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Dr. Alis relationship with S.G. predated the alleged trafficking; Dr. Ali met S.G. through another dating website rather than through the dating profile associated with Euring; and S.G. spent three days at Dr. Alis home during one of the trips when Euring allegedly trafficked her. [...]Dr. Alis grand jury testimony supported a defense that the relationship between Dr. Ali and S.G. was not the result of trafficking by Euring, but was independent of him. [...]the governments position was that Dr. Alis grand jury testimony only helped Euring if it were true, and it was in fact untrue. The court noted that DiNapoli identified the the low burden of proof at the grand jury stage and the public interest in not disclosing prematurely the existence of surveillance techniques, and that these factors could distinguish the governments motive before the grand jury from its motive at trial. In this case, the district court did not abuse its discretion in determining that the governments motive to cross-examine Dr. Ali before the grand jury was dissimilar to its motive at the time of trial.

Years later, a judge dismissed the charges with prejudice in a scathing oral and written opinion stating that Keith's office did no independent investigation and filed the charges based solely on information received from MAI and that the complaint wholly lacked probable cause. The Indictment, Protective Order, and No Contact Order Keith, Dennis, three МА! executives, and the company lawyer were charged with two counts of conspiracy. Count 1 charged an 18 U.S.C. $ 371 conspiracy to violate wire fraud and honest services wire fraud (18 U.S.C. §§1343,1346) and federal programs bribery (id. $ 666). The court issued a protective order mandating that all discovery and related grand jury material were subject to strict nondisclosure requirements.

In 1944, the Supreme Court adopted the Federal Rules of Criminal Procedure, including Rule 6(e), which codifies grand jury secrecy. In re Grand Jury Investigation of Ven-Fuel, 441 F. Supp. 1299, 1303 (M.D. Fla. 1977); see also Illinois v. Sarbaugh, 552 F.2d 768, 772 n.2 (7th Cir. 1977); Golden Quality Ice Cream Co. v. Deerfield Specialty Papers, Inc., 87 F.R.D. 53, 59 (E.D. Pa. 1980). [...]whether documents are protected from disclosure under Rule ó(e) must be assessed on a case-by-case basis, under one of several different tests that courts have developed for that purpose. [...]Alabama's grand jury secrecy statute prohibits \"past or present grand jury witness[es]\" from disclosing (or even attempting to disclose) \"any knowledge or information pertaining to any grand juror's questions, considerations, debates, deliberations, opinions or votes on any case, evidence, or other matter taken within or occurring before any grand jury of this state.\" [...]Nevada law bars any \"witness or other person invited or allowed to attend the proceedings of a grand jury\" from disclosing evidence presented there, events occurring or statements made there, information obtained there, or the results of the grand jury investigation.

The interplay between grand jury secrecy and witness non-disclosure orders is easily quite puzzling given the statutory silence on the issue.1 Further, the exclusion of witnesses from the \"cloak of secrecy\"2 granted by Federal Rule of Criminal Procedure 6(e)3 may seem as perplexing as it does common sense, depending on your views surrounding criminal investigations in the United States. Regardless, the main points of contention here lie amidst the tension between the efficiency and confidentiality of the investigative process as they are squarely met with countervailing First Amendment interests. In 2017, the D.C. Circuit upheld a routine non-disclosure order (\"NDO\") issued to Uber Technologies along with a subpoena for business records, preventing the company from alerting its customer, the subject of a grand jury investigation, of the existence or contents of the subpoena for 180 days.4 The Government asserted, as it routinely does, that disclosure would compromise the investigation by giving targets the chance to flee or tamper with evidence.5 In doing so, the Court emphasized three widely accepted notions among the U.S. Courts of Appeals: First, that grand jury secrecy underpins the \"proper functioning of our grand jury system\" (as recognized by the Supreme Court of the United States)6. Second, that district courts are at times afforded \"the authority to fill statutory interstices.\"'7 And third, that nowhere in the Federal Rules does there exist an explicit prohibition on witness non-disclosure orders.8 Two years after In re United States 2017, the U.S. District Court for the District of Columbia backtracked and denied issuing a similar grand jury non-disclosure order on account of the D. C. Circuit 's altered interpretation of Rule 6(e) in McKeever v. Barr.9 Practically speaking, the decision considerably narrowed the availability of non-disclosure orders on grand jury witnesses to solely instances of explicit statutory authorization in the District of Columbia Federal courts.10 This article examines the varied administration of witness NDOs through a holistic review of the relevant historical, legislative, and judicial views of the grand jury, Federal Rules of Criminal Procedure, and the First Amendment to propose a uniform solution to the circuit split.11

