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SUPREME COURT OF LOUISIANA 98-KK-2277 IN RE: GRAND JURY ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FIRST CIRCUIT, PARISH OF EAST BATON ROUGE
JOHNSON, Justice* We granted certiorari in this case to determine whether state grand jury materials may be provided to federal authorities without a subpoena or contradictory hearing. The trial court signed an order presented by East Baton Rouge Parish District Attorney Doug Moreau releasing the transcripts and/or audio tapes of the East Baton Rouge Parish grand jury to Mr. Eddie Jordan, United States Attorney for the Eastern District of Louisiana. Following release of the materials to federal authorities, Plaintiffs filed a motion in the district court for hearing, reconsideration and recall of the 1997 order releasing the grand jury materials, which was denied. The Plaintiffs then applied for writs to the First Circuit Court of Appeal. The Court of Appeal granted the writ in part and denied in part. In re Grand Jury, 98-1597 (La. App. 1st Cir. 7/27/98) (unpublished writ ruling). The court found that a party seeking the release of grand jury materials must prove that the need for disclosure outweighs the constitutional mandate of grand jury secrecy and show with particularity a compelling necessity for the release. The court vacated the order releasing the grand jury materials and remanded the matter to the trial court for a contradictory hearing to establish the compelling necessity for releasing the grand jury materials. The East Baton Rouge Parish District Attorney sought review of the Court of Appeal's decision and we granted certiorari. In Re Grand Jury, 98-2277 (La. 9/16/98), 721 So. 2d 478. For reasons discussed below, we affirm the Court of Appeal's decision and remand the matter to the trial court. FACTS AND PROCEDURAL HISTORY An East Baton Rouge Parish grand jury began investigating the licensing process for Louisiana riverboat gambling operators and other related matters in 1993. On July 25, 1997, United States Attorney Eddie Jordan sent a letter to East Baton Rouge Parish District Attorney Doug Moreau requesting transcripts of all witnesses who testified before any state grand juries in East Baton Rouge Parish regarding, either directly or indirectly, the licensing of riverboat casinos,

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Marcus, J., not on panel. See Supreme Court Rule IV, Part 2, Sec. 3.

including but not limited to appearances by former Governor Edwin W. Edwards and his son Stephen Edwards. In response to the request, Mr. Moreau prepared a motion and order for release of the grand jury transcripts and/or audio tapes to be signed by the duty judge in the Nineteenth Judicial District Court. Mr. Moreau was advised that the duty judge for the week was out of the courthouse at the time and that Judge Timothy Kelley was handling duty matters in his absence. The motion and order were presented to Judge Kelly for review. After reviewing the motion for a few minutes, Judge Kelly signed the order releasing the transcripts and/or audio tapes of the East Baton Rouge Parish grand jury to the United States District Court for the Eastern District grand jury and United States Attorney Eddie Jordan.1 The federal authorities were informed that the order releasing the transcripts and/or audio tapes had been signed. The District Attorney then gathered and reproduced the materials, which were picked up by FBI agents. The signed order was not filed into the grand jury records, but was held by the District Attorney. The subjects of the East Baton Rouge Parish grand jury, former Governor Edwin Edwards and his son, Stephen Edwards, learned of the transfer of the materials in April, 1998. These subjects requested a fact-finding inquiry into the transfer of the grand jury information to federal authorities and filed a motion for appropriate relief on April 28, 1998. This request was denied by Judge Mike Erwin on April 29, 1998. At this time, the District Attorney presented the signed order releasing the material to the federal authorities. Judge Erwin ruled that no such motion was recognized by law and that the release of the materials complained of had been authorized by Judge Kelley's order. The subjects then filed a motion for hearing, reconsideration, and recall of the 1997 order releasing the grand jury materials in Judge Timothy Kelley's Court. This motion was denied by Judge Kelley. He determined that releasing the grand jury material was consistent with the spirit of the Louisiana Code of Criminal Procedure and analogous to the procedure set out in La. Code Crim. Proc. art. 434(B). Further, the release of the material directly to another grand jury ensured that the secrecy of the state grand jury would be maintained. The First Circuit Court of Appeal vacated the trial court's order releasing the state grand jury materials to the federal authorities finding that a release of grand jury materials required a showing of compelling

