State v. Ponzo ( 2023 )

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE, :
:
: ID Nos. 2303005845
: 2302015372
v. :
:
:
THOMAS PONZO, :
:
:
Defendant. :
Submitted: July 21, 2023
Decided: September 5, 2023
OPINION
Kevin B. Smith, Deputy Attorney General, and Georgia C. Pham, Deputy Attorney
General, DEPARTMENT OF JUSTICE, Dover, Delaware, Attorneys for the State
of Delaware.
Tasha M. Stevens-Gueh, Esquire, ANDREW & STEVENS-GUEH, LLC.,
Georgetown, Delaware, Attorney for the Defendant.
Clark, R.J.
Defendant Thomas Ponzo seeks Court approval to record grand jury witness
testimony. In support, he cites two Delaware rules of criminal procedure that
conflict. One rule permits the recording of grand jury proceedings only by court
order. The other rule, which is Delaware’s version of the Jencks Rule, requires the
State to produce any recorded grand jury witness testimony if the same witness later
testifies at trial or in an evidentiary hearing. The conflict between the two arises
because the Superior Court does not permit such recording. In fact, the Court has
not exercised its discretion to approve a request to record grand jury proceedings
since it adopted both rules in their current form in 1992. As a result, one rule
recognizes a defendant’s right to certain materials while the other leaves no practical
remedy because the material never comes into existence.
Nevertheless, despite this unfairness, for the reasons discussed below, (1)
Delaware’s requirement for court approval to record grand jury proceedings, and (2)
the Superior Court’s longstanding practice of denying such requests are
constitutional and otherwise lawful. Mr. Ponzo’s contention that the Court has no
option other than to grant his request as a matter of course contradicts the structure
of the controlling rule which requires court approval. That requirement for court
approval, in turn, requires a court to exercise discretion based upon a movant’s
showing of good cause. Because Mr. Ponzo identifies no specific facts to
differentiate his case from any other case presented to a Delaware grand jury, the
Court must deny his motion.
Despite the lawfulness of the current scheme, Mr. Ponzo’s motion highlights
a marked unfairness for criminal defendants. Delaware’s practice of not recording
grand jury testimony deviates from the federal system and a significant majority of
state systems. Many of those jurisdictions, including the federal courts, opted to
change their rules after grappling with the same or similar issues. A change to
Superior Court Criminal Rule 6(e)(1) would be necessary, as well as advisable, to
2
provide procedural fairness for criminal defendants like Mr. Ponzo. Systemically,
such a rule change would also provide better insulation against some of the
procedural irregularities in Delaware’s grand jury system discussed below.
I. BACKGROUND
As summarized above, this motion turns on the partial conflict between two
Court rules. As background, the Court will first discuss the two rules. It will then
highlight relevant aspects of Delaware’s grand jury system, including its long-
entrenched practice of not recording grand jury proceedings, before discussing the
case’s relevant factual and procedural background.
A. Applicable Court Rules
This case turns primarily on the interpretation and application of Superior
Court Criminal Rule 6(e)(1) (hereinafter “Rule 6(e)(1)”), adopted in 1992. That
Rule provides that grand jury proceedings, except for deliberations and voting, “may
be recorded . . . only with the approval of the court.”1 The language in this Delaware
provision is unique among state and federal jurisdictions.
As an important comparison, Federal Rule of Criminal Procedure (“FRCrP”)
6(e)(1) has required the recording of grand jury proceedings since 1979. Before
1979, the federal system provided for discretionary recording of grand jury
proceedings as does Delaware’s current rule. Because of the similarities between
the past federal practice and the current Delaware practice, federal case law that
examined the federal practice prior to 1979 is instructive when considering Mr.
Ponzo’s challenge.
1
Super. Ct. Crim. R. 6(e)(1).
3
The other relevant rule, Superior Court Criminal Rule 26.2 (hereinafter “Rule
26.2”), provides certain procedural rights to a defendant. Specifically, it requires
the State to disclose prior statements of witnesses immediately after the State calls
those witnesses to testify at trial or at an evidentiary hearing. Rule 26.2(f)(3)
includes the following within its definition of a statement subject to production: “[a]
statement, however taken or recorded, or a transcription thereof, made by the witness
to a grand jury.”2 Notably, Delaware first adopted Rule 26.2 in 1992 at the same
time it added paragraph (e)(1) to Rule 6.3 Unlike Delaware’s Rule 6(e)(1), however,
Delaware’s Rule 26.2(f)(3) mirrors its 1979-adopted federal counterpart.
Both Delaware’s and the federal version of Rule 26.2(f)(3) are based on the
provisions of a federal statute, 18 U.S.C. § 3500. This statute, also known as the
Jencks Act, codifies a modified version of the rule first announced by the United
States Supreme Court in Jencks v. United States (the “Jencks Rule”). Delaware’s
Rule 26.2(f)(3) implies that there should be recordings of grand jury witness
testimony available for disclosure in some cases. Notwithstanding that implication,
neither the parties nor the Court could identify a single recording of a grand jury
proceeding in Delaware since the Court adopted the current rule in 1992.
B. Delaware’s Grand Jury Process
On the one hand, Delaware’s grand jury system provides important procedural
protections for criminal defendants. On the other, it serves as a necessary tool to
permit the prosecution of criminal conduct. In Delaware, the grand jury serves as
an appendage of the Superior Court and any records of its proceedings remain within
2
Super. Ct. Crim. R. 26.2(f)(3).
3
By order dated October 3, 1991, the prior Superior Court Rules of Criminal Procedure were
superseded in their entirety effective January 1, 1992. The revised rules were predominantly
patterned upon the Federal Rules of Criminal Procedure.
4
the Court’s control.4 As the Delaware Supreme Court has recognized, “[f]or more
than two hundred years, Delaware’s Constitutions have afforded its citizens the right
of being proceeded against in a felony criminal prosecution only upon an indictment
by the grand jury.”5 These provisions “establish the grand jury as a constitutional
body” and “preserve the historical and highly prized safeguard of [g]rand [j]ury
action . . . .”6 In that way, the review serves “as a vital check against the wrongful
exercise of power by the State and its prosecutors.”7 By longstanding tradition, “[i]n
federal and state jurisdictions the grand jury serves as a shield against official
tyranny, malicious prosecution, and ill-advised, expensive trials.”8
According to one treatise on criminal procedure, Delaware is one of 18 states
that, in addition to the District of Columbia and the federal system, guarantee the
accused a right to indictment by a grand jury on felony charges.9 In Delaware, grand
jury proceedings supersede preliminary hearing proceedings. An indictment, issued
by a grand jury, establishes probable cause for felony charges with finality in the
Superior Court and serves as the basis for jurisdiction in the Superior Court absent a
waiver of indictment by a defendant.10
4
In re Jessup, 136 A.2d 207, 212–13 (Del. Super. 1957).
5
Johnson v. State, 711 A.2d 18, 26 (Del. 1998); see also Del. Const. art. I, § 8 (“No person shall
for any indictable offense be proceeded against criminally by information, except in cases arising
in the land or naval forces, or in the militia when in actual service in time of war or public danger
. . . .”).
6
Johnson, 711 A.2d at 25 (quoting In re Opinions of the Justices, 88 A.2d 128, 131 (Del. 1952)).
7
Id. (quoting Campbell v. Louisiana, 523 U.S. 392, 399 (1998)).
8
State v. Grewell, 543 N.E.2d 93, 96 (Ohio 1989) (internal footnote omitted); see also In re 38
Studios Grand Jury, 225 A.3d 224, 230–31 (R.I. 2020) (describing the early colonial and American
tradition of the grand jury as a means of protecting suspects against malicious or unfounded
charges).
9
Wayne R. LaFave et al., Indictment Jurisdictions, 4 Crim. Proc. § 15.1(d) (4th ed. 2022).
10
Joy v. Superior Ct., 298 A.2d 315, 316 (Del. 1972).
5
Historically, the grand jury had an investigatory role in addition to an
accusatory function.11 Many jurisdictions, including the federal system, use their
grand juries for investigative purposes. As the State acknowledged at oral argument,
however, Delaware grand juries are virtually never investigative.12 They are not
used in that manner, no doubt, because Delaware’s Attorney General has statutory
subpoena power available to support criminal investigations.13 Most other
jurisdictions, by contrast, do not provide their chief prosecutors with such power.14
In fact, the Delaware Attorney General’s compulsory investigative power is so great
that it both predates and postdates an indictment by continuing from the outset of the
case until the end of the prosecution.15 Given such broad subpoena power,
Delaware’s Attorney General has little tactical incentive to ask for Court approval
to record grand jury proceedings.
11
See In re Hawkins, 123 A.2d 113, 115 (Del. 1956) (“It is . . . clear that the grand jury may
institute an investigation of suspected violations of law, and in pursuing the investigation may
compel the appearance of witnesses and the production of documents.”); see also, e.g., Jessup, 136
A.2d at 209 (“The Grand Jury in this County during the year 1956, at the instance and request of
the Attorney General, conducted a most thorough investigation relating to the subject of gambling
in and about the City of Wilmington.”).
12
Tr. of Oral Arg. at 28:8–22.
13
See Hawkins, 123 A.2d at 115 (“[T]he general investigatory powers of the grand jury are now
shared, at least to a substantial extent, by the Attorney General.”); see also 29 Del. C. § 2504(4)
(conferring to the Department of Justice the power to “investigate matters involving the public
peace, safety and justice and to subpoena witnesses and evidence in connection therewith”); 29
Del. C. § 2508(a) (providing that the Attorney General “may issue process to compel the
attendance of persons, witnesses and evidence at the office of the Attorney General or at such other
place as designated”).
14
Delaware appears to be one of only twelve states that authorizes prosecutors to issue pre-charge
investigative subpoenas without an intended grand jury purpose. See Oman v. State, 737 N.E.2d
1131, 1135 n.4 (Ind. 2000) (collecting state statutes); see also H. Morley Swingle, Criminal
Investigative Subpoenas: How to Get Them, How to Fight Them, 54 J. Mo. B. 15, 16 (1998) (stating
that twelve states have laws conferring investigative subpoena powers to prosecutors).
