FEDERAL GRAND JURY
The reasons favoring such disclosure are strong. Notwithstanding federal prosecu- tors’arguments that secrecy prohibits disclosure, Rule 6(e)(2), which deals with secrecy, does not preclude such disclosure. Indeed, a witness is free to tell the world what he has testified in the grand jury. Often, though, these oral renditions are inaccurate or untrust- worthy, while a transcript would ensure accuracy. At present, a federal grand jury witness must rely upon his memory or upon the lawyer’s debriefing notes of his earlier grand jury testimony if called again to the grand jury. Witnesses are often called for multiple grand jury appearances. To clarify ambigui- ty, avoid inadvertent inconsistencies and to protect against a perjury indictment, a witness should be entitled to his own grand jury testimony. Federal prosecutors recognize the value of providing or reading to their trial wit- nesses a transcript of their grand jury testimony before trial. This long-standing practice serves the prosecutorial purpose of minimizing impeachment of the witness at trial and providing the opportunity to clarify ambiguity during trial preparations. If the prosecu- tion’s witnesses enjoy such opportunity, how can it be argued that any witness should be denied a transcript of his grand jury testimony? Allowing witnesses called by the prose- cutor at trial to review their own transcripts, while denying this right to any other wit- nesses recalled to the grand jury or called as a defense witness at trial, fosters a system of mere gamesmanship that denigrates the integrity of federal grand jury proceedings. 37 In short, upon our collective analysis, as observed by one federal district court, we regard prosecutorial arguments against a witness’s right of access to his grand jury tes- timony to be no more than “a paranoid secrecy for the sake of secrecy itself.” 38 6. The federal grand jury shall not name a person in an indictment as an unin- dicted co-conspirator to a criminal conspiracy. Nothing herein shall prevent the prosecutor from supplying such names in a bill of particulars. In Briggs v. United States , the Fifth Circuit powerfully stated the case for prohibiting the naming of persons in an indictment as unindicted co-conspirators. 39 Noting that a “grand jury indictment is a specific accusation of crime, having a threefold purpose: notice to the defendant, pleading in litigation, and the basis for the determination of acquittal or con- viction,” the court stated that “none of those functions encompasses public accusations directed at persons not named as defendants.” 40 As the ABA report stated in recommending this proposal, naming persons in an indictment as unindicted conspirators “stains the reputation of the person without provid- ing any means for the person to show his innocence.”This damage is often incalculable. It is not only a public embarrassment and lasting private humiliation, but it frequently causes loss of employment and jeopardizes opportunity for election to public office. Explained the Briggs court: [T]he grand jury that returns an indictment naming a person as an unindicted con- spirator does not perform its shielding function but does exactly the reverse. If the charges are baseless, the named person should not be subjected to public branding, and if supported by probable cause, he should not be denied a forum. 41
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