Journalists and Grand Juries
Branzburg v. Hayes, 408 U.S. 665, 92 S. Ct. 2646 (1972)
Compelling a journalist to reveal confidential sources before a grand jury does not violate the Freedom of the Press Clause of the First Amendment.
Aftermath
In light of the Supreme Court’s decision in Branzburg v. Hayes, many states enacted legislation commonly called "shield laws" to protect journalists from being punished for refusing to reveal their sources. Senator Christopher Dodd, D-Conn., introduced shield law legislation in 2005.
In addition, the U.S. Courts of Appeals have interpreted the holding in Branzburg v. Hayes differently. Some, like the Sixth Circuit, have interpreted Branzburg in a strict manner, holding that the First Amendment does not provide journalists with any right to withhold the identities of confidential sources. Other Circuits have drawn a distinction between civil and criminal cases. For instance, the Fifth Circuit employs a balancing test in civil cases to determine whether or not the identity of a journalist's sources are entitled to protection. The balancing test is based on the three criteria laid down in Justice Powell's concurring opinion in Branzburg. The Fifth Circuit does not protect confidential sources in criminal cases.
The Federal Grand Jury
Different Types of Juries
The federal court system hears two types of legal cases, civil and criminal. Civil cases involve private wrongs. Criminal cases involve wrongs against society as a whole. Both civil and criminal cases may be tried before a jury, or before a judge sitting without a jury.
When a jury hears a criminal case, it is known as a petit jury. A petit jury usually consists of 12 jurors and several alternates. This jury is charged with determining the facts of the case.
Before being tried for a crime, individuals must officially be charged with an offense. Another type of jury, known as a grand jury, is usually responsible for determining whether or not there is enough evidence to officially indict (charge) an individual for committing a crime. Grand juries deal only with criminal—not civil—matters.
History of the Grand Jury
The grand jury has its origins in medieval England. According to the Assize of Claredon (1164), 12 free men were to inform the King's justices every year of crimes that had occurred within their localities. Eventually, this body divided into two separate institutions: the grand jury, which charged individuals with crimes, and the petit jury, which tried them for crimes. Historically, grand juries also had administrative responsibilities, i.e., overseeing road repairs, but most of these functions have been lost over the centuries.
When the English colonists arrived in America, they brought the concept of the grand jury with them. After the American Revolution, the right to a grand jury in a federal criminal case was preserved in the Fifth Amendment to the U.S. Constitution (1791). This Amendment states that:
"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentation or indictment of a grand jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger . . . "
In the case of Hurtado v. California, 110 U.S. 516 (1884), the Supreme Court ruled that the right to a grand jury was not incorporated to the states. This permits states to charge individuals with a crime without the use of a grand jury. To do so, a state prosecutor files a formal charging document known as an information with the court. If federal defendants voluntarily waive their right to a grand jury proceeding, an information may be used as the charging document in a federal case.
Regular v. Special Grand Juries
Today, there are two main types of grand juries: regular and special. A federal judge officially convenes both types of grand juries, though a prosecutor (someone from a U.S. Attorney's office) actually conducts the proceedings. Regular grand juries are called to decide whether or not a prosecutor has presented enough evidence that a crime has been committed. Regular grand juries are convened for a period of 18 months, but may be required to sit as long as 24 months.
Special grand juries are called to investigate a particular crime, usually one that is of some importance. Special grand juries are convened for a period of 18 months, and may be extended for six month intervals for a total of an additional 18 months.
Both types of grand juries meet on an as needed basis. Depending upon the number of indictments a prosecutor seeks, they may meet daily, weekly, or monthly.
Grand Jury Proceedings
If either type of grand jury finds that sufficient evidence has been presented that an individual has committed a crime, it issues an indictment. This is known as a "true bill." If the grand jury finds that sufficient evidence has not been presented, it issues a "no true bill." The burden of proof is "probable cause." Although lacking a precise definition, "probable cause" is generally defined along the following lines: It is a state of certainty that an individual has committed a crime that is more than a hunch but less than "beyond reasonable doubt." As such, grand juries serve as a protection against overzealous prosecutors by serving as a check on their ability to indict individuals for crimes.
Both types of grand juries consist of between 16-23 persons, with the option of choosing a certain number of alternates. Once impaneled by a federal judge, the members of the grand jury must select two officers, a foreperson and a deputy foreperson.
Grand jury proceedings are secret, although they are recorded so that a transcript can be prepared. Grand juries have the power to subpoena witnesses and materials. A subpoena is a legal command ordering that either certain evidence be presented or certain witnesses appear to testify. Witnesses are not permitted to have counsel present in the grand jury room during their questioning. The prosecutor alone conducts these proceedings.
