1st Sess. 66-67 (1977) (testimony of Richard L. Thornburgh) [hereinafter Thornburgh Statement]. See also Nussbaum Statement, supra note 295, at 149 ("No one is left out, not even Members of Congress or the military."). Return to text.

[303] See generally Annotation, Propriety of Appointing an Attorney for a Federal Agency as Special Assistant U.S. Attorney for Grand Jury Proceedings in Which the Agency Is Interested, 58 A.L.R. FED. 696 (1982). Return to text.

[304] See In re William H. Pflaumer & Sons, Inc., 53 F.R.D. 464, 475-76 (E.D. Pa. 1971). Return to text.

[305] Thornburgh Statement, supra note 302, at 66-67. Return to text.

[306] See, e.g., Robert Hawthorne, Inc. v. Director of IRS, 406 F. Supp. 1098, 1120 n.38 (E.D. Pa. 1976) (granting Rule 6(e) disclosure but expressing doubts that court order was required for IRS agent access to books, records, and transcripts presented before grand jury). In at least one other jurisdiction, automatic disclosure seemed appropriate without court supervision even after the potential misuse of grand jury material was challenged. See Pflaumer, 53 F.R.D. at 473. In In re Kelly, 19 F.R.D. 269 (S.D.N.Y. 1956), a federal prosecutor represented to the court that only his staff, the FBI, and the IRS would examine union records acquired through a grand jury subpoena duces tecum. Id. at 270. Such cases are rare, possibly because the issue of automatic disclosure only arises for review when a grand jury target files a motion for a protective order—as Kelly did. See id. Return to text.

[307] "[T]here is a significant imbalance in favor of the government attorneys in preparation for trial of a criminal antitrust case, and the proposed amendment would increase that imbalance." Proposed Amendments to the Federal Rules of Procedure: Hearings Before the Subcomm. on Criminal Justice of the House Comm. on the Judiciary, 95th Cong., 1st Sess. 79 (1977) (statement of John F. McClatchey, Member of the Ohio Bar).

The American Bar Association requested that Congress make an explicit statement "to insure that the grand jury information disseminated to [government] experts is not used in violation of any constitutional rights, in unrelated criminal cases, or in any civil proceedings." Proposed Amendments to the Federal Rules of Procedure: Hearings Before the Subcomm. on Criminal Justice of the House Comm. on the Judiciary, 95th Cong., 1st Sess. 111 (1977) (statement of David Epstein, A.B.A. Crim. Just. Section). Return to text.

[308] "It is past history at this point that the Supreme Court proposal attracted substantial criticism, which seemed to stem more from the lack of precision in defining, and consequent confusion and uncertainty concerning, the intended scope of the proposed change than from a fundamental disagreement with the objective." S. REP NO. 354, 95th Cong., 1st Sess. 6 (1977), reprinted in 1977 U.S.C.C.A.N. 527, 529 (citing hearings that took place in the House of Representatives on February 23 and 24, and March 2, 1977). Return to text.

[309] As pointed out during the House Subcommittee hearings, "at least one bill introduced during the 94th Congress expressly recognized the necessary and appropriate primacy of the legislative—not the rulemaking—function in this important policy area." Nussbaum Statement, supra note 295, at 150 (citing H.R. 6207, 94th Cong., 1st Sess. (1975)). Return to text.

[310] On Tuesday, September 25, 1976, the Chairman of the Senate Subcommittee on Constitutional Rights opened hearings on grand jury reform:

This morning's hearing marks the first time the U.S. Senate has examined the grand jury system since the grand jury's inclusion in the Bill of Rights some 185 years ago. This long-overdue examination is a logical extension of the hearings on "The Causes of Popular Dissatisfaction with the Administration of Justice" that this author conducted this summer.

Continuing revelation of Government lawlessness has led to a breakdown in public trust in the integrity of our institutions. The Federal grand jury has not escaped this skepticism.

. . . .

. . . [C]onfronted by instance after instance of grand jury abuse, the courts have repeatedly failed to exercise their supervisory responsibilities over the grand jury process.

Reform of the Grand Jury System: Hearing before the Subcomm. on Constitutional Rights, Senate Comm. on the Judiciary, 94th Cong., 2nd Sess. 2 (1976) (opening statement of Sen. John V. Tunney). The hearing began consideration of four omnibus grand jury reform bills introduced in the House, four House bills with grand jury reform provisions, and a Senate bill to reform the grand jury. Id. at 1.

Introducing the Senate Grand Jury Reform Bill, Senator Abourezk stated that "the Nixon administration used the grand jury as a tool of political repression in its effort to silence the anti-war movement." Reform of the Grand Jury System, Hearing before the Subcomm. on Constitutional Rights, Senate Comm. on the Judiciary, 94th Cong., 2nd Sess. 4 (1976) (statement of Sen. James Abourezk). See also Federal Grand Jury: Hearings before the Subcomm. on Immigration, Citizenship, and International Law, House Comm. on the Judiciary, 94th Cong., 2nd Sess. 730-35 (1976) (providing synopses of selected cases alleged to have been examples of grand jury abuse, including the Leslie Bacon case, the Patty Hearst case, the Daniel Ellsburg/Pentagon Papers case, the Harrisburg 7 case, the John Fuerst case, the Tallahassee 23/Vietnam Veterans Against the War case, and the Camden 28 case); Michael Deutsch, The Improper Use of the Federal Grand Jury: An Instrument for the Internment of Political Activists, 75 J. CRIM. L. & CRIMINOLOGY 1159, 1179-83 (1984). Return to text.

[311] Proposed Amendments to the Federal Rules of Criminal Procedure: Hearings Before the Subcomm. on Criminal Justice of the House Comm. on the Judiciary, 95th Cong., 1st Sess. 272 (1977). The amendment to Rule 6(e) also included a technical change to make the Rule "consistent with other provisions in the Rules and in the Bail Reform Act of 1966." Id. at 274. Return to text.

