What You May Repeat About Grand Jury Proceedings.

Federal Rule of Criminal Procedure 6(e) does not specify a set duration for grand-jury secrecy. Rule 6(e) sets no expiration date on the secrecy obligation, and secrecy does not lapse simply because the grand jury's service under Rule 6(g) has ended.

Federal grand juries generally serve a term of up to 18 months, which a court may extend in increments of no more than six months. While a prosecutor may seek more than one year to wrap up an investigation or present a case, the general intent is that grand juries be relatively short-term.

But what about once the term of a grand jury has elapsed? An indictment does not place grand-jury materials in the public record; a defendant obtains such materials only through the limited disclosure provisions of Rule 6(e)(3), Rule 16, the Jencks Act, and Brady. Under Rule 6(e)(6), records, orders, and subpoenas relating to grand-jury proceedings must be kept under seal to the extent and as long as necessary to prevent the unauthorized disclosure of a matter occurring before a grand jury.

And what if a prosecutor’s investigation never resulted in an indictment? Grand-jury materials remain secret after the grand jury's term expires, and disclosure requires a court order under Rule 6(e)(3)(E) upon a showing of particularized need.

What is the Purpose of Grand Jury Secrecy?

As long as the grand jury is in session, Federal Rule of Criminal Procedure 6(e) imposes strict secrecy rules to protect the grand jury’s work. These rules protect:

• The reputation of individuals subject to investigation.
• The integrity of evidence and the fact-finding process.
• The ability of the grand jury to work effectively without the knowledge of the subject of an investigation.

What Happens to Materials Following the Termination of a Federal Grand Jury’s Proceedings?

Even after a federal grand jury’s proceedings are over, materials and other information collected during those proceedings continue to remain secret. However, a court can authorize the release of materials under Rule 6(e), and individuals may be able to challenge grand jury subpoenas, such as those issued to third parties.

• What Happens to Grand Jury Materials Following an Indictment?
• How Long Does Grand Jury Secrecy Last?
• What if the Grand Jury Doesn’t Lead to an Indictment?
• Why is Federal Grand Jury Secrecy Required?

Who is actually bound by federal grand jury secrecy rules?

Who is Bound by Rule 6(e)?

Federal Rule of Criminal Procedure 6(e) lists a number of individuals who are bound by secrecy rules. These individuals include:

• Grand Jurors. Grand jurors are the members of the grand jury. Rule 6(e)(2)(B) provides that a grand juror “must not disclose a matter occurring before the grand jury.”
• Government Prosecutors and Attorneys. Government attorneys, whether they are federal prosecutors or attorneys from another government agency, who are present before the grand jury have secrecy obligations.
• Others who are Bound in the Course of Grand Jury Proceedings. Rule 6(e)(2)(B) also lists, in addition to grand jurors, government attorneys, interpreters, reporters, recorders, and transcribers as the other individuals who have a secrecy obligation.
• Other Government Personnel. Under Rule 6(e)(2)(B), others who assist the prosecutors by the permission of the supervising court also assume a secrecy obligation.
• Defendants, Targets, and Their Defense Counsel. Defendants, targets, and their defense counsel are not categorically listed among the participants bound by Rule 6(e). However, defendants may be bound by the terms of a plea agreement or by other forms of legal restrictions, and in some cases, targets and defense counsel may be bound by a court-ordered gag order.
• Corporate Employees and Document Custodians. Corporate employees and document custodians are not listed as parties bound by grand jury secrecy in Rule 6(e)(2)(B).

Does Rule 6(e) Impose a Secrecy Requirement on Everyone who has knowledge of grand jury proceedings?

The brief answer is no. As discussed above, Rule 6(e) is focused on the individuals which are present during the proceedings. However, as discussed below, Rule 6(e) does place limits on what can be disclosed to others who have knowledge of the proceedings.

Specifically, Rule 6(e)(2) includes the following:

• Grand Jurors are bound by the rules regardless of how they received the information in question.
• Government Attorneys are also bound by the rules regardless of how they received the information in question.
• Participants who are bound by a court order will be bound by the rules regardless of how they received the information in question.
• Others present before the grand jury are bound by the rules only for information that they received through their presence before the grand jury. This means that grand jurors, government attorneys, and others who are present before the grand jury can’t use information obtained outside the grand jury to get around Rule 6(e) secrecy.

Are Journalists Bound by Grand Jury Secrecy Rules?

