This column will discuss the situation when a witness who previously testified before a grand jury, when subpoenaed for an additional appearance, can obtain and review the transcript of his previous testimony prior to his next appearance. As discussed below the situation may differ between federal and Pennsylvania state grand juries because of the presence of an attorney for the witness in the state grand jury. The issue is complicated by the fact that grand jury transcripts are under seal and are not available for public scrutiny, except by court order. Subsequent appearance of grand jury witnesses is common in investigations of white collar crime. Government attorneys often object to providing prior testimony on the grounds of grand jury secrecy.

I will first discuss the issue as dealt with in the federal courts. The question has not been presented to the U.S. Court of Appeals for the Third Circuit but has been ruled upon by the Ninth and First Circuits, see Bursey v. United States, 466 F.2d 1059, (9th Cir 1972, and In re Grand Jury, 566 F.3d (1st Cir. 2009). The court in Bursey granted the request based upon a series of repeated questions by the government attorneys in the witness’ prior appearance. The first circuit held that the lower court should not require the witness to show a strong particularize to review his prior testimony as required by federal criminal rules, but a lesser standard of  only a particularized  need,, and held that under the circumstances of that matter, the witness should be given a chance to review the transcript of his prior testimony but not be given a copy of the transcript. The most reasonable and workable resolution of the issue is contained in the per curium decision of the U.S. Court of Appeals for the District of Columbia with, then-circuit Judge Brett Kavanaugh (now U.S. Supreme Court justice) participating, see In re Grand Jury, 490 F.3d 978 (D.C. Cir. 2007).That decision is discussed below.