BILL ANALYSIS Ó
AB 622
Page 1
Date of Hearing: April 5, 2011
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
AB 622 (Dickinson) - As Amended: March 30, 2011
SUBJECT : CIVIL GRAND JURIES
KEY ISSUE : SHOULD OUR CIVIL GRAND JURY PROCEDURES BE REFORMED
TO REQUIRE THAT GRAND JURIES 1) MEET WITH THE CHIEF EXECUTIVE OR
DEPARTMENT HEAD OF AN AGENCY SUBJECT TO INVESTIGATION PRIOR TO
ISSUING THEIR FINAL REPORTS; 2) BE OPEN UNLESS THEIR
INVESTIGATION PERTAINS TO CONFIDENTIAL PERSONNEL MATTERS; AND 3)
ALLOW WITNESSES TO HAVE COUNSEL PRESENT WHILE BEING INTERVIEWED
OR GIVING TESTIMONY?
FISCAL EFFECT : As currently in print this bill is keyed fiscal.
SYNOPSIS
This bill is substantially similar to grand jury reform bills
approved by this Committee and the Assembly in the past. The
bill seeks to make various reforms to California's civil grand
jury system, and appears to be part of a growing national
movement to reform the civil grand jury. To date, twenty one
states have amended their grand jury systems in an effort to
make them more open, transparent, accurate, and fair. First,
the bill would require that a civil grand jury meet with the
head of an agency it is investigating at least 45 days before
issuing its final report in order to ensure the accuracy and
thoroughness of the report. This is substantively identical to
AB 829 (Thomson) as it was approved by this Committee in 1997.
Second, the bill would require that a grand jury session in
which testimony under oath is heard to be open to the public and
the press. The author and various legal scholars contend that
this measure would increase the transparency and fairness of the
grand jury process, and would help prevent abuse of the grand
jury's considerable powers. Opponents, the California District
Attorneys Association, however, have expressed concern that
opening the proceedings to the public will make witnesses
hesitant to come forward or testify fully and frankly,
inadvertently having a chilling effect on the investigatory
function of the grand jury. Finally, the bill would permit a
witness who is called to give testimony under oath before a
civil grand jury to be accompanied by an attorney for the
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limited purpose of providing counsel to the witness regarding
his or her legal rights. This provision is identical to an
earlier measure, AB 527 (Baugh), which was approved by the
Legislature in 1999, but was vetoed by Governor Davis. Overall,
CDAA contends that this measure is a departure from
long-standing practice and is unnecessary. However, supporters
including the ABA, ALI, and various scholars, contend that the
bill would prevent abuse, ensure the fairness of the grand jury
investigation, and would ensure that the legal rights of
witnesses are protected.
SUMMARY : Seeks to make various reforms to California's civil
grand jury system by opening to the public and press such
proceedings under specified circumstances, permitting certain
witnesses to be accompanied by counsel, and requiring the grand
jury to meet the head of the department being investigated prior
to issuing its final report to ensure the accuracy of its
findings. Specifically, this bill :
1)Requires a civil grand jury to meet with the chief executive
or department head of an agency subject to its investigation
at least 45 days before it issues its final report to discuss
the nature of the investigation and receive the comments of
the chief executive or department head.
2)Requires that a grand jury session in which testimony under
oath is heard be open to the public and the press.
3)Permits the grand jury and the attorney general or the
district attorney to make a joint written request, subject to
approval by the presiding judge of the superior court, for the
grand jury sessions to be conducted in private.
4)Allows a witness before a civil grand jury proceeding who is
called to give testimony under oath before a civil grand jury
to have an attorney present during his or her testimony. The
witness may confer with his or her attorney provided that the
attorney: a) does not object or speak during the proceeding;
b) does not disclose anything heard in the grand jury room;
and c) does not represent more than one witness in the same
proceeding.
5)Provides that if an attorney violates any of the rules, the
prosecutor may request sanctions and refer the violation to
the State Bar of California.
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6)Permits a witness who is subject to a grand jury investigation
to disclose, in writing, exculpatory evidence to the
prosecutor, including the names and addresses of witnesses who
possess exculpatory information.
EXISTING LAW :
1)Requires a grand jury to submit to the presiding judge of the
superior court a final report of its findings and
recommendations that pertain to county government matters.
(Penal Code Section 933. All further statutory references are
to this code unless otherwise stated.)