15
See Johnson v. State, 983 A.2d 904, 920 (Del. 2009) (“Importantly, however, although this
subpoena power is similar to that of a grand jury, the Attorney General’s power to investigate is
not terminated by arrest or indictment, and continues throughout the prosecution of an alleged
crime.”).
6
Delaware Superior Court Rule 6(d), as its federal counterpart, specifies who
may be present during the proceedings. It limits attendance to the grand jurors, the
attorney general, the witness under examination, interpreters (if needed), and a
stenographer or operator of a recording device.16 Proceedings “may be recorded
stenographically or by an electronic recording device only with the approval of the
court.”17 No one but the grand jurors themselves may be present during their
deliberation or voting, and the deliberation and votes can never be recorded.18
Furthermore, counsel for Mr. Ponzo contended at oral argument that prosecutors
rarely attend grand jury proceedings in Delaware,19 and the State did not contest his
assertion.
The common law shields the substance of grand jury proceedings from
disclosure with a “veil of secrecy.”20 Superior Court Criminal Rule 6(e)(2) reflects
that general rule of secrecy by providing that no one who attends the proceedings,
including a stenographer or operator of a recording device, “shall . . . disclose matters
occurring before the grand jury except as otherwise provided for in these rules.”21
This veil of secrecy has two exceptions relevant to Mr. Ponzo’s motion. First,
and central to Mr. Ponzo’s case, is Rule 26.2(f)(3) that provides that the State must
provide recorded or transcribed grand jury witness testimony to a defendant if that
witness later testifies at an evidentiary hearing or trial.22 Once again, the definition
of a statement subject to this requirement is limited to a “statement, however taken
or recorded, or a transcription thereof, made by the witness to a grand jury.”23
16
Super. Ct. Crim. R. 6(d).
17
Super. Ct. Crim. R. 6(e)(1) (emphasis added).
18
Super. Ct. Crim. R. 6(d) and (e)(1).
19
Tr. of Oral Arg. at 21:14–22:2.
20
Jessup, 136 A.2d at 213–14.
21
Super. Ct. Crim. R. 6(e)(2).
22
Super. Ct. Crim. R. 26.2(a), (f)(3), and (g).
23
Super. Ct. Crim. R. 26.2(f)(3).
7
Disclosure is automatic upon defense request under this rule after the witness
testifies on direct examination.
The second relevant exception, found in Rule 6(e)(3), provides for limited
disclosure “preliminary to or in connection with a judicial proceeding” or upon a
showing by a defendant “that grounds may exist for a motion to dismiss the
indictment because of matters occurring before the grand jury.”24 That paragraph
in Rule 6 recognizes that there can be, in at least some remote circumstance, the need
for the Court to dismiss an indictment because of grand jury procedural irregularity.
With no transcript available Delaware courts have construed that language
consistently with the common law authority of the Court to order disclosure when
the interests of justice require it.25 As with the empty right to Jencks material,
however, with virtually no record of a proceeding, a right to challenge a particular
proceeding based on an irregularity is merely notional.
In summary, despite references in court rules to recordings, transcripts, and
the presence of stenographers at a grand jury meeting, grand jury proceedings have
not been recorded in Delaware in living memory.26 As a result, there is never a
witness statement available for production pursuant to Rule 26.2(f)(3), nor can there
24
Super. Ct. Crim. R. 6(e)(3)(C).
25
Jessup, 136 A.2d at 217; see also In re Steigler, 250 A.2d 379, 382 (Del. 1969) (explaining that
“in circumstances where the interests of justice require it, disclosure of proceedings before the
Grand Jury may be ordered by the Superior Court”).
26
See State v. Webster, 2015 WL 13697701, at *6 (Del. Super. Nov. 20, 2015) (recognizing that
under “current practice” grand jury proceedings are not transcribed); State v. Melendez, 2003 WL
23095688, at *1 (Del. Super. Dec. 19, 2003) (“As the State correctly notes, grand jury proceedings
are not recorded and therefore it is not possible to produce a transcript of the grand jury
proceedings which resulted in the indictment.”); State v. Marks, 2002 WL 841057, at *3 (Del.
Super. Apr. 26, 2002) (“Grand jury proceedings may only be disclosed when the interests of justice
require it, and are rarely ever recorded”); State v. Wescott, No. 2011008215, at 14:22–15:1 (Del.
Super. Apr. 9, 2021) (TRANSCRIPT) (“The practice in Superior Court for many, many years has
been to not record the grand jury testimony.”).
8
ever be a recording made available to support a defendant’s motion to dismiss based
upon an alleged irregularity in a grand jury’s proceeding.
C. Procedural and Factual Background
Two separate defendants filed simultaneous motions seeking Court approval
to record grand jury witness testimony. After the Court of Common Pleas
transferred their cases to the Superior Court, both defendants filed their motions in
May 2023, citing Rule 6(e)(1).27 One defendant, Mr. Ponzo, moved for approval to
record testimony in two cases involving alleged drug offenses. Separately, the other
defendant, Nathaniel Cooper, moved for approval to record testimony for a case
involving alleged firearm offenses.
After receiving the original motions and the State’s response, the Court
requested supplemental argument from the parties by letter order.28 It requested
that they identify any persuasive authority where a court in another jurisdiction
found discretionary recording to be unlawful.29 It also directed the parties’ attention
to the structure of the Federal Rules of Criminal Procedure between 1970 and 1979
(hereinafter the “1970-79 federal discretionary recording period”). As explained
later in this opinion, a 1970 amendment to the Jencks Act created a partial conflict
between that statute and FRCrP 6(d), similar to the tension between Delaware’s Rule
26.2(f)(3) and Rule 6(e)(1) today.30 Then, in 1979, a federal rule change imposed
mandatory recording because of widespread recognition that discretionary recording
27
Mr. Ponzo and Mr. Cooper are represented by the same attorney, who has written on this issue,
see Tasha Stevens, Esq., The Case for Recording the Grand Jury Process, 39 Del. Law. 26 (2021),
and who has filed similar motions in at least two prior cases.
28
State v. Ponzo, Id. No. 2302015372, D.I. 7 (June 1, 2023) (hereinafter “Letter and Provisional
Order”). To avoid confusion, the Court will refer only to docket entries from Case Id. No.
2302015372 unless otherwise noted.
29
Id. at 1.
30
Id.; see also infra notes 74–77 and accompanying text.
9
was poor practice.31 Accordingly, federal decisions examining the issue during that
nine-year period provide helpful persuasive authority when examining Delaware’s
Rule 6(e)(1). Finally, the Court asked the parties to identify authority addressing
who should bear the burden of proof to compel recording in a discretionary
jurisdiction, and what standard should apply to the Court’s decision.32
In Kent County, the grand jury typically meets on the first Monday of each
month.33 After receiving the defendants’ motions at the end of May, the Court
attempted to schedule a prompt oral argument. Due to party scheduling difficulties,
the argument could not be held before the grand jury next convened in June. To
preserve the status quo, the Court entered a provisional order on June 1, 2023.34 It
required the Department of Justice to arrange to record witness testimony before the
grand jury if it sought to indict either Mr. Ponzo or Mr. Cooper at the June 2023
grand jury session. The provisional order provided, in part, the following:
if DOJ intends to indict these two defendants during the next grand jury
session, it must arrange, no later than 2:00 PM the business day before
the Grand Jury meets, for the Court to have a reporter available to
record witness testimony only. To preserve grand jury secrecy, the
responsible deputy . . . must coordinate with Kent County’s
Prothonotary . . . only, so she can arrange to have a reporter available
at a time designated by the deputy. Neither the witnesses whose
testimony will be presented, nor the defendant who is subject to
indictment, may be identified to the Prothonotary or to any other
individual. The assigned deputy for the matter, or another attorney
designee, shall also be present at the time of that testimony so he or she
can coordinate the timing of the reporter’s entrance to the courtroom to
ensure that no other portion of the proceedings are recorded other than
the applicable witness(es)’ testimony. This provisional order will have
no future binding effect other than for June’s grand jury meeting and
31
See infra notes 79–91 and accompanying text.
32
Letter and Provisional Order at 2.
33
Of note, the grand jury typically meets once per month in Kent County which differs from New
Castle and Sussex Counties.
34
Id. at 2–3.
10
these two defendants’ cases. A final order that will either grant or deny
the defendants’ requests will follow after the Court fully considers the
parties’ positions.35
Accordingly, this provisional order had no binding effect beyond the June
2023 grand jury meeting and Mr. Cooper’s and Mr. Ponzo’s cases. Thereafter, the
State requested a continuance of the oral argument into July, and the parties
stipulated to extending the provisional order until after the grand jury was scheduled
to meet in August. The grand jury then indicted Mr. Cooper at its July meeting.36
As the provisional order required, the State arranged to record witness testimony
presented in support of his indictment.37
The Court then heard oral argument on Mr. Ponzo’s and Mr. Cooper’s motions
on July 21, 2023. Shortly thereafter, the Court issued an oral decision denying Mr.
Cooper’s motion as moot because a reporter had recorded the witness testimony in
his grand jury proceeding.38 Mr. Ponzo, however, still awaited indictment. The
Court separately denied his motion on the merits by minute order and outlined its
reasoning on the record.39 The Court also vacated the provisional order and
explained that a written opinion would follow.40 The State has since indicted Mr.
Ponzo on two counts of possession with intent to deliver a controlled substance, two
counts of possession of a controlled substance, possession of drug paraphernalia,
tampering with physical evidence, and conspiracy in the second degree.41 Since Mr.
Cooper’s motion is moot, this written decision addresses only the merits of Mr.
Ponzo’s motion.
35
Id.36
State v. Cooper, Id. No. 2303013972, D.I. 13.
37
Tr. of Oral Arg. at 59:10–16.
38
Tr. of Oral Decision (July 25, 2023) at 10:9–13.
39
Id. at 10:14–16.
40
Id. at 10:17–23.
41
State v. Ponzo, Id. No. 2302015372, D.I. 18; State v. Ponzo, Id. No. 2303005845, D.I. 18.
