The Volokh Conspiracy

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Free Speech

Restrictions on Grand Jurors' Speech Upheld …

in a case stemming from the Darren Wilson prosecution.


From Grand Juror Doe v. Bell, an Eighth Circuit opinion decided Friday by Judge Gruender, joined by Judges Wollman and Shepherd:

On August 9, 2014, Darren Wilson, a former police officer with the City of Ferguson, Missouri, shot and killed Michael Brown. Following the shooting, St. Louis County Prosecuting Attorney Robert P. McCulloch announced that he intended to submit the matter to a grand jury for consideration. At the time, Doe was a grand juror serving in the circuit court for St. Louis County for a term originally scheduled to end on September 10, 2014. Following Brown's death, Doe's service was extended to January 2015, and the grand jury was tasked with investigating whether there was probable cause to believe Wilson committed a crime.

On November 24, 2014, the Wilson grand jury returned a "no true bill," and the jury was subsequently discharged. Immediately afterward, McCulloch held a press conference at which he delivered an oral statement and, in an unusual move, released some of the evidence and testimony presented to the grand jury, including transcripts, reports, interviews, and forensic evidence. The documents were redacted to keep secret the identities of the grand jurors, witnesses, and other persons connected to the investigation. The documents did not include any information concerning the grand jury's deliberations or any grand juror's vote on any charge. Six weeks later, Doe sued McCulloch in his official capacity … seeking both declaratory and injunctive relief because, she claimed, [Missouri grand jury secrecy statutes] violate the Free Speech Clause ….

In her complaint, Doe alleged that she had not recounted her experience or expressed her views concerning the Wilson case on account of her fears that she will face criminal penalties or contempt charges. She asserted that McCulloch mischaracterized the views of the grand jurors collectively toward the evidence, the witnesses' credibility, and the law, and as a result, she sought to correct the record. Doe also claimed that she would like to speak about the experience of being a grand juror, including the discrepancies she noticed in the procedures utilized by McCulloch in the Wilson case compared to others. Doe did not express a desire to discuss publicly the Wilson matter completely independently of her role as a grand juror, but instead she sought to pull back the curtain of the jury's secrecy to discuss a wide array of previously confidential matters that go to the heart of the grand jury's deliberations.

The court held that the traditionally recognized grand juror secrecy rules, which bar grand jurors from speaking out (even after their term of service was over) about what they learned in the grand jury, are narrowly tailored to a compelling state interest in grand jury secrecy, and thus pass the highly demanding "strict scrutiny" test. The court stressed that the laws do not "prevent[ Doe] from discussing anything concerning the Wilson matter other than the knowledge she gained of the evidence, witness identities, and deliberations in the context of her role as a grand juror."

I'm not sure whether I agree with the court's analysis—I'm inclined to say that it might have been better to treat a grand juror as a form of special-purpose government employee, and subject to special conditions binding government employees: "As to one who voluntarily assumed a duty of confidentiality, governmental restrictions on disclosure are not subject to the same stringent standards that would apply to efforts to impose restrictions on unwilling members of the public" (U.S. v. Aguilar (1995)). [UPDATE: My understanding is that, in practice, given the length of the grand jury term, grand jurors who don't want to serve are not required to serve, though if that's not so then the analysis I suggest might well not apply.] But in any event I thought our readers would be interested.