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The government must disclose to a criminal defendant, and make available for copying, “the defendant’s recorded testimony before a grand jury relating to the charged offense.” Fed. R. Crim. P. 16(a)(1)(B)(iii). Must the government make available to a grand jury witness (including a target or subject) the witness’s own prior grand jury testimony before any charge has been filed? On that question, the Supreme Court has not yet spoken, and the lower courts have long been divided. It has been held, however, that a prosecutor’s allowing a prospective government trial witness to review his own grand jury testimony was not even a “disclosure,” and therefore was permissible. U.S. v. Heinze, 361 F. Supp. 46, 57 (D. Del. 1973). D.C. Circuit: witnesses may review transcripts In June, the U.S. Circuit Court of Appeals for the District of Columbia held that, in view of the strong interests in access presented by the grand jury witnesses before it and the weak countervailing governmental interests in denying access, the witnesses were “entitled . . . to review transcripts of their own grand jury testimony in private at the U.S. Attorney’s Office or a place agreed to by the parties or designated by the district court.” In re Grand Jury, ___ F.3d ___, No. 06-3078, 2007 WL 1791101, at *10 (D.C. Cir. June 22, 2007) (per curiam). Relying on a statement by the witness’s attorney that only review by the witnesses, themselves, was needed and sought, the court expressly declined to address whether a witness may make notes while reviewing a transcript, whether a witness may obtain a copy to take away and whether a witness’s attorney may review a transcript. During a grand jury investigation of a company and its employees, one employee testified three times and another testified once. Each was subpoenaed to testify yet again. Rule 6(e)(3)(E)(i) of the Federal Rules of Criminal Procedure provides that “[t]he court may authorize disclosure � at a time, in a manner, and subject to any other conditions that it directs � of a grand-jury matter: (i) preliminary to or in connection with a judicial proceeding.” The employees moved under the rule for copies of the respective transcripts of their prior testimony. They asserted that they needed the transcripts (i) to avoid inconsistent statements because years had passed since the events in question, and many months since they had last testified, (ii) to aid their counsel in advising them and (iii) potentially to exercise the right to recant under 18 U.S.C. 1623(d). The first employee also stated that he had been advised, through counsel, that he was a subject of the investigation. The district court denied the motions on the ground that the employees had failed to show a particularized and compelling need for the transcripts. Rule 6(e)(3)(E)(i) unquestionably authorizes disclosure to a witness, in connection with future grand jury testimony, of a transcript of the witness’s own prior grand jury testimony, but it provides no standard for the exercise of the judicial discretion it grants. Disclosure of grand jury testimony is an exception to the general rule that grand jury proceedings are secret. Multiple reasons have been given for grand jury secrecy: “First, if preindictment proceedings were made public, many prospective witnesses would be hesitant to come forward voluntarily, knowing that those against whom they testify would be aware of that testimony. “Moreover, witnesses who appeared before the grand jury would be less likely to testify fully and frankly, as they would be open to retribution as well as to inducements. “There also would be the risk that those about to be indicted would flee, or would try to influence individual grand jurors to vote against indictment. “Finally, by preserving the secrecy of the proceedings, we assure that persons who are accused but exonerated by the grand jury will not be held up to public ridicule.” Douglas Oil Co. v. Petrol Stops Nw., 441 U.S. 211, 219 (1979). See also, e.g., U.S. v. Sells Eng’g Inc., 463 U.S. 418, 431-35 (1983). In light of those interests, where a movant under Rule 6(e)(3)(E)(i) seeks disclosure of grand jury testimony by someone other than the movant, the Supreme Court has required “a strong showing of particularized need.” Sells Engineering, 463 U.S. at 443 (citing cases). That is the standard the district court applied in In re Grand Jury. The court of appeals held it inapplicable to a motion to review a transcript of the movant’s own testimony. The court so held because the rationales for secrecy plainly do not apply where all that is sought is an opportunity for a movant to review the movant’s own testimony. One important exception to the general rule of