Silencing Grand Jury Witnesses

The investigations of local police officers for causing the deaths of unarmed civilians in Ferguson, Missouri and Staten Island, New York have generated significant national discourse about the fairness and transparency of grand jury proceedings. This article addresses one crucial aspect of this ongoing debate; that is, whether witnesses before the grand jury should be allowed to talk to each other and to the media about the contents of their testimony. In the federal system and in the majority of states that still employ the grand jury as an investigative and charging tool, obligations of grand jury secrecy do not extend to the witnesses themselves. Only persons performing an “official function” before the grand jury are typically covered by the oath of secrecy. Absent a contract or court order, grand jury witnesses are free to talk with each other and to the media. Nevertheless, prosecutors often seek to handcuff grand jury witnesses in talking to others about their testimony by drafting one-sided cooperation agreements that impose obligations of confidentiality on grand jury witnesses in exchange for charging or sentencing concessions. Courts on occasion also impose gag orders on grand jury witnesses as part of formal immunity orders. In this article, the author argues that such efforts by prosecutors and courts to impose secrecy obligations on grand jury witnesses violate attorney discipline rules and the First Amendment. As importantly, they impede the target’s access to information essential to enable him to marshal a defense, thus undermining the grand jury’s historic function as a shield against unfounded prosecutions