11
II. THE PARTIES’ CONTENTIONS
Mr. Ponzo contends that witness testimony before the grand jury must be
recorded, upon request, so that the State can honor its obligation to produce those
statements pursuant to the Jencks Rule and Superior Court Criminal Rule 26.2. He
acknowledges that a witness’s grand jury testimony does not become a “statement”
until it has been recorded or transcribed. Nevertheless, he contends that the
Delaware Supreme Court’s decision in Lolly v. State42 imposes a general duty on the
State to preserve evidence that is material to guilt or innocence, and that such
evidence may be presented to the grand jury, and must therefore be preserved.43 Mr.
Ponzo also relies upon Valentin v. State44 for the propositions that the State must
inform itself of discoverable evidence and that an overly technical reading of the
State’s Jencks obligations would violate the spirit and purpose of the discovery
rules.45 In that vein, Mr. Ponzo contends that the State must take the affirmative
action necessary to generate Jencks material by preserving grand jury witness
testimony.46
In support of his motion, Mr. Ponzo identifies no salient facts to distinguish
his case from any other case that awaits indictment. Rather, he argues that, in the
absence of an explicit standard in the text of Rule 6(e)(1), court approval to record
grand jury proceedings should be treated as a gate-keeping function, i.e., as a
formality to be granted as a matter of course upon request.47 At oral argument,
however, counsel for Mr. Ponzo conceded that if the Court construes Rule 6(e)(1) to
42
611 A.2d 956 (Del. 1992).
43
Mot. for Court Approval of Recording of Grand Jury Testimony ¶ 8.
44
74 A.3d 645 (Del. 2013).
45
See id. at 650–51 (explaining that applying a technical approach to discovery requests is contrary
to the purpose of modern discovery and the spirit of the Superior Court Criminal Rules).
46
See Tr. of Oral Arg. at 11:8–11 (“And in that same spirit, that’s where Valentine strikes me in
this situation. Jencks says you have a duty to produce this. The only way you could produce it is
by recording it.”).
47
Id. at 8:20–9:10, 16:3–13.
12
require an exercise of discretion – rather than granting recording as a matter of
course – then the Court would have to find the discretionary element of Rule 6(e)(1)
unlawful in order to grant Mr. Ponzo’s motion.48
The State counters that the text of Rule 6(e)(1) implies that recording cannot
be ordered as a matter of course. Furthermore, the State emphasizes that Rule
26.2(f)(3), by its plain terms, does not require recording. Rather, it requires
production only if a stenographer or electronic reporter recorded the testimony.
Stated differently, the State emphasizes that the rules, when read together or
separately, do not require the recordation of grand jury witness testimony.
Based on the Superior Court’s decision in State v. Grossberg, the State further
contends that Rule 6(e)(1) requires a defendant to demonstrate “extraordinary
circumstances” to obtain court approval to record any portion of a grand jury
proceeding.49 This high standard, the State maintains, is appropriate as an aspect of
grand jury secrecy. In other words, the State contends that the same standard that
applies to the production of grand jury records should be applied to Court approval
to merely record the proceedings.
The State also contends that the Lolly and Deberry v. State50 decisions impose
no obligation on it to create evidence by recording testimony. Furthermore, the
State contends that the Valentin decision places no obligation on it to manufacture
evidence that does not otherwise exist. The State also stresses that Rule 6(e)(1)’s
requirement for a court order to record the proceedings leaves the State no control
over the decision. That, according to the State, makes it inappropriate to place the
48
See id. at 18:16–20 (“And if we didn’t look at it as a gatekeeping function for approval, but
looked at it as some type of discretion has to be exercised [sic], then I would agree that that
requirement of approval by Superior Court would have to be deemed unlawful.”).
49
See State v. Grossberg, 1996 WL 769342, at *1 (Del. Super. Dec. 6, 1996) (“Defendants have
failed to demonstrate any extraordinary circumstance inherent in these cases for the recording of
the grand jury proceeding, and therefore, this request is . . . denied.”).
50
457 A.2d 744 (Del. 1983).
13
burden on the State to preserve the testimony as contemplated in Lolly, Deberry, and
Valentin.
Finally, at oral argument, the State presented an additional argument in
response to Mr. Ponzo’s allegation that non-recording deprives him, and those like
him, of Jencks material. According to the State, as a matter of practice in Kent and
New Castle Counties, grand jury presentations are made almost exclusively by one
or two officers without regard to whether those officers have any connection to the
criminal investigation.51 The State stresses that a police agency representative
typically appears at the sessions and presents information gleaned from the agency’s
“collective knowledge and the information that’s been relayed to them.”52 In other
words, indictments in such cases are secured on the basis of hearsay alone. The State
argues that, given this practice, grand jury witnesses often have no personal
knowledge about a case. This means that they will rarely testify at a subsequent
hearing or trial.53 Thus, the State contends that the failure to record grand jury
witness testimony is frequently harmless when evaluated in light of the Jencks Rule
and Rule 26.2(f)(3).
III. ANALYSIS
This motion turns largely on whether the partial inconsistency between Rule
26.2(f)(3) and Rule 6(e)(1) renders Rule 6(e)(1) unlawful. As explained below, it
does not. Federal courts and other states have consistently found discretionary
recording to be lawful. Although many of the jurisdictions that have grappled with
the issues raised by Mr. Ponzo’s motion have changed their rules to require
recording, none have first found discretionary recording unlawful.
51
Tr. of Oral Arg at 30:15–20.
52
Id. at 31:9–13.
53
Id. at 30:21–31:4; 49:10–11.
14
After recognizing Rule 6(e)(1)’s validity, the inquiry turns to (1) who holds
the burden of persuasion to convince the Court to approve recording and (2) what
standard the Court should apply when considering a motion to record grand jury
proceedings. As discussed below, the only prior Delaware decision to examine the
issue inappropriately conflated grand jury secrecy with the mere recording of
proceedings. The standard to approve the latter should not be as stringent as the one
applied when evaluating when to order the production of grand jury materials. Good
cause is the appropriate standard, but even when applying that lesser standard, Mr.
Ponzo has identified no facts to support his motion for Court approval.
A. There is no constitutional or other legal requirement that mandates
the recording of grand jury testimony.
Mr. Ponzo contends that Superior Court Criminal Rule 26.2, and the Jencks
Rule that it reflects, entitle him to a recording of grand jury testimony automatically
upon request. He argues that, only in that way, can the State honor its subsequent
disclosure obligations for impeachment purposes. While his fairness-based
argument is well-grounded, (1) the evolution of the Jencks Rule’s application to
grand jury testimony in every jurisdiction that has examined the issue, and (2) the
history of Delaware’s criminal rules demonstrates Delaware’s current practice to be
lawful.
In Jencks v. United States, decided in 1957, the United States Supreme Court
held that the federal government must “produce, for the accused’s inspection and for
admission in evidence, relevant statements or reports in its possession of government
witnesses touching the subject matter of their testimony at the trial.”54 In other
words, after a witness for the government testifies at trial, the government must
produce any of that witness’s related prior statements in its possession upon request
54
Jencks v. United States, 353 U.S. 657, 672 (1957).
15
by the defense. There, the Supreme Court emphasized the importance of prior
witness statements when impeaching that witness’s trial testimony.55 It explained
that justice requires affording the defense an opportunity to review prior statements
to determine if those statements discredit the government’s witnesses.56 In
articulating the rule, the Jencks Court rejected the need for an accused to first
demonstrate a conflict between the prior statement and the testimony.57 There can
be no chance for the defense to demonstrate a conflict or even recognize one without
first reviewing the prior statement.58
Were the Jencks Rule to be a constitutional one, the result in this case would
be different. It has no constitutional basis, however. Rather, the Supreme Court
adopted it in the exercise of its supervisory power over the federal courts.59
Congress later codified the Rule (though slightly modifying it) in the Jencks Act, 18
U.S.C. § 3500, which now controls the federal analysis.60 Subsection (b) of the
Jencks Act provides that:
55
See id. at 667 (“Every experienced trial judge and trial lawyer knows the value for impeaching
purposes of statements of the witness recording the events before time dulls treacherous
memory.”).
56
See id. at 668–69 (“Because only the defense is adequately equipped to determine the effective
use for purpose of discrediting the Government’s witness and thereby furthering the accused’s
defense, the defense must initially be entitled to see them to determine what use may be made of
them. Justice requires no less.”).
57
Id. at 668.
58
See id. at 667–68 (“The occasion for determining a conflict cannot arise until after the witness
has testified, and unless he admits conflict . . . the accused is helpless to know or discover conflict
without inspecting the reports.”).
59
See Palermo v. United States, 360 U.S. 343, 345 (1959) (explaining that the Supreme Court in
Jencks had exercised its “power, in the absence of statutory provision, to prescribe procedures for
the administration of justice in the federal courts”); United States v. Augenblick, 393 U.S. 348, 356
(1969) (“Indeed our Jencks decision and the Jencks Act were not cast in constitutional terms. They
state rules of evidence governing trials before federal tribunals; and we have never extended their
principles to state criminal trials.” (internal citation omitted)).
60
See Hooks v. State, 416 A.2d 189, 200 (Del. 1980) (explaining that in the federal system “the
rule is now controlled by statute”).
16
[a]fter a witness called by the United States has testified on direct
examination, the court shall, on motion of the defendant, order the United
States to produce any statement (as hereinafter defined) of the witness in the
possession of the United States which relates to the subject matter as to which
the witness has testified.
Although the Jencks Rule is a federal creation, it applies in Delaware for two
reasons. First, in 1989, the Delaware Supreme Court expressly adopted the Jencks
Rule, as modified by the Jencks Act, in Hooks v. State.61 Second, the Superior Court
adopted Superior Court Criminal Rule 26.2 in 1992 to “substantively mirror” its
federal counterpart.62
At their outset, neither the Jencks Rule nor the Jencks Act initially required
the government to disclose recordings of a witness’s grand jury testimony. Two
earlier United States Supreme Court decisions examined what standard should apply
to disclosure of grand jury materials. In Pittsburgh Plate Glass v. United States63
and Dennis v. United States,64 the Court left such decisions to the discretion of trial
courts pursuant to the then-existing FRCrP 6(e).65
More specifically, first, in Pittsburgh Plate Glass, the United States Supreme
Court addressed the relationship between the Jencks Rule and FRCrP 6(e). It
concluded that neither the Jencks case nor the Jencks Act applied to grand jury
minutes.66 Rather, the Court concluded that disclosure of grand jury minutes was
61
See id. (“In adopting the Jencks Rule, we feel we should be governed by the carefully considered
approach now being applied in the federal courts under the statute.”).
