Why can a grand jury witness talk about his or her testimony?
In the federal courts, the witness is not sworn to secrecy, and may disclose whatever he or she wishes to whomever he or she wishes. The witness exemption was adopted in part because it was thought that requiring witness secrecy was unrealistic and unenforceable, and in part to allow the witness to rebut rumors concerning his or her testimony. There is a basic revulsion in the United States about secret testimony.
Are there any other exceptions to grand jury secrecy?
At one time, the defendant in a criminal trial was never given access to the grand jury testimony that resulted in the indictment. By the 1980s, in most jurisdictions, if a witness who testified before the grand jury was called to testify at the eventual trial, the defendant was given a copy of that witness's grand jury testimony to use for possible impeachment. Some jurisdictions also give the defendant a list of everyone who testified before the grand jury, and several give the defendant a full transcript of all relevant grand jury testimony. In the federal system, no such list is provided, and the grand jury transcripts of only those persons who testify on behalf of the prosecutor at trial are given to the defendant.
Who must testify before a grand jury?
A prosecutor can obtain a subpoena to compel anyone to testify before a grand jury, without showing probable cause and, in most jurisdictions, without even showing that the person subpoenaed is likely to have relevant information. In the federal system the prosecutor is not required to demonstrate any relevance. The person subpoenaed to testify then is compelled to answer questions unless he or she can claim a specific privilege, such as the marital privilege, lawyer/client privilege, or the privilege against self-incrimination.
Can a lawyer be called to testify about his or her client?
A lawyer might be called; but the lawyer/client privilege shields him or her from being compelled to testify about a conversation with a client unless the conversation related to an ongoing or future crime or fraud of the client.
Can a lawyer accompany his or her client inside the grand jury room?
In the federal system, a witness cannot have his or her lawyer present in the grand jury room, although witnesses may interrupt their testimony and leave the grand jury room to consult with their lawyer. A few states do allow a lawyer to accompany the witness; some allow the lawyer to advise his or her client, others merely allow the lawyer to observe the proceeding.
What is a grant of immunity?
A grant of immunity to a grand jury witness overcomes the witness's privilege against self-incrimination, and the witness is then required to testify. The prosecutor is prohibited from using that testimony or leads from it to bring charges against the witness. If a subsequent prosecution is brought, the prosecutor bears the burden of proving that all of its evidence was obtained independent of the immunized testimony. In practice, it is difficult to successfully prosecute someone for criminal activity they discussed in immunized testimony unless the prosecution had a fully prepared case before immunity was granted.
Many states grant the witness "transactional immunity," barring prosecution for a transaction discussed in the immunized testimony regardless of whether there are independent sources of evidence.