2)Permits a grand jury to request a subject person or agency to
come before the grand jury for the purpose of reading and
discussing the findings of the grand jury report to verify the
accuracy of the findings prior to their release. (Section
933.05.)
3)Requires the foreperson or a designee to be available upon
reasonable notice for 45 days after the end of the grand jury
term to clarify the recommendations of the report. (Section
933.)
4)Requires a public agency subject to a grand jury report to
comment to the presiding judge of the superior court no later
than 90 days, and an elected officer or agency head to comment
no later than 60 days, after the grand jury submits a final
report. (Section 933.)
5)Provides that only specified persons including, members of the
grand jury, prosecutors, and necessary personnel such as a
court reporter or interpreter may be present during grand jury
proceedings. (Section 939.)
6)Permits the grand jury and the attorney general or the
district attorney to make a joint written request, subject to
approval by the presiding judge of the superior court, for the
grand jury sessions to be public. (Section 939.1.)
7)Requires that the deliberations of the grand jury and final
voting on an investigation to be done in private session.
(Section 939.1.)
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8)Provides that a district attorney or his or her investigator
may issue a subpoena to any person who can provide evidence in
support of the prosecution of the matter or material evidence
in the investigation. (Section 939.2.)
9)Provides that the grand jury may request that a superior court
judge issue a subpoena for any witness. (Section 939.2.)
10) Prohibits the attorney for a witness to be present during
his or her testimony before the grand jury. (Section 939.)
COMMENTS : The author introduced this bill "to bring a small
measure of transparency Ýand fairness] to the grand jury process
. . . thereby promoting accuracy and thoroughness in grand jury
proceedings." This bill would require a civil grand jury to
meet with the chief executive or department head of an agency
subject to its investigation to discuss the nature of the
investigation and receive comments at least 45 days before it
issues its final report in order to ensure the accuracy of the
final report, and feasibility of its final recommendations. The
bill would additionally require that a grand jury session in
which testimony under oath is heard be open to the public and
the press, though it would also provide a mechanism by which a
grand jury could make the proceedings private when necessary.
Finally, the bill would allow a witness before a civil grand
jury proceeding who is called to give testimony under oath
before a civil grand jury to have an attorney present during his
or her testimony.
Background : The civil grand jury has deep historical roots in
common law legal tradition. The grand jury system was
originally designed in twelfth century England as a citizen's
body to guard against abuses by the crown. The grand jury, and
the philosophy underpinning its creation, was later adopted in
the American colonies as a check on general governmental
oppression and corruption. The tradition was firmly rooted in
American legal culture with the adoption of the Bill of Rights,
where the requirement of grand jury indictment was embodied in
the 5th Amendment to the United States Constitution. Due to a
lack of procedural safeguards for subjects of grand jury
investigations, the grand jury was later abolished in England in
1933.
The Statutory Powers of the Civil Grand Jury : The civil
functions of the grand jury have been an integral part of the
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legal and governmental machinery of California since the state's
inception, with California's first constitution requiring that
"grand juries shall be drawn and summoned at least once a year
in each county." (Cal. Const. art. I, § 23.) While the
California Constitution provides for the formation of the grand
jury, the specific rights and powers afforded to the grand jury
are governed by various statutes. As such, changes to the grand
jury system, baring its complete abolition, do not require
constitutional amendment, but rather may be directed by the
Legislature.
Since the grand jury was first adopted in California the
Legislature has controlled the scope and complexity of grand
jury duties, and has specified the grand jury's authority and
responsibilities; for example extending the original
constitutional mandate to include the express authority to
investigate corruption in county and city governments as well as
special districts. (Ch. 109, Stats. of 1880, see also Cal.
Penal Code section 925.) There are numerous documented
instances where grand juries performed effectively and
successfully in uncovering waste, fraud, and abuse in local
government, (See Bruce T. Olson, The California Grand Jury: An
analysis and Evaluation of Its Watchdog Function 75 (1966)),
however, recently there has been growing concern regarding the
accuracy of grand jury reports and the potential for abuse of
the grand jury's considerable power. (See Michael Vitiello & J.
Clark Kelso, Reform of California's Grand Jury System , 35 Loy.
L.A. L. Rev. 513 (2002).)