[312] "Present Rule 6(e) does not clearly spell out when, under what circumstances, and to whom grand jury information can be disclosed. It ought to be rewritten entirely." H.R. REP. NO. 195, 95th Cong., 1st Sess. 5 (1977), reprinted in Proposed Amendments to the Federal Rules of Criminal Procedure: Hearings Before the Subcomm. on Criminal Justice of the House Comm. on the Judiciary, 95th Cong., 1st Sess. 275 (1977) (Appendix 6) (citation omitted). Return to text.

[313] S. REP NO. 354, 95th Cong., 1st Sess. 7-8 (1977), reprinted in 1977 U.S.C.C.A.N. 527, 530-31. Return to text.

[314] H.R. REP. NO. 195, 95th Cong., 1st Sess. 5 (1977), reprinted in Proposed Amendments to the Federal Rules of Criminal Procedure: Hearings Before the Subcomm. on Criminal Justice of the House Comm. on the Judiciary, 95th Cong., 1st Sess. 275 (1977) (Appendix 6). Return to text.

[315] Act of July 30, 1977, Pub. L. No. 95-78, 91 Stat. 319 (1977) (codified as amended at 18 U.S.C. app. (1994)). Return to text.

[316] S. REP NO. 354, 95th Cong., 1st Sess. 7 (1977), reprinted in 1977 U.S.C.C.A.N. 527, 530-31. The Rule, as adopted, read as follows:

(1) General Rule of Secrecy. A grand juror, an interpreter, a stenographer, an operator of a recording device, a typist who transcribes recorded testimony, an attorney for the government, or any person to whom disclosure is made under paragraph (2)(A)(ii) of this subdivision shall not disclose matters occurring before the grand jury, except as otherwise provided for in these rules. No obligation of secrecy may be imposed an any person except in accordance with this rule. A knowing violation of Rule 6 may be punished as a contempt of court.

(2) Exceptions.—

(A) Disclosure otherwise prohibited by this rule of matters occurring before the grand jury, other than its deliberations and the vote of any grand juror, may be made to—

(i) an attorney for the government for use in the performance of such attorney's duty; and

(ii) such government personnel (including personnel of a state or subdivision of a state) as are deemed necessary by an attorney for the government to assist an attorney for the government in the performance of such attorney's duty to enforce federal criminal law.

(B) Any person to whom matters are disclosed under subparagraph (A)(ii) of this paragraph shall not utilize that grand jury material for any purpose other than assisting the attorney for the government in the performance of such attorney's duty to enforce Federal criminal law. An attorney for the government shall promptly provide the district court, before which was impaneled the grand jury whose material has been so disclosed, with the names of the persons to whom such disclosure has been made.

(C) Disclosure otherwise prohibited by this rule of matters occurring before the grand jury may also be made—

(i) when so directed by a court preliminary to or in connection with a judicial proceeding: or

(ii) when permitted by a court at the request of the defendant, upon a showing that grounds may exist for a motion to dismiss the indictment because of matters occurring before the grand jury.

(3) SEALED INDICTMENTS—The Federal magistrate to whom an indictment is returned may direct that the indictment be kept secret until the defendant is in custody or has been released pending trial. Thereupon the clerk shall seal the indictment and no person shall disclose the return of the indictment except when necessary for the issuance and execution of a warrant or summons.

Act of July 30, 1977, Pub. L. No. 95-78, §§ 1-3, 91 Stat. 319, 319-21 (1977) (codified as amended at 18 U.S.C. app. (1994)). Return to text.

[317] In 1979, Rule 6(e) was again amended to require recording of proceedings. The requirement caused the paragraphs to be renumbered so that the 1977 paragraph 1 became paragraph 2 and the 1977 paragraph 2 became paragraph 3, which is how the rule reads now in 1996. See FED. R. CRIM. P. 6(e). Return to text.

[318] S. REP NO. 354, 95th Cong., 1st Sess. 7 (1977), reprinted in 1977 U.S.C.C.A.N. 527, 531. The language of the report states that disclosure otherwise prohibited "may be made to an attorney for the government for use in the performance of his duty and to such personnel as are deemed necessary by an attorney for the government to assist an attorney for the government in the performance of such an attorney's duty to enforce Federal criminal law." Id. Note that the singular form chosen by the Senate Report—"an attorney"—echoes the 1945 Advisory Commitee's note. Return to text.

[319]

Although the case law is limited, the trend seems to be in the direction of allowing disclosure to government personnel who assist attorneys for the government in situations where their expertise is required. This is subject to the qualification that the matters disclosed be used only for the purposes of the grand jury investigation.

Id. at 6 (citation omitted). Return to text.

[320] S. REP. NO. 354, 95th Cong., 1st Sess. 7-8 (1977), reprinted in 1977 U.S.C.C.A.N. 527, 530-31. Subparagraph (B) added the specificity requirement that enables court supervision of personnel allowed access to grand jury materials but does not connect the personnel to the specific material disclosed, as suggested by Judge Becker in Hawthorne v. Director of Internal Revenue Service, 406 F. Supp. 1098, 1127 (1975), and Judge Hufstedler in In re J.R. Simplot Co., 77-1 U.S. Tax Cases (CCH) ¶ 9146 (1976). Return to text.

[321] What had been the second sentence of the 1946 codification became subparagraph (C) and remained unchanged. Return to text.

[322]

The Rule, as redrafted, is designed to accommodate the belief on the one hand that Federal prosecutors should be able, without the time-consuming requirement of prior judicial interposition, to make such disclosures of grand jury information to other government personnel as they deem necessary to facilitate the performance of their duties relating to criminal law enforcement. On the other hand, the Rule seeks to allay the concerns of those who fear that such prosecutorial power will lead to misuse of the grand jury to enforce non-criminal Federal laws by (1) providing a clear prohibition, subject to the penalty of contempt and (2) requiring that a court order under paragraph (C) be obtained to authorize such a disclosure. There is, however, no intent to preclude the use of grand jury-developed evidence for civil law enforcement purposes. On the contrary, there is no reason why such use is improper, assuming that the grand jury was utilized for the legitimate purpose of a criminal investigation. Accordingly, the Committee believes and intends that the basis for a court's refusal to issue an order made under paragraph (C) to enable the government to disclose grand jury information in a non-criminal proceeding should be no more restrictive than is the case today under prevailing court decisions. [See United States v. Procter & Gamble Co., 356 U.S. 677, 683-85 (1958); Robert Hawthorne, Inc. v. Director of IRS, 406 F. Supp. 1098 (E.D. Pa. 1976)] It is contemplated that the judicial hearing in connection with an application for a court order by the government under subparagraph (3)(C)(i) should be ex parte so as to preserve, to the maximum extent possible, grand jury secrecy. [But see In re J.R. Simplot Co., 77-1 U.S. Tax Cases (CCH) ¶ 9146 (1976)].

