The general rule that grand jury proceedings are not open to the public, embodied in Federal Rule of Criminal Procedure 6(e)(3), serves important purposes: encouraging uninhibited deliberations by preserving grand jurors’ anonymity, protecting witnesses from retaliation or intimidation, and avoiding alerting suspects to the grand jury’s investigation. Where disclosure would not threaten those purposes, federal courts in numerous cases have exercised their inherent authority to unseal grand jury records in exceptional circumstances beyond those listed in Rule 6(e). In several cases, including cases brought by Public Citizen Litigation Group (see, e.g., In re Petition of Kutler), courts have held that one such exceptional circumstance in which courts may order release of grand jury records is where a case is one of significant historical importance.
In this case, historian Anthony Pitch sought release of grand jury records concerning Moore’s Ford Lynching—the event in 1946 in which a crowd of people in Walton County, Georgia watched as two African American couples were dragged from a car and shot. Although a grand jury was convened and heard sixteen days of testimony, no one was ever charged, and the case remains unsolved. In 2014, Pitch sought release of the grand jury records by filing a petition with the district court in Georgia. Over the government’s opposition, the district court granted his request. The government appealed, and the Eleventh Circuit Court of Appeals took the case en banc so that the full court could consider whether courts have authority to disclose grand jury materials based on historical importance. On behalf of American Historical Association, American Society for Legal History, National Security Archive, Organization of American Historians, and Society of American Archivists, we filed an amicus curiae brief in support of disclosure.
In March 2020, however, the Eleventh Circuit ruled against disclosure. In a divided opinion, the court overruled its own precedent and held that district courts may order the release of grand jury materials only in circumstances explicitly covered by Rule 6(e).
In the meantime, Public Citizen Litigation Group, American Historical Association, American Society for Legal History, National Security Archive, Organization of American Historians, and Society of American Archivists submitted to the Committee on Rules of Practice and Procedure a proposal to amend Rule 6(e) of the Federal Rules of Criminal Procedure. The proposed amendment would make clear that district courts have authority to order disclosure, in appropriate circumstances, of grand jury materials of historical significance.