Witness Wins Access to 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.

According to the ruling, the witness spent about three hours testifying before a grand jury about "highly technical and ancient subject matter."

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.

"Other times, the prosecutors verbally abused the appellant," Judge Torruella wrote.

The government never finished its examination, so it asked the witness to return and complete his testimony the following week. It also denied his request for a transcript of the first day of testimony.

The witness then filed an emergency motion for access to a 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, the Boston-based federal appeals court noted that its prior case law involved witnesses seeking copies of their transcripts, not merely access.

The 1st Circuit concluded that courts should apply a less demanding standard of particularized need, established by the D.C. Circuit, when a grand jury witness demands access to a transcript, rather than a copy.

The court weighed the witness' interest in preparing for upcoming testimony with 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," Judge 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 its precedent, and that the witness made a showing of particularized need.

It 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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