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A Congressional ______
**Research Service
Do Courts Have Inherent Authority to Release
Secret Grand Jury Materials?
October 5, 2018
The U.S. Constitution requires that any prosecution of a serious federal crime be initiated by a
presentment or indictment of a Grand Jury. The [g]rand [j]ury contemplated by the Constitution is a
temporary, citizen-comprised body that obtains evidence and considers whether it is sufficient to justify
criminal charges in a particular case. Though a grand jury works with federal prosecutors and functions
under judicial auspices, it is considered an independent constitutional fixture in its own right that
belongs to no branch of the institutional Government, serving as a kind of buffer . .. between the
Government and the people. One long-established principle that has been deemed essential to the grand
jury's functioning and independence is that matters occurring before it are to be kept secret. Secrecy
prevents those under scrutiny from fleeing or importuning the grand jurors, encourages full disclosure by
witnesses, and protects the innocent from unwarranted prosecution. For these and other reasons,
prosecutors, the jurors themselves, and most others involved in grand jury proceedings are generally
prohibited from revealing such matters as the identities or addresses of witnesses or jurors, the substance
of testimony, the strategy or direction of the investigation, the deliberations or questions of jurors, and the
like. The prohibition endures even after a grand jury's work is completed.
That said, Federal Rule of Criminal Procedure 6(e), which enshrines the traditional rule of grand jury
secrecy, establishes exceptions that allow grand jury materials (such as transcripts of witness testimony)
to be disclosed to certain outside parties in limited circumstances. Some of these exceptions allow for
automatic disclosure-to necessary government personnel, for example-but many of the exceptions
require that disclosure be authorized by the federal district court in the jurisdiction where the jury is
convened, as the court ultimately has some degree of supervisory authority over the grand jury. Rule
6(e)(3)(E) provides in relevant part that the court may authorize disclosure ... of a grand-jury matter
(1) preliminarily to or in connection with a judicial proceeding; (2) to a defendant who shows grounds
may exist to dismiss the indictment because of something that occurred before the grand jury; or (3) at the
request of the government, to a foreign court or prosecutor or to an appropriate state, state-subdivision,
Indian tribal, military, or foreign government official for the purpose of enforcing or investigating a
violation of the respective jurisdiction's criminal law. Persons seeking court authorization under one of
these exceptions must make a strong showing of particularized need that outweighs the public interest
in secrecy.
Congressional Research Service
https://crsreports.congress.gov
LSB10201
CRS Legal Sidebar
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