Policy Considerations for Balancing Privacy Rights and Grand Jury Powers

Policy Considerations for Balancing Privacy Rights and Grand Jury Powers

The investigative powers of federal grand juries have long played an important role in the criminal justice system. However, those powers sometimes come into conflict with individual privacy rights protected by the Constitution and other laws. This article examines some of the key policy considerations for balancing grand jury investigative powers with privacy protections.

Grand Jury Powers and Investigative Tools

The Fifth Amendment requires federal prosecutors to obtain a grand jury indictment before charging someone with a serious crime. Grand juries have broad investigative powers to aid in this charging decision, including the ability to subpoena documents, physical evidence, and witness testimony. They operate in secret, without many of the evidentiary rules that apply in court, which helps facilitate candid witness testimony [1].

Some of the key investigative tools available to federal grand juries include:

  • Obtaining telephone and internet records through grand jury subpoenas without notice to the subscriber [2]
  • Compelling witnesses to provide voice or handwriting samples [3]
  • Questioning witnesses without their counsel present [4]
  • Using evidence obtained through unlawful searches or seizures [5]

While these powers help grand juries perform their investigative role, they also create opportunities for improper intrusions into individual privacy rights.

Relevant Constitutional Protections

The Constitution provides several protections that may be implicated by grand jury investigative activities:

  • Fourth Amendment – prohibits unreasonable searches and seizures
  • Fifth Amendment – protects against self-incrimination
  • Sixth Amendment – provides the right to counsel
  • First Amendment – protects freedom of speech, association, and religion

These protections may limit the government’s ability to obtain certain private information through grand jury subpoenas or questioning.

Statutory Privacy Protections

In addition to constitutional safeguards, Congress has enacted statutes to protect specific types of sensitive information from disclosure:

Grand jury subpoenas may be subject to these statutory restrictions on disclosing sensitive personal information.

Policy Considerations and Options

There are several policy considerations around balancing grand jury powers with privacy protections:

  • Overbreadth – Grand jury subpoenas sometimes request materials irrelevant to the investigation, unnecessarily invading privacy .
  • Fishing expeditions – Grand juries could be used pretextually to gather information about disfavored people or groups, rather than focusing on evidence of specific crimes .
  • Lack of procedural checks – Unlike other government searches and seizures, grand jury subpoenas are not subject to prior judicial approval or other procedural checks to protect privacy .
  • Chilling effects – The threat of broad grand jury inquiries could deter people from exercising protected speech or association rights .

There are several policy options that could help address these concerns while preserving grand juries’ investigative role:

  • Require prosecutors to make a heightened showing of relevance and need before issuing subpoenas for certain sensitive records like journalist notes, political communications, or medical/counseling records.
  • Impose procedural checks such as requiring judicial approval for grand jury subpoenas, similar to search warrants.
  • Limit grand jury inquiries into areas protected by the First Amendment, such as political and religious activities, absent evidence of criminal conduct.
  • Require prosecutors to disclose more information to recipients about the nature and scope of grand jury subpoenas.
  • Allow recipients to challenge overbroad or oppressive subpoenas before a judge.

Policymakers must strike a delicate balance between facilitating criminal investigations and protecting individual liberties. Reasonable constraints on grand jury powers can help prevent unwarranted intrusions into private affairs.

Footnote 1

Butterworth v. Smith, 494 U.S. 624 (1990).

Footnote 2

18 U.S.C. §2703(d).

Footnote 3

United States v. Dionisio, 410 U.S. 1 (1973); United States v. Mara, 410 U.S. 19 (1973).

Footnote 4

Fed. R. Crim. P. 6(d).

Footnote 5

United States v. Calandra, 414 U.S. 338 (1974).

Footnote 6

U.S. Const. amend. IV.

Footnote 7

U.S. Const. amend. V.

Footnote 8

U.S. Const. amend. VI.

Footnote 9

U.S. Const. amend. I.

Footnote 10

12 U.S.C. §3401 et seq.

Footnote 11

18 U.S.C. §2709.

Footnote 12

42 U.S.C. §290dd-2.

Footnote 13

In re Grand Jury Subpoena: Subpoena Duces Tecum, 829 F.2d 1291 (4th Cir. 1987).

Footnote 14

United States v. R. Enterprises, Inc., 498 U.S. 292 (1991).

Footnote 15

Sara Sun Beale & James E. Felman, The Consequences of Enlisting Federal Grand Juries in the War on Terrorism: Assessing the USA PATRIOT Act’s Changes to Grand Jury Secrecy, 25 Harv. J.L. & Pub. Pol’y 699 (2002).

Footnote 16

Andrew E. Taslitz & Lenese C. Herbert, Constitutional Criminal Procedure 279-280 (5th ed. 2014).