11

Chapter 6Chapter 6

Judicial Notice and Judicial Notice and

Privileges of WitnessesPrivileges of Witnesses

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SCIENTIFIC AND TECHNOLOGICAL SCIENTIFIC AND TECHNOLOGICAL FACTS RECOGNIZED BY JUDICIAL FACTS RECOGNIZED BY JUDICIAL

NOTICENOTICE

Judicial noticeJudicial notice can be taken of a court can be taken of a court ruling that a scientific technique was ruling that a scientific technique was reliable.reliable.

An Ohio court of appeals held in the 1973 An Ohio court of appeals held in the 1973 case of case of State v. BrockState v. Brock that “courts may take that “courts may take judicial notice of any scientific fact which judicial notice of any scientific fact which may be ascertained by reference to a may be ascertained by reference to a standard dictionary or is of such general standard dictionary or is of such general knowledge that it is known by any judicial knowledge that it is known by any judicial officer”officer”

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Courts must be cautious when taking Courts must be cautious when taking judicial notice as often a particular judicial notice as often a particular fact may fact may notnot be of general be of general knowledge and that a source for the knowledge and that a source for the accurate determination of the fact accurate determination of the fact may not be easily found (seemay not be easily found (see State v. State v. Gagnon, Gagnon, N.H., 2007).N.H., 2007).

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Frye & Daubert RulesFrye & Daubert Rules Today, the Frye Rule is used in Today, the Frye Rule is used in

many states. many states. This rule essentially says that if This rule essentially says that if

the science is generally accepted the science is generally accepted by the scientific community, the by the scientific community, the procedure is admissible.procedure is admissible.

The Daubert Rule is more The Daubert Rule is more restrictive and is the “Federal” restrictive and is the “Federal” standard although some states standard although some states do use it instead of Frye. do use it instead of Frye.

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THE PRIVILEGE AGAINST SELF-THE PRIVILEGE AGAINST SELF-INCRIMINATIONINCRIMINATION

The Fifth Amendment The Fifth Amendment privilege against privilege against self-incriminationself-incrimination is the only privilege is the only privilege that has been incorporated into the U.S. that has been incorporated into the U.S. Constitution and the constitutions of Constitution and the constitutions of many states.many states.

The U.S. Constitution requires “that the The U.S. Constitution requires “that the government seeking to punish an government seeking to punish an individual produce the evidence against individual produce the evidence against him by its own independent labor rather him by its own independent labor rather than by the cruel, simple expedient of than by the cruel, simple expedient of compelling it from his own mouth.”compelling it from his own mouth.”

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AREAS WHERE THE FIFTH AMENDMENT AREAS WHERE THE FIFTH AMENDMENT PRIVILEGE AGAINST SELF-PRIVILEGE AGAINST SELF-

INCRIMINATION DOES NOT APPLYINCRIMINATION DOES NOT APPLY

The Fifth Amendment privilege against self-The Fifth Amendment privilege against self-incrimination applies only to evidence of a incrimination applies only to evidence of a communicative or testimonial nature.communicative or testimonial nature.

It does not apply when only physical evidence is It does not apply when only physical evidence is sought and obtained.sought and obtained.

The privilege against self-incrimination does not The privilege against self-incrimination does not apply in the following circumstances:apply in the following circumstances: The withdrawal of blood and the use of the The withdrawal of blood and the use of the

blood as evidence to show that the defendant blood as evidence to show that the defendant was driving a vehicle while intoxicatedwas driving a vehicle while intoxicated

The use of a handwriting exemplar or sampleThe use of a handwriting exemplar or sample

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AREAS WHERE THE FIFTH AMENDMENT AREAS WHERE THE FIFTH AMENDMENT PRIVILEGE AGAINST SELF-INCRIMINATION PRIVILEGE AGAINST SELF-INCRIMINATION

DOES NOT APPLY (Cont.)DOES NOT APPLY (Cont.)