Grand jury proceedings are shrouded in secrecy. No judge presides over them, no reporter annotates them, and when they have concluded, no juror may speak about them. While secrecy serves many important functions for the grand jury, its veil may be lifted under certain circumstances. Grand jury records may be released if they fall under a disclosure exception laid out in Federal Rule of Criminal Procedure 6(e). While some courts limit release to the exceptions laid out in the Rule, others look to an alternative source of authority. Several courts of appeals have held that district court judges may exercise inherent supervisory power in authorizing the release of grand jury records. Judges may consider the public interest in disclosure, compare it to the institutional interest in secrecy, and decide for themselves. Other circuits find no such power. The circuits have reached an impasse on the text of the Rule alone, with each side offering compelling but incomplete justifications for their interpretation. This Comment provides an alternative path forward. By examining the history of the grand jury and the relationship between the Federal Rules and common law supervisory power, this Comment argues that district court judges lack inherent supervisory power over the grand jury to order disclosure. Courts that follow the exhaustive position—that Rule 6(e)(3) limits the exceptions when a court may authorize disclosure—better align with the understanding of the grand jury as an independent body. Conscious of this historical positioning, this Comment returns to both influential and overlooked Supreme Court precedent and offers a more contextually grounded interpretation of each. Judges have discretion to act within the bounds of Rule 6(e), not outside of it.

In United Stales v. Salerno, seven defendants were indicted on various RICO charges. One of the central issues in the case was interference with unions at a particular construction firm. In the course of the grand jury investigation to obtain these indictments. AUSAs from the Southern District of New York called two owners of the firm to talk with them about the defendants' involvement and any illegal activity they or their firm might have been involved with. Both owners testified before the grand jury under a grant of immunity. However, the testimony, despite being elicited by the prosecution, was exculpatory in nature for the defendants. However, the issue that was not raised and therefore not addressed by the Supreme Court was the constitutionality of the prosecution's decision not to extend the witnesses' immunity through trial or otherwise allow the defendants to introduce testimony the witnesses gave before the grand jury.:

Recent attention to police brutality has brought to the fore how law enforcement, when they become the subject of criminal investigations, receive special procedural protections not available to any other criminal suspect. Prosecutors' special treatment of police suspects, particularly their perceived use of grand juries to exculpate accused officers, has received the lion's share of scholarly and media attention. But police suspects also benefit from formal affirmative rights that protect them from interrogation by other officers. Police, in most jurisdictions, have a special shield against interrogation known as the Law Enforcement Officers' Bill of Rights (LEOBOR). These statutes and negotiated agreements protect police from tactics that are part and parcel of the confession-inducing playbook these same officers use when questioning civilian suspects. This Article investigates these formal procedural protections for police suspects. It argues that, as criminal justice insiders, police have dealt themselves special protections from police questioning based on their knowledge of what protections a suspect needs most when facing interrogation. Meanwhile, the police continue to argue that failing to use these selfsame tactics on other suspects will hamper their ability to catch and convict dangerous criminals. The distributive inequality created by special police rights threatens the fairness and legitimacy of the criminal justice system in several ways: It skews the relationship between suspect sophistication and the amount of protection received, it sullies the appearance of justice, and it decreases the normative value of criminal law. The nascent awareness of these special interrogation protections has led a number of scholars and commentators to call for revoking police officers' LEOBOR rights in order to achieve accountability and distributive equality. Yet the opposite response may be theoretically and practically superior. As criminal justice insiders, the preferences police negotiate for and receive can serve as a model for ways to reform a particularly problematic part of our criminal justice system. Thus, before we strip protections from the police, we should look hard at how these protections might apply to all criminal suspects.

