In prosecuting a civil case seeking monetary compensation for police misconduct, it may be necessary to obtain a transcript of the grand jury testimony of the officer accused of misconduct; the testimony can be essential to proving the case and achieving compensation for the client.

For example, our firm represented a client who spent months in jail only to have the charges dismissed for insufficient evidence.  A preliminary investigation by our firm revealed that the officer had likely falsified records including affidavits in support of search warrants, arrest reports, and a criminal complaint; in addition to having falsely testified before the grand jury.

The steep hill to climb in order to obtain disclosure of the grand jury minutes is detailed below:

Determination of the question whether disclosure should be permitted is addressed to, and rests in, the judge’s discretion.  While there is a strong presumption of secrecy in grand jury proceedings, this secrecy is not absolute.  People v. Di Napoli, 27 N.Y.2d 229, 234 (1970).

In order to be entitled to disclosure, the petitioner first must show a compelling and particularized need for access to them.  Aiani v. Donovan, 98 A.D.3d 972, 973 (2d Dep’t 2012) (granting release pursuant to CPL §190.25(4)).  A particularized need can be demonstrated by showing that the material sought is needed to avoid a possible injustice in another judicial proceeding, that the need for disclosure is greater than the need for continued secrecy, and that the request is structured to cover only material so needed.  Douglas Oil Co. v. Petrol Stops Northwest, 411 US 211, 222 (1979).

Once the threshold showing of a compelling and particularized need has been made, the court will then determine whether the public interest in secrecy of the grand jury is outweighed by the public interest in disclosure.  Absent a showing that sources other than the grand jury minutes are inadequate to provide the information sought, grand jury secrecy is held paramount.  In the Matter of District Attorney of Suffolk County, 58 N.Y.2d 436, 444 (1983).

he big problem in obtaining grand jury testimony is a United States Supreme Court case, Rehberg v. Paulk, 132 S. Ct. 1797 (2012), which held that a grand jury witness, including police officers, has absolute immunity with respect to any alleged perjury in the grand jury and such evidence cannot be used to support any § 1983 claim based on the witness’ testimony.  Since such evidence cannot be used to support a claim, oftentimes disclosure will be denied.  However, this very police officer friendly Supreme Court case is not meant to be an absolute immunity cloak that, once a police officer testifies in the grand jury, it suddenly shields him or her from all allegedly unconstitutional acts even if they are outside the scope of the grand jury appearance.  Coggins v. County of Nassau, 2013 U.S. Dist. Lexis 169792.  Rehberg does not justify absolute immunity where liability is based not on the witness testimony, but on other conduct laying the groundwork for an indictment – where perjury was but one additional step taken to push the case forward.  That is the key, to show other conduct laying the ground work and that the grand jury perjury was but one additional step, rather than the only step.

Lastly, disclosure of grand jury minutes has been permitted in civil cases in which there is a public interest in such disclosure.  Albert v. Zahner’s Sales Company, 51 A.D.2d 541 (2d Dep’t 1976).  A compelling public interest exists in assisting those who have been defrauded, and in deterring others who might engage in fraudulent conduct in the future.  Aiani v. Donovan, 98 A.D.3d 972, 974 (2d Dep’t 2012).

In sum, while obtaining disclosure of grand jury testimony is a step hill to climb, it’s not impossible.