Notes of Committee on the Judiciary, Senate Report No. 95–354; 1977 Amendments Proposed by the Supreme Court
Rule
6(e) currently provides that “disclosure of matters occurring before
the grand jury other than its deliberations and the vote of any juror
may be made to the attorneys for the government for use in the
performance of their duties.” Rule 54(c) defines attorneys for the
government to mean “the Attorney General, an authorized assistant to the
Attorney General, a United States attorney, and an authorized assistant
of the United States attorney, and when applicable to cases arising
under the laws of Guam, means the Attorney General of Guam. . . .”
The Supreme Court proposal would change Rule 6(e) by adding the following new language:
For
purposes of this subdivision, “attorneys for the government” includes
those enumerated in Rule 54(c); it also includes such other government
personnel as are necessary to assist the attorneys for the government in
the performance of their duties.
It would
also make a series of changes in the rule designed to make its
provisions consistent with other provisions in the Rules and the Bail
Reform Act of 1966.
The Advisory Committee note
states that the proposed amendment is intended “to facilitate an
increasing need, on the part of Government attorneys to make use of
outside expertise in complex litigation”. The note indicated that:
Although
case law is limited, the trend seems to be in the direction of allowing
disclosure to Government personnel who assist attorneys for the
Government in situations where their expertise is required. This is
subject to the qualification that the matter disclosed be used only for
the purposes of the grand jury investigation.
It
is past history at this point that the Supreme Court proposal attracted
substantial criticism, which seemed to stem more from the lack of
precision in defining, and consequent confusion and uncertainty
concerning, the intended scope of the proposed change than from a
fundamental disagreement with the objective.
Attorneys
for the Government in the performance of their duties with a grand jury
must possess the authority to utilize the services of other government
employees. Federal crimes are “investigated” by the FBI, the IRS, or by
Treasury agents and not by government prosecutors or the citizens who
sit on grand juries. Federal agents gather and present information
relating to criminal behavior to prosecutors who analyze and evaluate it
and present it to grand juries. Often the prosecutors need the
assistance of the agents in evaluating evidence. Also, if further
investigation is required during or after grand jury proceedings, or
even during the course of criminal trials, the Federal agents must do
it. There is no reason for a barrier of secrecy to exist between the
facets of the criminal justice system upon which we all depend to
enforce the criminal laws.
The parameters of the
authority of an attorney for the government to disclose grand jury
information in the course of performing his own duties is not defined by
Rule 6.
However, a commonsense interpretation prevails, permitting
“Representatives of other government agencies actively assisting United
States attorneys in a grand jury investigation . . . access to grand
jury material in the performance of their duties.” Yet projected against
this current practice, and the weight of case law, is the anomalous
language of Rule 6(e) itself, which, in its present state of
uncertainty, is spawning some judicial decisions highly restrictive of
the use of government experts that require the government to “show the
necessity (to the Court) for each particular person's aid rather than
showing merely a general necessity for assistance, expert or otherwise”
and that make Rule 6(e) orders subject to interlocutory appeal.
In this state of uncertainty, the Committee believes it is timely to redraft subdivision (e) of Rule 6 to make it clear.
Paragraph
(1) as proposed by the Committee states the general rule that a grand
jury, an interpreter, a stenographer, an operator of a recording device,
a typist who transcribes recorded testimony, an attorney for the
government, or government personnel to whom disclosure is made under
paragraph (2)(A)(ii) shall not disclose matters occurring before the
grand jury, except as otherwise provided in these rules. It also
expressly provides that a knowing violation of Rule 6
may be punished as a contempt of court. In addition, it carries forward
the current provision that no obligation of secrecy may be imposed on
any person except in accordance with this Rule.
Having
stated the general rule of nondisclosure, paragraph (2) sets forth
exemptions from nondisclosure. Subparagraph (A) of paragraph (2)
provides that disclosure otherwise prohibited, other than the grand jury
deliberations and the vote of any grand juror, may be made to an
attorney for the government for use in the performance of his duty and
to such personnel as are deemed necessary by an attorney for the
government to assist an attorney for the government in the performance
of such attorney's duty to enforce Federal criminal law. In order to
facilitate resolution of subsequent claims of improper disclosure,
subparagraph (B) further provides that the names of government personnel
designated to assist the attorney for the government shall be promptly
provided to the district court and such personnel shall not utilize
grand jury material for any purpose other than assisting the attorney
for the government in the performance of such attorney's duty to enforce
Federal criminal law. Although not expressly required by the rule, the
Committee contemplates that the names of such personnel will generally
be furnished to the court before disclosure is made to them.
Subparagraph (C) permits disclosure as directed by a court preliminarily
to or in connection with a judicial proceeding or, at the request of
the defendant, upon a showing that grounds may exist for dismissing the
indictment because of matters occurring before the grand jury. Paragraph
(3) carries forward the last sentence of current Rule 6(e) with the
technical changes recommended by the Supreme Court.
The
Rule as redrafted is designed to accommodate the belief on the one hand
that Federal prosecutors should be able, without the time-consuming
requirement of prior judicial interposition, to make such disclosures of
grand jury information to other government personnel as they deem
necessary to facilitate the performance of their duties relating to
criminal law enforcement. On the other hand, the Rule seeks to allay the
concerns of those who fear that such prosecutorial power will lead to
misuse of the grand jury to enforce non-criminal Federal laws by (1)
providing a clear prohibition, subject to the penalty of contempt and
(2) requiring that a court order under paragraph (C) be obtained to
authorize such a disclosure. There is, however, no intent to preclude
the use of grand jury-developed evidence for civil law enforcement
purposes. On the contrary, there is no reason why such use is improper,
assuming that the grand jury was utilized for the legitimate purpose of a
criminal investigation. Accordingly, the Committee believes and intends
that the basis for a court's refusal to issue an order under paragraph
(C) to enable the government to disclose grand jury information in a
non-criminal proceeding should be no more restrictive than is the case
today under prevailing court decisions. It is contemplated that the
judicial hearing in connection with an application for a court order by
the government under subparagraph (3)(C)(i) should be ex parte so as to preserve, to the maximum extent possible, grand jury secrecy.
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