grand jury secrecy is that no obligation of secrecy is or may be imposed on a witness. Fed. R. Crim. P. 6(e)(2)(A)-(B). Thus, a witness is free to disclose the witness’s own testimony (to the extent the witness remembers it) without limitation. A witness’s review of his or her own testimony may refresh or expand the witness’s memory of that testimony, but does not present any risk to the interests served by secrecy that is not already presented by the witness’s freedom to disclose the testimony. A risk with memories of grand jury witnesses The law takes its risks with the memories of grand jury witnesses, including memories aided by debriefing memoranda made immediately after witnesses have testified. In particular, the risks that a witness might be pressured by a target or subject of an investigation to obtain and turn over a copy of the transcript of the witness’s testimony (see, e.g., In re Alvarez, 351 F. Supp. 1089, 1091 (S.D. Calif. 1972)), that some other interested person might review the testimony (cf. Bast v. U.S., 542 F.2d 893, 896 n.3 (4th Cir. 1976) (“Pandora’s box of problems necessarily arising from the sale or delivery of such transcript to anyone should the witness be able to acquire it on demand”)), and that such possibilities might influence the testimony given, do not apply where a witness has a right merely to review the testimony, and not to obtain and take away a copy of the transcript. The grounds asserted by the employees for access to prior testimony are common to many grand jury witnesses who would seek access to a transcript of their own prior testimony in order to prepare adequately for further grand jury testimony. See, e.g., U.S. v. Lopez, 779 F. Supp. 13, 16 (S.D.N.Y. 1991). Thus, under the decision, review by a grand jury witness of a transcript of his or her own testimony would be granted routinely, and would be denied only where unusual facts significantly strengthened the government’s interest in preventing such review. The D.C. Circuit did not articulate the standard to apply in deciding the questions it left open � right to make notes, obtain a copy, have counsel present. Presumably, in exercising the discretion granted by Rule 6(e)(3)(E)(i), a district court should weigh the competing interests of the witness in obtaining something more than simple review of a transcript and of the government in preventing the witness from obtaining that something more. Notes may carry some of the same risks of further disclosure (and its potential consequences in the particular case and generally) as a copy of the transcript. As to both, a protective order barring further disclosure would bring to bear the threat of sanctions for criminal contempt. For such an order to remove concern, however, it would have to be permissible despite Rule 6(e)(2)(A), which provides that “[n]o obligation of secrecy may be imposed on any person except in accordance with Rule 6(e)(2)(B),” which does not authorize such an order. Presumably, as a condition on disclosure under Rule 6(e)(3)(E), and not a mere obligation of secrecy, the order would be permissible even though the condition applies to parties � the witness and the witness’s lawyer � not listed in Rule 6(e)(2)(B). Moreover, to achieve its objective, the order presumably would have to prohibit dictating to a third party from the notes or copy of the transcript, and any similar use of the notes or copy to transmit their contents. That restriction would have to co-exist with the freedom of the witness to disclose the witness’s testimony from memory. Witnesses may be willing to agree to restrictions Presumably, where a witness has a sufficiently strong need for notes or a copy to persuade a judge to order something more than mere review, the witness would be willing to agree (i.e., waive objection) to an order that includes practical restrictions that give the witness what he or she needs and also protect the legitimate interests of the prosecutors. Finally, there will be cases where a need will be shown for participation by counsel in review or note-taking. For example, where a case is very complicated and the witness would not be expected to understand the full implications of his or her prior testimony, an active role for counsel may serve not only the interests of the witness, but also the broader interest in factual accuracy. Cf. U.S. v. Projansky, 44 F.R.D. 550, 556 (S.D.N.Y. 1968). Here, too, a witness and counsel, motivated by real need, are likely to be willing to agree to practical restrictions that protect the legitimate interests of both sides. Richard M. Cooper is a partner at Williams & Connolly in Washington. He can be reached via e-mail at [email protected].

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