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The First Circuit Helps Grand Jury Witnesses

Testifying before a grand jury can be nerve wracking. Your lawyer can’t be with you. The prosecutors can ask you almost anything, including questions that call for hearsay. You have a right to refuse to testify based on your Fifth Amendment Right against self-incrimination, but the government can overcome that by giving you immunity (for a fuller discussion of immunity, see this article on the topic that I co-wrote with Roger Spaeder).

If you are testifying under an order of immunity, the only way you can refuse to answer a question is if the question calls for an answer that would reveal a privilege, such as the attorney-client privilege or spousal privilege. And it’s up to the witness, without his lawyer, to make the determination of whether privilege applies.

To make things even worse for witnesses, you don’t have a right to get the transcript of your testimony when you’re done. You could testify for hours, based on a stack of documents that you may never have seen before, and at the end of the time you may not remember what documents you saw or what you said about them. Even if you’re intending to be fully honest, the most steel-trapped minds can get turned around in a grand jury proceeding.

Happily, courts are starting to recognize that this is not a fair way to treat people who testify before a grand jury. The First Circuit recently joined the D.C. Circuit in expanding the rights of access that a witness has to his grand jury testimony.

The D.C. Circuit has held that grand jury witnesses have a right of access to their grand jury transcripts (though the mechanics of that right have been later narrowed by the U.S.. District Court in D.C.).

The First Circuit held that grand jury witnesses have to meet a lesser standard in showing that they’d like access to their grand jury transcripts. The court recognized that people have a compelling interest in seeing their transcripts, and that the government’s interest is relatively limited. Moreover, the government is obligated to create grand jury transcripts anyway; it won’t slow things down unduly to show the transcript to a witness.

The First Circuit held that the lesser standard was met where the prosecutors warned the witnesses repeatedly that he could be prosecuted for perjury. The court suggests, but doesn’t rule on, just how far this lesser standard would go. And the opinion, by it’s terms, deals only with access to the grand jury transcript, not a copy.

Clearly, the First Circuit’s opinion is a step in the right direction. It could go farther, and it would be more fair to grand jury witnesses if it did, but it’s nice to see that New England is becoming a little more like D.C.

If you have questions about how federal criminal charges are different than state criminal charges, please visit this page on Maryland federal criminal charges or Washington DC federal criminal charges.