Criminal justice reform is an urgent topic in political, legal, and academic circles. Almost everyone agrees that our criminal justice system needs reforms to correct over-prosecution, draconian bail requirements, excessive sentences, and racial imbalances. The reformers have advocated numerous measures, including limiting the scope of criminal laws; adopting algorithms to guide charging, bail, and sentencing decisions; imposing new restrictions on prosecutors; and changing the make-up of the judiciary so that it has fewer ex-prosecutors and more ex-defense lawyers. Many suggestions propose the adoption of new structures, organizations, or practices, and while these suggestions may have considerable merit, they overlook one structure that we already have and that may be of great use, the grand jury. The grand jury is, of course, enshrined in the Fifth Amendment of the federal Constitution, and thus it is a permanent fixture of federal criminal procedure. But its role has been severely diminished over time almost to the point of irrelevance: It is extolled as a guardian of liberty and protector against over-zealous prosecution, yet deprived of any meaningful powers. It is like an old piece of furniture that has been willed down through the years, which the current generation cannot throw out so they simply stick it in the corner and ignore it. We can do better. The grand jury can be part of the solution to our current criminal justice woes, for it can serve as a check on overzealous prosecu- tors and a voice of the community in making prosecutorial decisions and allocating prosecutorial resources. To play that role, the grand jury must be refurbished by revising many of the legal doctrines and rules that have grown up around it. Specifically: Rules of grand jury secrecy must be re- laxed, and defendants must be allowed to review the legal instructions that grand juries receive from prosecutors; hearsay testimony should be elimi- nated or severely limited, and Brady rules should apply to grand juries so that they hear exculpatory information as well as inculpatory evidence. In addition, rules regarding indictments should be strengthened so that the grand jury's findings are clearly stated, and defendants are on notice of exactly what criminal acts they are charged with. The harmless error doc- trine as applied to grand jury errors, which, since the Supreme Court's de- cision in United States v. Mechanik, has focused on whether the errors af- fected the conviction, should be re-directed so that courts ask the proper question, which is whether the errors affected the grand jury's decision to indict the defendant. Changing these rules would restore the grand jury to its constitutional significance, and further the cause of criminal justice. Two further changes should be considered. First, grand juries might be ad- vised that, as the consciences of their communities, they have the power to refuse to indict when they believe that a criminal prosecution, even if legal- ly justified, would be unjust. Although it is established that defendants do not have a right to have trial juries instructed about their power of nullification, the reasons for such an instruction as to grand juries may be more compelling than as to trial juries. Second, it is time to re-visit the Supreme Court's 1884 decision of Hurtado v. California, which held that the Fifth Amendment right to a grand jury was not incorporated through the Four- teenth Amendment as against the states. The current test for incorporation, the Palko-Adamson test, was not yet developed when Hurtado was decided, and since then virtually every other provision of the bill of rights has been incorporated. The arguments for incorporating the grand jury provision are as strong as those that have supported the incorporation of the other provisions. With appropriate doctrinal and rule changes, the grand jury can cease to be a mere vestigial organ - decreed by the Constitution, but with no role to play in modern practice - and instead meaningfully address problems that we face today.

Part I of this article will delve into the structure of the grand jury as it currently stands, including the grand jury's core characteristics of secrecy and dependence on the prosecutor. Part II will define the term legitimacy, using recent high-profile grand jury cases to elaborate on criticisms of the grand jury system. Part III will highlight the similar legitimacy concerns raised by grand juries and administrative agencies -- such as lack of transparency, arbitrariness, and failure to incorporate the community's voice -- as well as address distinctions between the two. Lastly, Part IV will discuss solutions to the legitimacy issue in the agency context -- enhanced political accountability and measures to avoid the appearance of arbitrariness -- and the applicability of such solutions to grand juries.