Compelling the accused to exhibit his person Compelling the accused to exhibit his person for observation, as in a lineup or showup.for observation, as in a lineup or showup.

To make a voice exemplar or sample.To make a voice exemplar or sample. For identification purposes, to put on a For identification purposes, to put on a

stocking mask at trial and permit a witness to stocking mask at trial and permit a witness to testify as to similarity to the masked robber, testify as to similarity to the masked robber, or to dye his/her hair to the color it was at or to dye his/her hair to the color it was at the time of the offense.the time of the offense.

A witness could testify that the defendant A witness could testify that the defendant was compelled to put on a shirt and it fit him.was compelled to put on a shirt and it fit him.

Where immunity has been granted and the Where immunity has been granted and the person is compelled to testify or agrees to person is compelled to testify or agrees to testify as part of a plea agreement.testify as part of a plea agreement.

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AREAS WHERE THE FIFTH AMENDMENT AREAS WHERE THE FIFTH AMENDMENT PRIVILEGE AGAINST SELF-INCRIMINATION PRIVILEGE AGAINST SELF-INCRIMINATION

DOES NOT APPLY (Cont.)DOES NOT APPLY (Cont.) Where the incrimination is of others and is not Where the incrimination is of others and is not

self-incrimination.self-incrimination. Where the public interest in protecting children Where the public interest in protecting children

from abuse outweighs Fifth Amendment from abuse outweighs Fifth Amendment privilege.privilege.

U.S. Military personnel and law enforcement U.S. Military personnel and law enforcement officers are obligated to report illegal conduct of officers are obligated to report illegal conduct of their fellow officers and military associates their fellow officers and military associates accept when the military service person or law accept when the military service person or law enforcement officer had also been a party to the enforcement officer had also been a party to the crime.crime.

Where there has been a voluntary, intelligent Where there has been a voluntary, intelligent waiver of the privilege.waiver of the privilege.

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Fifth Amendment ProblemsFifth Amendment Problems

The privilege against self-incrimination The privilege against self-incrimination has always applied to criminal cases.has always applied to criminal cases.

This is controversial, as the witness may This is controversial, as the witness may also be subject to civil liability if also be subject to civil liability if answering questions.answering questions.

In addition, not invoking this privilege in In addition, not invoking this privilege in state court could lead to prosecution in state court could lead to prosecution in federal court and vice versa.federal court and vice versa.

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Another complication occurs in regard to Another complication occurs in regard to foreign jurisdiction.foreign jurisdiction.

The Supreme Court held in The Supreme Court held in U.S. v. BalsysU.S. v. Balsys (1998) that there was no way to know if a (1998) that there was no way to know if a foreign country would force the witness to foreign country would force the witness to testify.testify.

Therefore, invoking the Fifth would not Therefore, invoking the Fifth would not necessarily protect the witness, but could necessarily protect the witness, but could harm the U.S. government.harm the U.S. government.

So, a witness in this situation could be So, a witness in this situation could be compelled to testify.compelled to testify.

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RECENT EXAMPLES WHERE THE FIFTH RECENT EXAMPLES WHERE THE FIFTH AMENDMENT PRIVILEGE AGAINST AMENDMENT PRIVILEGE AGAINST SELF-INCRIMINATION DOES APPLYSELF-INCRIMINATION DOES APPLY

Where the witness insists she is innocent of Where the witness insists she is innocent of any crimeany crime

To refuse to answer specific questions on a tax To refuse to answer specific questions on a tax return (but not to refuse to file a return return (but not to refuse to file a return altogether)altogether)

When a person is questioned by a probation When a person is questioned by a probation officer, so long as the officer makes it clear that officer, so long as the officer makes it clear that answers to the questions are mandatory, not answers to the questions are mandatory, not optionaloptional

Where a defendant remains silent under Where a defendant remains silent under questioning, the prosecution is prohibited from questioning, the prosecution is prohibited from introducing evidence of that silence at trialintroducing evidence of that silence at trial