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The order releasing the grand jury material was not dated by Judge Kelley. 2

necessity for the materials at a contradictory hearing. The correctness of this determination is now before the Court. DISCUSSION Louisiana Constitution Article V, Section 34 in part provides that the secrecy of grand jury "proceedings including the identity of witnesses, shall be provided by law." As such, La. Code Crim. Proc. art. 434 requires members of the grand jury, others present at grand jury meetings, and those having confidential access to grand jury information to keep secret the witnesses' testimony and all other matters occurring during the grand jury meetings.2 In State v. Trosclair, 443 So. 2d 1098 (La. 1983), which involved a request for the production of grand jury testimony by a defendant charged with bribery of sports participants, this court recognized the importance of grand jury secrecy and the reasons stated for maintaining grand jury secrecy. It is a long established policy that the secrecy of grand jury proceedings should be carefully maintained. Many reasons for this have been stated. Secrecy helps to prevent the escape of prospective indictees by providing no forewarning to them of the investigation in progress; it insures that the grand jury investigation can proceed freely by protecting the grand jurors from outside influences and threats of reprisal; it serves to prevent the subordination of perjury and tampering of witnesses by targets of the investigation; it promotes free and open disclosure of information by witnesses without fear of retaliation; and finally, it acts as a shield by protecting innocent people under investigation from the injury to their reputations that could be caused by the disclosure of baseless accusations. However, the secrecy of grand jury proceedings is not absolute. The Supreme Court has stated that "in some situations, justice may demand that discrete portions of transcripts be made available for use in subsequent proceedings." Trosclair, 443 So. 2d 1098, 1102 (citations omitted).

La. Code Crim. Proc. art. 434 provides the following: A. Members of the grand jury, all other persons present at a grand jury meeting, and all persons having confidential access to information concerning grand jury proceedings, shall keep secret the testimony of witnesses and all other matters occurring at, or directly connected with, a meeting of the grand jury. However, after the indictment, such persons may reveal statutory irregularities in grand jury proceedings to defense counsel, the attorney general, the district attorney, or the court, and may testify concerning them. Such persons may disclose testimony given before the grand jury, at any time when permitted by the court, to show that a witness committed perjury in his testimony before the grand jury. A witness may discuss his testimony given before the grand jury with counsel for a person under investigation or indicted, with the attorney general or the district attorney, or with the court. B. Whenever a grand jury of one parish discovers that a crime may have been committed in another parish of the state, the foreman of that grand jury, after notifying his district attorney, shall make that discovery known to the attorney general. The district attorney or the attorney general may direct to the district attorney of another parish any and all evidence, testimony, and transcripts thereof, received or prepared by the grand jury of the former parish, concerning any offense that may have been committed in the latter parish, for use in such latter parish. C. Any person who violates the provisions of this article shall be in constructive contempt of court. 3

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In determining whether to permit discovery of grand jury transcripts, this Court has followed the same approach as the federal courts. See State v. Trosclair, 443 So. 2d 1098 (La. 1983); State v. Ates, 418 So. 2d 1326 (La. 1982); State v. Peters, 406 So. 2d 189 (La. 1981); State v. Martin, 376 So. 2d 300 (La. 1979). The grand jury occupies a high place in the federal system of criminal law--so much so that it is enshrined in the Constitution. United States v. Sells Engineering Inc., 463 U.S. 418, 423, 103 S.Ct. 3133, 3137, 77 L.Ed. 2d 743 (1983); Pittsburgh Plate Glass Co. V. United States, 360 U.S. 395, 399, 79 S.Ct. 1237, 1240, 3 L.Ed. 2d 1323 (1959); Costello v. United States, 350 U.S. 359, 361-362, 76 S.Ct. 406, 407-408, 100 L.Ed. 397 (1956). It serves the "dual function of determining if there is probable cause to believe that a crime has been committed and of protecting citizens against unfounded criminal prosecutions." Branzburg v. Hayes, 408 U.S. 665, 686-687, 92 S.Ct. 2646, 2659, 33 L.Ed. 2d 626 (1972). Concern for this dual function underlies the "long-established policy that maintains the secrecy of the grand jury proceedings in the federal courts." United States v. Proctor & Gamble, 356 U.S. 677, 681, 78 S.Ct. 983, 986, 2 L.Ed. 2d 1077 (1958). The United States Supreme Court explained this long-established policy in Douglas Oil Co. V. Petrol Stops Northwest: We consistently have recognized that the proper functioning of our grand jury system depends upon the secrecy of grand jury proceedings. In particular, we have noted several distinct interests served by safeguarding the confidentiality of grand jury proceedings. First, if preindictment proceedings were made public, many prospective witnesses would be hesitant to come forward voluntarily, knowing that those against whom they testify would be aware of that testimony. Moreover, witnesses who appeared before the grand jury would be less likely to testify fully and frankly, as they would be open to retribution as well as to inducements. There also would be the risk that those about to be indicted would flee, or would try to influence individual grand jurors to vote against indictment. Finally, by preserving the secrecy of the proceedings, we assure that persons who are accused but exonerated by the grand jury will not be held up to public ridicule. For all these reasons, courts have been reluctant to lift unnecessarily the veil of secrecy from the grand jury. Douglas Oil Co., 441 U.S. 211, 218-219, 99 S.Ct. 1667, 1672-1673, 60 L.Ed. 2d 156 (1979) (footnotes and citations omitted). The policy of maintaining the secrecy of grand jury proceedings has been codified in Rule 6(e) of the Federal Rules of Criminal Procedure. Grand jurors, government attorneys and their assistants, and other personnel attached to the grand jury are forbidden to disclose matters occurring before the grand jury. Rule 6(e)(2). Six exceptions to this general rule forbidding

