Pittsburgh Plate Glass Company v. United States/Dissent Brennan

Mr. Justice BRENNAN, with whom The CHIEF JUSTICE, Mr. Justice BLACK and Mr. Justice DOUGLAS join, dissenting.

In the words of the Court of Appeals, Jonas was the Government's 'principal prosecuting witness.' He was President of Lenoir Mirror Company, which company was a participant in the alleged price-fixing conspiracy, but was not indicted. After Jonas testified on direct examination defense counsel asked for the production of his relevant grand jury testimony. The trial judge immediately made clear his intention not to grant the motion: 'Unless you can show some sound basis that contradicts between what happened in the Grand Jury room and his testimony before the Grand Jury and his testimony in this trial, I am not going to require the production of the Grand Jury records. It would be easy for any attorney to get access to the records of the Grand Jury by just such a motion as you are making here.' Defense counsel protested, 'we are not attempting that. We want just a transcript of his testimony before the Grand Jury regarding the subjects to which he has testified on direct examination.' (Emphasis supplied.) This request thus encompassed all of Jonas' grand jury testimony only if all of that testimony covered the subject matter of Jonas' trial testimony. The court replied, 'You have stated what you want to ask him and I am denying your right to do it.' Plainly defense counsel were not asking to see the minutes of the entire grand jury proceedings, nor even of all of Jonas' testimony before the grand jury unless all of it was on the same subject matter as his trial testimony. Their motion was carefully limited to a request for so much of Jonas' grand jury testimony as 'covered the substance of his testimony on direct examination.' This request that secrecy be 'lifted discretely and limitedly,' United States v. Procter & Gamble, 356 U.S. 677, 683, 78 S.Ct. 983, 987, 2 L.Ed.2d 1077, necessarily implied a request that the trial judge inspect the grand jury minutes and turn over to the defense only those parts dealing with Jonas' testimony on the same subject matter as his trial testimony. In this posture, then, the question for our decision is the narrow one whether the trial judge erred in denying the defense request for inspection of the grand jury testimony of a key government witness which covered the subject matter of that witness' trial testimony. I dissent from the Court's affirmance of the trial judge's ruling denying this carefully circumscribed request.

Grand jury secrecy is, of course, not an end in itself. Grand jury secrecy is maintained to serve particular ends. But when secrecy will not serve those ends or when the advantages gained by secrecy are outweighed by a countervailing interest in disclosure, secrecy may and should be lited, for to do so in such a circumstance would further the fair administration of criminal justice. See McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819. It is true that secrecy is not to be lifted without a showing of good reason, but it is too late in the day to say, as the Court as a practical matter does here, that the Government may insist upon grand jury secrecy even when the possible prejudice to the accused in a criminal case is crystal clear and none of the peasons justifying secrecy is present. '(A)fter the grand jury's functions are ended, disclosure is wholly proper where the ends of justice require it.' United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 234, 60 S.Ct. 811, 849, 84 L.Ed. 1129. Thus grand jury minutes have been made available to a defendant accused of committing perjury before the grant jury so that he could adequately prepare his defense, United States v. Remington, 2 Cir., 191 F.2d 246; United States v. Rose, 3 Cir., 215 F.2d 617, and to a defendant who can show an inconsistency between the trial testimony and grand jury testimony of a government witness, United States v. Alper, 2 Cir., 156 F.2d 222; Burton v. United States, 5 Cir., 175 F.2d 960; Herzog v. United States, 9 Cir., 226 F.2d 561; United States v. H.J.K. Theatre Corp., 2 Cir., 236 F.2d 502. On occasion the Government itself has recognized the fairness of permitting the defense access to the grand jury testimony of government witnesses even though it considered that it was not bound to do so, United States v. Grunewald, D.C., 162 F.Supp. 621. This Court has implied that grand jury minutes would be discoverable by a defendant in a civil antitrust suit instituted by the Government on a showing of 'particularized need,' United States v. Procter & Gamble, 356 U.S. 677, 683, 78 S.Ct. 983, 987, 2 L.Ed.2d 1077. Nor can we overlook that the Government uses grand jury minutes to further its own interests in litigation. It is apparently standard practice for government attorneys to use grand jury minutes in preparing a case for trial, see United States v. Procter & Gamble, 356 U.S. 677, 678, 78 S.Ct. 983, 984, 2 L.Ed.2d 1077, in refreshing the recollection of government witnesses at trial, see United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 233, 60 S.Ct. 811, 849, 84 L.Ed. 1129, and, when the need arises, in impeaching witnesses at trial, see United States v. Cotter, 2 Cir., 60 F.2d 689. Of course, when the Government uses grand jury minutes at trial the defense is ordinarly entitled to inspect the relevant testimony in those minutes. United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 233, 60 S.Ct. 811, 849, 84 L.Ed. 1129; United States v. Cotter, 2 Cir., 60 F.2d 689. Indeed, Rule 6(e) of the Federal Rules of Criminal Procedure itself recognizes that grand jury testimony is discoverable under appropriate circumstances.

