Witness Wins Access to His Testimony Transcript

     (CN) – A federal judge in Massachusetts improperly denied a witness access to a transcript of his grand jury testimony and held him in contempt when he refused to testify further, the 1st Circuit ruled.




     The unnamed witness spent about three hours testifying before a grand jury about “highly technical and ancient subject matter,” according to the Boston-based appeals court.
     He had initially refused to testify, asserting his Fifth Amendment right, but the government obtained an order granting him immunity and compelling him to testify.
     During the first day of testimony, prosecutors reminded him repeatedly that any failure to answer truthfully could result in perjury charges.
     The government never finished its examination, so it asked the witness to return and complete his testimony the following week. It denied his request for a transcript of his first day of testimony.
     The witness then filed an emergency motion for access to the transcript, which U.S. District Judge F. Dennis Saylor IV denied.
     Saylor relied on 1st Circuit precedent that an appellant must provide “a strong showing of particularized need” for the transcript in order to obtain access.
     However, a 2-1 majority of the three-judge appellate panel noted that its prior case law involved witnesses seeking copies of their transcripts, not mere access.
     The appeals court concluded that a less demanding standard of particularized need, established by the D.C. Circuit, should apply when a grand jury witness demands access rather than a copy.
     The court said the witness’ interest in preparing for upcoming testimony outweighed the government’s interest in maintaining grand jury secrecy, particularly in keeping transcripts out of the wrong hands.
     Quoting Judge Saylor, the appeals court noted that a grand jury witness “has the right to ‘put up that information on a billboard on the Mass. Pike.'”
     “Thus, any concern with maintaining grand jury secrecy is already diminished in the grand jury witness context,” Torruella wrote. “However, permitting access does not exacerbate the situation in the way making a copy available does” (emphasis in original).
     The court concluded that the district court erred in applying 1st Circuit precedent, and that the witness made a showing of particularized need.
     Torruella reversed Saylor’s contempt finding and instructed the lower court to grant the witness access to a transcript of his testimony.
     Judge Howard dissented, arguing that the majority’s conclusion “is contrary to our precedent, unwise as a matter of policy, and insupportable on this record.”

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