Danielle Tyukody1Danielle Tyukody is a J.D. Candidate at the University of Chicago Law School, Class of 2024. She thanks Professor Jonathan S. Masur, Matthew Makowski, Claire Rice, Annie Kors, Lea Haddad, Dylan Salzman, and the University of Chicago Law Review Online team.
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The difficulty of accurately portraying complex and nuanced aspects of the law to lay jurors is well-recognized. During a criminal trial, the legal instructions are given by the judge to the jury. Lawyers from the prosecution and defense may suggest that the judge give certain legal instructions, but judges can select and give their own legal instructions. Jury verdicts can be appealed to a higher court on the basis that the legal instructions given to jurors were erroneous, and such appeals occur frequently in the practice of criminal law.
However, there is an important step that takes place before a trial occurs for many criminal defendants—a grand jury indictment. This is a constitutional requirement stemming from the Fifth Amendment, which guarantees that “[n]o person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury.” Rule 7(a)(1) of the Federal Rules of Criminal Procedure refines this constitutional requirement by requiring that “[a]n offense (other than criminal contempt) [ ] be prosecuted by an indictment if it is punishable: (A) by death; or (B) by imprisonment for more than one year.” This includes all felonies.
Grand juries stem from English common law and were originally intended to offer a layer of protection to defendants by providing a screening mechanism. Lay grand jurors would ultimately make the decision whether a crime should be charged, curbing prosecutorial overreach. However, many commentators agree that today’s grand juries are often a “rubber stamp” for prosecutors. There are several reasons for this, but an important one is that grand juries are shrouded in secrecy to the public, the trial court, and the defense. The prosecutor—not a judge—controls the proceedings. The accused does not have a right to be present. The prosecutor decides what evidence is presented to the grand jury and can withhold evidence favorable to the accused. Grand jurors are even allowed to consider hearsay and illegally obtained evidence presented by witnesses the prosecutor selects.
Prosecutors can also advise the grand jury on the law and provide legal instructions to the grand jury. Grand jurors then determine whether there is probable cause to believe that the accused committed the crime. If at least twelve of the sixteen-to-twenty-three grand jurors agree that there is probable cause, the grand jury returns a “true bill” that becomes an indictment after it is signed by the prosecutor.
This Essay concerns the legal instructions provided by prosecutors to grand jurors. Though there is a significant body of litigation over trial jury legal instructions, the same cannot be said for grand jury legal instructions because they are rarely disclosed. For the vast majority of grand jury proceedings, there are no publicly available records of the proceedings or of the legal instructions given. In cases where the legal instructions have been disclosed, indictments have been overturned due to erroneous legal instructions. For example, in United States v. Peralta (S.D.N.Y. 1991), the prosecution produced to the court a partial transcript of the grand jury proceedings which the court found to reveal an instruction about the legal standard for constructive possession that “seriously misstated the applicable law,” failed to distinguish “in any coherent fashion” the difference between actual and constructive possession, and “made no mention whatsoever of the elements of knowledge and intent as they apply to constructive possession.” The indictment against the defendants was dismissed due to the “erroneous and misleading” instructions. In another case, United States v. Stevens (D. Md. 2011), the court found that the grand jurors were “instructed erroneously that the advice of counsel was irrelevant to a determination of whether there was probable cause to indict.” The court made this discovery after the prosecution filed both a redacted and unredacted opposition to the defendant’s motion to disclose the government’s presentation to the grand jury. The unredacted opposition brief stated that a grand juror had asked a question about advice of counsel but omitted the government’s answer. The court then ordered disclosure of the grand jury transcripts for its review and discovered the erroneous instruction, causing the court to dismiss the indictment.
When criminal defendants move for the disclosure of matters occurring before the grand jury, they must satisfy a demanding standard for the court to permit any disclosure of the proceedings. Courts rarely grant such motions, and so the impact of erroneous grand jury legal instructions on trial outcomes and plea deals is not known.
This Essay proceeds in three parts. Part I outlines the disclosure rules for grand jury proceedings. Part II details the split among federal district courts regarding how to treat requests for the disclosure of grand jury legal instructions. Part III presents an argument to permit greater disclosure of grand jury legal instructions by lowering the standard defendants must meet for the court to authorize disclosure of the instructions.
