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August 20, 2015

What Is The Difference In Unsealing Grand Jury Minutes In State Court And Federal Court For Malicious Prosecution Actions

By Michael H. Joseph

New York civil rights lawyers who handle malicious prosecution cases know that if the client has been indicted in State Court, it is important to obtain the Grand Jury minutes.
While out of respect for comity, a Plaintiff should first make the application in State Court, a Federal Court is not bound by state law protecting the secrecy of grand jury proceedings and the Federal Court must make an independent determination of whether the grand jury transcripts should be released. Where a Plaintiff seeks disclosure of grand jury minutes in Federal Court, principles of federal law dictate the applicable privilege rules.

While the New York State Courts require a compelling interest to overcome the presumption of secrecy, to obtain unsealing of grand jury transcripts in Federal Court, the Plaintiff must show a particularized need for access to the grand jury transcripts. In determining whether to unseal State grand jury minutes, federal courts utilize the ‘particularized need’ requirement for the unsealing of federal grand jury minutes, which is based upon Rule 6 of the Federal Rules of Criminal Procedure.

In malicious prosecution cases, Plaintiffs have a particularized need for the grand jury minutes to rebut the presumption of probable cause established by the underlying indictment. In order to establish a claim for malicious prosecution, among other things, a plaintiff must show that there was no probable cause for the criminal proceeding. Jurisprudence recognizes that an indictment creates a presumption of probable cause. Accordingly, the Plaintiff bears the burden of rebutting the presumption by demonstrating that the indictment was procured by fraud, perjury, the suppression of evidence or other police conduct undertaken in bad faith. Where an indictment was the product of fraud, perjury, or the suppression of evidence, a Plaintiff rebuts any presumption of probable cause. Accordingly, as Plaintiff must establish that perjury or misconduct occurred in the grand jury, Plaintiff has a particularized need to access the testimony that was presented to the grand jury.

A particularizes showing must be made in support of the application, and general or speculative allegations are insufficient. This often placed the civil rights Plaintiff in the unfair position of having to prove what happened in a grand jury, in order to get the minutes and find out what happened in the grand jury. In malicious prosecution cases, the interests of justice may be thwarted by refusal to unseal grand jury minutes. Two interests of justice rationales are potentially relevant in § 1983 malicious prosecution cases, namely, the denial of compensation to victims of official misconduct and a weakening of society’s regulatory interest in deterring constitutional violations. But the Federal Courts have recognized that the need to avoid ‘possible injustice’ justifies the need to allow the Plaintiff access to the grand jury testimony to prosecute his malicious prosecution case. Courts have ordered the unsealing of the grand jury minutes where the Court found that they were indispensable to plaintiffs’ ability to rebut the presumption of probable cause that would otherwise attach to the Indictment in connection with plaintiffs’ false arrest and malicious prosecution claims. The Courts have found that if it were to refuse to unseal the grand jury minutes, it would create a hazard of possible injustice. Where the Plaintiff alleges that the detectives improperly influenced a witness to identify him and the Court found that these action may constitute fraud, perjury, the suppression of evidence or other police conduct undertaken in bad faith, thus, the Courts have found that the Plaintiff adduced and corroborated facts that strongly suggest misconduct at the grand jury sufficient to defeat the presumption of probable cause for purposes of his malicious prosecution claim. The Courts have reasoned that denying Plaintiff access to evidence critical to an evaluation of what happened at the grand jury, could doom his case and create a potential for injustice.

Even under New York State law, which applies a de facto higher burden, our Westchester civil rights lawyers have obtained grand jury minutes. While C.P.L. § 190.25 states that grand jury proceedings are secret, the secrecy of grand jury minutes is not absolute.An interested party may bring an ex parte application for disclosure of grand jury minutes. Grand jury minutes may be provided to a civil litigant where there is a compelling and particularized need for access.To the extent that any of the witnesses who testified were police personnel, it is highly unlikely that unsealing these grand jury transcripts will chill the testimony of police officers.

Further other Courts which have considered the matter have held that a civil litigant’s need for the Grand Jury transcripts to prosecute a malicious prosecution action qualifies as a compelling need. The grand jury minutes can only be used to advance a malicious prosecution claim under state law. Courts have an inherent power to unseal their records when justice demands it. The Courts have consistently allowed access to Grand Jury minutes of witnesses who testify in a subsequent civil trial. The Court has permitted civil litigants discovery of grand jury minutes to assist in preparing for a civil false arrest action.

 
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