S. REP. NO. 354, 95th Cong., 1st Sess. 8 (1977), reprinted in 1977 U.S.C.C.A.N. 527, 531. Return to text.

[323] See In re Grand Jury, 583 F.2d 128, 130 (5th Cir. 1978). Return to text.

[324] Preliminary Draft of Proposed Amendments to the Federal Rules of Criminal Procedure, 91 F.R.D. 289 (1981). Return to text.

[325] Id. at 301. Return to text.

[326] Id. at 302. Return to text.

[327] Id. at 302-03. Return to text.

[328] Id. at 303. Return to text.

[329] Id. at 303-04. Return to text.

[330] Id. at 304. Return to text.

[331] Id. at 304-05. Return to text.

[332] Id. at 305. Return to text.

[333] In re Proposed Amendments to Federal Rules of Criminal Procedure, 97 F.R.D. 245 (1983). Return to text.

[334] Preliminary Draft, 91 F.R.D. at 305-06. Return to text.

[335] Proposed Amendments, 97 F.R.D. at 260 (citing Letter of Transmittal from Walter E. Hoffman, Chairman of the Advisory Committee on Criminal Rules). Return to text.

[336] For in depth analysis of "matters occurring" case law, see Andrea M. Nervi, Comment, FRCrP 6(e) and the Disclosure of Documents Reviewed by a Grand Jury, 57 U. CHI. L. REV. 221 (1990). Return to text.

[337] See id. (proposing—not unlike 1981 Preliminary Draft proposal—a principled test of "matters occurring," framed without reference to grand jury and limited to those documents created independently of any grand jury investigation). While this Article does not focus on the problematic issue of what constitutes a "matter occurring," the author notes that the procedure proposed in Maryland & Virginia Milk Producers Ass'n would be an equitable means of determining whether documents could be disclosed. See supra notes 204-09 and accompanying text; see also infra discussion part XIII. Use of such a procedure would eliminate the resort to fictional definitions of "matters occurring" to allow disclosure of documents that would have been readily available through civil discovery. Return to text.

[338] United States v. Sells Eng'g, Inc., 456 U.S. 960 (1982). Return to text.

[339] 463 U.S. 418 (1983). Return to text.

[340] 463 U.S. 476 (1983). Return to text.

[341] A third case was decided with Baggot and Sells. This case, Illinois v. Abbott & Associates, 460 U.S. 557 (1983), dealt with a state's access to federal grand jury materials for use in prosecuting state criminal laws. The Supreme Court determined that a state, just like any other private litigant, must meet the "particularized need" standard first set forth in Procter & Gamble. Id. at 567. Return to text.

[342] Sells, 463 U.S. at 421. Return to text.

[343] Id. at 422. Return to text.

[344] Respondent's Brief at 1. While the case involved Sells Engineering and several related business entities, the challenge upon which the decision was based came from Sells Engineering. Id. Return to text.

[345] Id. at 2. Return to text.

[346] Id. Return to text.

[347] Id. Return to text.

[348] Id. The IRS requested the Department of Justice to begin an open-ended grand jury investigation. Id. According to the IRS manual in effect at that time, an open-ended grand jury proceeding referred to an exploratory investigation under the powers of the grand jury which could be sought by the IRS agents if the administrative proceedings were stymied. Id. at 2 n.4. Return to text.

[349] Whether the grand jury had any control over these subpoenas at all was a matter of dispute. Attorneys for Sells argue that some grand jury subpoenas were issued at a time when no grand jury was even in session. See id. at 28. Return to text.

[350] See id. at 7 n.7. Return to text.

[351] See id. at 3. Return to text.

[352] See id. at 11. In summarizing the allegations of abuse in the Respondent's Brief, counsel for Sells wrote:

It was the IRS in this case that initiated the open-ended grand jury investigation after being "stymied" in the courts in its administrative proceedings. . . . In this case the same IRS agents participated in the grand jury investigation as were conducting the prior administrative investigation. . . . In this case no 6(e) orders were obtained for the assistance of [the IRS agents] though they were enlisted to assist the grand jury over one year before Rule 6(e) was amended. . . . The very first grand jury subpoenas issued were for the very same records that the IRS had been judicially "stymied" in obtaining under its administrative summons. . . . In this case virtually all of the witnesses subpoenaed were diverted to 'voluntary' interrogation by a Special Agent of the IRS and did not testify before the grand jury. . . . [S]everal of these same witnesses were intimidated by use of the subpoena power into 'voluntarily' waiving their fifth amendment rights in testifying before a special agent, rather than the grand jury, and in signing affidavits prepared by the special agent in a form acceptable to him. . . . In this case subpoenas appear to have been issued when no grand jury was assembled to investigate this case and for the purpose of diverting witnesses before a Special Agent of the IRS. . . . No 6(e) orders were obtained for the use of private stenographers to take down the "voluntary" interrogations by IRS [agents] conducted under grand jury subpoena. . . . The IRS made the real decision to prosecute at its District and Regional offices based on its own review of the evidence. . . . The only testimony presented to the grand jury to obtain the indictment was the hearsay testimony of government agents summarizing their view of the evidence and of the testimony of all the "witnesses." . . . The grand jury had no real evaluation of the evidence and facts but were essentially directed by the predetermination of the IRS and its selective presentation . . . . As a plea bargain condition, defendants were required to execute a very detailed and itemized Agreed Statement of Facts scheduling and explaining every false deduction from which their exact tax liability could be calculated—prepared by the IRS directly from grand jury materials without any 6(e) order. . .

Id. at 28-29. Return to text.

