In re Grand Jury Subpoena, Judith Miller

United States Court of Appeals for the District of Columbia Circuit · 2005 · Evidence

Evidencegrand jury secrecyreporter's privilegerehearing en bancex parte reviewFederal Rule of Evidence 501First AmendmentBranzburg

Facts

Two reporters had been subpoenaed to testify before a grand jury and were ordered to comply. In seeking rehearing en banc, they challenged the panel's treatment of three issues: a claimed common law reporter's privilege under Federal Rule of Evidence 501, a claimed First Amendment privilege, and the district court's use of ex parte submissions in determining that any conceivable privilege was overcome. Their objection to ex parte review was tied to contempt findings entered after they refused to testify. The matter arose in the context of secret grand jury proceedings.

Issue

Whether the court should grant rehearing en banc to reconsider the reporters' claims of a common law privilege, First Amendment protection, and a due process right to review ex parte evidence used to determine that their testimony could be compelled before a grand jury.

Rule

Rehearing en banc is not favored and should be denied absent a question of exceptional importance warranting full-court reconsideration. In the grand jury context, where any reporter's privilege is at most qualified rather than absolute, ex parte or in camera review may be used to determine whether the government has made the showing necessary to overcome the asserted privilege without violating due process, given the indispensable secrecy of grand jury proceedings.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

A federal grand jury in Chicago is investigating the leak of classified procurement records. Reporter Nina Torres refuses to identify a confidential source and claims a qualified reporter's privilege; the government submits a sealed affidavit to the district judge explaining why the testimony is necessary, and Nina argues due process requires that she see the affidavit before the court rules.

How should the court most likely rule?

Explanation. In the grand jury context, the majority-approved reasoning allows ex parte or in camera review when the court is deciding whether any asserted reporter privilege, assumed at most to be qualified, has been overcome. Grand jury secrecy is treated as indispensable, and the use of secret submissions does not violate due process in this setting.