The First Circuit Court of Appeals has ruled that a grand jury witness need not make as strong a showing of particularized need for access to a transcript of his prior testimony as he would have to make to obtain a copy of that transcript. A divided panel found that a grand jury witness had shown a sufficiently particularized need when prosecutors had repeatedly threatened him with perjury prosecution during the course of his prior appearance and where his testimony concerned a complicated subject matter dating back a decade. However, the majority ruled that a witness could not take notes during his review of the transcript without making the strong showing of need required for getting a copy and left it to the “sound discretion” of the district court to determine whether the witness’ counsel could be present during the witness’ review of the transcript.

In In re Grand Jury, a witness testified before a federal grand jury under a grant of immunity. His testimony concerned events and documents “of significant complexity,” some of which dated back ten years. During the course of his first day of examination, the prosecutors warned him several times that the immunity grant would not protect him from prosecution for any lies. The government did not finish its examination in one day, so the witness’ testimony was scheduled to continue a week later, but a further two-week delay was agreed to at the witness’ request.

In the interim, counsel for the witness asked the government to give the witness, accompanied by counsel, an opportunity to review and take notes of a transcript of his earlier testimony. When the government declined this request, the witness filed an emergency motion for same. The witness did not request a copy of the transcript. In support of his motion, the witness relied heavily on a recent D.C. Circuit decision holding that grand jury witnesses are entitled to review transcripts of their own grand jury testimony. The district court agreed with the reasoning of the D.C. Circuit, but felt bound by First Circuit precedent which called for a strong showing of particularized need before a witness could obtain a copy of the transcript of his prior testimony. The judge determined that no such showing had been made, and denied the witness access to the transcript. The witness later appeared before the grand jury, refused to testify notwithstanding the grant of immunity, was found in contempt and appealed that ruling to the First Circuit.

On appeal, the First Circuit reiterated that a grand jury witness has no general right to the transcripts of his testimony. The First Circuit also explicitly declined to adopt the holding of the D.C. Circuit that a witness is entitled to access to a transcript of his grand jury testimony. Nevertheless, the First Circuit determined that “a less demanding requirement of particularized need applies when a grand jury witness demands access to a transcript, rather than a copy of the transcript.” In reaching this conclusion, the First Circuit considered and balanced the interests of both grand jury witnesses and the government.

The First Circuit noted a witness’ considerable interest in avoiding inaccuracies and inconsistencies that may subject him to a potential perjury prosecution – a risk that increases when a witness testifies during multiple grand jury appearances. The First Circuit characterized this interest in the accuracy and truthfulness of grand jury testimony as one that is both personal to the witness and systemic since it is shared by the courts and the government. The First Circuit also reasoned that a grand jury witness has a statutory right to recant under 18 U.S.C. § 1623(d) which would be difficult to exercise without reviewing a transcript of his testimony. Conversely, the First Circuit found that the government’s interests in protecting grand jury witnesses from intimidation by third parties was significantly alleviated where a witness was seeking only access to a transcript, rather than a copy which could be read by others. Nor would the secrecy of grand jury proceedings be jeopardized by granting a witness access to a transcript of his own prior testimony, since a witness is under no obligation to keep the fact or substance of his grand jury testimony secret. The First Circuit did find that granting witnesses access to transcripts of their prior grand jury testimony when requested might impede the efficiency of grand jury proceedings, but the Court agreed with the D.C. Circuit that the benefit to witnesses greatly outweighed the additional burden placed on the government.

Having concluded that a less demanding standard of particularized need was required for a grand jury witness to gain access to a transcript of his prior testimony, the First Circuit found that standard met here, where the complex and dated nature of the subject matter were combined with threats of perjury prosecution. To the extent that a witness desired to take notes during his review of the transcript, the First Circuit viewed this as akin to requesting a copy and thus still required a strong showing of particularized need. The Court found permitting a witness’ counsel to be present during the review to be a “closer call.” Following the D.C. Circuit’s lead, the First Circuit left it to the “sound discretion” of the district court to determine whether a witness’ counsel could be present.

Finally, the First Circuit held that the district court’s failure to make the transcript a part of the record was not error where the lower court had treated the witness’ contentions as true for the purposes of ruling on his motion. Notably though, the First Circuit obtained a copy of the transcript of the witness’ original grand jury appearance and both the majority and the dissenting opinions cited to and even quoted from the transcript at length. For instance, the majority found the prosecutors’ perjury warnings to the witness to have been so “strongly worded, [and] even abusive” that the majority found it to be a close call whether those warnings alone formed a sufficient basis for granting the witness access to the transcript. This underscores the wisdom of seeking to make transcripts a part of the district court record whenever counsel believes that the tenor and texture of the prior proceedings weigh heavily in favor of granting a witness access to such a transcript.

The First Circuit’s decision can be found at In re Grand Jury, No. 08-1880, 2009 U.S. App. LEXIS 10039 (1st Cir. May 11, 2009).