62
Valentin, 74 A.3d at 648 n.10.
63
360 U.S. 395 (1959).
64
384 U.S. 855 (1966).
65
At the time, FRCrP 6(e) said nothing about recording or transcription, and provided for the
secrecy of grand jury proceedings and exceptions allowing disclosure, which continues to be the
function of FRCrP 6(e)(2) and 6(e)(3) today. The question of recording was governed by FRCrP
6(d), which authorized the presence of a court reporter but was then silent on whether and when
recording should occur. Recording was not governed by FRCrP 6(e) until the amendment to
FRCrP 6(e)(1) in 1979.
66
See Pittsburgh Glass, 360 U.S. at 398 (“It appears to us clear that Jencks v. United States . . . is
in nowise controlling here. It had nothing to do with grand jury proceedings and its language was
17
governed solely by FRCrP Rule 6(e).67 Thus, insofar as Mr. Ponzo’s argument is
based on the original Jencks case, that argument is squarely foreclosed by Pittsburgh
Glass. In addition, the Court in Pittsburgh Glass held that grand jury minutes
needed to be produced pursuant to FRCrP Rule 6(e) only upon a showing of
“particularized need . . . which outweighs the policy of secrecy.”68
Next, in Dennis, the Supreme Court held that “where the Government
concedes that the importance of preserving the secrecy of the grand jury minutes is
minimal and also admits the persuasiveness of the arguments advanced in favor of
disclosure,” the defense establishes particularized need to produce grand jury
transcripts to cross-examine government witnesses.69 The Dennis Court further
explained that “[i]n our adversary system for determining guilt or innocence, it is
rarely justifiable for the prosecution to have exclusive access to a storehouse of
relevant facts.”70 While construing FRCrP 6(e), it noted that the Jencks Act, among
other sources, reflected “the growing realization that disclosure, rather than
suppression, of relevant materials ordinarily promotes the proper administration of
criminal justice.”71 Once again, neither Pittsburgh Glass nor Dennis fashioned or
applied a constitutional rule—rather, they are best understood as interpreting the
then-existing version of FRCrP 6(e).72
not intended to encompass grand jury minutes. Likewise, it is equally clear that Congress intended
to exclude those minutes from the operation of the so-called Jencks Act”).
67
Id.68
Id. at 400.
69
384 U.S. at 871–72, 875.
70
Id. at 873.
71
Id. at 870–71.
72
See Pittsburgh Glass, 360 U.S. at 399 (“Petitioners argue, however, that the trial judge’s
discretion under Rule 6(e) must be exercised in accordance with the rationale of Jencks[.]”);
Dennis, 384 U.S. at 872 (“The showing made by petitioners, both in the trial court and here, goes
substantially beyond the minimum required by Rule 6(e) and the prior decisions of this Court.”).
18
In 1970, Congress amended the definition of “statement” in the Jencks Act,
partially in response to the Dennis decision.73 The federal statute then expressly
included, within the definition of statement, the following: “a statement, however
taken or recorded, or a transcription thereof, if any, made by said witness to a grand
jury.”74 Thus, disclosure of grand jury witness recordings became mandatory under
the Jencks Act without any case-specific showing of particularized need.75 In
contrast, FRCrP 6(d) provided that “a stenographer or operator of a recording device
may be present while the grand jury is in session . . . .”76 Prior to a 1979 amendment
to FRCrP 6(e)(1), federal courts uniformly construed the language in FRCrP 6(d) to
make transcription or recording of grand jury witness testimony permissive, rather
than mandatory.77 Thus, on one hand, disclosure of a transcript or recording of grand
jury testimony became mandatory under the Jencks Act in 1970. On the other hand,
FRCrP 6 conferred discretion (presumably upon the prosecution) regarding what
proceedings to record until 1979. In that way, FRCrP 6(d) and the Jencks Act as
amended co-existed in tension during the 1970-79 federal discretionary recording
period, similar to the tension between Delaware’s Rule 6(e)(1) and Rule 26.2 today.
By letter, the Court requested the parties to identify any decision from any
jurisdiction where a court has found the 1970-79 federal discretionary recording or
any similar state system to be unlawful. Neither the State nor Mr. Ponzo could
identify a single case. To the contrary, during the 1970-79 federal discretionary
73
William C. Bryson et al., Production of Witness Statements at Trial, Grand Jury Law and
Practice § 5:15 (2d ed. 2022).
74
18 U.S.C. § 3500(e)(3); see also Pub. L. 91-452, Title I, § 102, 84 Stat. 926 (Oct. 15, 1970)
(amending the Jencks Act).
75
Bryson, Grand Jury Law and Practice § 5:15.
76
United States v. Price, 474 F.2d 1223, 1225 n.1 (9th Cir. 1973) (emphasis added); Fed. R. Crim.
P. 6, Advisory Committee Notes, 1979 Amendments, Note to Subdivision (e) (1).
77
See United States v. Aloisio, 440 F.2d 705, 708 (7th Cir. 1971) (explaining that “Rule 6(d)
presently permits, but does not demand, the presence of a stenographer for the purpose of recording
evidence” and collecting cases).
19
recording period, federal courts consistently held that neither the Dennis decision
nor the amendment to the Jencks Act imposed a constitutional, statutory, or rule-
based requirement to record grand jury testimony.78 All federal circuits that
examined the issue uniformly concluded that a change to the Federal Rules of
Criminal Procedure would be necessary to make recording mandatory.79
The Fifth Circuit Court of Appeal’s 1978 decision in United States v. Head is
particularly instructive because it found federal discretionary recording lawful under
what, most would concede, were markedly unfair circumstances.80 At the time,
federal prosecutors, at least in the Fifth Circuit, were the individuals who exercised
discretion over whether or not to record witness testimony.81 In Head, the
prosecutors selectively recorded some grand jury witness testimony to benefit their
78
See, e.g., United States v. Head, 586 F.2d 508, 511 (5th Cir. 1978) (“We have held that there is
no constitutional or statutory requirement that grand jury proceedings be recorded, though at the
same time commenting that it was the far better practice for such recordings to be made.”); United
States v. Biondo, 483 F.2d 635, 641 (8th Cir. 1973) (finding no Jencks Act violation where grand
jury testimony was not recorded and emphasizing that “there is no constitutional or statutory
requirement that grand jury testimony be recorded”); United States v. Cramer, 447 F.2d 210, 213
(2d Cir. 1971) (rejecting a due process challenge and explaining that “a defendant is not entitled
to a reversal of his conviction simply because testimony before the grand jury which returned an
indictment against him has not been recorded”).
79
See, e.g., Aloisio, 440 F.2d at 708 (“While we agree that the preservation of grand jury testimony
is the wise practice, we are presently unwilling to bind the various district courts of this Circuit to
such a practice. Rather, we will rely upon the individual district courts to exercise their local rule-
making powers in this area pending any amendment to Rule 6(e) of the Federal Rules of Criminal
Procedure.”); Cramer, 447 F.2d at 214 (concluding that although “recordation as a matter of course
certainly is the better procedure” the “[f]ormulation of a general principle that all grand jury
testimony must be recorded is a matter which may more appropriately be disposed of in the current
revision of the Federal Rules of Criminal Procedure or by the Circuit Councils in the exercise of
their supervisory power”); United States v. John, 508 F.2d 1134, 1142 (8th Cir. 1975) (“The
appellants assign as error the unfairness [sic] of the government’s action which made discovery
pursuant to the Jencks Act impossible. . . . While the recording of all grand jury testimony is the
desirable procedure, it is not mandatory. . . . While we are sympathetic to the appellants’ complaint
and recognize the limited nature of the relief sought, this Court is without power to amend Rule 6
of the Federal Rules of Criminal Procedure.”).
80
Head, 586 F.2d at 511.
81
See id. at 510 (explaining that “no transcription was made by the court reporter of the testimony”
of a particular government witness “[a]t the prosecutor’s request”).
20
investigation.82 They declined to record other witness’s testimony to purposely
avoid their obligations under the Jencks Act, however.83 When denying relief
despite this seemingly egregious practice, the Fifth Circuit explained that recording
grand jury testimony was discretionary and that “no part of the Jencks Act has ever
been construed to require the government to [d]evelop potential Jencks Act
statements so that such materials can be combed in the hopes of obtaining
impeaching inconsistencies.”84 In confirming the lawfulness of the practice (or at
least that it was not “misconduct which would abort the prosecution or bar jury
access to the witness’s testimony”), the Fifth Circuit observed that such selective
transcription by a prosecutor was akin to possessing Jencks material and then
impermissibly destroying some of it.85 Despite that recognition, it refused to dismiss
the case against the defendant because he could not identify particularized
prejudice.86 As with present-day Delaware court-ordered discretionary recording,
once the prosecutors declined to record the testimony, the matter was effectively
over. There was then in the federal system, as in Delaware’s system today, no
practical way to retroactively demonstrate prejudice.
In every federal decision examining federal discretionary recording between
1970 and 1979, courts (1) found the practice lawful, while (2) routinely commenting
that recording grand jury proceedings was the better practice. After several circuits
82
Id. at 510–11.
83
Id. at 511.
84
Id. (quoting United States v. Cruz, 478 F.2d 408, 411 (5th Cir. 1973)); cf. United States v.
Lieberman, 608 F.2d 889, 897 (1st Cir. 1979) (explaining in a different context that “[w]hen some
of what a witness said was not recorded, however, it was never part of a ‘statement’ within the
meaning of the Jencks Act (and was arguably never ‘in the possession of the United States’
either).”).
85
Head, 586 F.2d at 511–12.