Historical Origins and Rationale for Secrecy of Grand Jury
Proceedings : As noted above, traditionally grand jury
proceedings have been held in secret because policymakers have
been concerned that making them public might hamstring the
investigative powers of the grand jury by scaring away potential
whistleblowers, and discouraging those who do come forward from
giving full and frank testimony. The practice of grand jury
secrecy dates as far back as the fourteenth century, where
secrecy was employed in order to prevent the escape of those
suspected of wrongdoing, and to permit the full development of
evidence, but also to protect the rights of individuals and the
fairness of the proceedings. (See Stephanie A. Doria, Adding
Bite to the Watchdog's Bark: Reforming the California Civil
Grand Jury System , 28 Pac. L. J. 1115, 1117 (1997).)
A stalwart supporter of the need for secrecy in grand jury
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proceedings was then-Senator Quentin Kopp, who introduced
several measures during his tenure in the Legislature seeking to
maintain the secrecy of such proceedings because he felt it was
necessary to ensure the efficacy and the independence of the
grand jury. For example, he introduced SB 2000 in 1994 which
sought to define what was required in a response to the findings
and recommendations of the grand jury, and to prescribe the
timing of the public release of the grand jury report, but was
vetoed by Governor Wilson. Senator Kopp reintroduced a
substantially similar measure two years later, SB 1457, which
was signed into law. Senator Kopp and others felt strongly that
such proceedings must continue to be held in private in order to
protect the independence, efficacy, and fairness of the
proceedings.
However, the author believes secrecy in these proceedings has
substantial risks, and in support of the bill states:
Current law allows grand jury investigations into civic
matters to be conducted entirely in secret. This has led
to allegations varying from relatively benign such as juror
ineptitude to much more serious, such as politically
motivated animus toward the target of the investigation.
This bill seeks to bring a small measure of transparency to
the grand jury process.
Requirement for Grand Juries to Meet With the Subject Person or
Agency Prior to Issuing a Final Report : This bill would require
a civil grand jury to meet with the chief executive or
department head of an agency subject to its investigation to
discuss the nature of the investigation and receive comments at
least 45 days before it issues its final report. A
substantively identical proposal, AB 829 (Thomson), was passed
by this Committee and the Assembly in 1997, but was later
amended down by Assemblywoman Thomson in the face of expanded
opposition in the Senate.
Existing law permits a grand jury, but does not require it, to
request a person or agency subject to investigation to come
before it for the purpose of reading and discussing the findings
of the grand jury report, and to verify the accuracy of the
findings prior to its release. (Section 933.05.) The
California Supreme Court recognized that the diligence of the
grand jury's final report is integral to it successfully
fulfilling its civil oversight purpose stating:
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The reporting function of the grand jury is central to its
effective operation in the public interest. . . . The
modern final report, containing the grand jury's findings
and recommendations on the subjects of its investigations,
is the normal end product of the grand jury's activity in
the performance of its watchdog function and is 'the only
formal means by which the grand jury can hope to effectuate
its recommendations' McClatchy Newspapers v. Superior
Court , 44 Cal. 3d 1162, 1170-71 (Cal. 1988) (internal
citations omitted).)
The California State Association of Counties (CSAC), writing in
support of the earlier measure by Assemblywoman Thomson,
expressed concern about the frequency of reports that contain
either misinformation or are somehow unclear in their final
recommendation. CSAC went on to argue that in the interest of a
well-balance report, it makes good sense to require that the
grand jury meet with the subject of the investigation in order
to check facts and receive comments from the person or agency
prior to issuing a final report. The author of this bill goes
on to note that this measure will prevent errors and factual
mistakes in the final report, and will increase the potential
that the final recommendations of the grand jury can be
implemented, thereby "promoting accuracy and thoroughness in
grand jury proceedings."
Opening Some Grand Jury Proceedings to the Public and Press :
The author introduced this bill seeking to increase the
transparency and fairness of the grand jury process. This bill
would require that a grand jury session in which testimony under
oath is heard be open to the public and the press, while
providing a mechanism by which a grand jury could make the
proceedings private when necessary. In support of this
provision in the measure, the author notes:
If testimony is presented in public, it will give others
notice of the testimony so that errors or inaccuracies can
be corrected or contrary views can be offered to the grand
jury. It will also contribute to preventing grand jurors
from questioning a witness unfairly or incompletely.
