Grand Jury Audio Recording
AI
This summer, national prosecutors successful Chicago dropped aggregate criminal indictments successful the aftermath of revelations of superior irregularities and prosecutorial misconduct successful the expansive assemblage process: namely, that a charismatic who presented those cases to expansive juries had improperly vouched for witnesser credibility and for the spot of the government’s case, expressed individual opinions connected the guilt of the accused, engaged successful ex parte communications pinch expansive jurors, and dismissed jurors who disagreed pinch the government’s case. This led United States Attorney Andrew Boutros of the Northern District of Illinois not only to disregard those cases (U.S. v. Rabbitt (the “Broadway Six”), U.S. v. Ishkirat, and U.S. v. Ahmed) but besides to denote that the authorities would reappraisal much than 1,000 expansive assemblage cases making love backmost to 2007 that were associated pinch the prosecutor, successful an effort “to reconstruct the judiciary’s, defense bar’s, and public’s assurance successful the expansive assemblage practices of the district.”
One of the astir important revelations of these events—meriting defense barroom attention—is that immoderate of the prosecutorial misconduct would not person travel to light but for the beingness and disclosure of expansive jury audiotapes. As the authorities conceded successful Ishkirat, immoderate of the prosecutor’s improper statements to the expansive assemblage had been captured connected audiotape but were not reflected successful the tribunal reporter’s transcript—either because the statements occurred erstwhile nary tribunal newsman was coming aliases aft the tribunal newsman had stopped typing.
This is simply a large deal. Many defense lawyers person nary thought whether their section United States Attorney’s Office audiotapes expansive assemblage proceedings; meanwhile, the Chicago debacle vividly demonstrated really a expansive assemblage transcript was materially incomplete specified that only the audiotape revealed the afloat grade of prosecutorial impropriety. This, successful turn, begs the 2 questions addressed successful this article: (1) Are each national expansive assemblage proceedings audiotaped? (2) Given what happened successful Chicago, really should defense lawyers incorporated the imaginable beingness of expansive assemblage audiotapes into their practice?
(1) Are All Federal Grand Jury Proceedings Audiotaped?
The reply is unclear—and nary rule requires that national expansive assemblage proceedings beryllium audiotaped. To beryllium sure, Rule 6(e) of the Federal Rules of Criminal Procedure (which was enacted by Congress and has the unit of law) mandates the signaling of “all” expansive assemblage proceedings different than juror deliberations. That rule, however, permits the proceedings to beryllium recorded either “by a tribunal newsman aliases by a suitable signaling device.” Rule 6(e). Prosecutors—not courts aliases expansive jurors—decide the mode of signaling and are charged pinch past retaining power of the recording. Thus, each of the 93 United States Attorneys’ Offices apparently has discretion arsenic to whether to audiotape expansive assemblage proceedings. The Justice Manual of the Department of Justice (including its section connected “Grand Jury” practice, 9-11.000) reflects nary cardinal argumentation connected this issue.
As seen successful Chicago, astatine slightest immoderate national prosecutors’ offices usage some methods: a tribunal newsman and an audiotape to grounds expansive assemblage proceedings. We know, too, from the now-dismissed case against erstwhile FBI head James Comey that expansive assemblage proceedings successful the Eastern District of Virginia are audiotaped. In U.S. v. Comey, erstwhile the authorities was ordered to move complete underlying expansive assemblage materials for the court’s review, it turned complete some a transcript and an audiotape. Having reviewed both, the magistrate judge past recovered galore instances of “highly irregular” authorities conduct—including that the transcript and audiotape “likely d[id] not bespeak the afloat proceedings.” (Note: The territory tribunal subsequently dismissed the Comey indictment based connected the defective assignment of Interim United States Attorney Lindsay Halligan, a ruling now connected entreaty earlier the Fourth Circuit Court of Appeals.)
There are further reasons to judge that many, if not all, national prosecutors’ offices regularly audiotape expansive assemblage proceedings. First, audiotaping saves money: prosecutors request only person tribunal reporters hole transcripts of portions of the proceeding (such arsenic witnesser testimony), while preserving different portions (such arsenic ineligible instructions) only connected audiotape. Second, tribunal reporters whitethorn themselves audiotape the proceedings to person backup for their stenographic notes irrespective of whether the authorities instructs them to do so. Significantly, successful instances wherever tribunal reporters audiotaped expansive assemblage proceedings of their ain volition, courts person held that prosecutors nevertheless clasp ineligible power complete those audiotapes and could beryllium required to nutrient them. (See United States v. Reid, 553 F. Supp. 3d 882 (W.D. Wash. 2021); United States v. Suggs, No. 03-CR-109, 2003 WL 21801493 (E.D. Pa. Aug. 4, 2003)).