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THE ATTORNEY-CLIENT PRIVILEGETHE ATTORNEY-CLIENT PRIVILEGE

The purpose of the The purpose of the attorney-client attorney-client privilegeprivilege is to encourage full and frank is to encourage full and frank communication between attorneys and communication between attorneys and their clients and thereby promote broader their clients and thereby promote broader public interests in the observance of law public interests in the observance of law and administration of justiceand administration of justice

Many states have statutes regulating the Many states have statutes regulating the attorney-client privilegeattorney-client privilege

Other states and the federal government Other states and the federal government use the use the principles of common lawprinciples of common law

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REQUIREMENTS OF THE REQUIREMENTS OF THE ATTORNEY-CLIENT PRIVILEGEATTORNEY-CLIENT PRIVILEGE

The client must seek the professional legal The client must seek the professional legal services of an attorney and have the services of an attorney and have the intention of establishing an intention of establishing an attorney-client attorney-client relationship.relationship.

It is generally held that the privilege applies It is generally held that the privilege applies only to confidential communications made only to confidential communications made within the attorney-client relationship.within the attorney-client relationship.

The necessary presence of the attorney’s The necessary presence of the attorney’s secretary, law clerk, or other employee secretary, law clerk, or other employee during a conference in the attorney’s office during a conference in the attorney’s office would not cause a court to hold that the would not cause a court to hold that the communications were not privileged.communications were not privileged.

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LIMITS OF THE ATTORNEY-CLIENT LIMITS OF THE ATTORNEY-CLIENT PRIVILEGEPRIVILEGE

There are limits to the attorney-client There are limits to the attorney-client privilege and it does not apply to the privilege and it does not apply to the following:following: Disclosures about future wrongdoingDisclosures about future wrongdoing Physical evidence—most courts hold that an Physical evidence—most courts hold that an

attorney has a legal and ethical obligation to attorney has a legal and ethical obligation to deliver physical evidence of a crime to the policedeliver physical evidence of a crime to the police

The general rule is that the attorney-client The general rule is that the attorney-client privilege does not protect the name and privilege does not protect the name and identity of a client or the amount of the identity of a client or the amount of the attorney fee.attorney fee.

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Losing the Attorney-Client Losing the Attorney-Client PrivilegePrivilege

This privilege often involves This privilege often involves documents or other written documents or other written materials.materials.

The management of these materials The management of these materials by the attorney or client can result in by the attorney or client can result in a waiver of the privilege.a waiver of the privilege.

See See U.S. v. Ary U.S. v. Ary andand In re Grand Jury In re Grand Jury (Attorney-Client Privilege) (Attorney-Client Privilege) D.C. Cir., D.C. Cir., 2008 in the text.2008 in the text.

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Losing the Attorney-Client Losing the Attorney-Client Privilege, cont’dPrivilege, cont’d

The crime-fraud exception was The crime-fraud exception was upheld inupheld in In re Grand Jury Subpoena In re Grand Jury Subpoena (2(2ndnd Cir., 2006), even though the Cir., 2006), even though the attorney was unaware that the client attorney was unaware that the client was seeking advice about was seeking advice about committing a crime.committing a crime.

The court held that it was the client’s The court held that it was the client’s intent.intent.

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THE HUSBAND-WIFE PRIVILEGETHE HUSBAND-WIFE PRIVILEGE

A spouse can not be forced to testify against A spouse can not be forced to testify against the other spouse.the other spouse.

All states and the federal government use the All states and the federal government use the husband-wife privilegehusband-wife privilege (also known as the (also known as the marital privilegemarital privilege).).

The requirements that must exist to use the The requirements that must exist to use the privilege in federal courts are:privilege in federal courts are: The marital confidential The marital confidential

communications privilege prohibits communications privilege prohibits testimony regarding private intra-testimony regarding private intra-spousal communications and extends spousal communications and extends only to words or acts that are intended only to words or acts that are intended as a communication to the other as a communication to the other spouse.spouse.