Journalists are not one of the parties bound by grand jury secrecy rules under Rule 6(e). If journalists lawfully receive leaked information about a grand jury, they are not obligated to keep that information secret. This has been upheld by the Supreme Court in several cases including New York Times Co. v. United States, 403 U.S. 713 (1971), in which the Court denied a prior restraint.

What is the Difference Between a Gag Order and a Grand Jury Secrecy Rule?

Grand jury secrecy rules are in place to protect grand jury integrity during a criminal investigation, while gag orders are in place to maintain impartiality in a criminal trial. Gag orders also have their own set of rules and restrictions, but the difference between the two is the specific goal of maintaining grand jury integrity versus maintaining impartiality in a criminal trial.

What Counts as a “Matter Occurring Before the Grand Jury”?

Under Rule 6(e), “matters occurring before the grand jury” refers to information whose disclosure would reveal the grand jury’s inner workings. This includes:

• Grand-Jury Deliberations and Individual Votes. Grand-jury deliberations and individual votes receive the highest level of protection under Rule 6(e).
• Information that is Not Separately Obtained. Information that is not separately obtained (i.e., information that is not obtainable through sources other than the grand jury) also receives protection under Rule 6(e). The general rule is that separately obtained information does not become secret just because grand jurors looked at it.
• Grand-Jury Questions. Grand-jury questions are usually protected under Rule 6(e) because they may reveal the prosecution’s evidence, strategy, and the direction of the investigation.
• Witness Lists. Witness lists may be protected under Rule 6(e) when a witness list exposes the scope of the investigation.
• Derivative Summaries. Derivative summaries may remain protected under Rule 6(e) when they reveal what occurred before the grand jury.
• Information contained in Subpoenas. Whether information contained in a grand-jury subpoena is a “matter occurring before the grand jury” depends on the information in the subpoena. If disclosure would reveal protected grand-jury activity, then the subpoena information is also protected under Rule 6(e). For example, in Kalbers v. DOJ, the court held that a grand-jury subpoenaed record that was not obtainable through any means other than from the subpoena was exempt from FOIA disclosure.

What is the Difference Between Rule 6(e) and Rule 6(e)(2)?

Rule 6(e) does not define the phrase “matter occurring before the grand jury”, its scope has been developed by the courts, while Rule 6(e)(2), a subpart of that rule, lists the persons who are forbidden to disclose such matters. As discussed above, Rule 6(e) focuses on the substance of information, while Rule 6(e)(2) focuses on participants. Rule 6(e)(2) lists the people who are bound by secrecy and the circumstances under which information can be disclosed.

• Rule 6(e) deals with grand-jury procedures and participants.
• Rule 6(e)(2) applies Rule 6(e) to the people who are listed as bound by the rules of grand jury secrecy.
• While Rule 6(e) and Rule 6(e)(2) both deal with secrecy in grand jury proceedings, the former deals with substance and the latter deals with the participants.

The next section discusses the types of grand jury participants who are bound by Rule 6(e)’s secrecy requirement.

How Does Federal Law Classify Grand Jury Participants?

Federal law broadly classifies grand jury participants into those who are bound by Rule 6(e) and those who are not bound by Rule 6(e). However, it also differentiates between those who have knowledge about the grand jury, those who may have knowledge about the grand jury, and those who may have knowledge about the grand jury because they have access to the grand jury’s records.

Can I Tell Anyone I Received a Grand Jury Subpoena?

Unless another law or court order prohibits disclosure, subpoena recipients generally may reveal that they received a subpoena. A subpoena is not itself a “matter occurring before the grand jury,” and Rule 6(e) generally does not conceal the mere existence of a grand jury. A subpoena also does not establish whether the recipient is a witness, a subject, or a target of an investigation.

• Does Production to a Grand Jury Create an Evidentiary Privilege?
• Are Grand Jury Subpoenas Protected Under Grand Jury Secrecy Rules?
• Are All Grand Jury Subpoenas Exempt from Disclosure?
• Can a Witness’s Lawyer Enter the Grand-Jury Room?

Does Production to a Grand Jury Create an Evidentiary Privilege?

Producing ordinary documents to a grand jury does not create an evidentiary privilege. While Rule 6(e) makes most materials in a grand jury’s possession secret, this rule does not establish a substantive evidentiary privilege for the documents that may have been produced in response to a grand-jury subpoena. If the recipient of a grand-jury subpoena has the legal right to disclose the contents of the subpoena, then that recipient may generally disclose the information that the recipient produced in response to the subpoena unless it would expose the direction, scope, or strategy of the grand jury’s investigation.