[353] See id. at 10 n.20:

The Disposition Agreement was negotiated and entered into in a late night negotiation session directly with U.S. Attorney . . . and finalized only hours before the calendared hearing on respondents' comprehensive grand jury abuse motion seeking among other things, an evidentiary proceeding on the abuse issues. . . . It was the concern as to what would be developed in an evidentiary hearing that respondents believe persuaded the U.S. Attorneys office to enter into the late night Disposition Agreement, including an agreed limitation on sentencing.
Return to text.

[354] Id. at 11: "On Friday, December 15, 1978, respondents Sells and Witte entered guilty pleas to one count of conspiracy tax fraud. This mooted the grand jury abuse issue to be heard that day in the criminal case resulting in the motion being withdrawn and not argued in that case as originally calendared." Return to text.

[355] United States v. Sells Eng'g, Inc., 642 F.2d 1184, 1186 (9th Cir. 1981). Return to text.

[356] United States v. Sells Eng'g, Inc., 456 U.S. 960 (1982). Return to text.

[357] United States v. Sells Eng'g, Inc., 463 U.S. 418, 426 (1983). Return to text.

[358] Id. at 424. Return to text.

[359] Id. ("Grand jury secrecy, then, is 'as important for the protection of the innocent as for the pursuit of the guilty.' "). The Court viewed the historical purpose of the grand jury as "[a] dual function of determining if there is probable cause to believe that a crime has been committed and of protecting citizens against unfounded criminal prosecutions." Id. at 423. Return to text.

[360] Id. at 423-24:

These broad powers are necessary to permit the grand jury to carry out both parts of its dual function. Without thorough and effective investigation, the grand jury would be unable either to ferret out crimes deserving of prosecution, or to screen out charges not warranting prosecution.
Return to text.

[361] "We consistently have recognized that the proper functioning of our grand jury system depends upon the secrecy of grand jury proceedings." Id. at 424. Return to text.

[362] Admitting that it would be a bad idea to allow agency personnel to have automatic use of grand jury materials for civil purposes, Acting Deputy Attorney General Richard Thornburgh had stated:

The cleanest example I can think of where a 6(e) order is clearly required is where a criminal fraud investigation before a grand jury fails to produce enough legally admissible evidence to prove beyond a reasonable doubt that criminal fraud ensued. It would be the practice of the Department at that time to seek a 6(e) order from the court in order that evidence could be made available for whatever civil consequences might ensue.

Id. at 439 (emphasis added). Ironically, although Sells was precisely the type of case to which Thornburgh had referred, the Department of Justice was now arguing for automatic access. Return to text.

[363] Citing the Advisory Committee's notes to the 1977 Amendment, the Court stated:

This paragraph reflects the distinction the Senate Committee had in mind: "Federal prosecutors" are given a free hand concerning use of grand jury materials, at least pursuant to their "duties relating to criminal law enforcement"; but disclosure of "grand jury-developed evidence for civil law enforcement purposes" requires a (c)(i) court order.

Id. at 441-42. Return to text.

[364] Id. at 425. Return to text.

[365] Id. at 428 ("Given the strong historic policy of preserving grand jury secrecy, one might wonder why Government attorneys are given any automatic access at all."). Return to text.

[366] Id. at 430:

[A] modern grand jury would be much less effective without the assistance of the prosecutor's office and the investigative resources it commands. The prosecutor ordinarily brings matters to the attention of the grand jury and gathers the evidence required for the jury's consideration. Although the grand jury may itself decide to investigate a matter or to seek certain evidence, it depends largely on the prosecutor's office to secure the evidence or witnesses it requires. The prosecutor also advises the lay jury on the applicable law. The prosecutor in turn needs to know what transpires before the grand jury in order to perform his own duty properly. If he considers that the law and the admissible evidence will not support a conviction, he can be expected to advise the grand jury not to indict. He must also examine indictments, and the basis for their issuance, to determine whether it is in the interests of justice to proceed with prosecution.
Return to text.

[367] Id. at 431:

None of these considerations, however, provides any support for breaching grand jury secrecy in favor of government attorneys other than prosecutors—either by allowing them into the grand jury room, or by granting them uncontrolled access to grand jury materials. An attorney with only civil duties lacks both the prosecutor's special role in supporting the grand jury, and the prosecutor's own crucial need to know what occurs before the grand jury.
Return to text.

[368] Id. at 432. Return to text.

[369] Id. Return to text.

[370] Id.:

If prosecutors in a given case knew their colleagues would be free to use the materials generated by the grand jury for a civil case, they might be tempted to manipulate the grand jury's powerful investigative tools to root out additional evidence useful in the civil suit, or even to start or continue a grand jury inquiry where no criminal prosecution seemed likely.
Return to text.

[371] Id. at 432; see also supra text accompanying notes 217-60. Return to text.

[372] Sells, 463 U.S. at 433. Return to text.

[373] Id. at 433-34. Return to text.

[374] Id. at 431:

Of course, it would be of substantial help to a Justice Department civil attorney if he had free access to a storehouse of evidence compiled by a grand jury; but that is of a different order from the prosecutor's need for access. The civil lawyer's need is ordinarily nothing more than a matter of saving time and expense.
Return to text.

[375] Id. Return to text.

[376] Id. at 442. Although providing a prophylactic rule to eliminate grand jury abuse, Sells placed a heavy burden upon the government in investigating and initiating civil suits. Duplicating grand jury investigations is extremely costly and time consuming. The Sells rule seems to insulate grand jury materials that would have been discoverable through use of government civil investigative devices simply because the information went before the grand jury. The procedure presented in Maryland & Virginia Milk Producers Ass'n, which, like Sells, does not allow automatic disclosure, balances the government's need for the information against the need to guard against grand jury abuse. See supra notes 204-09 and accompanying text; see also discussion infra part XIII. Return to text.

[377] In re Grand Jury Investigation No. 78-184, 642 F.2d 1184, 1190 (9th Cir. 1981) ("To grant the government an absolute right of access to grand jury materials for civil use might irresistibly encourage use of the grand jury as a tool of civil discovery. It would also severely limit court review of any such abuse."). Return to text.

