March 14, 2019
By Peter F. Vaira, for the March 12, 2019 edition of The Legal Intelligencer newspaper This column discusses 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 D.C. Circuit 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. Federal Criminal Rule 6 (e) (3) (E) (i) is the applicable rule for the issue. Initially, the D.C. Circuit panel held that the disclosure of a witness’ prior testimony to a grand jury witness who was recalled is preliminary to, or in connection with, a judiciary proceeding as required by Rule 6 (e) for court to consider the request. The court noted that the request by a witness for his own testimony is different than a request for the testimony of other witnesses, such as a request for witness testimony made by victims in a pricefixing case, citing Douglas Oil Co., 441 U.S. 222 (1979). The government opposed giving the transcript of the prior testimony to the witness to protect grand jury secrecy. The court weighed the competing interests of the government and the witnesses. It should be noted that in the federal grand jury the attorney for the witness cannot accompany the witness in the grand jury room. The witness may leave to consult with the attorney at any time. Federal court judges take into consideration the lack of assistance of counsel and the practice of government attorneys asking repeated questions on the same subject when considering the merits of the need of the witness to review his prior testimony. The D.C. Circuit panel noted that a grand jury witness is typically nervous and may make mistakes in testimony, without always realizing it at the time, especially without an attorney present to help identify inadvertent errors. The witnesses are often asked about specific names, dates, places, meetings and conversations. The court said, “In their search for the truth, prosecutors tend to fire questions rapidly and aggressively and sometimes ask variations of the same question repeatedly. See, Bursey, 466 F.2d at 1079. … It is therefore not uncommon for a witness to testify honestly but inaccurately on certain points.” The court further noted that the government may use inconsistent statements as a basis or charging the witness with false swearing in violation of 18 U.S.C. 1623 (a) (inconsistent statements as basis for perjury). The court felt that a witness’ general interest in reviewing the transcript is strongly reinforced by federal law, which allows a witness to timely recant grand jury testimony without legal penalty. The court in Bursey noted that some repetitive questioning is inevitable, and under some circumstances desirable; however, noted there is potential for abuse when a witness is called again and again with weeks or months between appearances. The D.C. Circuit gave credence to the government attorneys’ concern of the issue of witness intimidation. The court recognized that there may be third parties who have independent power over the witness, such as employment supervision or other relationships. The witness could easily be exposed to such pressure from those persons and could obtain the transcripts from the witnesses. The First Circuit court also recognized this issue. Judge Juan Torruella, writing for the majority of the First Circuit panel, said that a copy of the transcript could take on a life of its own making its way through hands of persons who were mentioned adversely in the questioning. The court noted that even after reviewing his testimony, the witness could be less than forthcoming about what he said and that anyone inquiring would learn nothing more from the witness. If the witness obtained a copy of the grand jury transcript, and the third party used the power his position over the witness to obtain a review of the transcript, the witness’ testimony would be clearly exposed in black and white. As a former prosecutor, I find such argument credible. Quite often, witnesses who are employees of a corporation or have relationships in some larger organization, appear in a grand jury without lawyers supplied by their organizations, they may deviate from the party line and give testimony not in conformance of what their supervisors believe they should say. The D.C. Circuit panel suggested this conflict could be avoided if the witness was permitted to review the transcript in the U.S. Attorney’s Office. The court felt that the grand jury judge could decide if the attorney could accompany the witness. I suggest that the witness should be permitted to review the transcript alone, with the attorney outside and available for the witness to consult, if the witness desired to do so. The attorney would not be shown the transcript. A different factual situation may arise if a similar motion is made in a Pennsylvania state grand jury. In a Pennsylvania state grand jury, the witness is permitted to be accompanied by counsel. An argument may be made by the commonwealth attorney that as the witness was accompanied by counsel in his first appearance the attorney can refresh the witness’ recollection of his prior testimony and can advise him of conflicts if the they arise in the subsequent appearance. Experienced attorneys who regularly represent witnesses in Pennsylvania state grand juries said that the issue of a witness obtaining his prior grand jury testimony is not a problem in state grand juries. It has been their experience that commonwealth attorneys comply with such a request, and if they refuse and grand jury judges readily sign an order permitting the disclosure. The Pennsylvania grand jury judges also have the power by statute to order the witness from disclosing his testimony to anyone. This is an additional protection of the need for grand jury secrecy. There is no such prohibition available in federal court. In summary, a witness subpoenaed to reappear before a federal grand jury in a federal judicial district in Pennsylvania should petition the court to follow the very practical procedure set forth by the D.C. Circuit discussed above. The same procedure should also work in a similar situation in a Pennsylvania state grand jury. • Peter F. Vaira is a member of Greenblatt, Pierce, Funt & Flores. He is a former U.S. attorney, and is the author of a book on Eastern District practice that is revised annually. He can be contacted at firstname.lastname@example.org.