Are Grand Jury Subpoenas Protected Under Grand Jury Secrecy Rules?

Grand-jury subpoenas are generally not protected under Rule 6(e) secrecy rules. However, if a grand-jury subpoena is issued to a financial institution and asks for documents specifically involving a suspicious-activity report (SAR), then the grand-jury subpoena may be exempt from disclosure under 31 U.S.C. § 5318(g)(2).

Are All Grand Jury Subpoenas Exempt from Disclosure?

No. 31 U.S.C. § 5318(g)(2) makes grand-jury subpoenas issued to banks for records specifically related to suspicious-activity reports exempt from disclosure. This means that grand-jury subpoenas issued to banks for any other type of records must follow the general disclosure rules.

Can a Witness’s Lawyer Enter the Grand-Jury Room?

A witness’s lawyer is not permitted to enter the grand-jury room. However, the witness may leave the grand-jury room to speak privately with their lawyer if the witness has questions or concerns during the proceeding.

If you are facing this situation, Spodek Law Group handles federal criminal defense matters nationwide, from offices in New York and Los Angeles.

What other laws can stop me from discussing my testimony?

Can I Discuss My Testimony With Anyone Else?

Generally, speaking with anyone about your testimony is permissible. For example, in Butterworth v. Smith, 494 U.S. 624 (1990), the Supreme Court protected the rights of a witness who discussed his testimony after the grand jury had concluded its work.

What Are the Exceptions to My Ability to Discuss My Testimony?

As stated above, while discussing your testimony with others is generally permissible, there are exceptions to this rule. These exceptions include:

• Protective or Sealing Orders. Court-issued protective or sealing orders can impose restrictions on disclosures that would otherwise be permitted under Rule 6(e).
• Employment Confidentiality Duties. Employment-related confidentiality obligations can impose restrictions on disclosures in some circumstances, and these obligations will continue to apply even if Rule 6(e) does not.
• Attorney-Client Privilege. Obtaining Rule 6(e) authorization to disclose information that is subject to the attorney-client privilege does not constitute a waiver of that privilege.
• Witness Tampering Laws. Witness tampering laws, including 18 U.S.C. § 1512, prohibit the use of threats, physical force, or corruption to interfere with the testimony of grand jury witnesses. This prohibition applies before the testimony is delivered, during the grand jury proceeding, and after the witness testimony is completed.

Can Other Laws Limit What I Can Say About the Grand Jury Proceedings?

While Rule 6(e) governs grand jury secrecy at the federal level, other laws can also impose secrecy requirements. These other laws include:

• State Statutes. While federal law does not impose secrecy obligations on grand jury witnesses, many state statutes impose secrecy requirements. These state statutes govern state grand jury proceedings and do not apply to witnesses who testify before a federal grand jury, whose obligations are governed exclusively by Rule 6(e). If these state rules impose restrictions similar to grand jury secrecy at the federal level, then witnesses who testify in federal proceedings will be prohibited from discussing their testimony with others.
• State Grand Jury Secrecy Laws. State grand juries are conducted according to state law, and state law imposes grand jury secrecy rules in many respects different from federal grand jury secrecy rules. These rules apply to the participants and proceedings within the state grand jury.
• Local Court Instructions. Local courts publish their own grand jury instructions. Because of this, local courts can impose additional requirements in their local instructions that go beyond the language of Rule 6(e).

Does Grand Jury Secrecy End Once the Investigation Closes?

In Douglas Oil Co. of California v. Petrol Stops Northwest, 441 U.S. 211 (1979), the U.S. Supreme Court recognized that although Rule 6(e) creates a presumptive presumption of secrecy in grand jury proceedings, the public interest in secrecy may weaken “over time and as the circumstances that triggered the need for secrecy change.” However, the Supreme Court also explicitly held that “closing the investigation did not justify disclosure.” If a grand jury investigation closes, any potentially protected grand-jury material does not automatically become public.

• Does the Expiration of the Grand Jury End Secrecy?
• Do Grand Jury Disclosure Exceptions Exist Outside of Rule 6(e)?
• Can Grand Jurors Discuss Their Service?
• Can I FOIA Transcripts of Grand Jury Testimony?

Does the Expiration of the Grand Jury End Secrecy?