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disclosure are set forth in Rule 6(e)(3).3 Under Subparagraph A, disclosure may be made, without a court order, to government attorneys for use in the performance of their duties and to government personnel to assist government attorneys in the performance of their duty to enforce federal criminal law. Rule 6(e)(3)(A)(i) and (ii). Subparagraph C allows court ordered disclosure

Fed. Rules Crim. Proc. 6(e)(2) and (3) provide the following: (2) General Rule of Secrecy. A grand juror, an interpreter, a stenographer, an operator of a recording device, a typist who transcribes recorded testimony, an attorney for the government, or any person to whom disclosure is made under paragraph (3)(A)(ii) of this subdivision shall not disclose matters occurring before the grand jury, except as otherwise provided for in these rules. No obligation of secrecy may be imposed on any person except in accordance with this rule. A knowing violation of Rule 6 may be punished as a contempt or court. (3) Exceptions. (A) Disclosure otherwise prohibited by this rule of matters occurring before the grand jury, other than its deliberations and the vote of any grand juror, may be made to-(i) an attorney for the government for use in the performance of such attorney's duty; and (ii) such government personnel (including personnel of a state or subdivision of a state) as are deemed necessary by an attorney for the government to assist an attorney for the government in the performance of such attorney's duty to enforce federal criminal law. (B) Any person to whom matters are disclosed under subparagraph (A)(ii) of this paragraph shall not utilize that grand jury material for any purpose other than assisting the attorney for the government in the performance of such attorney's duty to enforce federal criminal law. An attorney for the government shall promptly provide the district court, before which was impaneled the grand jury whose material has been so disclosed, with the names of the persons to whom such disclosure has been made, and shall certify that the attorney has advised such persons of their obligation of secrecy under this rule. (C) Disclosure otherwise prohibited by this rule of matters occurring before the grand jury may also be make-(i) when so directed by a court preliminarily to or in connection with a judicial proceeding; (ii) when permitted by a 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; (iii) when the disclosure is made by an attorney for the government to another federal grand jury; or (iv) when permitted by a court at the request of an attorney for the government, upon a showing that such matters may disclose a violation of state criminal law, to an appropriate official of a state or subdivision of a state for the purpose of enforcing such law. If the court orders disclosure of matters occurring before the grand jury, the disclosure shall be made in such manner, at such time, and under such conditions as the court may direct. (D) A petition for disclosure pursuant to subdivision (e)(3)(C)(i) shall be filed in the district where the grand jury convened. Unless the hearing is ex parte, which it may be when the petitioner is the government, the petitioner shall serve written notice of the petition upon (i) the attorney for the government, (ii) the parties to the judicial proceeding if disclosure is sought in connection with such a proceeding, and (iii) such other persons as the court may direct. The court shall afford those persons a reasonable opportunity to appear and be heard. (E) If the judicial proceeding giving rise to the petition is in a federal district court in another district, the court shall transfer the matter to that court unless it can reasonably obtain sufficient knowledge of the proceeding to determine whether disclosure is proper. The court shall order transmitted to the court to which the matter is transferred the material sought to be disclosed, if feasible, and a written evaluation of the need for continued grand jury secrecy. The court to which the matter is transferred shall afford the aforementioned persons a reasonable opportunity to appear and be heard. 5

