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Volokh Conspiracy

The Michael Brown grand jury materials will be made public … if no charges are filed


The prosecutor handling the Michael Brown grand jury has made clear that the testimony provided to the grand jury will be released to the public as soon as possible. The St. Louis Post-Dispatch reported a few minutes ago that Prosecuting Attorney Robert P. McCulloch's office is planning to release grand jury documents without seeking a judge's approval, if Officer Darren Wilson is not indicted. Of course, if Wilson were to be indicted, releasing such information might be prejudicial to him. But if he is not indicted, McCulloch's office has concluded that a provision in Missouri's Sunshine Law allowed him to release the records.

Presumably the provision in the law that McCulloch is relying upon is the provision that provides "investigative reports of all law enforcement agencies are closed records until the investigation becomes inactive." If Wilson were not indicted, then the investigation would become inactive—and McCulloch's office could release the documents. The law further allows for certain redactions and withholdings, particular to avoid a danger to victims, witness, or undercover police officers:

if any portion of a record or document of a law enforcement officer or agency, other than an arrest report, which would otherwise be open, contains information that is reasonably likely to pose a clear and present danger to the safety of any victim, witness, undercover officer, or other person; or jeopardize a criminal investigation, including records which would disclose the identity of a source wishing to remain confidential or a suspect not in custody; or which would disclose techniques, procedures or guidelines for law enforcement investigations or prosecutions, that portion of the record shall be closed and shall be redacted from any record made available pursuant to this chapter.

Presumably McCulloch's office will use this authority to redact sensitive information about witnesses who testified before the grand jury.

For this case, releasing this information is very good news. It will bring transparency to the process that will be helpful to everyone in evaluating the correctness of the decision. As I wrote this morning, it is important that in assessing the decision that the information on which the grand jury acted be made publicly available. Now it looks like Officer Wilson will either be indicted … or all the facts will be known.