The Pennsylvania Supreme Court recently issued a decision in a case that may be a harbinger of reform of state grand jury practice.

Although a separate matter, this decision follows the court's formation of a task force in 2017 to review operations of investigating grand juries and recommend updates.

In an unprecedented exercise of its supervisory authority, the high court's decision in In Re: Fortieth Statewide Investigating Grand Jury revised the language of a form created and utilized by the Pennsylvania Office of Attorney General.

Before the high court was a challenge to the practice of requiring private attorneys representing individuals or entities during investigating grand jury proceedings to submit entry of appearance forms containing a secrecy oath.

The oath read as follows:

"I swear or affirm that, under penalty of contempt, I will keep secret all that transpires in the grand jury room, all matters occurring before the Grand Jury, and all matters and information concerning this Grand Jury obtained in the course of the representation, except when authorized by law or permitted by the Court."

Appellants argued that the secrecy requirement did not apply to private attorneys, was overbroad, and restricted the sharing of information pursuant to common interest and to join defense agreements.

The high court agreed with some of these points and disagreed with others.

The court concluded that the secrecy requirements of the Pennsylvania Grand Jury Act applied to private counsel, but agreed that the oath was overbroad.

Next, the court rewrote the oath to add new language allowing an attorney to disclose a client's grand jury testimony under certain conditions. In a final revision, the court struck the sentence that read, "all matters and information concerning this Grand Jury obtained in the course of the representation" and mandated that it be replaced with different language.

The result of the court's revisions is a secrecy oath that reads as follows:

"I swear or affirm that, under penalty of contempt, I will keep secret all that transpires in the Grand Jury room and all matters occurring before the grand jury, except when disclosure is authorized by law or permitted by the court.

"I understand that - with the explicit, knowing, voluntary, and informed consent of my client or clients, and absent a specific prohibition by a supervising judge or circumstance implicating prohibitions arising from the Rules of Professional Conduct - I may disclose the content of a client-witness's own testimony precisely to the extent that the client-witness may do so under applicable law."

A divided court supported its revision to the form by relying upon its supervisory powers relative to grand jury practice.

In explaining its actions the court quoted prior judicial opinions which called for "a strong judicial hand in supervising the proceedings" of grand juries and noted that "courts should assume a stronger role in supervising the grand jury process."

This important decision signals that the court is willing to entertain and thoroughly consider appeals from grand jury matters that historically would have been rejected as moot or containing issues and arguments not properly before the court.

Further, it identifies the important work of the court's "ad hoc committee studying grand jury practice" and that recommendations flowing from that committee will be aggressively supported by the court.

Last, and perhaps most significantly, the majority opinion sets the tone for supervising grand jury judges throughout the state - that the Court expects supervising judges to more actively control and administer statewide or county grand juries.

This analysis reflects the Majority Opinion.

A few details from the concurring and dissenting opinions may provide additional insights into how the Court could handle future grand jury reform issues or the expected recommendations of the Court's task force:

  • In a concurring opinion by Justice Max Baer and joined by Chief Justice Thomas L. Saylor and Justices Debra Todd, Kevin Dougherty, and Sallie Mundy, Justice Baer wrote to clarify that the modification of the form by the Majority's Opinion did not preclude future revisions to the form.
  • Justice Christine Donohue joined the Majority Opinion because she agreed that the secrecy provisions applied to private attorneys and because she agreed that the nondisclosure requirements contained in the disputed form were overbroad.
  • Justice Donohue disagreed with the Majority's "sweeping invocation" of the Court's supervisory authority.
  • Justice David Wecht wrote a Concurring and Dissenting Opinion, agreeing that the Grand Jury Act applies to defense attorneys, but disagreeing that the form was overbroad.

Stay tuned as these important issues receive additional attention from the Court over the next few months.

Originally published in Harrisburg Patriot-News.

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