The expiration of a grand jury’s term also does not necessarily terminate Rule 6(e)’s secrecy protections over proceedings conducted during that grand jury’s term. While Federal Rule of Criminal Procedure 6(e) does not specify when it expires, the fact remains that Rule 6(e) contains protections that only trigger upon a court authorization or order, and the rule doesn’t discuss an end date to its protections.

Do Grand Jury Disclosure Exceptions Exist Outside of Rule 6(e)?

Federal courts have historically disagreed over whether the list of exceptions in Rule 6(e) is exhaustive. In Pitch v. United States, 891 F.3d 1284, 1288 (11th Cir. 2018), the court rejected the idea of “inherent judicial authority” that allows judges to order grand jury disclosures without Rule 6(e) authorization.

Other federal courts have recognized that, on occasion, disclosure of historically significant disclosures may be permissible, though these instances are exceedingly rare. These instances include cases like In re FBI Contract Records, and cases involving matters of national security.

But except in the rare cases where grand-jury records have been designated as historically significant, the prevailing view in federal courts is that disclosure beyond the Rule 6(e) exceptions is prohibited.

Can Grand Jurors Discuss Their Service?

When discussing their grand jury service, grand jurors must still adhere to the secrecy rules contained within Rule 6(e). When discussing how much time they spent on the grand jury, grand jurors cannot discuss protected proceedings.

Can I FOIA Transcripts of Grand Jury Testimony?

Generally, FOIA requests for transcripts of grand-jury testimony are denied. Under Rule 6(e), grand-jury testimony is exempt from disclosure.

What happens if someone violates grand jury secrecy rules?

What Happens if Someone Violates Rule 6(e)?

Knowing violations of Rule 6(e) may be punished as contempt of court. Individuals that are bound by Rule 6(e) are subject to penalties for disclosure and for allowing others to obtain grand-jury material.

• What Should I Do if Someone Who is Bound by Rule 6(e) Discloses Secret Grand-Jury Information to Me?
• Does a Rule 6(e) Violation Require the Dismissal of the Indictment?
• Is a Rule 6(e) Violation Eligible for Suppression?
• Will the Rule 6(e) Violator Face Criminal Liability?
• Is the Rule 6(e) Violator Subject to Civil Damages?

What Should I Do if Someone Who is Bound by Rule 6(e) Discloses Secret Grand-Jury Information to Me?

If you have knowledge of a Rule 6(e) violation, then you may want to consult with a defense lawyer about your rights and responsibilities. While you may not be bound by a secrecy obligation under Rule 6(e), you may be bound by confidentiality duties under a protective or sealing order, or you may be bound under other independent laws.

If you are the unintended recipient of secret grand-jury information and you received information of a criminal nature, there may be consequences to not contacting a defense lawyer.

• Is a Rule 6(e) Violation Eligible for Suppression?
• Will the Rule 6(e) Violator Face Criminal Liability?
• Is the Rule 6(e) Violator Subject to Civil Damages?

Does a Rule 6(e) Violation Require the Dismissal of the Indictment?

A Rule 6(e) violation does not automatically necessitate dismissal of the indictment. In Bank of Nova Scotia v. United States, 487 U.S. 250, 265, 267 n.11 (1988), the Supreme Court explicitly stated, “we do not think that a requirement of dismissal of the indictment was necessitated by the grand jury’s prejudicial error.” To receive a dismissal of the indictment, the party must prove that the prejudicial error resulted in an unfair proceeding.

Is a Rule 6(e) Violation Eligible for Suppression?

A Rule 6(e) violation is not by itself grounds for suppression. If the Rule 6(e) violation results in an unlawfully obtained grand-jury record, then it may be eligible for suppression.

• Will the Rule 6(e) Violator Face Criminal Liability?
• Is the Rule 6(e) Violator Subject to Civil Damages?

Will the Rule 6(e) Violator Face Criminal Liability?

A Rule 6(e) violation is not per se a crime, although criminal liability is an open possibility depending on the circumstances.

Is the Rule 6(e) Violator Subject to Civil Damages?

A Rule 6(e) violation is not by itself the foundation of a claim for civil damages. However, depending on the facts at hand, grand-jury participants that are bound by Rule 6(e) secrecy obligations may be subject to civil damages liability under other state and federal statutes.

Talk to Spodek Law Group

Every case turns on its own facts, and general information is no substitute for advice about yours. Todd Spodek, managing partner of Spodek Law Group, and the firm's attorneys defend federal criminal and white collar matters nationwide. Reach the firm at 212-300-5196.