Accordingly, moreover without afloat clarity connected the audiotaping practices utilized by each national territory for its expansive assemblage proceedings, defense lawyers should beryllium alert that audiotapes of expansive assemblage proceedings whitethorn beryllium successful their cases.
(2) How should defense lawyers incorporated the beingness of expansive assemblage audiotapes into their practice?
It bears noting astatine the outset that defendants must clear a precocious barroom to summation pre-trial entree to expansive assemblage materials. Because secrecy is simply a hallmark of the national expansive assemblage system, courts person agelong presumed regularity successful expansive assemblage proceedings and will bid disclosure to the defense only successful uncommon circumstances. Defendants must show, based connected non-speculative facts, a “particularized need” that outweighs secrecy—for instance, facts suggesting that the expansive assemblage proceeding was tainted because the authorities misled the expansive jury, engaged successful outrageous aliases inflammatory conduct, improperly vouched for witnesser credibility, aliases violated expansive assemblage secrecy rules. Even then, courts often return the conservative, intermediary measurement of reviewing the expansive assemblage materials in camera (where only the judge sees them) earlier deciding whether disclosure to the defense is warranted.
While this demanding “particularized need” modular is improbable to alteration anytime soon, the Chicago debacle tin beryllium invoked to situation the presumption of regularity and seduce national judges that in camera reappraisal is appropriate. After all, the Chicago cases laid bare really the secrecy that protects expansive assemblage proceedings can—if near wholly unchecked—insulate prosecutorial misconduct. The Chicago debacle moreover underscores why, erstwhile expansive assemblage audiotapes exist, both the transcript and audiotape should beryllium reviewed to measure a imaginable expansive assemblage taint that prejudiced the defendant. To reappraisal only the tribunal reporter’s transcript would beryllium to disregard the stark reality exposed successful Chicago: that the transcript whitethorn beryllium incomplete and omit worldly evidence.
This rumor is not dissimilar really reality forced national authorities to change their argumentation connected preserving and disclosing agents’ notes of witnesser interviews. For years, the FBI’s believe was to destruct the unsmooth notes erstwhile agents vanished preparing a last “302” study of the witness’s question and reply statements. But that flew successful the look of actuality—namely, that agents’ notes might, and often did, contradict the 302 study aliases incorporate further favorable, exculpatory, aliases impeaching worldly not included successful the 302 study and to which the defense was entitled. FBI argumentation changed successful the 1970s to require preservation of agents’ notes. And aft 2009, erstwhile a tribunal spectacularly threw retired the corruption condemnation of erstwhile U.S. Senator Ted Stevens because the prosecution had grounded to disclose important notes of witnesser interviews, authorities practices evolved further. Prosecutors now commonly move complete agents’ underlying notes on pinch the 302s. So excessively here: erstwhile a morganatic ground exists for the defense to person pre-trial entree to expansive assemblage worldly aliases for courts to reappraisal those materials in camera, nary 1 should reflexively presume that the transcripts unsocial afloat seizure the contents of the expansive assemblage proceedings. The Chicago debacle proves otherwise. Both transcripts and audiotapes should beryllium requested and reviewed.
Defense counsel tin besides invoke the caller Chicago debacle, and the Comey case, to property connected whether and really national prosecutors are fulfilling their Rule 6(e) responsibility to grounds “all” expansive assemblage proceedings too juror deliberations. For example, who presses the “on” and “off” buttons for expansive assemblage audiotapes? What practices are followed to guarantee that expansive assemblage recordings are complete? These are adjacent questions, and they matter to the integrity of the system.
Defense counsel tin besides demand, and whitethorn beryllium entitled to receive, expansive assemblage audiotapes arsenic portion of criminal discovery—particularly wherever a suspect testified successful the expansive jury, specified that audiotape contains the defendant’s ain statements, aliases wherever location are grounds to judge that expansive assemblage audiotapes incorporate exculpatory Brady material. In U.S. v. Reid, a 2021 perjury lawsuit successful the Western District of Washington, the tribunal ordered the authorities to nutrient the expansive assemblage audiotape of the defendant’s ain statements and recovered a Brady violation because the authorities grounded to do truthful promptly.
Finally, the defense barroom should enactment tuned arsenic much than 1,000 expansive assemblage cases successful Chicago are now reviewed for imaginable irregularities and prosecutorial misconduct. Should further examples look of prosecutors’ statements being captured connected expansive assemblage audiotapes but not successful the transcripts, that improvement will further heighten sensitivity to this issue. Meanwhile, the defense bar’s knowledge that national expansive assemblage audiotapes do aliases whitethorn beryllium should facet into strategical reasoning connected really champion to correspond clients and safeguard defendants’ rights.
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