I. Disclosure Rules for Grand Jury Proceedings
Federal Rule of Criminal Procedure 6(e) governs disclosure for grand jury proceedings. Attorneys for the government, among other parties, “must not disclose a matter occurring before the grand jury.” Rule 6(e)(3)(E)(ii) permits a court to authorize disclosure of such matters “at the request of a defendant who shows that a ground may exist to dismiss the indictment because of a matter that occurred before the grand jury.” The Supreme Court has held that a court can only disclose grand jury matters to a defendant if the defendant makes a sufficient showing of “particularized need,” a demanding standard. Defendants seeking disclosure must show: “(1) that the material they seek is needed to avoid a possible injustice in another judicial proceeding; (2) that the need for disclosure is greater than the need for continued secrecy; and (3) that their request is structured to cover only material so needed.” Requests by defendants seeking disclosure of grand jury legal instructions are routinely denied. Defendants are “in a Catch-22: they cannot gain access to the instructions unless they can first establish the likelihood of significant error, but they need access to the instructions to establish the error.”2Benjamin E. Rosenberg, A Proposed Addition to the Federal Rules of Criminal Procedure Requiring the Disclosure of the Prosecutor’s Legal Instructions to the Grand Jury, 38 Am. Crim. L. Rev. 1443, 1448 (2001).
However, courts of appeals have “acknowledged a right of public access to ‘ministerial’ records, [which] relate to the procedural aspects of the . . . operation of a grand jury’s ‘investigation.’” There is a debate among the federal courts regarding whether the legal instructions given to grand jurors qualify as procedural, i.e., “ground rules” of grand jury procedure that should be available without a showing of particularized need, or whether the legal instructions constitute “matter[s] occurring before the grand jury” and thus require a showing of particularized need.
II. The Split Concerning the Disclosure of Legal Instructions
Federal district courts have taken different approaches to the disclosure of grand jury legal instructions. In United States v. Belton (N.D. Cal. 2015), the court held that defendants are entitled to the grand jury legal instructions absent a showing of particularized need. The court reasoned that “legal instructions given to the grand jury . . . are a part of the ‘ground rules’ by which the grand jury conducts its proceedings [and] do not reveal the substance of the grand jury’s deliberative process or other information that would compromise the secrecy that Rule 6 seeks to protect.” This opinion suggests that grand jury instructions are in the realm of procedural rules and thus should be per se disclosable to defendants.
On the other side of the debate, the court in United States v. Morales (E.D. Cal. 2007) declined to grant the defendant’s request to view the grand jury legal instructions when the defendant argued that “he need not make a showing of particularized need at all, because the instructions are not covered by grand jury secrecy.” The court noted that grand jury secrecy is “designed to protect the essence of what takes place in the grand jury room” and rejected the argument that the instructions were not necessarily a “grand jury matter” entitled to secrecy. The court in United States v. FedEx Corp (N.D. Cal. 2016) also rejected this argument, noting that the grand jury legal instructions “constitute a ‘matter occurring before the grand jury,’ and thus are protected from public disclosure by Rule 6(e) absent a showing of ‘particularized need.’”
Finally, some courts acknowledge that the grand jury legal instructions may constitute “ground rules” that are subject to public disclosure in some cases, or “matters occurring before the grand jury” presumed secret in others. These courts will conduct an in camera review to determine whether the legal instructions in a given case fall into the former or the latter category. For example, in United States v. Manning (N.D. Cal. 2022), the court conducted an in camera review before it ruled on the substance of the defendant’s motion for the disclosure of the grand jury legal instructions, noting that “the legal instructions sought could prove inextricable from the presentation of evidence . . . and presumed secret” or they could be “hermetically sealed from the evidence and deliberation” of the case and “thus subject to public disclosure.”
III. The Argument to Lower the Standard Defendants Must Meet for a Court to Authorize Disclosure of Grand Jury Legal Instructions
The Belton court’s conclusions that grand jury legal instructions are procedural rather than substantive clearly does not extend to all grand jury legal instructions. While some instructions will be ministerial, that is, “procedural aspects of the empaneling and operation of the [grand jury],” others will be undeniably substantive, relating to specific evidence presented to jurors or specific questions asked by jurors. In the latter cases, legal instructions will likely constitute a “matter occurring before the grand jury” protected from public disclosure under Federal Rule of Criminal Procedure 6(e). Accordingly, under Rule 6(e)(3)(E)(ii), the court can authorize disclosure of the legal instructions “at the request of a defendant who shows that a ground may exist to dismiss the indictment because of a matter that occurred before the grand jury.” Subsequent Supreme Court decisions interpreting the Rule established the “particularized need” standard, which set forth the three prongs a defendant must meet for a court to authorize disclosure. Noticeable in the language of Rule 6(e)(3)(E)(ii) is that it does not, in its text, require that the showing be particularized, i.e., that the defendant must allege facts that constitute more than a “generalized complaint.”
