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156.

Information Security—Grand Jury Information—Guidelines for Handling Documents Obtained by the Grand Jury

See USAM 3-15.120.C

Consider Alternatives - Before issuing a grand jury subpoena, prosecutors should consider what evidence has already been collected through other means and whether a voluntary request, contractual obligation, inspector general subpoena, civil investigative demand or other compulsory process is available to obtain the information sought. Those methods may be just as effective as a grand jury subpoena in obtaining information but their use may avoid grand jury secrecy issues.

Identify a Custodian - As early as practicable, a prosecutor should determine who will have custody of original documents and real evidence, and where such documents and evidence will be maintained. If the case agent is to have custody, the grand jury should authorize him to maintain the evidence; but, unless required by local rule, the grand jury should not make him an "agent" of the grand jury. Prosecutors should not commingle original documents and real evidence obtained by grand jury subpoena with evidence obtained by other means.

Create an Identification System - Upon receipt, prosecutors should number, then copy, documents and real evidence however they are obtained. The originals should then be secured. If the volume of documents is great, prosecutors should consider microfilming them. Numbering and securing the originals in the order in which they are obtained will facilitate access to the evidence and make it easier for prosecutors to create a record of how and from whom the evidence was obtained.

Make the System Simple - The identification system should be simple but it should permit the prosecutor to determine the source of the evidence and how it was obtained. The identification system also should permit the prosecutor to determine what use the grand jury made of the evidence: what evidence generally was made available to the grand jury, what evidence was physically offered and made available to the grand jury, and what evidence was entered as an exhibit or otherwise formally presented to the grand jury .

At All Times, Maintain an Unmarked Set of Documents - Where appropriate, prosecutors should clearly mark the file cabinet, box or file in which subpoenaed evidence is maintained as containing grand jury subpoenaed records. But as the Department's Guide on Rule 6(e) advises, no grand jury marking or stamp should be affixed to the original documents themselves. If a document is to be marked as an exhibit and presented to the grand jury, prosecutors should use a copy of the original or, if for some reason the original of a document must be entered as an exhibit before the grand jury, prosecutors should endeavor to place the exhibit sticker on a folder or an envelope containing the document and not on the document itself. If a document is placed in an envelope, it should be adequately identified for the record.

The Security of Evidence Must Be Maintained - Prosecutors should take whatever precautions are necessary to protect grand jury materials, including, generally, keeping them in a locked file cabinet in a locked room. If information from the documents is entered into a computer, the prosecutor should make sure the data are secure or kept on a disc which can be secured.

Informing the Grand Jury of Available Evidence - The practice of bringing all subpoenaed documents before the grand jury varies among jurisdictions. Providing notice to the grand jury that the custodian or case agent has reviewed the documents may be legally sufficient, regardless of local custom. At a minimum, however, prosecutors should keep the grand jury apprised of the location and organization of the documents.

The foregoing procedures should help ensure documents obtained during an investigation are maintained in a system which allows easy access to original documents, clearly separates documents which were obtained by subpoena from those obtained by other means, and enables identification of evidence the grand jury actually considered.

U.S. Department of Justice. (1996).
Guidelines for Handling Documents Obtained by the Grand Jury.
Washington, DC: Criminal Division.

[updated March 1999] [cited in USAM 3-15.120]