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THE HUSBAND-WIFE PRIVILEGE THE HUSBAND-WIFE PRIVILEGE (Cont.)(Cont.)

The communication must also occur during a The communication must also occur during a time when the marriage is valid under state time when the marriage is valid under state law and the couple is not permanently law and the couple is not permanently separated.separated.

The communication must be made in The communication must be made in confidence. In other words, it cannot be confidence. In other words, it cannot be made in the presence of a third party and made in the presence of a third party and the communicating spouse cannot intend for the communicating spouse cannot intend for it to be passed on to others.it to be passed on to others.

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Husband-Wife Privilege Husband-Wife Privilege (cont.)(cont.)

However, only the However, only the contentscontents of the of the conversation are protected, not the conversation are protected, not the fact that the communication fact that the communication occurredoccurred. .

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PARTNERSHIP-IN-CRIME PARTNERSHIP-IN-CRIME EXCEPTION TO THE HUSBAND-EXCEPTION TO THE HUSBAND-

WIFE PRIVILEGEWIFE PRIVILEGE The husband-wife privilege does not extend to The husband-wife privilege does not extend to

situations where the wife and the husband are situations where the wife and the husband are committing a crime together.committing a crime together.

Examples of the Examples of the partnership-in-crimepartnership-in-crime exceptionexception (also known as the (also known as the joint-criminal-joint-criminal-participationparticipation) to the husband-wife privilege are:) to the husband-wife privilege are: Both the wife and husband were involved in growing Both the wife and husband were involved in growing

marijuanamarijuana Where both spouses were involved in trafficking Where both spouses were involved in trafficking

cocainecocaine When the husband ran off with his secretary and the When the husband ran off with his secretary and the

angry wife provided the Internal Revenue Service angry wife provided the Internal Revenue Service with information of criminal tax evasionwith information of criminal tax evasion

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WHEN ONE SPOUSE COMMITS CRIMES WHEN ONE SPOUSE COMMITS CRIMES AGAINST THE OTHER SPOUSE OR CHILDRENAGAINST THE OTHER SPOUSE OR CHILDREN

Spouses can testify in criminal courts and Spouses can testify in criminal courts and divorce courts of beating and other violence divorce courts of beating and other violence either against the spouse or children.either against the spouse or children.

Some states limit this exception to personal Some states limit this exception to personal violence committed against the victim spouse.violence committed against the victim spouse.

At least one state (Kentucky) held that the At least one state (Kentucky) held that the exception of violence is applied to persons exception of violence is applied to persons outside the immediate family of the accused.outside the immediate family of the accused.

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THE PHYSICIAN-PATIENT THE PHYSICIAN-PATIENT PRIVILEGEPRIVILEGE

The The physician-patient privilegephysician-patient privilege did not exist at did not exist at common law and therefore exists only in states common law and therefore exists only in states that have created such a privilege by statutes.that have created such a privilege by statutes.

It is considered to be a very limited privilege It is considered to be a very limited privilege subjected to the interpretation of the statutes subjected to the interpretation of the statutes of each state.of each state.

It is for the protection of the patient, not It is for the protection of the patient, not the physician.the physician.

It may be waived by the patient or a It may be waived by the patient or a representative of the patient.representative of the patient.

Whether the privilege exists after the death of Whether the privilege exists after the death of the patient would depend upon the laws and the patient would depend upon the laws and court rulings of the state.court rulings of the state.

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THE REQUIREMENT OF THE THE REQUIREMENT OF THE PHYSICIAN-PATIENT PHYSICIAN-PATIENT

RELATIONSHIPRELATIONSHIP For the privilege to exist, the patient For the privilege to exist, the patient

must have consulted the physician for must have consulted the physician for treatment or diagnosis for possible treatment or diagnosis for possible treatment.treatment.