Existing law requires that grand jury proceedings be closed to
the public and the press. Only specified persons including,
members of the grand jury, prosecutors, and necessary personnel
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such as a court reporter or interpreter are currently permitted
to be present during grand jury proceedings. (Section 939.)
The grand jury may, however, make a joint written request with
the attorney general or the district attorney to the presiding
judge of the superior court for the proceedings to be open.
(Section 939.1.)
In commenting on the impact of opening grand jury proceedings
one scholar noted:
ÝA]n effective, useful and functioning grand jury system
has demonstrated that its operations have not been impaired
by the requirement of compulsory disclosure . . . None of
the dire forebodings of the defenders of grand jury secrecy
have been borne out. . . . it is self-evident that
disclosure is far more compatible with a just, fair and
equitable administration of justice than the policy of
secrecy, it seems plain that there is no rational basis for
the opinion that complete grand jury secrecy is
indispensable. Arthur H. Sherry, Grand Jury Minutes: The
Unreasonable Rule of Secrecy , 48 Va. L. Rev. 668, 684
(1962).
Opponents CDAA contend that opening grand jury proceedings will
have a chilling effect on the investigatory ability of the grand
jury. CDAA expresses concern that opening the proceedings to
the public will make witnesses hesitant to come forward and if
they did come forward less likely to testify fully and frankly.
The organization additionally contends that maintaining the
secrecy of the proceedings helps assure that those exonerated by
the grand jury are not subject to public ridicule.
However, in response to this critique, the author contends that
opening these proceedings to the public and press will not have
a substantial impact on the grand jury proceedings. The author
suggests that in this modern age, once a grand jury begins to
look into a matter, the existence of the investigation has
already effectively become a matter of public knowledge. The
author notes that because of the manner in which modern grand
jury proceedings are conducted, the fact that an individual or
entity is being investigated is known, but little else; exposing
the subject of a grand jury investigation to the public ridicule
that secrecy is in part intended to protect without an
opportunity to fully defend their reputation.
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After studying potential reforms of the California's grand jury
system legal scholars at the University of the Pacific, McGeorge
School of Law's Capital Center for Government Law and Policy
(the "Capital Center") concluded:
Grand jury secrecy also contributes to the potential for
abuse. While secrecy encourages witnesses to come forward,
unsupervised grand jurors go astray. Unchecked, grand
juries 'expose individuals to attack or allegations of
misconduct, and those individuals may be unable to defend
themselves due to the secretive nature of grand jury
proceedings.' Even if charges are not brought, a person's
reputation may still be damaged when the grand jury
investigates him or her.
A recent episode in San Diego provides fuel to grand jury
criticism. The 1998-99 San Diego County Grand Jury's final
report issued a 'factually and legally groundless
accusation, in violation of the standards of due process,'
accusing Mayor Susan Golding of misconduct in connection
with efforts to pass a downtown ballpark measure. According
to the presiding judge, the grand jury abused its power by
"ignoring the statutes, ignoring the case law, ignoring the
constitution, ignoring its counsel, ignoring the district
attorney-indeed, ignoring common sense-and in so doing it
has violated its public trust.' (Vitiello & Kelso, Reform
of California's Grand Jury System , supra at 531.)
The Author Recently Amended the Bill to Try to Address
Opponent's Concerns : Responding to the concerns of opponents,
the author recently amended the bill to require that grand jury
proceedings be open only when testimony under oath is being
given. The author further amended the bill to permit the grand
jury, through a joint request with the attorney general or the
district attorney, to close the grand jury proceedings to the
public when necessary, subject to the approval by the presiding
judge of the superior court. The author of the bill states that
this measure will "Ýpromote] accuracy and thoroughness in grand
jury proceedings."
Witness' Proposed Right to Counsel : As noted above, this bill
would also allow a witness before a civil grand jury proceeding
who is or becomes the subject of a grand jury investigation to
have an attorney present under specified conditions during his
or her testimony. This section of the bill is identical to an
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earlier measure, AB 527 (Baugh), which was passed by the
Legislature in 1999, but then vetoed by the governor.
Proponents of the measure contend that in the absence of having
counsel present an uninformed witness may inadvertently waive
his or her essential rights, or may hesitate to testify entirely
because of fear of being without guidance.
