For the Defense - Vol. 3, Issue 2 - 2018 - 7

allowed in the room while the client testifies, is
the power of the supervising grand jury judge
to impose a gag order not only on the witness
but also on that witness's lawyers. To our
knowledge,1 the "Entry of Appearance Form"
used in our hypothetical above has become
standard practice in investigations by the
Pennsylvania Attorney General's Office.
Such widespread gagging of attorneys impairs
the ability of lawyers representing clients in
grand jury proceedings to effectively represent
their clients, consistent with Sixth Amendment
constitutional requirements (in the event a target
client is charged) and to discharge their duties
ethically to both their clients and the tribunal
in accordance with the Pennsylvania Rules of
Professional Conduct.

"Gagging" under the Grand Jury
Statute, the Criminal Rules and in
Practice
The statute governing investigating grand
juries provides that a witness may not be
prohibited from disclosing testimony except for
cause shown in a hearing before a supervising
judge.2 The statutory language clearly frames
the gagging of a witness as an exception, not
the rule. Moreover, the exception requires
evidence establishing cause for the gag order to
be presented at a hearing related to a particular
witness's testimony.3 The statute does not
further describe the hearing procedure, does
not state whether the grand jury witness or her
counsel may be heard, nor does it describe what
constitutes "cause."
The Pennsylvania Rules of Criminal Procedure
do nothing to clarify the cause standard or
the procedure for establishing it. Rule 231(C)
provides that "[a]ll persons who are to be
present while the grand jury is in session shall be
identified in the record, shall be sworn to secrecy
as provided in these rules, and shall not disclose
any information pertaining to the grand jury
except as provided by law." The Comment to
paragraph (C) defines "information pertaining to
the grand jury" as "testimony" and specifically
refers to 42 Pa. C.S. § 4549.

Section 4549(c) is the most robust section
of the "Investigating Grand Jury Proceedings"
statute and includes four subsections. These
establish that grand jury witnesses may be
"assisted" by counsel in the grand jury and
outline what counsel may and may not do while
assisting a grand jury witness. For example,
counsel may be present in the grand jury
room and she may advise the witness, but she
may not object, make argument or otherwise
address the grand jury or the Commonwealth
attorney. Notably, the section of the statute
that specifically defines what counsel to a
grand jury witness may and may not do is silent
as to whether that counsel may disclose the
client's testimony or whether counsel must be
independently gagged.
Although section 4549(b), titled "Disclosure
of proceedings by participants other than
witnesses," references "attorney" as someone
who can disclose matters only when directed
by the court, it does not specifically reference
counsel to a witness as a person sworn to
secrecy. Under Pennsylvania's well-settled
rules of statutory construction, all sections of
a statute should be read "harmoniously," and
the General Assembly does not intend a result
that is "absurd."4 If the witness may discuss her
testimony, it does not make sense that her lawyer
cannot (provided the witness authorizes such
disclosure).
In practice, there exists vast confusion as to
whether counsel to a grand jury witness must be
independently gagged. Some grand jury judges
separately gag counsel in chambers and others
do not, while others mandate your silence with
the use of the Entry of Appearance Form. We
have been told by Commonwealth attorneys that
we are gagged - without explanation as to why
- when the grand jury judge did not separately
gag us. Because the fact that the cause hearing
(if it takes place) and resulting order is not
shared with a witness or counsel to the witness,
it is hard to say what the rules are and how they
apply. Witnesses and their attorneys should not
be required to guess.
How far can this go? Can a supervising grand
jury judge gag every member of a law firm,

Vol. 3, Issue 2

l

For The Defense

7



Table of Contents for the Digital Edition of For the Defense - Vol. 3, Issue 2 - 2018

Contents
For the Defense - Vol. 3, Issue 2 - 2018 - 1
For the Defense - Vol. 3, Issue 2 - 2018 - 2
For the Defense - Vol. 3, Issue 2 - 2018 - Contents
For the Defense - Vol. 3, Issue 2 - 2018 - 4
For the Defense - Vol. 3, Issue 2 - 2018 - 5
For the Defense - Vol. 3, Issue 2 - 2018 - 6
For the Defense - Vol. 3, Issue 2 - 2018 - 7
For the Defense - Vol. 3, Issue 2 - 2018 - 8
For the Defense - Vol. 3, Issue 2 - 2018 - 9
For the Defense - Vol. 3, Issue 2 - 2018 - 10
For the Defense - Vol. 3, Issue 2 - 2018 - 11
For the Defense - Vol. 3, Issue 2 - 2018 - 12
For the Defense - Vol. 3, Issue 2 - 2018 - 13
For the Defense - Vol. 3, Issue 2 - 2018 - 14
For the Defense - Vol. 3, Issue 2 - 2018 - 15
For the Defense - Vol. 3, Issue 2 - 2018 - 16
For the Defense - Vol. 3, Issue 2 - 2018 - 17
For the Defense - Vol. 3, Issue 2 - 2018 - 18
For the Defense - Vol. 3, Issue 2 - 2018 - 19
For the Defense - Vol. 3, Issue 2 - 2018 - 20
For the Defense - Vol. 3, Issue 2 - 2018 - 21
For the Defense - Vol. 3, Issue 2 - 2018 - 22
For the Defense - Vol. 3, Issue 2 - 2018 - 23
For the Defense - Vol. 3, Issue 2 - 2018 - 24
For the Defense - Vol. 3, Issue 2 - 2018 - 25
For the Defense - Vol. 3, Issue 2 - 2018 - 26
For the Defense - Vol. 3, Issue 2 - 2018 - 27
For the Defense - Vol. 3, Issue 2 - 2018 - 28
For the Defense - Vol. 3, Issue 2 - 2018 - 29
For the Defense - Vol. 3, Issue 2 - 2018 - 30
For the Defense - Vol. 3, Issue 2 - 2018 - 31
For the Defense - Vol. 3, Issue 2 - 2018 - 32
For the Defense - Vol. 3, Issue 2 - 2018 - 33
For the Defense - Vol. 3, Issue 2 - 2018 - 34
For the Defense - Vol. 3, Issue 2 - 2018 - 35
For the Defense - Vol. 3, Issue 2 - 2018 - 36
For the Defense - Vol. 3, Issue 2 - 2018 - 37
For the Defense - Vol. 3, Issue 2 - 2018 - 38
For the Defense - Vol. 3, Issue 2 - 2018 - 39
For the Defense - Vol. 3, Issue 2 - 2018 - 40
For the Defense - Vol. 3, Issue 2 - 2018 - 41
For the Defense - Vol. 3, Issue 2 - 2018 - 42
For the Defense - Vol. 3, Issue 2 - 2018 - 43
For the Defense - Vol. 3, Issue 2 - 2018 - 44
For the Defense - Vol. 3, Issue 2 - 2018 - 45
For the Defense - Vol. 3, Issue 2 - 2018 - 46
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