Recording the Proceedings

Recording the Proceedings

The last section ended with a jury room emptied at the moment of the vote, and the court reporter was among those who left. That exit follows from Rule 6(e)(1), which requires that, except while the grand jury is deliberating or voting, all proceedings be recorded by a court reporter or by a suitable recording device.¹ Either method satisfies the rule, so stenographic notes and an audio recording serve equally well. What the rule fixes is a line between two stages. Everything that happens while the grand jury is in session goes on the record, and the jurors' private discussion and their vote do not. Rule 6(e) is itself headed "Recording and Disclosing the Proceedings," which places the recording duty and the secrecy rules of the next section in one system.²

The two halves of that line have different reasons behind them. The duty to record the session exists because grand jury proceedings are secret, which leaves the accused with no one in the room and no other way to learn what was said. A record of the testimony lets a court later decide whether a challenge to the proceedings has merit. In Bank of Nova Scotia v. United States the defendant alleged that the prosecutor had presented more than one witness at a time and had tried to influence an expert, and the Court held that relief depends on showing that the violation substantially influenced the decision to indict.³ A defendant who must connect a violation to the decision to indict cannot do so without access to what was said, and the recording is what makes that access possible at all. The carve-out for deliberating and voting rests on candor. A juror who knows that every remark is preserved may hesitate to voice a doubt or change a view, and leaving the discussion and the vote unrecorded protects the freedom to do both.

The record also matters after indictment, for a reason that has nothing to do with challenges to the grand jury. Grand jury witnesses testify under oath and face perjury liability for lying, so a witness whose trial testimony departs from the grand jury account can be confronted with the earlier statement. Rule 801(d)(1)(A) goes further and lets a prior inconsistent statement made under penalty of perjury at a proceeding, a grand jury proceeding included, be used to prove the fact asserted, not merely to attack the witness's credibility.⁴ A recording or transcript is the reliable way to prove that the witness made the statement and exactly what it said, which spares the trial a dispute over whether the earlier words were ever spoken.⁵

The second sentence of Rule 6(e)(1) limits what a recording failure can cost the government: the validity of a prosecution is not affected by the unintentional failure to make a recording.⁶ The reasoning follows from what the recording is. It documents, after the fact, what the grand jury heard, and the finding of probable cause exists whether or not a device was running when the witness spoke. Voiding an indictment because of a dead battery would make the government repeat a valid step and would hand the accused a windfall that has no connection to the fairness of the charge. Students lose points here by treating a missing recording as automatically fatal, when an unintentional failure to record leaves the prosecution valid.⁷

The word "unintentional" does the limiting work in that pair. The deliberate-omission result is an inference from the wording of the clause and not a stated holding: the text withholds its protection from a failure that is intentional, but it does not say what consequence follows. The remedy question belongs to the later treatment of irregularities. A third situation needs to be kept apart from both. A missing record of the deliberations or the vote is no failure at all, because the rule imposes no duty to record at that stage, and so the saving clause never comes into play.

The last sentence of Rule 6(e)(1) settles who holds the record. Unless the court orders otherwise, an attorney for the government retains control of the recording, the reporter's notes, and any transcript prepared from them.⁸ Government custody keeps the record inside the secrecy system, since a transcript of what witnesses said is exactly the material that secrecy exists to protect. The practical result for the defense is a narrow path. A transcript can be obtained only with the district court's permission after the defendant makes a preliminary showing that the claim has merit.⁹ The clause "unless the court orders otherwise" matters for that reason: the prosecution holds the record that a challenge would examine, so a court's power to direct otherwise is the check that keeps the defense from depending on the government's goodwill.