Existing law prohibits the attorney for a witness to be present
during his or her testimony before the grand jury. The only
persons who are allowed to be present during grand jury
proceedings are members of the grand jury, prosecutors, and
necessary personnel such as a court reporter and an interpreter.
(Section 939.) While the attorney for a witness is prohibited
from being present during a client's testimony, witnesses before
the grand jury do have a right to confer with counsel during the
proceedings. The counsel waits outside the hearing room and any
time the witness wants to confer with counsel he or she is
permitted to do so. Commenting on the impracticality of this
practice, the author of the bill highlights:
Often the witness will have retained counsel, but counsel
must remain outside the room resulting in an almost comedic
routine of the jurors asking a question, the witness
leaving the room to consult with counsel, and then
returning to answer the question.
The United States Supreme Court has stated that the
constitutional right to counsel attaches at the initiation of
adversary proceedings. ( Kirby v. Illinois , 406 U.S. 682, 688
(U.S. 1972).) The Court noted that, "the right to counsel
exists to protect the accused during trial-type confrontations
with the prosecutor." ( United States v. Gouveia , 467 U.S. 180,
190 (U.S. 1984).) The California Supreme Court addressed
concern over the potential for abuse of the grand jury process,
noting:
"The prosecuting attorney is typically in complete control
of the total process in the grand jury room: he calls the
witnesses, interprets the evidence, states and applies the
law, and advises the grand jury on whether a crime has been
committed. The grand jury is independent only in the sense
that it is not formally attached to the prosecutor's
office; though legally free to vote as they please, grand
jurors virtually always assent to the recommendations of
the prosecuting attorney, a fact borne out by available
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statistical and survey data. . . . 'Today, the grand jury
is the total captive of the prosecutor who, if he is
candid, will concede that he can indict anybody, at any
time, for almost anything, before any grand jury.' . . .
Indeed, current indictment procedures create what can only
be characterized as a prosecutor's Eden." ( Hawkins v.
Superior Court of San Francisco , 22 Cal. 3d 584, 589-90
(Cal. 1978).) (Internal citations omitted.)
The Sixth Amendment right to counsel in the U.S. Constitution is
not binding on states in civil trials. The U.S. Supreme Court
has added that a grand jury proceeding "is not an adversary
hearing in which the guilt or innocence of the accused is
adjudicated. Rather it is an ex parte investigation." ( United
States v. Calandra , 414 U.S. 338, 343-344 (U.S. 1974)). The
Court has never held, though it has suggested on two occasions,
that the constitutional right to counsel does not attach when an
individual is summoned to appear before a grand jury, even if
that individual is or becomes the subject of the investigation.
(See United States v. Mandujano , 425 U.S. 564, 581 (1976)
(plurality opinion); In re Groban, 352 U.S. 330, 333 (1957).)
While the Sixth Amendment right to counsel likely does not
automatically attach to grand jury proceedings, the
investigative nature of the grand jury arguably can be more
closely analogized to a civil deposition, at which individuals
are guaranteed the right to have counsel present. (Code of
Civil Procedure section 2025.420(b)(12); See, 15 USC 1312(i)(7).
"Any person compelled to appear under a demand for oral
testimony pursuant to this section may be accompanied,
represented, and advised by counsel."; See also, In re NASDAQ
Market-Makers Antitrust Litig ., 929 F. Supp. 723, 726 (S.D.N.Y.
1996).)
When Governor Davis vetoed this proposal contained in AB 527 in
1999, he stated:
The current operation of the grand jury, which follows
English common law practice, has remained essentially
unchanged since California was admitted to the Union in
1850 and has served us well for 150 years? Thus, any major
departures from existing practice warrants thorough and
thoughtful consideration and debate within the legal
community and among legal scholars.
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In response to the governor's veto, legal scholars at the
"Capital Center" noted above conducted a study on the potential
reform of California's grand jury system. (Vitiello & Kelso,
Reform of California's Grand Jury System , supra at 515.) At the
conclusion of its study the Capital Center observed (supportive
of the merits of this provision in the measure):
Counsel has a role in assuring that a target makes proper
invocation of such Ýconstitutional] rights and privileges.
Counsel may also encourage some targets to testify. This
offers the grand jury a fuller understanding of the facts
than might otherwise have been available. The end result
increases the grand jury's ability to exercise independent
judgment on whether to indict. . . . ÝT]he creation of the
right to counsel furthers independence of the grand jury
and . . . serves the public's interest, and not merely the
interest of the target.
