Christian, Dichter & Sluga attorney Nathan Andrews secured an important victory before the Arizona Supreme Court in Aller v. State, CV-25-0176-PR.
In its August 24, 2026 opinion, the Court clarified when a former criminal defendant may use grand jury transcripts in a subsequent civil action arising from the prosecution. The Court reaffirmed that a party must demonstrate a “particularized need” before using grand jury materials, while recognizing that those transcripts may be uniquely important in malicious prosecution cases because they reveal the evidence and legal theories presented to the grand jury.
The Court also established a new procedural framework for former defendants seeking to use grand jury transcripts lawfully in their possession, providing important guidance for future malicious prosecution claims in Arizona.
Because Arizona law makes it a class one misdemeanor to knowingly disclose the nature or substance of grand jury testimony under A.R.S. § 13-2812, even former defendants in lawful possession of grand jury transcripts that resulted in an indictment against them cannot automatically use those transcripts in a subsequent civil proceeding. Instead, they must seek leave of court to avoid a violation of § 13-2812. Arizona courts have long determined whether disclosure is “in furtherance of justice,” as now required by statute, by applying the “particularized need” framework established in State ex rel. Ronan v. Superior Court, 95 Ariz. 319 (1964). Until recently, however, the “particularized need” cases in Arizona dealt with the disclosure of grand jury transcripts to those who could not otherwise access them. See Ronan, 95 Ariz. 319; see also State v. Bergin, 256 Ariz. 516 (App. 2023).
That changed in 2025 when Mr. Aller and Incito Schools, also represented by our firm, each brought special actions to challenge the denial of their requests to use their respective grand jury transcripts, already in their possession, in civil lawsuits for malicious prosecution after successfully resolving the underlying cases. The Arizona Court of Appeals denied Mr. Aller’s special action, but a different panel of that Court granted the other special action in Incito Schools v. State, 261 Ariz. 72 (App. 2025). The Court of Appeals in Incito Schools addressed the “particularized need” framework of Ronan in this new context. Analyzing the stark differences between the policy concerns posed by a criminal defendant in an on-going criminal case without access to a particular transcript and a former defendant who has been exonerated and who already possesses the given transcript, the Court of Appeals noted significant differences. In Aller, the Supreme Court observed the similarities with Incito Schools and adopted many of the same conclusions about the diminished societal interest in grand jury secrecy under such circumstances. Aller, ¶¶ 39–47. The Supreme Court did, however, note that society’s interest in grand jury secrecy was not “altogether eliminated” Aller, ¶48.
The Supreme Court went on to observe the grand jury secrecy “is not meant to shield a witness who testified falsely from civil accountability for that testimony.” Aller, ¶ 49. Thus, former defendants seeking to vindicate their malicious prosecution claims should not be flatly denied their day in court under the guise of grand jury secrecy. The Court specifically noted that preventing the use of grand jury transcripts would “foreclose an injured party’s ability to prove the elements of his claim” where “the claimed injury flows from a deliberately false and fabricated presentation of evidence and the law to the grand jury[.]” Aller, ¶ 49. This concern suggests that Arizona’s malicious prosecution jurisprudence is continuing to evolve.
The Arizona Supreme Court also provided a new procedural framework for cases where a former defendant seeks to use grand jury transcripts in their lawful possession in a separate civil action. Aller, ¶ 51. Under the new framework, a former defendant should file a motion with the superior court asserting a good faith belief that he has a particularized need to use the transcript which outweighs societal interests in grand jury secrecy. Aller, ¶ 52. With that motion, a former defendant is also directed to file the grand jury transcript under seal and identify which portions of the transcript he seeks to use in the civil action. Id. The Court went on to advise that in cases where a former defendant has already filed a civil action in superior court, the motion and sealed transcript should be filed with the judge presiding over the civil action. Aller, ¶ 53. In adopting this new procedure for former defendants already in possession of their transcripts, the Court rejected the old two-step process that required filing with the presiding judge of the court that supervised the grand jury activities. Aller, ¶ 53.
The Court also slightly modified the procedural mechanism proposed by the Court of Appeals in Incito Schools for cases involving the use of lawfully possessed state grand jury transcripts in federal civil actions. Aller, ¶ 57. Recognizing that federal and state law “substantively differ” with respect to the availability and use of grand jury transcripts, the Arizona Supreme Court held that Arizona’s superior courts must decide “whether a ‘particularized need’ for the use of grand jury transcripts outweighs the societal interests in secrecy” in such cases for the consistent application of Arizona law.
The decision along with the earlier Incito Schools decision that was liberally cited by the Supreme Court in Aller provides meaningful guidance for future malicious prosecution cases in Arizona. The Court confirmed that exonerated defendants may use grand jury transcripts lawfully in their possession to establish that they were maliciously prosecuted, provided the proper procedure is followed. The opinion also recognizes the continued viability of common-law malicious prosecution claims and makes clear that grand jury secrecy should not be used to shield deliberately false testimony from civil accountability.
Nathan Andrews and Steve Dichter represented the clients in the Arizona Supreme Court and, in Incito Schools, in the Court of Appeals proceedings, with Nathan Andrews arguing before the Supreme Court.
Read the entire opinion here.
About Christian, Dichter & Sluga
Christian, Dichter & Sluga is a nationally recognized insurance and litigation law firm providing sophisticated legal solutions throughout Arizona, Nevada, and New Mexico. For nearly 50 years, our attorneys have represented insurers, businesses, and organizations in complex coverage disputes, bad faith matters, litigation, and aviation-related claims. What sets CDS apart is the combination of deep courtroom experience, peer-recognized legal talent, and a collaborative approach that delivers the resources of a larger firm with the responsiveness and personal attention clients value. We don’t just know the law – we know the communities, courts, and industries we serve, allowing us to provide strategic counsel and outstanding results when our clients need it most.
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