The Court apparently agrees with the conclusion compelled by these precedents, for its opinion states that grand jury minutes are discoverable when "a particularized need' exists for the minutes which outweighs the policy of secrecy.' But the Court pays only lip service to the principle in view of the result in this case. It is clear beyond question, I think, that the application of that principle to this case requires a holding that Jonas' grand jury testimony is discoverable to the limited extent sought. Since there are no valid considerations which militate in favor of grand jury secrecy in this case, simple justice requires that the petitioners be given access to the relevant portions of Jonas' grand jury testimony so that they have a fair opportunity to refute the Government's case.

Essentially four reasons have been advanced as justification for grand jury secrecy. (1) To prevent the accused from escaping before he is indicted and arrested or from tampering with the witnesses against him. (2) To prevent disclosure of derogatory information presented to the grand jury against an accused who has not been indicted. (3) To encourage complainants and witnesses to come before the grand jury and speak freely without fear that their testimony will be made public thereby subjecting them to possible discomfort or retaliation. (4) To encourage the grand jurors to engage in uninhibited investigation and deliberation by barring disclosure of their votes and comments during the proceedings.

None of these reasons dictates that Jonas' grand jury testimony, to the limited extent it is sought, should be kept secret. The Court, while making obeisance to 'a long-established policy' of secrecy, makes no showing whatever how denial of Jonas' grand jury testimony serves any of the purposes justifying secrecy. Certainly disclosure at this stage of the proceedings would not enable the defendants to escape from custody or to tamper with the witness who has already testified against them on direct examination. Certainly, also, protection of an innocent accused who has not been indicted has no bearing on this case. Discovery has been sought only of Jonas' grand jury testimony on the same subject matter as his testimony at trial. This testimony will have condemned someone to whom he did not refer at trial only if he has concealed information at the trial, and this creates the very situation in which it is imperative that the defense have assess to the grand jury testimony if we are to adhere to the standards we have set for ourselves to assure the fair administration of criminal justice in the federal courts. Similarly, disclosure of Jonas' relevant ground jury testimony could not produce the apprehended results of retaliation or discomfort which might induce a reluctance in others to testify before grand juries. Jonas has already taken the stand and testified freely in open court against the defendants. His testimony has been extremely damaging. Disclosure of his testimony before the grand jury is hardly likely to result in any embarrassment that his trial testimony has not already produced. 'If he tells the truth, and the truth is the same as he testified before the grand jury, the disclosure of the former testimony cannot possibly bring to him any harm * *  * which his testimony on the open trial does not equally tend to produce.' 8 Wigmore, Evidence (3d ed. 1940), § 2362, at p. 725. Witnesses before a grand jury necessarily know that once called by the Government to testify at trial they cannot remain secret informants quite apart from whether their grand jury testimony is discoverable. Finally, the defense seeks nothing which would disclose the votes or opinions of any of the grand jurors involved in these proceedings. All that is sought is the relevant testimony of Jonas. If there are questions by grand jurors intertwined with Jonas' testimony disclosure of which would indicate the jurors' opinions or be embarrassing to them, the names of the grand jurors asking the questions can be excised. Cf. United States v. Grunewald, D.C., 162 F.Supp. 621.

Plainly, then, no reason justifying secrecy of Jonas' relevant grand jury testimony appears. The Court's insistence on secrecy exalts the principle of secrecy for secrecy's sake in the face of obvious possible prejudice to the petitioners' defense against Jonas' seriously damaging testimony on the trial. Surely 'Justice requires no less,' Jencks v. United States, 353 U.S. 657, 669, 77 S.Ct. 1007, 1013, 1 L.Ed.2d 1103, than that the defense be permitted every reasonable opportunity to impeach a government witness, and that a criminal conviction not be based on the testimony of untruthful or inaccurate witnesses. The interest of the United States in a criminal prosecution, it must be emphasized, 'is not that it shall win a case, but that justice shall be done.' Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314.