86
Id. at 512; cf. United States v. Hall, 424 F. Supp. 508, 528–29 (W.D. Okla. 1975) (ordering that
grand jury testimony that was transcribed be disclosed under the Jencks Act but declining to open
an inquiry into why not all of the grand jury testimony was transcribed), aff’d, 536 F.2d 313 (10th
Cir. 1976).
21
grappled with the same issues that Mr. Ponzo raises, calls for a rule change became
forceful and widespread. One judge opined in a key dissent that discretionary
recording was likely violative of due process, and emphasized the appropriateness
of a practical fix:
if discretionary and selective recording is the rule, “it ought to be changed.
The Supreme Court has emphasized the importance to the defense of access
to the transcript of the grand jury proceedings. A defendant cannot have that
advantage if the proceedings go unrecorded.”87
The federal system amended its rules in 1979 to remedy the unfairness. First,
paragraph (e)(1) was added to FRCrP 6 to require recording.88 Since then, FRCrP
6(e)(1) provides that “[e]xcept while the grand jury is deliberating or voting, all
proceedings must be recorded by a court reporter or by a suitable recording
device.”89
The Advisory Committee’s comments advocating for this rule change began
by recognizing that federal courts had uniformly concluded that recording was
“permissive and not mandatory” under the prior version of the rule.90 The
Committee did not suggest that the prior construction was either incorrect or
otherwise unlawful but offered four rationales to change the rule. The reasons
included: (1) to ensure that the defendant may impeach a prosecution witness with
prior inconsistent statements taken before the grand jury; (2) to ensure that testimony
before the grand jury is trustworthy; (3) to restrain prosecutorial abuses; and (4) to
87
Cramer, 447 F.2d at 221 (Oakes, J., dissenting) (quoting 1 Wright, Federal Practice and
Procedure § 103 (1969 ed.)).
88
Fed. R. Crim. P. 6, Advisory Committee Notes, 1979 Amendments, Note to Subdivision (e)(1).
Prior to 1979, grand jury recording was governed FRCrP 6(d), which authorized but did not require
the presence of court reporters. After the 1979 amendment, recording became mandatory pursuant
to FRCrP 6(e)(1), which rendered the discretionary implications of FRCrP 6(d) irrelevant.
89
Fed. R. Crim. P. 6(e)(1).
90
Fed. R. Crim. P. 6, Advisory Committee Notes, 1979 Amendments, Note to Subdivision (e)(1).
22
support the prosecution’s case at trial.91 As the Committee recognized, “[f]airness
to the defendant would seem to compel a change in the practice.”92
In addition, the Committee flatly rejected any assertion that recording would
jeopardize grand jury secrecy. The new FRCrP 6(e)(1), according to the Committee,
would change only the recording requirement and would “in no way expand the
circumstances in which disclosure of the grand jury proceedings is permitted or
required.”93 Disclosure of recordings, it observed, would still be controlled by “the
unchanged portions of rule 6(e)” that reflected common law secrecy, and the Jencks
Act, 18 U.S.C. § 3500.94At the same time as the change to FRCrP 6(e), the federal courts
simultaneously adopted FRCrP 26.2 to “place in the criminal rules the substance of
what is now 18 U.S.C. § 3500 (the Jencks Act).”95 FRCrP 26.2(f)(3) defined
“statement” to include “the witness’s statement to a grand jury, however taken or
recorded, or a transcription of such a statement.”96 Notably, it omitted the “if any”
qualifier found in the Jencks Act, presumably because pursuant to the newly added
FRCrP 6(e)(1), there would always be a recording available for disclosure. Thus,
after the 1979 rule changes, grand jury witness testimony is always recorded in the
federal system and automatically subject to disclosure, without a showing of
particularized need, under the conditions triggering the government’s Jencks
obligations.
91
Id.92
Id. (quoting 8 Moore, Federal Practice § 6.02[d] (2d ed. 1972)).
93
Id.
94
Id.
95
Fed. R. Crim. P. 26.2, Advisory Committee Notes, 1979 Addition.
96
Fed. R. Crim. P. 26.2(f)(3).
23
As in the federal system, the trend amongst the states has sharply pointed
toward the mandatory recording of grand jury testimony.97 Subject to a variety of
state-specific nuances, thirty-five states and the District of Columbia now require
recordation either by statute or court rule.98 The Court has identified only fourteen
states, including Delaware, in which recording appears to remain discretionary.99
While the Court agrees that a shift toward mandatory recording has sound
policy justifications, such a change has typically been achieved by court rule (as in
the federal system). For example, in 1970, the Supreme Court of Hawai‘i, when
exercising its state constitutional power to promulgate and modify court procedural
rules, entertained a petition for an order to compel the presence of a court reporter at
97
See William C. Bryson et al., Recording of Proceedings, Grand Jury Law and Practice § 4:9 (2d
ed. 2022).
98
See Alaska R. Crim. P. 6(k); Ariz. R. Crim. P. 12.7(a); Cal. Penal Code § 938(a) (West); Colo.
Rev. Stat. Ann. § 16-5-204(f) (West); Conn. Gen. Stat. Ann. § 54-45a(a) (West); D.C. Super. Ct.
R. Crim. P. 6(e)(1); Haw. R. Penal P. 6(d); I. C. R. 6.2(a); 725 Ill. Comp. Stat. Ann. 5/112-7; Ind.
Code Ann. § 35-34-2-3(d) (West); Iowa R. Crim. P. 2.3(f); Kan. Stat. Ann. § 22-3006(b) (West);
Ky. R. Cr. 5.16(1); Mass. R. Crim. P. 5(i); Minn. R. Crim. P. 18.04(2); Miss. Code. Ann. § 13-7-
25 (West); Mont. Code Ann. § 46-11-316(1) (West); Neb. Rev. Stat. Ann. § 29-1407.01(1) (West);
Nev. Rev. Stat. Ann. § 172.215(1)–(3) (West); N.J. Stat. Ann. § 2B:21-8 (West); N.M. Stat. Ann.
§ 31-6-8 (West); N.D. Cent. Code Ann. § 29-10.1-16(1) (West); Ohio Crim. R. 22 and State v.
Grewell, 543 N.E.2d 93, 98 (1989); Okla. Stat. Ann. tit. 22, § 340(A) (West); Or. Rev. Stat. Ann.
§ 132.260(1); Pa. R. Crim. P. 228; R.I. Super. R. Crim. P. 6(e)(1); S.C. Code Ann. § 14-7-1700(West); S.D. Codified Laws § 23A-5-11.1; Tenn. Code Ann. § 40-12-208(a) (West); Utah Code
Ann. § 77-10a-13(7)(a) (West); Vt. R. Crim. P. 6(e)(1); Va. Code Ann. §§ 19.2-212 & 19.2-215.9
(West); Wash. Rev. Code Ann. § 10.27.070(4) (West); W. Va. R. Crim. P. 6(e)(1); Wyo. R. Crim.
P. 6(a)(10).
99
See Ala. Code § 12-17-275; Ark. Code Ann. § 16-85-512 (West); Del. Super. Ct. Crim. R. 6(e);
Thompson v. State, 565 So. 2d 1311, 1313 (Fla. 1990) (“Sections 905.17 and 905.27 of the Florida
Statutes (1987), do not establish a duty to record grand jury proceedings, nor do we find any
constitutional basis to impose such a duty in all cases.”); Ga. Code Ann. § 15-12-83(a) (West); La.
Code Crim. Proc. Ann. art. 433(A)(1)(d) (West); ME. R. U. Crim P. R. 6(f); Md. Code Ann., Cts.
& Jud. Proc. § 2-503 (West); Mich. Comp. Laws Ann. § 767.16 (West); Mo. Ann. Stat. § 540.105(West); NH. R. S. Ct. Rule 52(1); N.Y. Crim. Proc. Law § 190.25(3)(c); State v. Jones, 210 S.E.2d
454, 456 (N.C. Ct. App. 1974); Wis. Stat. Ann. § 968.43(1) (West). The fiftieth jurisdiction,
Texas, provides that only the testimony of an accused or a suspect may be recorded. Tex. Code
Crim. Proc. Ann. Art. 20A.201(a)(West).
24
a grand jury session.100 Reasoning that a right to disclosure of grand jury transcripts
exists in some circumstances, that court observed that failure to record the testimony
would result in a right to disclosure without a remedy.101 To bridge this gap between
right and remedy, the court amended Hawai‘i Rule of Criminal Procedure 6(d) to
require an official court reporter to be present and to record all evidence presented
to the grand jury.102 The substance of the rule, now Hawai‘i Rule of Penal Procedure
6(d), remains largely unchanged today.103
Likewise, in 1989, the Supreme Court of Ohio considered whether grand jury
proceedings must be recorded, while noting that many Ohio counties did not do so
at the time.104 The court recognized that recordation is not required by the United
States Constitution, but discussed in detail the 1979 federal rule change and the
reasons given by the Advisory Committee, including that recordation “serves to
make witnesses accountable for their testimony.”105 The court expressed concern
that without recordation, a defendant would be unable to obtain testimony even when
required by Ohio court rules (e.g., upon a showing of particularized need or when a
co-defendant had testified before the grand jury).106 In light of these policy
considerations, the court construed Ohio’s Criminal Rule 22, which required the
recording of all proceedings in felony cases, to apply to grand jury proceedings.107
100
McMahon v. Off. of City & Cnty. of Honolulu, 465 P.2d 549, 550 (Haw. 1970) (citing Haw.
Const. Art. V § 6).
101
See id. at 551 (“We have no difficulty in requiring that presentations of evidence to grand juries
in this state shall be recorded. Otherwise there would be no remedy to make effective a . . . right
which may clearly exist.”).
102
Id. at 552.
103
See Haw. R. Penal P. 6(d) (“An official reporter or operator of a recording device shall be
present and shall fully record all evidence presented to and all statements made before the grand
jury.”).
104
State v. Grewell, 543 N.E.2d 93, 96–97 (Ohio 1989).
105
Id.106
Id. (citing Ohio Crim. R. 6(e) and 16(b)(1)).
107
Id. at 97–98.