[378] See Petition for Certiorari at 13:

The rule clearly permits attorneys who become privy to grand jury material by assisting a grand jury employ that material for civil litigation purposes, and it does not prohibit the Attorney General from assigning criminal and civil litigation responsibilities arising from a common nucleus of operative facts to a single attorney. Indeed, if it were true, as the court of appeals apparently supposed, that the temptation to abuse the grand jury process is irresistible, and that there are no other adequate safeguards against such abuse, one could only conclude that the court of appeals' interpretation of Rule 6(e)(3) would foster grand jury abuse encouraging such dual assignments.
Return to text.

[379] See id. at 17-18 n.11. Similarly, Associate Deputy Attorney General Jay Stephens, testifying before the Senate Judiciary Committee on a bill that would have permitted congressional access to grand jury information on a showing of "substantial need," emphasized that congressional oversight of grand jury investigations would compromise the Justice Department's conduct of a criminal investigation by injecting congressional influence into the proceedings. Senate Committee Urged Not to Give Congress Access to Grand Jury Data, DAILY REP. FOR EXECUTIVES, Nov. 25, 1985, at A5. Return to text.

[380] Sells, 463 U.S. at 431 n.15. Return to text.

[381] Id. at 444. Return to text.

[382] Id. at 445. Return to text.

[383] See supra notes 204-09 and accompanying text; see also discussion infra part XIII. Return to text.

[384] Rule 6(e)(3)(C)(i) provides:

(C) Disclosure otherwise prohibited by this rule of matters occurring before the grand jury may also be made—

(i) when so directed by a court preliminarily to or in connection with a judicial proceeding.

FED. R. CRIM. P. 6(e)(3)(C)(i). Return to text.

[385] 463 U.S. 476 (1983). Return to text.

[386] Petitioner's Brief at 3. Return to text.

[387] Respondent's Brief Opposing Petition for Certiorari at 2. Return to text.

[388] Petitioner's Brief at 4. Return to text.

[389] Id. Return to text.

[390] "The substance of Baggot's crime was a scheme to use sham commodities transactions to create paper losses, which he deducted on his tax returns. A fraction of the 'losses' was then recovered in cash kickbacks which were not reported as income." Baggot, 463 U.S. at 477. Return to text.

[391] Supreme Court: Grand Jury Disclosure to IRS Debated, DAILY REP. FOR EXECUTIVES, Mar. 4, 1983, at G6. Return to text.

[392] 255 F.2d 118 (2d Cir. 1958). See also supra text accompanying notes 273-76. Return to text.

[393] Baggot, 463 U.S. at 478. Return to text.

[394] Id. at 479. Return to text.

[395] Id. at 480. Return to text.

[396] Id. Return to text.

[397] Id. Return to text.

[398] Id. at 481. Return to text.

[399] Id. Return to text.

[400] Id. at 479-82.

The provision in (c)(i) that disclosure may be made 'preliminarily to or in connection with a judicial proceeding' is, on its face, an affirmative limitation on the availability of court-ordered disclosure of grand jury materials. . . . Where an agency's action does not require resort to litigation to accomplish the agency's present goal, the action is not preliminary to a judicial proceeding for purposes of (C)(i).

Id. at 482. Return to text.

[401] Id. at 482-83 n.6. The Court did not decide whether the rule would be different for agencies that did have to resort to a court for enforcement of their rules: "We decline in this case to address how firm the agency's decision to litigate must be before its investigation can be characterized as 'preliminar[y] to a judicial proceeding,' or whether it can ever be so regarded before the conclusion of a formal preliminary administrative investigation." Id. Return to text.

[402] Id. at 483 (comparing court-approved disclosure granted in In re Grand Jury Proceedings (Miller Brewing Co.), 687 F.2d 1079 (7th Cir. 1982), where court recourse was clearly anticipated, with case at bar and stating that "[i]n such a case, the Government's primary purpose is plainly to use the materials sought to defend the Tax Court litigation, rather than to conduct the administrative inquiry that preceded it"). Return to text.

[403] Supreme Court of the United States, Federal Rules of Criminal Procedure, 105 F.R.D. 179, 180-81 (1985). Return to text.

[404] Id. A new paragraph was added to Rule 6(e) allowing access "when permitted by a court at the request of an attorney for the government, upon a showing that such matters may disclose a violation of state criminal law, to an appropriate official of a state or subdivision of a state for the purpose of enforcing such law." FED. R. CRIM. P. 6(e)(3)(C)(iv). This amendment overcame the particularized need standard that the Supreme Court imposed upon states seeking to obtain federal grand jury information in Illinois v. Abbott & Associates, 460 U.S. 557 (1983). While the amendment did expand the disclosure exceptions, disclosure under this section is only allowed for state criminal law purposes Return to text.

[405] See U.S. DEP'T OF JUSTICE MANUAL § 9-11.250 (1992 Supp.). Return to text.

[406] Id. Return to text.

[407] Id. at § 9-11.252. Return to text.

[408] Id. Return to text.

[409] H.R. 1407, 99th Cong., 1st Sess. (1985). Representative Conyers introduced H.R. 1407 on March 8, 1985. The Bill was referred to committee on May 8, 1985. Hearings were held. The last mention of the bill was when it was scheduled for markup on August 7, 1986. The bill then vanished from the Congressional Record. Return to text.

[410] The proposal would have (1) authorized the presence of a witness's attorney in the grand jury room; (2) provided transactional immunity to a witness who is compelled to give self-incriminating testimony; (3) required that the target of an investigation be permitted to testify before the grand jury if the target wished to do so; (4) precluded the use of evidence seized in violation of the constitutional rights of the target; and (5) required that the government present exculpatory evidence to the grand jury. Id. In proposing the bill, Representative Conyers stated:

The time is long overdue for Congress to bring the Federal grand jury out of the dark ages and into the 20th century with realistic reform. If enacted, my legislation will return the Federal grand jury to its historical role as a people's watchdog against overzealous prosecutors and governmental corruption.

131 CONG. REC. 4564 (1985). Return to text.

[411] See supra note 410. Return to text.

