A federal grand jury witness, recalled to testify before the grand jury, should have a right to examine the transcript of his or her prior testimony. Up to now courts have rarely granted such requests. The Department of Justice has consistently opposed any such disclosures. The D.C. Circuit in a recent groundbreaking case has opened the door to permit witnesses to examine their prior testimony, with certain limitations.
Some background is necessary. Federal grand jury transcripts are secret and are protected from discovery by Rule 6(e), Federal Rule of Criminal Procedure. For an authorized disclosure of grand jury material, a threshold requirement is that the disclosure must be “preliminary to or in connection with a judicial proceeding”. A disclosure to a witness of his or her prior grand jury testimony to prepare for a subsequent grand jury appearance would be in connection with a judicial proceeding. “[It] is well settled that a grand jury hearing is a judicial proceeding within the scope of Rule 6(e),” and Rule 6(e) “may … support disclosure ‘in connection with’ the grand jury’s own proceedings.” In order to gain access to grand jury transcripts, according to Douglas Oil Co. v. Petrol Stops N.W., an applicant must show particularized need, and must demonstrate that the need for disclosure outweighs the need for continued secrecy.