25
Thus, despite the permissive nature of Ohio’s rule (which, like the pre-1979 federal
rule, provided only that a stenographer “may” be present), Ohio’s high court
construed the recording of grand jury proceedings as mandatory.108
In 1987, the Supreme Court of Wyoming also addressed a defendant’s
challenge to the practice of not recording grand jury proceedings. The Wyoming
court explained that “[t]he general rule is that grand jury testimony need not be
recorded in the absence of a procedural rule or statute which requires recording, and
the failure to do so does not violate due process.”109 Thus, like the federal courts in
the 1970–79 federal discretionary recording period, the Wyoming court found that
the failure to record did not violate a defendant’s due process rights or Wyoming’s
Jencks-like obligation. The Court followed with the suggestion, however, that such
an argument be addressed through legislation.110 Notably, one dissenting justice
questioned the fairness and constitutionality of allowing a prosecutor to “obviate
discovery rights” afforded by Wyoming’s Jencks provision.111 While the court did
not compel recording in that case, Wyoming has also since amended its rule to mirror
the federal rule.112 Most recently, Oregon, which used to authorize trial courts to
108
Id.109
Hennigan v. State, 746 P.2d 360, 369 (Wyo. 1987).
110
Id. at 370.
111
See id. at 391 (Urbigkit, J., dissenting) (“Finally, I would question that a prosecutor can obviate
discovery rights of Rule 18, W.R.Cr.P. found in subsection (a)(1) or whatever Jencks Act rights
are provided in subsection (b), by failing to provide a reporter for the sessions.”).
112
Wyo. R. Crim. P. 6(a)(10) (“All proceedings, except when the grand jury is deliberating or
voting, shall be recorded stenographically or by an electronic recording device.”). While located
in the requirements for a county grand jury, this requirement appears to apply equally to state grand
juries. See Wyo. R. Crim. P. 6(b)(2) (“A state grand jury shall have the same powers and duties
and shall function in the same manner as a county grand jury, except for the provisions of this
subdivision, and except that its jurisdiction shall extend throughout the state.”).
26
appoint a court reporter only on motion by the district attorney,113 enacted a statute
in 2017 to require that all testimony be recorded.114
In summary, the federal amendment to FRCrP 6(e)(1) in 1979 accelerated the
modern trend toward mandatory recording. Neither the Court, nor the parties, have
identified a single case from any jurisdiction in which either the Jencks Rule or a
similar court rule was construed to require the recording of grand jury witness
testimony, however. Rather, all decisions that examined the issue uniformly found
discretionary recording to be lawful. There is no authority to suggest that a binding
federal or state rule, constitutional or otherwise, obligates Delaware courts to
transcribe or record testimony provided to a grand jury.
In addition to this overwhelming persuasive authority, Delaware case law and
court rules provide little to no support for mandatory recordation. In 1992, the
Delaware Superior Court amended its criminal rules. First, Delaware adopted
Superior Court Criminal Rule 26.2, which “substantively mirrors” its federal
counterpart to include recorded or transcribed grand jury witness testimony within
the definition of Jencks material.115 In contrast, Superior Court Criminal Rule
6(e)(1), adopted at the same time, departed from the 1979 Amendment to its federal
counterpart by rejecting mandatory recording. A simultaneous amendment to Rule
6(e) that rejected mandatory recording undercuts the argument that the adoption of
Rule 26.2(f)(3) indirectly makes recording mandatory. Like the Jencks Act, Rule
26.2 provides for the disclosure of existing materials fitting the definition of
113
See State ex rel. Woodel v. Wallace, 750 P.2d 178, 180 (Or. Ct. App. 1988).
114
See Oregon Laws ch. 650 §§ 1 and 2 (Aug. 2, 2017); Or. Rev. Stat. Ann. §§ 132.250 and
132.260 (West).
115
Valentin, 74 A.3d at 648 n.10.
27
“statement,” but imposes no obligation on the State to create or manufacture a
“statement” for future impeachment purposes.116
When recognizing the lawfulness of Delaware’s practice, the Court does not
minimize how unfair it is to create a right to Jencks material that, for all practical
purposes, remains unavailable because of Delaware’s practice of non-recordation.
A criminal defendant’s right to procedural due process “guarantees the fundamental
elements of fairness in a criminal trial,”117 and this right extends to pre-trial matters
that bear “a substantial relationship to his or her opportunity to defend against the
charge.”118 While all available persuasive authority has declined to find a violation
of due process in this practice, there is no question that the practice impairs the
criminal justice process. Delaware’s current practice renders a defendant’s access
to Jencks material unobtainable in the grand jury setting for all practical purposes.
In the undersigned’s view, it is unfair for the Delaware rules to recognize the value
of such statements for impeachment purposes while simultaneously perpetuating a
structure that eliminates the obligation altogether. This Court, however, is not free
to disregard an otherwise lawful rule despite such unfairness. On balance, the
simultaneous adoption of Rule 26.2(f)(3) did not render the discretionary aspect of
Rule 6(e)(1) so fundamentally unfair that it is unconstitutional on procedural due
process grounds.
Similarly, contrary to Mr. Ponzo’s argument, the state constitutional rule
articulated in Lolly v. State does not apply here. In Lolly, the Delaware Supreme
Court explained that, pursuant to Deberry, “the State . . . is obligated to preserve
evidence which is material to a defendant’s guilt or innocence as a matter of federal
116
See Head, 586 F.2d at 511 (explaining that the Jencks Act imposes no obligation to create
Jencks material).
117
Monceaux v. State, 51 A.3d 474, 477 (Del. 2012) (quoting Spencer v. State of Texas, 385 U.S.
554, 563–64 (1967)).
118
State v. Kolaco, 2020 WL 7334176, at *7 (Del. Super. Dec. 14, 2020).
28
and state due process.”119 Lolly extended this obligation “to claims involving the
alleged failure to gather evidence ab initio.”120
Mr. Ponzo’s contention that failure to record a witness’s grand jury testimony
is the same as failing to gather potentially exculpatory evidence is incorrect for three
reasons. First, as the Delaware Supreme Court recently explained, the Deberry/Lolly
line of cases is “limited to those instances where potentially exculpatory physical
evidence was either not collected by law enforcement or collected but not preserved
during the course of the prosecution.”121 A grand jury witness’s unrecorded
testimony is not missing physical evidence. Second, the State has no control over
whether to record the testimony or other proceedings – such records are “subject to
the control of the Superior Court.”122 Third and finally, the State and defendant have
equal authority to request that grand jury testimony be recorded. A motion by either
party requires court approval. On paper at least, both parties have an equal ability
to request preservation of the evidence.
Finally, Mr. Ponzo’s argument under Valentin v. State is unavailing for a
similar reason. The State’s duty to inform itself of discoverable evidence123 does not
impose an obligation to create Jencks statements, particularly statements that cannot
exist without prior court approval. In sum, there is no constitutional requirement,
no statute, and no court rule that makes the recording of grand jury proceedings
mandatory in Delaware.
119
Lolly, 611 A.2d at 959.
120
Id. at 960.
121
See Coleman v. State, 289 A.3d 619, 626 (Del. 2023) (declining to extend the rule to include
the “observations of evidence-collecting law-enforcement officers”).
122
Jessup, 136 A.2d at 213.
123
Valentin, 74 A.3d at 651.
29
B. The movant who requests the recording of grand jury proceedings
bears the burden of persuasion under Rule 6(e )(1).
It does not end the inquiry simply to conclude that recording may be
permissive. State v. Grossberg,124 the single Delaware decision that addresses who
holds the burden and what standard should be applied, is not mandatory authority
and is unpersuasive. The mere “fact that a particular discovery procedure is
‘permissive’ rather than ‘mandatory’ does not mean that permission may be
arbitrarily denied.”125 At the outset, the Court must exercise reasoned discretion
and not act arbitrarily or capriciously when evaluating a motion to approve
recording. Give the recognition that the Court must exercise its discretion, Mr.
Ponzo’s motion requires the Court to determine (1) who bears the burden of
persuasion in a pre-indictment request for recording, and (2) the standard that should
govern the exercise of that discretion. As first addressed below, the Rule places the
burden on the movant who seeks approval to record.
At the outset, the Court notes that among all states where recording is
discretionary, only one state’s court, a Louisiana intermediate appellate court, has
adopted a rule placing the burden on the State to justify non-recordation.126 The
much greater weight of authority on the subject places the burden on the defendant
to justify a request for recording.127
124
1996 WL 769342, at *1.
125
United States v. Thoresen, 428 F.2d 654, 666 (9th Cir. 1970).
126
See State v. Peterson, 2019 WL 4493494, at *5 (La. Ct. App. Sept. 18, 2019) (“In deciding who
bears the burden at a hearing on recordation, because the state has the obligation of disclosure from
grand jury proceedings under La. Code of Criminal Procedure Art. 434.1, the state should bear the
burden of proving to a preponderance of the evidence that there is just cause to not record grand
jury testimony.”).
127
See Thompson v. State, 565 So. 2d 1311, 1313 (Fla. 1990) (“[T]he interests of justice may
require trial courts to order recordation in some instances. However, no showing was made to
establish that Thompson had a particular need to preserve grand jury testimony through recording.”