Additionally, twenty years prior to Governor Davis' veto of AB
527 the American Bar Association (ABA) conducted an
investigation of the grand jury system, concluding after several
years of study that "a witness before the grand jury shall have
the right to be accompanied by counsel in his or her appearance
before the grand jury." (American Bar Association, Grand Jury
Policy and Model Act (1977-1982) (Marcia Christensen ed., 2d ed.
1982) Ýhereinafter ABA Report].) The ABA commented that
limiting the role of counsel would prevent the grand jury from
becoming a "mini-trial," but would address concerns about the
unfairness of disallowing a witness from being accompanied by
counsel. The ABA study went on to observe:
Requiring a witness who needs advice of counsel to consult
his attorney outside the grand jury room door is awkward
and prejudicial. It unnecessarily prolongs the grand jury
proceedings and places the witness in an unfavorable light
before the grand jurors. The American Law Institute has
called it a "degrading and irrational" procedure. It is
extremely damaging to the witness continually to get up, go
outside, and consult with counsel.
This sentiment was reflected in the testimony of former
Watergate Special Prosecutor Charles Ruff when he testified
before the House Judiciary Subcommittee in 1977, declaring:
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The mere possibility of occasional disruption simply cannot
overcome the right of the individual witness to consult his
attorney without going through the mildly absurd process of
leaving the grand jury room every time. Indeed, most
prosecutors would admit, I think, that they count on the
burden of leaving the room to dissuade the witness from
asserting his right to counsel." (Testimony before House
Judiciary Subcommittee, April 27, 1977, at 3.)
Allowing Witnesses to Have an Attorney Present During Grand Jury
Testimony Would Put California In Line with the Practices of
Other States : A state-by-state study conducted by the United
States Department of Justice, and later updated by the National
Association of Criminal Defense Lawyers (NACDL) reveals that
twenty-one states, including Arkansas, Colorado, Utah, Nevada,
Florida, New York, and Kansas allow some witnesses to have
counsel present during grand jury proceedings. (NACDL, State by
State Information Sheet available at
http://www.nacdl.org/grandjury.) Furthermore, this proposed
section of the measure appears to conform to the recommendations
of the American Bar Association, put forth in a comment to a
Judicial Advisory Committee of the Administrative Office of the
United States Courts. Kansas additionally permits counsel to
interpose objections. Calls for similar reform to allow
witnesses the right to have counsel present during testimony
have been echoed by the Cato Institute, the Capital Center for
Government Law and Policy, and others. (See Thomas Dillard, et.
al, How the Grand Jury Was Captured by Government , Cato
Institute Policy Analysis No. 476, (May 13, 2003); J. Clark
Kelso & Michael Vitiello, Tentative Recommendation Reform of
California Grand Jury Statutes , Capital Center for Government
Law & Policy, (April 18, 2001).)
The author of the bill concludes:
This bill would allow counsel to be present while the
witness testifies or is interviewed. Just as witnesses in
depositions are entitled to have counsel present, allowing
a witness in a grand jury proceeding to have counsel
ensures that the legal rights of the witness are protected.
It is fundamentally unfair (especially in a non-criminal
proceeding) to permit a party or witness (who may directly
or indirectly be affected by the report issued by the grand
jury) to be subject to governmental inquiry without the
right to counsel.
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ARGUMENTS IN OPPOSITION : As noted above, notwithstanding the
recent amendments to the bill made by the author, the California
District Attorneys Association (CDAA) continues to oppose the
measure, contending that opening grand jury proceedings to the
public and the press and allowing witnesses to have counsel
present would impede the investigatory nature of the grand jury
proceeding. CDAA states that "we feel very strongly that grand
jury proceedings should remain closed and even flipping the
presumption that proceedings be open unless the grand jury
requests a closed proceeding is in contravention of that
notion." CDAA maintains that opening the investigation to the
public makes it difficult for witnesses to be willing to come
forward and could potentially inhibit a witness from giving
candid testimony. As such, opponents assert that this measure
may have an unintended chilling effect on the testimony
received, and consequently diminish the resultant effectiveness
of the grand jury investigation.
