Secret indictments—which are sealed upon issuance—are unusual, but not rare.121 There are few reported state cases because most of the law in the area comes from the federal courts.122 Under federal law, specific procedures have not been published to direct courts regarding the sealing of an indictment.123 The magistrate judge to whom an indictment is returned may direct that the indictment be kept secret until the defendant is in custody or has been released pending trial; this decision is wholly within the judge's discretion.124 Some—but not all—judges additionally require that the government give a detailed factual basis containing the essential facts forming the basis for the request for secrecy.125
Generally, courts construing the federal rule126 are deferential to requests to seal an indictment. Indeed, judges have held that the reasons for sealing an indictment are not limited to facilitating arrest and found that sealing is not a substantive judicial determination but merely a ministerial act.127 As a result, courts have provided that a magistrate judge "may grant the government's motion to seal an indictment for any legitimate prosecutorial need" so long as the government provides a factual basis for the request.128 The rationale here is that the defendant's right to challenge the propriety of sealing is fully protected by affording her the right to a hearing after the indictment is unsealed.129 At that time, the government, upon defendant's showing of prejudice occurring during the period when the indictment was sealed, must demonstrate legitimate prosecutorial purposes for the secrecy of the indictment.130
Federal courts use a "prejudice only" standard of review. They require the defendant to demonstrate substantial actual prejudice occurring between the date of sealing and the...