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in certain situations, that is, (1) preliminarily to or in connection with a judicial proceeding, Rule 6(e)(3)(C)(i); (2) at the request of the defendant, upon a showing that grounds may exist for dismissing the indictment because of matters occurring before the grand jury, Rule 6(e)(3)(C)(ii); and (3) at the request of a government attorney, upon a showing that such matters may disclose a violation of state criminal law, to an appropriate official of a state or subdivision of a state for the purpose of enforcing such law, Rule 6(e)(3)(C)(iv). Subparagraph C also allows disclosure by a government attorney to another federal grand jury. Rule 6(e)(3)(C)(iii). The Court elaborated further in Douglas Oil and set forth the standard for determining when the traditional secrecy of the grand jury may be broken: Parties seeking grand jury transcripts under Rule 6(e) must show that the material they seek is needed to avoid a possible injustice in another judicial proceeding, that the need for disclosure is greater than the continued need secrecy, and that their request is structured to cover only material so needed. Such a showing must be made even when the grand jury whose transcripts are sought has concluded its operations, as it had in Dennis. For in considering the effects of disclosure on grand jury proceedings, the courts must consider not only the immediate effects upon a particular grand jury, but also the possible effect upon the functioning of future grand juries. . .. It is clear from Proctor & Gamble and Dennis that disclosure is appropriate only in those cases where the need for it outweighs the public interest in secrecy, and that the burden of demonstrating this balance rests upon the private party seeking disclosure. It is equally clear that as the considerations justifying secrecy become less relevant, a party asserting a need for grand jury transcripts will have a lesser burden in showing justification. In sum, as so often is the situation in our jurisprudence, the court's duty in a case of this kind is to weigh carefully the competing interests in light of the relevant circumstances and the standards announced by this Court. And if disclosure is ordered, the court may include protective limitations on the use of the disclosed materials . . . . 441 U.S. 211, 222-223, 99 S.Ct. 1667, 1674-1675 (footnotes and citations omitted). Clearly, the indispensability of grand jury secrecy provisions places a heavy burden on persons seeking disclosure of grand jury materials. A party seeking disclosure has the burden of proving a compelling necessity for the material sought, and the need must be demonstrated "with particularity." That is, the party seeking disclosure must prove that without access to the grand jury materials the party's case would be "greatly prejudiced" or that an "injustice would be done." Furthermore, a general wholesale request for transcripts does not satisfy the requirement of demonstrative particularized need. United States v. Proctor & Gamble Co., 356 U.S. 677, 78 S.Ct. 983 (1958). As previously stated, this Court has adhered to federal jurisprudence in interpreting state grand jury secrecy laws. This Court recognizes the strong public policy in favor of maintaining 6

the secrecy of grand jury proceedings, however, there is also a strong policy in favor of openness in civil, as well as criminal, discovery and grand jury transcripts often provide "a storehouse of relevant fact." Trosclair, 443 So. 2d 1098, 1103, citing, Dennis v. United States, 384 U.S. 855, 873, 86 S.Ct. 1840, 1851. Generally, La. Code Crim. Proc. art. 434 prohibits the disclosure of grand jury material by members of the grand jury and others present. However, disclosure is allowed in four situations: (1) After the indictment, members of the grand jury and other persons present may reveal statutory irregularities in grand jury proceedings to defense counsel, the attorney general, the district attorney or the court; (2) Members of the grand jury and other persons present may disclose testimony given before the grand jury, at any time when permitted by the court, to show that a witness committed perjury in his testimony before the grand jury; (3) A witness may discuss his testimony given before the grand jury with counsel for a person under investigation or indicted, with the attorney general or the district attorney, or with the court; and (4) Whenever a grand jury of one parish discovers that a crime may have been committed in another parish of the state, the foreman of that grand jury, after notifying his district attorney, shall make that discovery known to the attorney general. The district attorney or the attorney general may direct to the district attorney of another parish any and all evidence, testimony, and transcripts thereof, received or prepared by the grand jury of the former parish, concerning any offense that may have been committed in the latter parish, for use in such latter parish. La. Code Crim. Proc. art. 434(A) & (B) The disclosure provisions in Article 434 do not cover the situation raised in this case. This case deals with the disclosure of state grand jury materials by a district attorney to federal authorities. Rule 6(e) provides for a disclosure of federal grand jury materials by a federal attorney to state authorities. Such a transfer requires court approval and a showing that the matters sought may disclose a violation of state criminal law. Our decision in Trosclair, requiring a defendant to show a particularized need for disclosure which outweighed the need for secrecy, is an adaptation of the Rule 6(e) requirement. Other states have similar requirements for the release of grand jury materials to federal authorities. See, e.g., 42 Pa. Cons. Stat. Ann.

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