(citing State v. McArthur, 296 So. 2d 97, 100 (Fla. Dist. Ct. App. 1974))); State v. Rich, 395 A.2d
1123, 1127 (Me. 1978) (“Transcription of the testimony presented to the grand jury is made
30
One federal circuit took a different approach, and that decision, while
ultimately distinguishable, is worth examining when considering how to allocate the
burden of persuasion. In United States v. Price, the Ninth Circuit Court of Appeals
addressed the burden issue during the 1970-79 federal discretionary recording
period.128 That court held that a sound exercise of discretion generally favored
granting a request to record grand jury proceedings and placed the burden on the
government to show a “legitimate and compelling interest” to justify not recording
the proceeding.129 The court further held that the government could not meet its
burden by invoking grand jury secrecy, because it is the disclosure of a recording,
and not its making, that compromises the rule of secrecy.130 There, the Ninth Circuit
based its decision on the “particularized need” standard from Dennis, reasoning that
a defendant would have no recourse if a particularized need for grand jury records
arose if no recording existed.131 While the Price court did not explicitly address the
permissive, not mandatory. The court below expressly concluded that ‘no sufficient justification’
was found. The Defendant’s argument that transcripts would be valuable for impeachment
purposes at trial could be advanced in the case of every grand jury proceeding and subsequent
trial.”); State v. Thomas, 674 S.W.2d 131, 134 (Mo. Ct. App. 1984) (“Appellant attempts to
demonstrate that the nature of this case was such that the failure to order the grand jury testimony
transcribed constituted an abuse of discretion. . . . While the nature of the case might be a matter
to be considered by the trial court in ruling on a motion of the kind involved in this case, we find
nothing in the record to support appellant’s contention that the witnesses for the state were not co-
operative with the prosecutor.”); State v. Bryan, 2020 WL 3512759, at *1 (Ga. Super. June 18,
2020) (“Defendant is correct that the law of Georgia does not preclude the recordation of the
proceeding. However, and significantly, he does not have an absolute right to record the
proceeding.” (internal citation omitted)); McKissack v. State, 926 So. 2d 367, 372 (Ala. 2005)
(reversing appellate court’s order for recordation because the defendant had not “made the required
showing of the likelihood of inconsistencies between the grand-jury testimony” of the witnesses
and those witnesses’ trial testimony).
128
474 F.2d 1223 (9th Cir. 1973).
129
Id. at 1225.
130
Id.131
See id. at 1225–26 (“[E]ven if their showing had been overwhelming, it would have been futile
because the nonexistent is nonproducible, and the Government had arranged that no record be
made.”).
31
Jencks Act, its decision applies equally if not more so to the disclosure obligations
under the Jencks Rule, where disclosure is automatic once a witness testifies.132
In Delaware, the more restrictive language of Superior Court Criminal Rule
6(e)(1) cannot be construed as stamping a burden on the State to justify why there
should be no recording. Nor can it be read to impose the burden upon the defendant
in all cases. The key difference between the open-ended FRCP 6(d) examined in the
Price decision and Delaware’s Rule is Delaware’s explicit requirement for court
approval prior to recording.133 During the 1970-79 federal discretionary recording
period, it appears that the government was free to record grand jury testimony if it
so chose, without prior court approval, and commonly did.134 By contrast, the
express language of Superior Court Criminal Rule 6(e)(1) prohibits recording by the
request of the State or the defendant absent prior Court approval. Thus, the default
presumption in Delaware, which the movant must overcome, is that grand jury
proceedings will not be recorded. The burden to overcome that presumption must
fall on whichever party requests approval to record the proceedings.
While policy considerations underlying the Price rule – that the burden is on
the government to justify not recording – are compelling, the Court has no authority
to rewrite the Delaware Rule by shifting the burden from the movant to the non-
movant.135 The unique language in Delaware’s Rule 6(e)(1) singularly answers the
132
While no other Circuit court appears to have either formally adopted or rejected this rule, it was
followed by at least one district court outside of the Ninth Circuit. See In re Grand Jury
Investigation of Titanium Indus., 471 F. Supp. 37, 37–38 (W.D. Pa. 1978) (granting a pre-
indictment request for recordation based on the rule established in Price).
133
See Super Ct. Crim. R. 6(e)(1) (providing that grand jury proceedings “may be recorded
stenographically or by an electronic recording device only with the approval of the court”
(emphasis added)).
134
See United States v. Gramolini, 301 F. Supp. 39, 41 (D.R.I. 1969) (noting that in the judge’s
18 years of experience as a prosecutor every grand jury proceeding had been recorded either
electronically or manually).
135
See Wilson v. Joma, Inc., 561 A.2d 993, 1989 WL 68304, at *2 (Del. 1989) (TABLE)
(“Plaintiff’s assertion that relief should be granted under Rule 6(b) unless defendants can establish
32
question. If either the State or a defendant seeks to record grand jury witness
testimony, that party bears the burden of persuading the Court that recording is
justified.
C. The standard for ordering production is one of good cause and not
extraordinary circumstances; the latter conflates grand jury secrecy with
the mere recording and preservation of testimony
Rule 6(e)(1) is silent as to the standard that should guide the Court’s discretion
on a pre-indictment motion to record grand jury testimony. As referenced above,
in State v. Grossberg, the Superior Court also denied a request to record grand jury
proceedings in the only Delaware written decision commenting on the appropriate
standard.136 In that decision, the court supplied little reasoning, and simply noted
that the decision fell within its discretion.137 In doing so, the court denied the
defendant’s request to approve recording because the defendants had “failed to
demonstrate any extraordinary circumstance inherent in these cases for the recording
of the grand jury proceeding . . . .”138
In a recent bench decision addressing a motion similar to Mr. Ponzo’s, the
Superior Court declined to hold that “extraordinary circumstances” was the
appropriate standard.139 Nevertheless, the Court denied the motion because even
under a lesser standard, such as good cause, the defendant failed to make an adequate
showing “to make an exception to . . . the well-recognized practice in Delaware.”140
prejudice would impermissibly shift the burden of proof under Rule 6(b) from the movant. To do
so would be to rewrite the Rule.”).
136
1996 WL 769342, at *1.
137
Id.138
Id.; see also Wescott, No. 2011008215, at 15:1–14 (denying a request to record grand jury
witness testimony in light of years of Superior Court practice and referring favorably the to the
“extraordinary circumstances” language in Grossberg).
139
See State v. Morris, No. 2203004409, at 35:21–23 (Del. Super. June 24, 2022) (TRANSCRIPT)
(declining to hold that extraordinary circumstances “is necessarily the standard”).
140
Id. at 35:23–36:5.
33
Case law from other states with discretionary recording likewise provides little
uniform guidance as to what standard to apply to such a motion. They have imposed
a variety, including good cause (Maine),141 interests of justice (Florida),142 likelihood
of inconsistencies (Alabama),143 and seemingly unfettered discretion, taking into
account such factors as severity of the alleged offense (Missouri).144 The parties,
however, could not identify case law from any jurisdiction (other than Grossberg in
Delaware) that imposes “extraordinary circumstances” as the standard applicable to
a pre-indictment request to record grand jury proceedings.
At the outset, the “extraordinary circumstances” burden used in Grossberg
finds no support in the text of Rule 6(e)(1). Such a high burden would seem
impossible to reconcile with the disclosure requirement in Rule 26.2(f)(3), which
unequivocally contemplates the existence of recordings or transcripts in some cases.
At its root attempt, imposing such a standard to mere recording wrongly conflates
two separate functions: disclosure and preservation.
Where a rule of procedure does not explicitly identify the standard, Delaware
courts typically apply one of “good cause” to guide their exercise of discretion. For
example, in the context of motions for discovery in Rule 61 motions for post-
conviction relief, the Delaware Supreme Court has said that the “Superior Court
possesses ‘inherent authority under Rule 61 in the exercise of its discretion to grant
141
Maine R. Crim. P. 6(f).
142
Thompson, 565 So. 2d at 1313.
143
See McKissack, 926 So. 2d at 372. The Alabama Supreme Court in McKissack expressed some
doubt about whether the trial court had authority to order recordation at all. See id. at 371 (“This
Court need not reach the basic question of whether a trial court can order the preservation of grand-
jury testimony under certain circumstances because, even accepting that premise, we conclude that
no reversible error occurred when the trial court here refused to order the preservation of grand-
jury testimony under the circumstances of this case.”).
144
Thomas, 674 S.W.2d at 134–35.
34
particularized discovery for good cause shown.’”145 Moreover, “good cause”
appears in the Superior Court Criminal Rules as a discretionary standard in fourteen
separate rules.146 The “extraordinary circumstances” standard appears only twice.147
In the Superior Court Criminal Rule 35 context, for example, a defendant must prove
extraordinary circumstances to justify a modification of sentence after the 90-day
time limit elapses.148 As the language suggests, extraordinary circumstances
requires a “highly unusual set of facts” to meet the defendant’s burden.149 Such a
heavy burden should be reserved for the protection of extraordinarily compelling
interests, such as the finality of a judgment.150 Given that recognition, the Court
should not impose such a high standard in a rule that does not explicitly provide for
it.
Here, the State argues that an “extraordinary circumstances” burden under
Rule 6(e)(1) is justified to preserve grand jury secrecy. Contrary to the State’s
argument, meeting the traditional test for disclosure should not be a prerequisite to
initially record testimony because a recording that is not disclosed cannot imperil
145
Cabrera v. State, 173 A.3d 1012, 1032 (Del. 2017) (quoting Dawson v. State, 673 A.2d 1186,
1197 (Del. 1996)); cf. In re Asbestos Litig., 228 A.3d 676, 681–82 (Del. 2020) (concluding that
“[g]ood cause is the proper standard under Delaware law” to modify a scheduling order despite
the phrase having been removed from the court rule).
146
See, e.g., Super. Ct. Crim. R. 16(f)(1) (court may enter a protective order or disclosure order
upon a showing of good cause); Super. Ct. Crim. R. 5.1(d) (disclosure requirement of Rule 26.2
applies in preliminary hearings “unless the court, for good cause shown, rules otherwise in a
particular case”); Super. Ct. Crim. R. 12.3(3) (“If good cause is shown, the court may allow a party
additional time to comply with any obligation imposed by this rule.”).
147
Super. Ct. Crim. R. 35(b) (requiring extraordinary circumstances for the Court to reduce a
sentence of imprisonment more than 90 days after it is imposed); Super. Ct. Crim. R. 5(d) (time
limit for scheduling a defendant’s preliminary examination before a magistrate after arrest may
only be extended upon a showing of extraordinary circumstances).
148
State v. Diaz, 113 A.3d 1081, 2015 WL 1741768, at *2 (Del. 2015) (TABLE).
149
Id. (quoting Black’s Law Dictionary (10th ed. 2014)).
150
See id. (“In order to uphold the finality of judgments, a heavy burden is placed on the defendant
to prove extraordinary circumstances when a Rule 35 motion is filed outside of ninety days of the
imposition of a sentence.”).