Obviously the impeachment of the Government's key witness on the basis of prior inconsistent or contradictory statements made under oath before a grant jury would have an important effect on a trial. Thus it has long been held that a defendant may have access to inconsistent grand jury testimony for use in cross-examination if he can somehow show that an inconsistency between the trial and grand jury testimony exists. United States v. Alper, 2 Cir., 156 F.2d 222; Burton v. United States, 5 Cir., 175 F.2d 960; Herzog v. United States, 9 Cir., 226 F.2d 561; United States v. H.J.K. Theatre Corp., 2 Cir., 236 F.2d 502. But in an analogous situation we have pointed out the folly of requiring the defense to show inconsistency between the witness' trial testimony and his previous statements on the same subject matter before it can obtain access to those very statements. In Jencks v. United States, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103, we said that it offers no protection to permit a defendant to obtain inconsistent statements to impeach a witness unless he may inspect statements to determine if in fact they are inconsistent with the trial testimony. We said in Jencks:

'Requiring the accused first to show conflict between the     reports and the testimony is actually to deny the accused      evidence relevant and material to his defense. The occasion     for determining a conflict cannot arise until after the      witness has testified, and unless he admits conflict, as in      Gordon, (Gordon v. United States, 344 U.S. 414, 73 S.Ct. 369,      97 L.Ed. 447) the accused is helpless to know or discover      conflict without inspecting the reports. A requirement of a     showing of conflict would be clearly incompatible with our      standards for the administration of criminal justice in the      federal courts and must therefore be rejected.' 353 U.S. at      pages 667-668, 77 S.Ct. at pages 1013.

The considerations which moved us to lay down this principle as to prior statements of government witnesses made to government agents obviously apply with equal force to the grand jury testimony of a government witness. For the defense will rarely be able to lay a foundation for obtaining grand jury testimony by showing it is inconsistent with trial testimony unless it can inspect the grand jury testimony, and, apparently in recognition of this fact, the Court holds today that a preliminary showing of inconsistency by the defense would not be necessary in order for it to obtain access to relevant grand jury minutes. It is suggested by the Government, however, that rather than permit the defense to inspect the relevant grand jury minutes for possible use on cross-examination, the trial judge should inspect them and turn over to the defense only those portions, if any, that the judge considers would be useful for purposes of impeachment. This procedure has sometimes een utilized in the past as a way to limit discovery of grand jury minutes. See United States v. Alper, 2 Cir., 156 F.2d 222; United States v. Consolidated Laundries, D.C., 159 F.Supp. 860. But we pointed out in Jencks the serious disadvantages of such a procedure and expressly disapproved of it. We said:

'Flat contradiction between the witness' testimony and the     version of the events given in his reports is not the only      test of inconsistency. The omission from the reports of facts     related at the trial, or a contrast in emphasis upon the same      facts, even a different order of treatment, are also relevant      to the cross-examining process of testing the credibility of      a witness' trial testimony.

' * *  * We hold *  *  * that the petitioner is entitled to      inspect the reports to decide whether to use them in his      defense. Because only the defense is adequately equipped to     determine the effective use for purpose of discrediting the      Government's witness and thereby furthering the accused's      defense, the defense must initially be entitled to see them      to determine what use may be made of them. Justice requires     no less.' 353 U.S., at pages 667-669, 77 S.Ct. at pages 1013.

From Jonas' own admission it appears that his grand jury testimony covered the subject matter of his trial testimony. The reasons for permitting the defense counsel rather than the trial judge to decide what parts of that testimony can effectively be used on cross-examination are certainly not less compelling than in regard to the FBI reports involved in Jencks. For grand jury testimony is often lengthy and involved, and it will be extremely difficult for even the most able and experienced trial judge under the pressures of conducting a trial to pick out all of the grand jury testimony that would be useful in impeaching a witness. See United States v. Spangelet, 2 Cir., 258 F.2d 338. His task should be completed when he has satisfied himself what part of the grand jury testimony covers the subject matter of the witness' testimony on the trial, and when he has given that part to the defense. Then the defense may utilize the grand jury testimony for impeachment purposes as it may deem advisable in its best interests, subject of course to the applicable rules of evidence.

I would reverse the Court of Appeals and order a new trial for failure to the trial judge to order the production of Jonas' relevant grand jury testimony.