[412] Grand jury reform bills continue to be offered in the Congress, but, since 1986, they have been much more narrowly drawn. See, e.g., S. 284, 99th Cong., 1st Sess. (1985) (allowing witness's counsel into grand jury proceedings); H.R. 5367, 99th Cong., 2nd Sess. (1986) (requiring dismissal of indictment following prosecutorial abuse). Return to text.

[413] H.R. 3340, 99th Cong., 1st Sess. (1985); see also 131 CONG. REC. 11,875 (1985). Return to text.

[414] S. 1676, 99th Cong., 1st Sess. (1985) [hereinafter Disclosure Amendments Act]. Senator Thurmond's amendment to Rule 6(e) was as follows:

(A) Disclosure otherwise prohibited by this rule of matters occurring before the grand jury, other than its deliberations and the vote of any grand juror, may be made to—

(i) any attorney for the government for use in the performance of an attorney for the government's duty to enforce federal criminal or civil law; and

(ii) such government personnel (including personnel of a State or subdivision of a State) as are deemed necessary by an attorney for the government to assist an attorney for the government in the performance of such attorney's duty to enforce federal criminal law.

(B) Any person to whom matters are disclosed under subparagraph (A)(ii) of this paragraph shall not utilize that grand jury material for any purpose other than assisting an attorney for the government in the performance of such attorney's duty to enforce federal criminal or civil law. An attorney for the government shall promptly provide the district court, before which was impaneled the grand jury whose material has been so disclosed, with the names of the persons to whom such disclosure has been made, and shall certify that the attorney has advised such persons of their obligation of secrecy under this rule.

(C) Disclosure otherwise prohibited under this rule of matters occurring before the grand jury may also be made—

(i) when so directed by a court, upon a showing of particularized need, preliminarily to or in connection with a judicial proceeding;

(ii) when permitted by a court at the request of the defendant, upon a showing that grounds may exist for a motion to dismiss the indictment because of matters occurring before the grand jury;

(iii) when the disclosure is made by an attorney for the government to another federal grand jury;

(iv) when permitted by a court at the request of an attorney for the government, upon a showing that such matters may disclose a violation of State criminal law, to an appropriate official of a State of [sic] subdivision of a State for the purpose of enforcing such law; or

(v) at the request of an attorney for the government, and when so permitted by a court upon a showing of substantial need, to personnel of any department or agency of the United States—

(I) when such personnel are deemed necessary to provide assistance to an attorney for the Government in the performance of such attorney's duty to enforce Federal civil law, or

(II) for use in relation to any matter within the jurisdiction of such department or agency.

Return to text.

[415] 131 CONG. REC. 11,875 (1985) (statement of Sen. Thurmond). Return to text.

[416] "The Department of Justice and the Attorney General are to be commended for initiating this legislative effort." Id.

Little nuances in the section-by-section analysis also indicate that the Department of Justice drafted the legislation. For example, note 1 of the section-by-section analysis reads: "We have included in our proposed statute the amendments to Rule 6(d) . . . ." Id. at 11,879. Further on, the analysis states: "This provision will provide the only available method of disclosure for private parties. It can also be used by government agencies when the Justice Department exercises its discretion. . . . [G]overnment agencies with independent litigating authority would thus be able, over our objection, to gain access to grand jury material . . . ." Id. at 11,875 (Bills and Brief Accompanying Materials appended to Sen. Thurmond's remarks). Return to text.

[417]

[T]his proposal contains amendments to Rule 6(e) designed to overcome the impediments caused by Sells and Baggot to the government's ability to pursue important non-criminal remedies.

. . . .

. . . [T]o whatever extent Sells precludes or minimizes a court's consideration of the government's saving time or increasing efficiency in its disclosure determinations, Sells no longer applies. . . .

This amendment would overrule Baggot . . . .

Id. at 11,875. Return to text.

[418] Id. ("The amendment also answers the 'same attorney' question left undecided in Sells by allowing the criminal prosecutor to use grand jury materials in a companion civil case."); see also Sells, 463 U.S. at 431 n.15. Return to text.

[419] 476 U.S. 1140 (1986). Return to text.

[420] 481 U.S. 102 (1987). Return to text.

[421] Doe, 481 U.S. at 104. Return to text.

[422] Although no sales were being made in the United States, the Justice Department pursued an investigation into possible violations of the Sherman Act. Respondent's Brief at 1 ("The theory of the grand jury investigation was that Sherman Act jurisdiction existed for sales of drummed tallow, even though that commodity is not sold within the United States, because foreign countries sometimes use some funds appropriated for their use by Congress to pay for the commodity."). Return to text.

[423] Id. at 4. Return to text.

[424] Doe, 481 U.S. at 105. Return to text.

[425] "The Civil Investigative Demands were accompanied by a letter advising each recipient that the CID could be complied with by certifying that all documents sought had been produced to the grand jury." Respondent's Brief at 2. Return to text.

[426] Doe, 481 U.S. at 105. Return to text.

[427] Id. Return to text.

[428] Id. at 105-06. Return to text.

[429] Id. at 106. Return to text.

[430] "[T]he Antitrust Division conceded to the District Court that at least 90 percent of the material on which the civil case is based was grand jury material." Respondent's Brief at 3 (citation omitted). Return to text.

[431] In re Grand Jury Investigation, 774 F.2d 34, 42 (2d Cir. 1985), rev'd, 481 U.S. 102 (1987). Return to text.

[432] Doe, 481 U.S. at 104. Return to text.

[433] Id. "Although the Antitrust Division is authorized to prosecute False Claims Act suits when the conduct in question also violates the antitrust laws, the primary responsibility for the enforcement of that statute rests with the Civil Division of the Department of Justice." Petitioner's Brief at 5. Return to text.

[434] Doe, 481 U.S. at 111; see also supra text accompanying notes 234-39. Return to text.

[435]

Unlike our previous decisions in this area, which have primarily involved exceptions to the general rule [of secrecy], this case involves a more preliminary question: what constitutes disclosure?

. . . .

Because we decide this case based on our reading of the Rule's plain language, there is no need to address the parties' arguments about the extent to which continued use threatens some of the values of grand jury privacy identified in our cases and catalogued in Sells Engineering.

