"the burden is generally on the witness to show abuse of the grand jury process"
How later courts described this case
- "the burden is generally on the witness to show abuse of the grand jury process"
- identifying this burden of proof as a "three- pronged showing requirement"
- referred to as Schofield I and Schofield II, respectively
Written by the judges who cited it.
The opinion
ADAMS, Circuit Judge
(concurring):
I concur in the result reached by Judge Hunter. Because in some respects it seemed to undercut the holding by the Supreme Court in Dionisio and Mara, I had some question regarding the compatibility of Schofield I. However, until overruled, Schofield I is the law of this Circuit, and the conclusion reached by Judge Hunter is an appropriate application of it.
The affidavit here is not a model of clarity or precision, and it might have been better for the affidavit to have specifically negated an intent to harass the witness. Nevertheless it would not appear that the district court abused its discretion in ruling that the affidavit on its face provides “some preliminary showing” that each of the requested items was relevant to a properly authorized grand jury investigation, and that the requested items were not sought “primarily for some other purpose.” Nor would it appear that the district judge abu.sed his discretion in concluding that the “quite limited scope” of the inquiry and the potential for delay outweighed the witness’s need for additional information in order to enable her to contest the government’s need for the exemplar, fingerprints and photograph sought.