If the physician calls in other medical If the physician calls in other medical doctors to aid in the treatment or doctors to aid in the treatment or diagnosis, any disclosures made to any diagnosis, any disclosures made to any of the physicians are also privileged.of the physicians are also privileged.

It does not apply when a suspect or a It does not apply when a suspect or a defendant is being examined at the defendant is being examined at the request of a court, a law enforcement request of a court, a law enforcement agency, or a prosecutor.agency, or a prosecutor.

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Physician-Patient Relationship, Physician-Patient Relationship, cont.cont.

Read Read State v. Poetschke State v. Poetschke (Minn. App., (Minn. App., 2008) in text for the driving under 2008) in text for the driving under the influence decision that impacts the influence decision that impacts the physician-patient privilege.the physician-patient privilege.

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THE PSYCHOTHERAPIST-PATIENT THE PSYCHOTHERAPIST-PATIENT PRIVILEGEPRIVILEGE

No No psychotherapist-patient privilegepsychotherapist-patient privilege existed in common law; many states have existed in common law; many states have created this privilege by statute.created this privilege by statute.

The patient would have to seek treatment The patient would have to seek treatment or diagnosis of a licensed psychotherapist or diagnosis of a licensed psychotherapist for treatment of mental or emotional for treatment of mental or emotional conditions, including drug addiction.conditions, including drug addiction.

The conditions and limitations of this The conditions and limitations of this privilege are similar to the physician-privilege are similar to the physician-patient privilege.patient privilege.

The privilege is not available where the The privilege is not available where the patient is charged with child sexual abuse.patient is charged with child sexual abuse.

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THE “DANGEROUS PATIENT” THE “DANGEROUS PATIENT” EXCEPTION TO THE EXCEPTION TO THE

PSYCHOTHERAPIST-PATIENT PSYCHOTHERAPIST-PATIENT PRIVILEGEPRIVILEGE

In 1976 with the case of In 1976 with the case of TARASOFF v. TARASOFF v. Regents of the University of CaliforniaRegents of the University of California, , states began adopting a states began adopting a “duty to protect” “duty to protect” rule.rule.

Once a psychotherapist discovers that a patient Once a psychotherapist discovers that a patient poses a serious threat to a third person, the poses a serious threat to a third person, the psychotherapist must exercise reasonable psychotherapist must exercise reasonable efforts to protect that person.efforts to protect that person.

California has, as part of its evidence code, California has, as part of its evidence code, adopted an exception to the psychotherapist-adopted an exception to the psychotherapist-patient privilege that communications by a patient privilege that communications by a dangerous patient are not privileged.dangerous patient are not privileged.

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THE SEXUAL ASSAULT COUNSELORS’ THE SEXUAL ASSAULT COUNSELORS’ PRIVILEGE AND PRIVILEGES COVERING PRIVILEGE AND PRIVILEGES COVERING

OTHER COUNSELORSOTHER COUNSELORS States often have statutes protecting States often have statutes protecting

private communications of persons private communications of persons receiving counseling.receiving counseling.

There is an There is an absolute privilegeabsolute privilege protecting not only testimony but also protecting not only testimony but also the production of documents from the the production of documents from the sexualsexual assault counselorassault counselor, covering the , covering the history of persons protected by the history of persons protected by the privilege.privilege.

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THE CLERGY-PENITENT PRIVILEGETHE CLERGY-PENITENT PRIVILEGE

About two-thirds of the states have statutes About two-thirds of the states have statutes defining the defining the clergy-penitentclergy-penitent privilegeprivilege, with a , with a few other states recognizing the privilege by few other states recognizing the privilege by court decisions.court decisions.

A clergyperson would not have to be engaged A clergyperson would not have to be engaged full time in the profession, but the definitions full time in the profession, but the definitions are not so broad to include all self-are not so broad to include all self-denominated “ministers.”denominated “ministers.”

The privilege establishes a legal protection The privilege establishes a legal protection against being forced to testify on a witness against being forced to testify on a witness stand about confidential disclosures made to stand about confidential disclosures made to them.them.