Doe, 481 U.S. at 109 (citations omitted). Return to text.

[436] Id. at 108. Return to text.

[437] Id. at 111. Return to text.

[438] Id. at 110.

[I]t is important to emphasize that the issue before us is only whether an attorney who was involved in a grand jury investigation (and is therefore presumably familiar with the "matters occurring before the grand jury") may later review that information in a manner that does not involve any further disclosure to others. Without addressing the very different matter of an attorney's disclosing grand jury information to others, inadvertently or purposefully, in the course of a civil proceeding, we hold that Rule 6(e) does not require the attorney to obtain a court order before refamiliarizing himself or herself with the details of a grand jury investigation.

Id. at 111. Return to text.

[439] See supra text accompanying notes 357-73. Return to text.

[440] See supra text accompanying notes 237-39. Return to text.

[441] "[T]he concerns that underlie the policy of grand jury secrecy are implicated to a much lesser extent when the disclosure merely involves Government attorneys." Doe, 481 U.S. at 112. Return to text.

[442] Doe, 481 U.S. at 113. Cf. United States v. Sells Eng'g, Inc., 463 U.S. 418, 443 (1983) (citation omitted) ("It is clear . . . that disclosure is appropriate only in those cases where the need for it outweighs the public interest in secrecy . . . ."). Return to text.

[443] Doe, 481 U.S. at 113. Return to text.

[444] See Sells, 463 U.S. at 418. Return to text.

[445] Doe, 481 U.S. at 116. In its analysis, the Court reasoned that disclosure would not increase the risk of inadvertent or illegal leaks to others. Id. at 114. The Court found that the limited use sought by the Department of Justice did not pose the same threat as the widespread disclosure requested in Sells. Id. Such disclosure, the Court said, would also have little effect on a future witness's willingness to testify fully and frankly because disclosure would not result in a witness's testimony being used against him in a civil proceeding. Id. The Court then addressed the issue of manipulating the grand jury to gain information for a civil proceeding. Id. The Court concluded that this risk was not likely to occur where a court order must be obtained for disclosure, thereby giving the defendant an opportunity to raise the issue of abuse. Id. at 114-15. Finally, the Court considered whether the government would be able to subvert limitations on civil discovery rules by using disclosed grand jury materials. Id. at 115. The Court summarily concluded that this was "not seriously implicated when the Government simply wishes to use the material for consultation," claiming that no per se rule had ever been established to deny disclosure even though the materials sought could be obtained through civil discovery procedures. Id. at 115-16. Return to text.

[446] See supra note 417 and accompanying text. Because the scope of the civil attorney's use of grand jury materials under the Doe analysis is purely for "refamiliarization," however, any use which might further disclose the information must still pass the test set forth in Sells. Return to text.

[447] "The crucial fact is that the use to which that attorney [who conducted the grand jury hearing] would put this information is in no way in aid of the grand jury." Doe, 481 U.S. at 118 (Brennan, J., dissenting). Return to text.

[448] See supra note 379 and accompanying text. Return to text.

[449] See Sells, 463 U.S. at 432. Return to text.

[450] This poignant problem is exemplified by the Procter & Gamble parties' successful proof of grand jury abuse, which took nine years and twelve published opinions before the parties could define the issues for actual litigation. See supra notes 217-60 and accompanying text. Return to text.

[451] Procter & Gamble, 356 U.S. at 681-84. Return to text.

[452] See Sells, 463 U.S. at 433-34. Return to text.

[453] See Doe, 481 U.S. at 116. Return to text.

[454] Procter & Gamble, 356 U.S. at 682-83. Return to text.

[455] See Sells, 463 U.S. at 431. Return to text.

[456] See Hickman v. Taylor, 329 U.S. 495, 501 (1947). Return to text.

[457] See, e.g., E.F. Hutton Mail and Wire Fraud Case, Part 1 and 2: Hearings Before the Subcomm. on Crime of the House Comm. of the Judiciary, 99th Cong., 1st Sess. (1985). The grand jury investigation of the E.F. Hutton Company's illegal use of bank floats and interest-free loans was settled before trial with acceptance by Hutton of a maximum fine of $2 million, restitution of lost opportunity profits totaling approximately $264 million, and an unprecedented reimbursal of the Justice Department's costs of investigation. Id. at 1-2. See also United States v. Halper, 490 U.S. 435, 448-49, 451 (1989) (finding that civil sanction is "punishment" for double jeopardy purposes if it is based on same offense as criminal prosecution and is imposed in separate proceeding). Return to text.

[458] See supra note 417 and accompanying text. Return to text.

[459] FIRREA was introduced as S. 413 by Senators Donald E. Riegle and Jake Garn on February 22, 1989. 135 CONG. REC. S1513 (daily ed. Feb. 22, 1989). Representative Henry R. Gonzales introduced the House version, H.R. 1278, on March 6, 1989. On April 13, 1989, Senator Riegle introduced S. 774 as original legislation that included the same § 918 as S. 413 of the Federal Savings and Loan Reform Act. S. REP. NO. 19, 101st Cong., 1st Sess. (1989). S. 774 superseded S. 413. Return to text.

[460] 135 CONG. REC. S1550 (daily ed. Feb. 22, 1989). Compare Disclosure Amendments Act, supra note 414, with S. 774, 101 Cong., 1st Sess. § 918 (1989) (striking through language proposed in the 1985 amendment and omitted in the 1989 amendment and underlining new language):

(A) Disclosure otherwise prohibited . . . may be made to—

(i) any attorney of the government for use in the performance of by an attorney for of the government's duty to enforce federal criminal or civil law; and

(ii) . . . to enforce federal criminal law.

(B) Any person . . . shall not utilize that grand jury material for any purpose other than assisting the an attorney for the government . . .

(C) Disclosure otherwise prohibited under by this rule of matters occurring before the grand jury may also be made—

(i) when so directed by a court, upon a showing of particularized need,preliminary preliminarily to or in connection with a judicial proceeding.

Return to text.

[461] H.R. REP. NO. 209, 101st Cong., 1st Sess. (1989). Return to text.

