This article reveals an overlooked problem in federal criminal procedure that permits the government to indict individuals in secret and stall prosecutions to the detriment of fundamental rights. Constitutional and statutory protections ensure that criminal prosecutions in America are swift, open, and subject to thorough confrontational testing. Rule 6 of the Federal Rules of Criminal Procedure, however, permits the open-ended cloaking of criminal indictments following an ex parte government request for a seal. Court interpretations of Rule 6 sealing have further eroded fundamental protections by declaring that a showing of substantial prejudice by a criminal defendant will be the only acceptable path to challenge pre-arrest secrecy. This, in turn, creates incentives for abuse of seals and inappropriate use of secrecy in criminal process.
The article canvasses the history of Rule 6 sealing then analyzes the pitfalls of contemporary doctrine regarding secrecy in criminal prosecutions. Lastly, the piece proposes a two-stage solution to ensure that impounded indictments are fairly – and rarely – used.
- sealed indictment,
- criminal procedure,
- speedy trial