Florida State University Law Review Volume 24 Issue 1 Article 1 1996 Behind the Locked Door of an American Grand Jury: Its History, Its Secrecy, and Its Process Mark Kadish [email protected] Follow this and additional works at: https://ir.law.fsu.edu/lr Part of the Law Commons Recommended Citation Mark Kadish, Behind the Locked Door of an American Grand Jury: Its History, Its Secrecy, and Its Process, 24 Fla. St. U. L. Rev. 1 (1996) . https://ir.law.fsu.edu/lr/vol24/iss1/1 This Article is brought to you for free and open access by Scholarship Repository. It has been accepted for inclusion in Florida State University Law Review by an authorized editor of Scholarship Repository. For more information, please contact [email protected]. FLORIDA STATE UNIVERSITY LAW REVIEW BEHIND THE LOCKED DOOR OF AN AMERICAN GRAND JURY: ITS HISTORY, ITS SECRECY, AND ITS PROCESS Mark Kadish VOLUME 24 FALL 1996 NUMBER 1 Recommended citation: Mark Kadish, Behind the Locked Door of an American Grand Jury: Its History, Its Secrecy, and Its Process, 24 FLA. ST. U. L. REV. 1 (1996). BEHIND THE LOCKED DOOR OF AN AMERICAN GRAND JURY: ITS HISTORY, ITS SECRECY, AND ITS PROCESS MARK KADISH* I. INTRODUCTION................................................................................................... 1 II. THE HISTORY OF THE ENGLISH AND COLONIAL GRAND JURIES........................... 5 A. The Grand Jury in England ...................................................................... 5 B. The Grand Jury in Colonial America ........................................................ 9 III. THE ROLE OF GRAND JURY SECRECY.................................................................. 12 A. The Beginnings of Grand Jury Secrecy...................................................... 12 B. Grand Jury Secrecy in Early American Jurisprudence............................. 16 IV. 1946 CODIFICATION OF THE FEDERAL RULES OF CRIMINAL PROCEDURE............ 23 V. INTERPRETATIONS OF THE 1946 SECRECY RULE................................................. 29 VI. PROCTER & GAMBLE: A MISSED OPPORTUNITY ................................................ 34 VII. EMERGING CONCERNS OVER ADMINISTRATIVE AGENCY ACCESS TO GRAND JURY MATERIALS ............................................................................................... 41 VIII. CONGRESSIONAL ACTION.................................................................................... 45 A. The 1977 Amendment................................................................................. 45 B. 1981 Amendment Proposal......................................................................... 52 IX. SELLS AND BAGGOT ........................................................................................... 53 A. United States v. Sells Engineering, Inc..................................................... 54 B. United States v. Baggot ............................................................................. 60 X. 1985 AMENDMENT TO RULE 6(E) ........................................................................ 62 XI. UNITED STATES V. JOHN DOE, INC................................................................... 65 XII. GRAND JURY SECRECY AFTER DOE. ................................................................... 70 XIII. THE MARYLAND & VIRGINIA MILK PRODUCERS ASS’N SOLUTION .................... 73 XIV. CONCLUSION...................................................................................................... 74 I. INTRODUCTION The purpose of our Constitution is to create a government that protects people from each other.1 The purpose of our Bill of Rights is to protect each of us from our government.2 Fundamental in any ordered system of government is an understanding that the people have the right to be free from crime. But, even more im- portant, the people have a right to be free from a government that takes life, liberty, and property without due process of law. * Associate Professor of Law, Georgia State University. B.A., Lafayette College, 1964; LL.B., New York University, 1967. I am indebted to my colleagues Professor Kath- ryn Urbonya and Associate Professor Ellen Podgor for their insightful comments. A special thanks goes to my research assistants Rhonda Byers and Paul Vignos for their commit- ment to this project. 1. See generally THOMAS HOBBES, LEVIATHAN (Cambridge Univ. Press 1991) (1651) (asserting that freedom requires relinquishment of power to avoid pitting each person against the other). 2. See e.g., Hugo L. Black, The Bill of Rights, 35 N.Y.U. L. REV. 865, 870-73 (1960); Loren A. Smith, Introduction To Symposium On Regulatory Takings, 46 S.C. L. REV. 525, 526 (1995) (stating that the very purpose of the Bill of Rights is to protect citizens from government). 