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The Sanctity of Grand Jury Testimony

I know this will come as a shock to many people, but grand jury testimony is supposed to be secret and stay that way.  I mention this, because lately, "sealed" and secret court records seem to inevitably end up in the media.  The most prominent example is yesterday's leak of Balco grand jury testimony, though the Clinton-related grand juries seemed to be sieves as well.

There are real reasons for secrecy in grand jury proceedings.  The most obvious is that grand juries have often been used to build cases against organized crime figures, and those testifying may be risking their life to do so.  More recently, with the enormous power of the press to convict people even before they go to trial, sealed testimony can help protect reputations as well as the presumption of innocence.

Now, I am not a lawyer, and I would love to hear what Volokh has to say.  I suspect there are those who would argue, as they did in the (admittedly different) case of the release of Jack Ryan's divorce records, that transparency in the legal system is more important than individual privacy.  This may or may not be true legally, but I think it would hurt the grand jury process, and anyway, I don't think this is what happened here - the Balco testimony looks to have been leaked illegally.  By the way, I am tired of the notion that journalistic privilege stemming from the first amendment trumps legal compliance with any other laws.  I know the press loves having this, sortof like the double-O license to kill, but I don't buy it.

UPDATE#1

Hey, maybe I can be a lawyer.  Here is Eugene Volokh talking about journalistic privilege today!

UPDATE#2

I forgot to mention that there is an exception to secrecy - the witness may publicly discuss their own testimony.  Again, however, I do not think this is the case here.  I don't think Giambi released these details about his own testimony, and the format of the article - with both sides of the Q&A, is pretty clearly from the transcript of the hearings.  Besides, if Giambi were going to voluntarily go public with this admission, he is much more likely to get paid $10 million to tell it to Barbara Walters than he is to anonymously leak it to the SF Chronicle.

Posted on December 2, 2004 at 10:09 AM | Permalink

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