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THE PRIVILEGE NOT TO REVEAL THE PRIVILEGE NOT TO REVEAL THE SOURCE OF INFORMATIONTHE SOURCE OF INFORMATION

The newsperson usually contends that the The newsperson usually contends that the news reporter’s privilegenews reporter’s privilege, based on the , based on the First Amendment, provides a privilege against First Amendment, provides a privilege against such disclosure. In 2007, the house of such disclosure. In 2007, the house of representatives passed a “media shield” law.representatives passed a “media shield” law.

The U.S. Supreme Court has held it did not.The U.S. Supreme Court has held it did not. There was no generally recognized privilege at There was no generally recognized privilege at

common law, but most states have enacted common law, but most states have enacted such a privilege by statute.such a privilege by statute.

Unless a state has a statute of this type, news Unless a state has a statute of this type, news reporters have no general First Amendment reporters have no general First Amendment privilege and right not to reveal sources of privilege and right not to reveal sources of news articles when ordered by a court.news articles when ordered by a court.

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THE PARENT-CHILD PRIVILEGETHE PARENT-CHILD PRIVILEGE

The 7The 7thth Circuit Court of Appeals reviewed these Circuit Court of Appeals reviewed these cases and found that only one federal trial and cases and found that only one federal trial and only one state appellate court have recognized only one state appellate court have recognized some type of some type of parent-child privilegeparent-child privilege..

Most courts have refused to recognize this Most courts have refused to recognize this privilege.privilege.

When recognized, the privileges apply only to When recognized, the privileges apply only to prevent the use of testimony in a judicial prevent the use of testimony in a judicial proceeding.proceeding.

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THE GOVERNMENT’S PRIVILEGE THE GOVERNMENT’S PRIVILEGE NOT TO REVEAL GOVERNMENT NOT TO REVEAL GOVERNMENT

SECRETSSECRETS The privilege concerning the identity of The privilege concerning the identity of

informantsinformants To encourage people to provide information, To encourage people to provide information,

governments must be able to assure those people governments must be able to assure those people providing the information that their identity will not providing the information that their identity will not be disclosedbe disclosed

The common law has always recognized the The common law has always recognized the informant’s privilegeinformant’s privilege as an essential aid to law as an essential aid to law enforcementenforcement

Many states have enacted statutes defining the Many states have enacted statutes defining the privilege, while other states and the federal privilege, while other states and the federal government use the privilege in its common law government use the privilege in its common law formform

The limits to the informant’s privilegeThe limits to the informant’s privilege

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THE GOVERNMENT’S PRIVILEGE NOT TO THE GOVERNMENT’S PRIVILEGE NOT TO REVEAL GOVERNMENT SECRETS (Cont.)REVEAL GOVERNMENT SECRETS (Cont.)

The informant’s privilege is not an The informant’s privilege is not an absolute privilege and must give way absolute privilege and must give way when there is a compelling need to when there is a compelling need to protect the rights of the accused.protect the rights of the accused.

If the informant was at the scene of the If the informant was at the scene of the crime or participated in the crime, courts crime or participated in the crime, courts hold that the informant’s identity must be hold that the informant’s identity must be disclosed to the defense lawyer.disclosed to the defense lawyer.

When drugs are found and the defendants When drugs are found and the defendants charged, they may demand the name of charged, they may demand the name of the informant to judge the accuracy of the the informant to judge the accuracy of the search warrant.search warrant.

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Informant’s IdentityInformant’s Identity

If the identity of an informant is If the identity of an informant is ordered by a court, the following ordered by a court, the following options are available:options are available: Drop the criminal charge against the Drop the criminal charge against the

defendant, which means that the defendant, which means that the defense has won their case because defense has won their case because this is what the defense lawyer seeksthis is what the defense lawyer seeks

Disclose the identity of the Disclose the identity of the informant; if this is practical and informant; if this is practical and goes to trial, the informant can goes to trial, the informant can possibly be a witnesspossibly be a witness

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THE GOVERNMENT’S PRIVILEGE NOT TO THE GOVERNMENT’S PRIVILEGE NOT TO REVEAL GOVERNMENT SECRETS (Cont.)REVEAL GOVERNMENT SECRETS (Cont.)

