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Judges Can Release Historical Secret Grand Jury Records

By George Khoury, Esq. on February 14, 2019 | Last updated on March 21, 2019

A recent ruling out of the Eleventh Circuit Court of Appeals confirms that judges can in fact order the release of secret grand jury proceedings for historians to study.

The case involved the "Moore's Ford Lynching" in 1946 which is believed to be the last mass lynching in the U.S. and a catalyst to the civil rights movement. Surprisingly (or perhaps not, given the attitudes of the times), despite hundreds of witnesses, no one was convicted of the murders, and there wasn't even a criminal case. A grand jury did convene, however, and one historian sought to break the secrecy of what went on behind the closed doors of that grand jury.

The High Bar of History

Normally, the exceptions that permit the disclosure of grand jury records and transcripts are extraordinarily limited. The reasons for the secrecy vary from not wanting the accused or other suspects to be tipped off, to ensuring that individuals participating in the process feel safer.

But, as historian Anthony Pitch argued, those concerns, particularly more than 70 years later, are moot. Despite these non-concerns, the court noted that an event would truly need to be historically significant, rather than just part of an individual's personal history, or niche study.

In this case, both the district and appellate courts agreed that the grand jury not returning an indictment was historically significant enough to pull back the curtain. The DOJ still has time to seek an en banc rehearing, or to petition SCOTUS, and has yet to comment.

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