Grand Jury Secrecy
The U.S. Supreme Court has addressed the issue of secrecy in grand jury proceedings. In the case of United States v. Procter & Gamble Co., 356 U.S. 677, 681-682 (1958), it provided five reasons why secrecy is required. The Court held that secrecy is necessary:
"(1) To prevent the escape of those whose indictment may be contemplated; (2) to insure the utmost freedom to the grand jury in its deliberations, and to prevent persons subject to indictment or their friends from importuning the grand jurors; (3) to prevent subornation of perjury or tampering with the witness who may testify before [the] grand jury and later appear at the trial of those indicted by it; (4) to encourage free and untrammeled disclosures by persons who have information with respect to the commission of crimes; (5) to protect innocent accused who is exonerated from disclosure of the fact that he has been under investigation, and from the expense of standing trial where there was no probability of guilt."
Further Reading
The following sources provided background information for this article. Students interested in this subject are encouraged to consult them for further information.
- Susan Brenner and Lori Shaw. Website Research Assistant: David Hunter. "Federal Grand Juries." From the University of Dayton School of Law "Federal Grand Jury" Homepage. www.udayton.edu/~grandjur/fedj/fedj.htm.
- U.S. v. Procter & Gamble Co., 356 U.S. 677, 681-682 (1958).
- Please Note: In selecting these criteria, the Court simply approved the very same criteria that a lower federal court put forth in United States v. Rose, 215 F.2d 617, 628-629 (CA3 1954).
Shield Laws and Federalism
The U.S. Constitution creates a federal system of government in which power is shared between the federal (national) government and the state governments. The Constitution lists the powers of the federal government. Any power that the Constitution does not expressly give to the federal government, nor deny to the states, belongs to the states, i.e., the right to enact most criminal laws. Some powers are shared by both the national and state governments, i.e., the power to collect taxes.
Originally, the provisions of the Bill of Rights were only applicable to the federal government. After the Civil War, Congress passed the Fourteenth Amendment to the Constitution (1866) in order to assure that at least some of the provisions of the Bill of Rights also applied to the States. By the turn of the Twentieth Century, the Supreme Court began to use the Fourteenth Amendment to selectively incorporate provisions of the Bill of Rights to the states. Since then, almost all of the provisions of the Bill of Rights have been incorporated. The case of Near v. Minnesota incorporated freedom of the press (1931).
The judiciary has the power to interpret the law. The federal judiciary, particularly the U.S. Supreme Court, has the final say over the interpretation of the U.S. Constitution and federal laws. The state judiciaries have the final interpretation of state constitutions and laws, so long as neither violate the federal Constitution.
When any Court, including the U.S. Supreme Court, interprets a Constitutional right, it determines the minimum level of protection afforded by that right. While the government cannot violate these minimum protections, it is not prohibited from affording more protections than the Courts to that right. In essence, the Courts determine the "floor," but not the "ceiling," for Constitutional rights.
The reaction of many states to the case of Branzburg v. Hayes (1972) demonstrates this "floor/ceiling" analogy. Branzburg held that the freedom of the press clause of the First Amendment does not provide journalists with a right to withhold the names of their confidential sources from a grand jury investigating a criminal matter. The journalists had argued that requiring the disclosure of sources would adversely affect the press by discouraging persons with controversial stories from speaking to reporters.
Although the U.S. Supreme Court rejected this argument, many states found merit to it. In response, some thirty states and the District of Columbia passed "shield laws" which prevent, under most circumstances, journalists from being punished for refusing to reveal their sources. (1) These states and the District of Columbia decided that the freedom of the press clause provides more protection for journalists than the U.S. Supreme Court said it provided.
Unlike these states, the federal government has not enacted a "shield law" for journalists. If a federal court orders journalists to reveal their sources, they must either comply or risk being held in contempt of court. Judith Miller, a journalist for the New York Times, faced this situation. She was working on an article concerning the leak of a CIA officer's name to a member of the press. A federal judge required her to reveal her source to a federal grand jury investigating this manner. She refused, was held in contempt of court, and went to jail.
In February 2005, Senator Christopher Dodd, D-Conn, introduced a federal "shield law" bill in Congress to protect journalists from having to reveal their sources, however, they could be required to provide information to a judge if there was no other way to obtain it. (2)
- Douglas Lee. “Overview of Shield Laws.” First Amendment Center. www.firstamendmentcenter.org/Press/topic.aspx?topic=shield_laws.
- The Associated Press. "Journalist Shield Bill Heads for Hearings; Support Grows." April 29, 2005. The First Amendment Center. www.firstamendmentcenter.org/news.aspx?id=15191.