Request By:
Mr. James P. Dady
The Kentucky Post, Frankfort Bureau
Press Row, Capitol
Frankfort, Kentucky 40601
Opinion
Opinion By: Robert F. Stephens, Attorney General; Barbara B. Edelman, Assistant Attorney General
You have asked the Office of the Attorney General to advise you concerning the following question:
WHAT POWER, IF ANY UNDER STATE STATUTE, CONSTITUTION OR RULE OF CRIMINAL PROCEDURE, DOES A PROSECUTOR IN THE KENTUCKY UNIFIED PROSECUTORIAL SYSTEM HAVE TO ORDER WITNESSES NOT TO DIVULGE WHAT THEY SAID IN THE PRESENCE OF A GRAND JURY AFTER SUCH WITNESSES HAVE CONCLUDED THEIR TESTIMONY TO THAT GRAND JURY?
Secrecy in Grand Jury proceedings is required by RCr 5.24 which states as follows:
"(1) Subject to the right of a person indicted to procure a transcript as provided by Rule 5.16(2), each grand juror, interpreter, stenographer, and operator of a recording device, and any typist who transcribes recorded testimony, shall keep secret the proceedings of the grand jury and the testimony given before it, except when otherwise directed by a court preliminary to or in connection with a judicial proceeding or when permitted by the court at the request of the defendant upon a showing that grounds may exist for a motion to dismiss the indictment because of matters occurring before the grand jury.
(2) The foreman shall communicate to the attorney for the commonwealth, when so requested, the substance of any testimony before the grand jury.
(3) The court may direct that an indictment be kept secret until the defendant is in custody or has given bail, and in that event the clerk shall seal the indictment and no person shall disclose the finding of the indictment except when necessary for the issuance of execution of a warrant or summons."
These above requirements are in addition to RCr 5.18 which prohibits the presence of any individual other than the attorney for the Commonwealth, the witness testifying and an interpreter, if needed, while the grand jury is in session.
The Kentucky Supreme Court (then Court of Appeals) has traditionally safeguarded the secrecy of the grand jury as evidenced by the following language in
Greenwell v. Commonwealth, Ky., 317 S.W.2d 859, 861 (1958):
"From earliest times it has been the policy of the law in furtherance of justice to shield the proceedings of grand juries from public scrutiny. Secrecy is for the protection of the witnesses and the good names of innocent persons investigated but not indicted and is to inspire the grand jurors with a confidence of secrecy in the discharge of their duties. It is not for the benefit or protection of any right of any person indicted unless such right is given by a statute."
It is clear from reading RCr 5.24 that a witness is not specifically directed to keep his grand jury testimony secret. Logically, however, it would follow that a witness should be bound by the same necessity for secrecy in certain situations in order for the system to work effectively. This may be essential when the investigation by the grand jury is not complete.
Any limitation on a witness' disclosure, is restricted by a defendant's right to gain knowledge about a crime with which he is charged. The distinction to be made is that a prosecutor, if circumstances require it could order a witness not to divulge what went on or what was said while that witness was testifying before the grand jury. This would include questions or remarks made by grand jury members to the witness. The witness, on the other hand, would be able to divulge any knowledge he has on a subject he testified about to a grand jury, without specifically discussing his testimony. To infringe on a grand juror's ability to divulge information might constitute an unlawful violation of his First Amendment rights. Additionally, to require this witness to maintain total secrecy about his knowledge which could potentially concern a criminal transaction could be violative of the rights of defendant, and therefore would be prohibited.