35
grand jury secrecy.151 As the Ninth Circuit explained in Price, “[s]ecrecy of grand
jury proceedings is not jeopardized by recordation. The making of a record cannot
be equated with disclosure of its contents, and disclosure is controlled by other
means.”152 As noted supra, Delaware case law provides that disclosure is warranted
under Rule 6(e)(3) when the interests of justice require it.153 Moreover, where a
binding court rule such as Superior Court Criminal Rule 26.2(f)(3) provides for the
automatic disclosure of the recording – without a particularized showing that the
interests of justice require it – the drafters of the rule have preemptively concluded
that the benefits of including such statements in Jencks productions outweighs the
traditional policy of secrecy. Accordingly, an extraordinary circumstances standard
does not apply to a request to simply record proceedings.
Mr. Ponzo would have the Court go further, however, and hold that no
exercise of discretion is required because Rule 26.2 requires the Court to simply
grant pre-indictment requests for recordation as a matter of course. He argues that
the court approval requirement was intended to serve as a mere gatekeeping
function, rather than to require a true exercise of discretion. Under his reading of
Rule (6)(e)(1), the Court is merely required to control which portions of the grand
jury proceedings are recorded to prevent surreptitious recording by unauthorized
persons.154
151
See State’s Resp. to Defense Mot. for Court Approval of Recording of Grand Jury Testimony
¶ 8 (arguing that the extraordinary circumstances standard is simply a test for operationalizing the
interests of justice standard for disclosure).
152
Price, 474 F.2d at 1225; see also Peterson, 2019 WL 4493494, at *5 (“Despite recordation, the
secrecy of grand jury proceedings will still be protected by the standards necessary for disclosure
– standards which have been established in the Louisiana Code of Criminal Procedure.”);
McMahon, 465 P.2d at 551 (“It cannot seriously be argued that [recordation] will invade the proper
secrecy of grand jury proceedings.”).
153
Jessup, 136 A.2d at 217; see also Steigler, 250 A.2d at 382 (explaining that “in circumstances
where the interests of justice require it, disclosure of proceedings before the Grand Jury may be
ordered by the Superior Court”).
154
Tr. of Oral Arg. at 8:12–9:5.
36
Neither the text, history, nor past application of the rule support his position.
Given the structure and timing of the revision to both Rules, Delaware Superior
Court’s Rule 6(e)(1) appears to be a deliberate rejection of FRCrP 6(e)(1), and thus
a rejection of recording as a matter of course. Viewed in this context, court approval
makes sense only if such approval depends on an exercise of judicial discretion based
on a showing by the moving party. Moreover, the plain text of the rule does not
support Mr. Ponzo’s “gatekeeping” interpretation. Namely, the rule requires the
court to approve (or not approve) recording—not to supervise the recording process
to enforce the unambiguous provisions of Rule 6. As written, the Rule already
provides that only a stenographer or operator of a recording device may be present
to record, and that deliberations and voting can never be recorded.155 Court approval
is not necessary to ensure those strictures are followed. Mr. Ponzo incorrectly asks
the Court to write a mandatory recording requirement into Delaware’s discretionary
rule.
Predominantly, “[g]ood cause is often the burden placed on a litigant . . . to
show why a request should be granted or an action excused.”156 In this way, a
standard of good cause fits the text and structure of the Rule. As explained below,
it requires a showing that there is a reason, specific to the case at hand, to depart
from the default of non-recordation. It nevertheless should not set the threshold so
high as to render the Court’s discretion to record, or the disclosure obligation under
Rule 26.2(f)(3), a total nullity. Good cause, and not extraordinary circumstances, is
the appropriate burden to impose on a movant requesting the recording of grand jury
witness testimony.
155
Super. Ct. Crim. R. 6(d) and (e)(1).
156
Asbestos Litig., 228 A.3d at 684 n.2 (Vaughn, J., dissenting) (alteration in original) (quoting
Black’s Law Dictionary (11th ed. 2019)).
37
D. Mr. Ponzo fails to demonstrate good cause by merely alleging that
recording is necessary in all cases.
At a high level of generality, good cause means a legally sufficient reason.157
While the precise content of the “good cause” standard varies significantly by
context, one common theme is that good cause requires a case-specific factual
showing (i.e., that there are some circumstances not present in every case) to justify
a departure from the general rule.158 The Court need not reach the issue of what
might constitute good cause in a different case because Mr. Ponzo attempts no case
specific showing in his motion. Nevertheless, as the foregoing discussion suggests,
the good cause standard should not be construed as prohibitively difficult for a
defendant to overcome.
Of the jurisdictions that the Court has examined, Maine’s rule is closest to
Delaware’s, except that Maine’s rule specifically requires a showing of good cause
where Delaware’s is silent. Maine’s Rule of Criminal Procedure 6(f) provides that
“[u]pon motion of the defendant or the attorney for the State, the court, in its
discretion for good cause shown, may order that a court reporter or operator of
electronic recording equipment be present for the purpose of taking evidence.”159
Consistent with the general rule that “good cause” requires a case-specific showing,
157
Id. at 684 (citing Black’s Law Dictionary (11th ed. 2019)); see also State v. Damme, 944
N.W.2d 98, 100 (Iowa 2020) (concluding “that ‘good cause’ means a ‘legally sufficient reason.’”).
158
See, e.g., State v. Grant, 225 A.3d 254, 258 (Vt. 2019) (“A rule of law that establishes that good
cause exists in every case is inconsistent with the notion, implicit in the concept of good cause,
that a finding of good cause can support an exception to a general rule.”); Rakes v. Fulcher, 172
S.E.2d 751, 756 (Va. 1970) (“We interpret good cause as used in our Rule 4:9 to mean that before
any party is entitled to the production of documents or other tangible things, such as are involved
in this case, there must be a showing of some special circumstances in addition to relevancy.”);
U.S. ex rel. Callahan v. U.S. Concology, Inc., 2005 WL 3334296, at *1–2 (W.D. Va. Dec. 7, 2005)
(looking for definitions of “good cause” and concluding that it requires a “particularized showing”
rather than one that could be made in “virtually every” case).
159
Maine R. Crim. P. 6(f). The “good cause” standard was located in section 6(d) in an earlier
version of the rule.
38
the Supreme Judicial Court of Maine found good cause absent where, inter alia, a
defendant sought transcripts for impeachment purposes only. The Maine court
recognized that such reason does not constitute good cause because it could “be
advanced in the case of every grand jury proceeding and subsequent trial.”160
The Maine court’s recognition that a demonstration of good cause requires
some fact specific support is correct. Here, Mr. Ponzo has identified no facts to
distinguish his case from any other that would go before a Delaware grand jury.
Since he has cited no individual circumstance to differentiate his case from any
other, he has not demonstrated good cause.
The Court is not blind to the extreme practical difficulties that a defendant
will face under even a good cause standard under Rule 6(e)(1). The State controls
the information presented to the grand jury and the timing of its presentation. Given
the State’s (1) monopoly of information, (2) other attributes of the grand jury process
including the timing of presentations before the grand jury, and (3) the traditional
imbalance of information made available to a criminal defendant so early in the
process, a defendant will still face considerable – often insurmountable – hurdles
when attempting to demonstrate even good cause. Nevertheless, while an
extraordinary circumstances burden will in fact foreclose nearly every conceivable
request (and has done so in practice), there may be some circumstance where a
defendant could meet the more lenient, though often still out of reach, burden of
demonstrating good cause.
160
Rich, 395 A.2d at 1127. In a recent decision, the Supreme Judicial Court explained in its
procedural background that the trial court had granted a motion to record grand jury proceedings,
presumably upon a showing of good cause (as required by the rule), before a defendant was
indicted on murder charges. State v. Moore, 290 A.3d 533, 537 (Me. 2023). The trial court denied
a later motion for disclosure of the recordings, however, finding that particularized need had not
been shown. Id. The Supreme Judicial Court affirmed that aspect of the decision, emphasizing
that there is no right to disclosure under the United States Constitution. Id. at 540.
39
In addition to recognizing this difficult burden, Rule 6(e)(1) creates another
marked inequity. Namely, the State, with its monopoly on information about a
pending case and its control over the grand jury process, could easily make a fact
specific showing sufficient to demonstrate good cause to record proceedings. In
other words, the State has both a right under the current Rule and a practical remedy.
A defendant, on the other hand, will rarely, if ever, have the same remedy. That, in
large part, is a non sequitur, because the State, who has a practical remedy, is
unlikely to need it because it has statutory subpoena power. The current structure of
the rule works to the advantage of the party who will not benefit from it and to the
detriment of the party who could.
Given Delaware’s adoption of FRCrP 26.2(f)(3), fairness and consistency in
the rules weigh heavily in favor of adopting a mandatory recording requirement akin
to FRCrP 6(e)(1). In the Rule’s current form, even with a good cause standard, the
Delaware Superior Court rules create an empty right to an entire category of Jencks
material. The Federal Advisory Committee notes preceding the relevant federal
rule change recognized the importance of mandatory recording for the purpose of
enhancing the integrity of the federal grand jury system. Delaware’s grand jury
system could also benefit from the increased accountability that would naturally
flow from mandatory recording – particularly in the light of the current practice, per
the State’s representation, that indictments are frequently obtained based upon
hearsay alone.161 That, all should agree, is not a best practice. It has most likely
developed over decades where there has been no record of the proceedings. Over
time, a mandatory recording requirement would help to improve the process by
making it more accountable by creating a consistent and reliable record.
161
See Tr. of Oral Arg. at 31:9–13 (explaining that agency representatives testify “from their
collective knowledge and the information that’s been relayed to them”); id. at 53:22–54:1
(indicating that it is “often a representative just reading from the warrant”).
40
Since the text, history, and historical application of the current rule support
placing the burden of proof on the movant, and because even a good cause standard
requires a showing of some facts specific to the case at hand, Mr. Ponzo has not met
his burden to obtain court approval to record grand jury witness testimony. Only a
rule change can address Mr. Ponzo’s Jencks-based concerns and those process
related concerns discussed above.
IV. CONCLUSION
For the foregoing reasons, the Court denies Mr. Ponzo’s motion for approval
for the recording of grand jury witness testimony. The Rule does not require
automatic recording upon request, and Mr. Ponzo has not demonstrated good cause
to record the grand jury witness testimony presented in support of his indictment.
41