The The government’s privilegegovernment’s privilege not to not to disclose military of diplomatic secrets disclose military of diplomatic secrets vital to national securityvital to national security The U.S. Congress enacted the Classified The U.S. Congress enacted the Classified

Information Procedures Act which recognizes Information Procedures Act which recognizes the power of the executive branch of the the power of the executive branch of the federal government to determine whether federal government to determine whether classified information should be disclosed in classified information should be disclosed in criminal or civil trialscriminal or civil trials

The President’s privilege of The President’s privilege of confidentialityconfidentiality

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THE GOVERNMENT’S PRIVILEGE NOT TO THE GOVERNMENT’S PRIVILEGE NOT TO REVEAL GOVERNMENT SECRETS (Cont.)REVEAL GOVERNMENT SECRETS (Cont.)

Confidential communications between the Confidential communications between the president and the President’s immediate president and the President’s immediate advisors:advisors: The President and those who assist him must The President and those who assist him must

be free to explore alternatives in the process be free to explore alternatives in the process of shaping policies and making decisions, and of shaping policies and making decisions, and to do so in a way many would be willing to to do so in a way many would be willing to express except privatelyexpress except privately

These are the considerations justifying a These are the considerations justifying a presumptive privilege for presidential presumptive privilege for presidential communicationscommunications

The privilege is fundamental to the operation The privilege is fundamental to the operation of government and inextricably rooted in the of government and inextricably rooted in the separation of powers under the Constitutionseparation of powers under the Constitution

The court held that the privilege is a qualified The court held that the privilege is a qualified privilege and would give way should a party to privilege and would give way should a party to a legal action show a great need for relevant a legal action show a great need for relevant evidence that is protected by the privilegeevidence that is protected by the privilege

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THE GOVERNMENT’S PRIVILEGE NOT TO THE GOVERNMENT’S PRIVILEGE NOT TO REVEAL GOVERNMENT SECRETS (Cont.)REVEAL GOVERNMENT SECRETS (Cont.)

The secrecy of grand jury proceedings as a The secrecy of grand jury proceedings as a privilegeprivilege The Federal Rules of Criminal Procedure The Federal Rules of Criminal Procedure forbid forbid

disclosure of “matters occurring before a grand disclosure of “matters occurring before a grand jury” and provide that violations can be jury” and provide that violations can be punished as contempt of court (Rule 6[e]).punished as contempt of court (Rule 6[e]).

According to the According to the grand jury secrecygrand jury secrecy requirementsrequirements, , those serving on a grand jury those serving on a grand jury cannot disclose cannot disclose proceedings and deliberations by that body.proceedings and deliberations by that body.

Some of the reasons given for the historic use of Some of the reasons given for the historic use of secrecy are:secrecy are:

To encourage and protect the independence and To encourage and protect the independence and freedom of deliberations of grand juriesfreedom of deliberations of grand juries

To protect the reputations of people who are not To protect the reputations of people who are not indicted for criminal offenses but were consideredindicted for criminal offenses but were considered

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THE GOVERNMENT’S PRIVILEGE NOT TO THE GOVERNMENT’S PRIVILEGE NOT TO REVEAL GOVERNMENT SECRETS (Cont.)REVEAL GOVERNMENT SECRETS (Cont.)

To prevent people who are to be indicted To prevent people who are to be indicted from fleeing because they had from fleeing because they had information of the coming criminal information of the coming criminal chargescharges

To encourageTo encourage witnesses to testify freelywitnesses to testify freely To encourage members of the grand jury To encourage members of the grand jury

to deliberate freely, knowing that what to deliberate freely, knowing that what was said will not be made publicwas said will not be made public