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NO INTERLOCUTORY APPEAL FOR A VIOLATION OF THE RULE OF SECRECY

FEDERAL:

Title 28 U.S.C. § 1291 provides that federal appellate courts “shall have jurisdiction of appeals from all final decisions of the district courts”. In criminal cases this prohibits appellate review until after conviction and imposition of sentence, Midland Asphalt Corp. v. U.S., 489 U.S. 794 (1989), unless there is an issue that involves an asserted legal right that would be destroyed if not addressed immediately. Midland Asphalt Corp. v. U.S., 489 U.S. 794, 799 (1989). However, the Supreme Court held that a violation of rule 6(e) is not one of those rights. Midland Asphalt Corp. v. U.S., 489

U.S. 794, 799 (1989).

STATE:

Under Texas law, however, each witness takes an oath to keep the proceedings secret . See TEX. CODE CRIM. PRO. Art. 20.16. Nevertheless, the Supreme Court held that such a proscription in a Florida statute violated the First Amendment to the United States Constitution where the restriction precluded a witness from revealing his own testimony after the investigation was completed. Butterworth v. Smith, 494 U.S. 624 (1990).

While the Texas Attorney General has by Opinion approved of counsel communicating with the Grand Jury in writing, so long as the State’s Attorney is provided a copy of same, under Federal law such procedure might be considered an attempt to “influence” the action of the Grand Jury in violation of 18 U.S.C. § 1504 [punishable by six months confinement and/or a fine of up to $1,000.00].

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