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Document Type

Article

Publication Date

Spring 2016

Publication Citation

91 Indiana Law Journal 823 (2016)

Abstract

This Article addresses one crucial aspect of the ongoing debate about grand jury transparency. Assuming that well over half the states and the federal government continue to employ the grand jury to investigate felony offenses, and assuming that these proceedings continue to be shielded from public view, should witnesses themselves be allowed to discuss their testimony with the press or with each other? This larger question raises two narrow but very important subsidiary issues. First, does a prosecutor who conditions a written proffer or cooperation agreement with a grand jury witness on the witness’s promise not to inform other targets, subjects, or witnesses about what information he provided to the government violate Model Rule of Professional Conduct 3.4(f) by impeding another party’s access to information in litigation? Second, does a judge who issues a grant of judicial immunity under 18 U.S.C. § 6003 or its state analogue and includes an order prohibiting the grand jury witness from talking to any other potential witnesses or to the media about the subject matter of the government’s investigation exceed his or her authority under Federal Rule of Criminal Procedure 6(e)? Both of these scenarios implicate not only the public interest in being informed about governmental affairs, but also the ability of putative targets of an investigation to work together to gather, preserve, and submit potentially exculpatory information that may help influence the grand jury not to indict, or to indict for a lesser offense. In this Article, I will argue that efforts by prosecutors and judges to impose extrastatutory secrecy obligations on grand jury witnesses undermine the independence of the grand jury, and thwart its proper screening function.

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