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Assessing the USA PATRIOT Act's Changes to Grand Jury Secrecy

NCJ Number
Criminal Justice Volume: 17 Issue: 2 Dated: Summer 2002 Pages: 42-50
Sara Sun Beale; James E. Felman
Date Published
9 pages
Following a brief history of secrecy and the grand jury, this paper examines the impact of the new USA PATRIOT Act as it pertains to the interests protected by grand jury secrecy, the need for disclosure, and the roles of the courts in supervising disclosure.
The grand jury is the most powerful investigative agency in the Federal criminal justice system. Individuals who might refuse to talk to the FBI must testify on penalty of punishment for contempt once subpoenaed to appear before a grand jury. Grand jury subpoenas enable prosecutors to obtain documents otherwise outside their reach because of the absence of probable cause. Immunity can be given to witnesses, depriving them of any claim of a right to silence based upon the privilege against self-incrimination. The grand jurors hear neither from defense counsel nor a judge, but only from the prosecutor, who usually selects the witnesses to be called and instructs the grand jury on the law. All of this is done outside the public eye because of the requirement of grand jury secrecy. This requirement, subject to certain statutory exceptions, prohibits anyone but grand jury witnesses (who are aware only of their own testimony) from disclosing anything that happens before the grand jury. Absent such secrecy, many witnesses might be reluctant to come forward or to testify frankly, fearing retribution by those against whom they testify. Furthermore, secrecy protects accused persons who are later exonerated by the grand jury. The PATRIOT Act, however, for the first time permits disclosure, without a prior court order, of grand jury material that involves "foreign intelligence" information to many Federal agencies whose duties are unrelated to law enforcement. The authors argue that it is unlikely that these provisions will encourage witnesses to flee, because there is no reason to believe that the information will make its way back to those who might wish to harm the witnesses for their testimony. The paper maintains, however, that government agencies not traditionally involved in law enforcement are less likely to appreciate the need to protect reputations of witnesses. Given national security needs, the authors conclude, on balance, that disclosure of some grand jury material regarding foreign intelligence should be permitted to certain Federal agencies not directly involved in law enforcement. They worry, however, that the current approach under the PATRIOT Act is too broad, primarily because of the absence of judicial review. They believe that prior judicial scrutiny of disclosure is a needed restraining influence.