Washington Law Review


The scope of this study is limited to what is probably the most criticized aspect of the traditional grand jury system, the restrictions on disclosure of grand jury proceedings, especially the criminal defendant's lack of access to a transcript of the testimony given before the grand jury which indicted him. Examining the history of the grand jury as it relates to the tradition of secrecy, this study discusses the philosophies underlying the practice and analyzes the impact of the Federal Rules of Criminal Procedure, federal statutes, and certain Supreme Court decisions on this tradition. This study concludes that there is no basis in fact for most of the reasons traditionally given for grand jury secrecy, and that accordingly every criminal defendant should be presumed to have the right to discover before trial all grand jury testimony which the prosecution plans to use against him. However, the courts should retain the power to refuse discovery if the prosecution shows a compelling reason to maintain secrecy at that time. In order to prevent prosecutors from circumventing the defendant's right, this study recommends that all grand jury testimony be recorded and that Rule 6 of the Federal Rules of Criminal Procedure be amended to compel recording and allow pretrial discovery.

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