I argue that instead of requiring defendants to make a showing of particularized need when they move for disclosure of grand jury legal instructions, courts should authorize disclosure of the instructions when:
(1) the defendant makes a showing that it is plausible that “a ground may exist to dismiss the indictment because of a matter that occurred before the grand jury,” and
(2) the court determines, after in camera review, that the legal instructions can be provided without revealing the substance of the grand jury’s deliberative process or other information compromising grand jury secrecy.
Defendants seeking disclosure of grand jury legal instructions should not have to show with particularity that the material they seek is needed to avoid a possible injustice in another judicial proceeding. Rule 6, on its face, does not require such a particularized showing. Furthermore, defendants should not be required to identify a specific injustice because, before seeing the legal instructions, such a showing is extremely difficult if not impossible for defendants to make. Instead, defendants should be required to allege facts making it plausible that the instructions were erroneous such that grounds to dismiss the indictment may exist. A plausibility standard is appropriate because it is high enough to prevent defendants from seeking disclosure of grand jury instructions without any evidence whatsoever that erroneous grand jury instructions have been given, but low enough that defendants can allege facts that are not particularized but are nevertheless sufficient for a judge to determine that it is plausible that a ground may exist to dismiss the indictment due to a matter occurring before the grand jury. If defendants make a sufficient showing, a court should authorize disclosure unless doing so would bring to bear the factors weighing in favor of continued grand jury secrecy.
In United States v. Procter & Gamble Co. (1958), the Supreme Court outlined the reasons to protect grand jury secrecy, which include: preventing the escape of those accused, ensuring that grand jurors and witnesses are protected from being influenced by the accused, encouraging disclosures by persons who have information, and protecting the innocent accused from knowing of the investigation and incurring the expense of standing trial where there was no probability of guilt. The disclosure of legal instructions to defendants standing trial will rarely implicate these reasons to keep grand jury matters secret, and courts can in any case conduct an in camera review of the proceedings to make this determination. Additionally, the Supreme Court stated in Douglas Oil Co. v. Petrol Stops Northwest (1979) that “as the considerations justifying secrecy become less relevant, a party asserting a need for grand jury transcripts will have a lesser burden in showing justification.” Defendants requesting disclosure of the legal instructions provided to a grand jury when they have already been indicted should face a lesser burden in showing justification for the disclosure of the legal instructions. Defendants’ motions should only be refused if the court determines that the legal instructions cannot be disclosed in the specific case without evoking the factors weighing in favor of continued secrecy.
The consequences of being indicted are high. Significant loss of reputation and economic harm often follow for the defendant. Despite the high costs for defendants, the standard for what passes as a sufficient indictment is low. Courts will uphold bare bones indictments that “track the language of the statute charged and state the time and place (in approximate terms) of the alleged crime.” This makes the instructions given to the grand jury even more important because criminal defendants can be brought to court easily once indicted. This is assuming that defendants do not accept a plea bargain first, as “of the roughly 80,000 federal prosecutions initiated in 2018, just two percent went to trial . . . [and over] 97 percent of federal criminal convictions are obtained through plea bargains.” Lowering the standard defendants must meet for courts to authorize the disclosure of grand jury legal instructions could provide defendants with critical information that, in some cases, might cause their indictment to be dismissed or enable them to plea bargain on more favorable terms. Prosecutors might also deliver legal instructions more carefully to grand jurors, knowing that the legal instructions they give would be more readily disclosable.
This Essay suggests an avenue of reform to make grand juries fairer for defendants. Lowering the standard defendants must meet for a court to authorize the disclosure of grand jury legal instructions could improve the administration of justice. Permitting disclosure unless the court determines that the instructions cannot be disclosed without implicating the reasons grand jury matters are kept secret will preserve the rationale behind grand jury secrecy. As the court said in United States v. Facteau (D. Mass. 2016), “[g]iven . . . the largely unfettered power of the grand jury, the small step of allowing a defendant some visibility into the legal instructions given to the grand jury would help protect the defendant’s rights, while fully maintaining the secrecy . . . of our grand jury system.”
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Danielle Tyukody is a J.D. Candidate at the University of Chicago Law School, Class of 2024. She thanks Professor Jonathan S. Masur, Matthew Makowski, Claire Rice, Annie Kors, Lea Haddad, Dylan Salzman, and the University of Chicago Law Review Online team.