[462] Act of Aug. 9, 1989, Pub. L. No. 101-73, 103 Stat. 505 (codified at 18 U.S.C. § 3322 (1994)). Return to text.

[463] 18 U.S.C. § 3322(a) (1994) Return to text.

[464] Id. Return to text.

[465] Id. § 3322(b)(2). The Department of Justice might choose to decline automatic access in cases where the criminal investigation is on-going and disclosure might interfere with the investigation. Return to text.

[466] The author's research has revealed no case law interpreting this particular FIRREA provision, although it was enacted in 1989. Return to text.

[467] H.R. 975, 101st Cong., 2nd Sess. (1990).

I am submitting a proposed revised version of H.R. 975, the "Securities Law Enforcement Remedies Act of 1989 . . . ." [T]he proposal would amend the Federal Criminal Code to authorize a court to issue an order permitting disclosure to the Commission of grand jury information concerning potential securities law violations . . . just as Congress provided such authority for the banking agencies in [FIRREA].

H.R. REP. NO. 616, 101st Cong., 2nd Sess. 39 (1990), reprinted in 1990 U.S.C.C.A.N. 1379, 1406 (quoting Letter from Daniel L. Goelzer, Office of the General Counsel of the Securities and Exchange Commission, to Rep. John D. Dingell (Feb. 9, 1990)). H.R. 975 which was ultimately incorporated into H.R. 5325. Return to text.

[468] 136 CONG. REC. S14069 (daily ed. Sept. 27, 1990) (statement of Sen. Riegle). Return to text.

[469] H.R. 3600, 103d Cong., 2d Sess. (1994) (Health Security Act); S. 2357, 103d Cong., 2d Sess. (1994) (Universal Health Insurance Coverage Act); S. 2296, 103d Cong., 2d Sess. (1994) (Individual and Family Health Security Act). Return to text.

[470] H.R. 2425, 104th Cong., 1st Sess. (1995); see also H.R. REP. NO. 276, 104th Cong., 1st Sess. (1995). Return to text.

[471] Pub. L. No. 103-438, 108 Stat. 4597 (1994) (codified at 15 U.S.C. § 6204 (1994)). Return to text.

[472] H.R. REP. NO. 883, 103rd Cong., 2nd Sess. 130 (1995). Return to text.

[473] "[Y]ou shouldn't define a word in a sense significantly different from the way it is normally understood by the persons to whom the legislation is primarily addressed. This is a fundamental principle of communication and it is one of the shames of the legal profession that draftsmen so flagrantly violate it." Reed Dickerson, How to Write a Law, 31 NOTRE DAME LAW. 14, 25 (1955)). Return to text.

[474] Federal Rule of Criminal Procedure 6 states in pertinent part:

Disclosure otherwise prohibited by this rule of matters occurring before the grand jury may also be made—

. . .

(iv) when permitted by a court at the request of an attorney for the government, upon a showing that such matters may disclose a violation of state criminal law, to an appropriate official of a state or subdivision of a state for the purpose of enforcing such law.

FED. R. CRIM. P. 6(e)(3)(C)(iv). Return to text.

[475] 15 U.S.C. § 6204(2)(A)-(B) (1994):

(2) Antitrust evidence that is matter occurring before a grand jury and with respect to which disclosure is prevented by Federal law, except that for the purpose of applying Rule 6(e)(3)(C)(iv) of the Federal Rules of Criminal Procedure with respect to this section—

(A) a foreign antitrust authority with respect to which a particularized need for such antitrust evidence is shown shall be considered to be an appropriate official of any of the several States, and

(B) a foreign antitrust law administered or enforced by the foreign antitrust authority shall be considered to be a State criminal law.

Return to text.

[476] Hughes, supra note 16, at 656 (advocating unification of federal criminal and civil compulsory processes). Return to text.

[477] The Balanced Budget Act of 1995 included House and Senate provisions for disclosure of health care offenses discovered during grand jury proceedings, but both provisions were dropped in conference. H.R. REP. NO. 350, 104th Cong., 1st Sess. (1995). Return to text.

[478] See supra text accompanying notes 467-68. Return to text.

[479] "Notice and opportunity to be heard are indispensable to a fair trial whether the case be criminal or civil." Joint Anti-Fascist Refuge Comm. v. McGrath, 341 U.S. 123, 178 (1951) (Douglas, J., concurring) (citations omitted). Return to text.

[480] FED. R. CIV. P. 26. Return to text.

[481] Such materials, generally speaking, would include information gained through grants of immunity or derived through illegal search and seizures. Return to text.

[482] United States v. Markwood, 48 F.3d 969, 984 (6th Cir. 1995). Return to text.

[483]

We think the concern [of grand jury abuse] is far less worrisome when the attorneys seeking disclosure [of grand jury material for civil use] must go before a court and demonstrate a particularized need prior to any disclosure, and when, as part of that inquiry, the district court may properly consider whether the circumstances disclose any evidence of grand jury abuse.

United States v. John Doe, Inc., 481 U.S. 102, 114-15 (1987). It would, inherently, also be far less worrisome if the government attorneys knew that the only information they could obtain from the grand jury could be gained through civil channels anyway and that their conduct would be open to scrutiny in a disclosure hearing. Return to text.

[484] Malinski v. New York, 324 U.S. 401, 414 (1945). Return to text.

[485] "Of course, efficiency and promptness can never be substituted for due process and adherence to the Constitution. Is not a dictatorship the most 'efficient' form of government?" United States v. Ross, 456 U.S. 798, 842 n.13 (1982) (Marshall, J., dissenting). See also O'Lone v. Estate of Shabazz, 482 U.S. 342, 356 (1987) (Brennan, J., dissenting):

The Constitution was not adopted as a means of enhancing the efficiency with which government officials conduct their affairs, nor as a blueprint for ensuring sufficient reliance on administrative expertise. Rather, it was meant to provide a bulwark against infringements that might otherwise be justified as necessary expedients of governing.
Return to text.

[486] Maryland & Virginia Milk Producers' Ass'n v. United States, 250 F.2d 425, 425-26 (D.C. Cir. 1957) (citations omitted). Return to text.