CDAA further argues permitting witnesses to have counsel present
while giving testimony under oath would be a major departure
from existing practices, writing, "this change, even though it
is limited to situations in which a person is giving testimony
under oath to a civil grand jury, deviates from the
long-standing way in which grand juries have operated and is
unnecessary." CDAA went on to express concern "that such a
change to the civil grand jury system would be used to bootstrap
a similar change to the criminal grand jury system in the
future."
The California Grand Jurors' Association (CGJA) also writes in
opposition, noting that opening civil grand jury proceedings to
the public "would gut the power of the grand jury to investigate
possible misconduct by local public officials. Requiring the
examination of witnesses in public and in the glaring lights of
TV cameras will have the immediate effect of chasing off
'whistle blowers' who fear the possibility of retaliation."
CGJA reasons that existing protections provide sufficient
opportunity for public access to grand jury proceedings while
maintaining the confidentiality of the grand jury's watchdog
functions.
CGJA goes on to argue:
holding public sessions would expose the jurors to
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liability for defamation . . . . Such a risk would likely
discourage most grand juries from investigating any matter
that could be considered disparaging of any identifiable
person or corporation, and would stifle the candid exchange
of information and opinions among jurors. (It should be
noted, however, that jurors would only be liable for
statements the juror knew or should have known to be false.
As the United States Supreme Court noted the First and
Fourteenth Amendments require, "a federal rule that
prohibits a public official from recovering damages for a
defamatory falsehood relating to his official conduct
unless he proves that the statement was made with 'actual
malice'-that is, with knowledge that it was false or with
reckless disregard of whether it was false or not." ( New
York Times Co. v. Sullivan , 376 U.S. 254, 279-280 (U.S.
1964)).)
According to CGJA this bill would require the DA to be present
at all watchdog interviews, and as such would "effectively end
the independence of the Grand Jury by placing it under the
control of the District Attorney." (However, it should be noted
that this is already the case under existing law. This bill
does not change the existing requirement that examination of
witnesses be done by members of the grand jury and the district
attorney.)
CGJA additionally opposes the requirement that the grand jury
meet with the head of an agency subject to investigation 45 days
before to issuing its final report stating "The purpose of the
Ý45] day provision is unclear. If it is to give the person who
is likely to be held responsible for reported shortcomings the
ability to defend him/herself, that protection is already
afforded by section 933.05."
Like the CDAA, CGJA comments that allowing a witness's attorney
to be present during an interview would compromise "the grand
jury's ability to work confidentially and may transform the
interviews into adversarial hearings."
Judge Feinstein, Presiding Judge of the San Francisco Superior
Court, also writes to the Committee in opposition to the bill,
stating, "This bill would greatly diminish the productivity and
effectiveness of the Civil Grand Jury." Judge Feinstein's
opposition echoes the concerns of others regarding opening grand
jury hearings to the public. Judge Feinstein states:
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"This misguided provision would:
Dismantle the grand jury's ability to
effectively serve as a government watchdog empowered
to investigate the operations of local government and
actions taken by public officials.
Chill the investigative powers of the grand
jury and/or discourage potential whistleblowers who
reasonably would fear retribution for coming forward.
Usurp the grand jury's ability to uncover the
facts, candidly discuss those facts among themselves,
and weigh possible remedies to recommend in its final
report to the public."
Pending Related Legislation : AB 73 (Feuer) seeks to provide
that juvenile court hearings in juvenile dependency cases shall
be presumptively open and transparent to the public, unless the
court finds that admitting the public would not be in a child's
best interest. Scheduled to be heard in this Committee on April
5, 2011.
Prior Related Legislation : AB 527 (Baugh) in 2000 would have
authorized any witness before a grand jury who is or becomes the
subject of a grand jury investigation that may result in an
indictment, or in an accusation for willful or corrupt
misconduct in office, to have counsel present on his or her
behalf while he or she is testifying. Vetoed.
AB 829 (Thomson) in 1997, as it passed in the Assembly, was
substantively identical to the current proposal to require a
civil grand jury to meet with the chief executive or department
head of an agency subject to its investigation prior to issuing
a final report. However the bill was later amended to require
courts to ensure that jurors receive some minimum training. Ch.
443, Stats. of 1997.
REGISTERED SUPPORT / OPPOSITION :
Support
None on file
Opposition
California District Attorneys Association (CDAA)
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California Grand Jurors' Association (CGJA)
Analysis Prepared by : Drew Liebert and Erik Martin / JUD. /
(916) 319-2334