1 2 FLORIDA STATE UNIVERSITY LAW REVIEW [Vol. 24:1 This Article focuses on whether the development, interpreta- tion, and administration of federal grand jury secrecy provisions has adhered to due process strictures. It suggests that due proc- ess concerns have yielded to goals of government efficiency in federal law enforcement. The Article offers a solution that pro- tects historical grand jury secrecy while encompassing the con- cerns of efficient and effective federal law enforcement. This eas- ily executed solution has eluded the U.S. Supreme Court, Con- gress, and commentators over the last fifty years. Only one U.S. Court of Appeals decision, Maryland & Virginia Milk Producers Ass’n v. United States ,3 has recognized the simplicity and fairness of this solution to both the people and the government. The Su- preme Court, however, has never even discussed this critical 1957 D.C. Circuit decision, propounded by the Secretary to the 1946 Advisory Committee on the Federal Rules of Criminal Pro- cedure,4 in its later, seminal decisions on grand jury secrecy.5 This simple, unnoticed, one-page panel order balanced the inter- est of the government in efficient and cost-effective civil regula- tory investigations against the interests in grand jury secrecy by allowing disclosure of grand jury materials for subsequent civil proceedings only to the extent that they would have been discov- erable by government civil investigative devices. To implement this solution, the Supreme Court and Congress should revisit the federal grand jury secrecy rule. Part II of this Article is an historical analysis. It examines the grand jury system as it originated in England and developed in colonial America. Part II also focuses on the evolution of the grand jury’s function from a powerful tool for the monarch to a shield protecting citizens from the king’s abuses. Part III addresses the critical role secrecy has played in the evolution of the grand jury system in America. It examines se- crecy interests in the context of the purpose for disclosure, sug- gesting that when disclosure is sought by the government for use in civil regulatory actions, the courts must consider the defen- dant’s interest in a fair civil trial process. Part IV focuses on the 1946 codification of the common law rule of grand jury secrecy into Federal Rule of Criminal Proce- 3. 250 F.2d 425 (D.C. Cir. 1957). 4. See Maryland & Virginia Milk Producers Ass’n v. United States, 151 F. Supp. 438, 440 (D.D.C. 1956). U.S. District Judge Alexander Holtzoff, the author of the lower court opinion that proposed the approach, was also Secretary to the 1946 Advisory Com- mittee on the Federal Rules of Criminal Procedure. 5. See United States v. Procter & Gamble Co., 356 U.S. 677 (1958); United States v. Baggot, 463 U.S. 476 (1983); United States v. Sells Eng’g, Inc., 463 U.S. 418 (1983). 1996] GRAND JURY SECRECY 3 dure 6(e).6 A detailed analysis of the rule’s drafting history re- veals congressional concerns over illegal or unauthorized use of grand jury information in government civil proceedings and a legislative intent that grand jury materials only be disclosed to government attorneys handling criminal prosecutions. Part V discusses the different approaches taken by the lower courts in permitting disclosure of grand jury materials in gov- ernment civil litigation after the codification of Rule 6(e). The most significant of these is the fair process approach taken by Maryland & Virginia Milk Producers Ass’n . This rather simple, common-sense concept forms the bedrock for the thesis of this article. Part VI discusses the Supreme Court’s decision in United States v. Procter & Gamble Co. ,7 the Court’s first opportunity to address grand jury secrecy in terms of civil disclosure. Analysis of Procter & Gamble exposes the problems inherent in parallel civil and criminal investigations. Part VI also examines the nine-year discovery battle between the United States and Procter & Gam- ble, revealing that disclosure of grand jury material to govern- ment civil attorneys provides an incentive for abuse of the grand jury system and can create a substantial imbalance in civil dis- covery. Part VII discusses the emerging concern over civil use of grand jury materials in the context of federal administrative agency ac- cess to such information. Enabling legislation that created agen- cies with substantial civil and criminal enforcement powers pre- sented significant grand jury secrecy issues parallel to those ex- amined in Procter & Gamble. Questions also arose concerning the extent to which agency personnel could gain access to grand jury materials by assisting the prosecutor with the grand jury investi- gation. Part VII also traces case law that eventually prompted legislative action amending Rule 6(e). Part VIII