BILL ANALYSIS
SB 1168
Page 1
Date of Hearing: June 29, 2010
Counsel: Gabriel Caswell
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
SB 1168 (Cedillo) - As Amended: June 24, 2010
SUMMARY : Permits the city attorneys of specified municipalities
within the County of Los Angeles to impanel an additional grand
jury for the purpose of investigating misdemeanor offenses.
Specifically, this bill :
1)Permits the Presiding Judge of the County of the Superior
Court of Los Angeles to impanel an additional grand jury in
any city of Los Angeles County with a population in excess of
three million people.
a) States that the additional grand jury may inquire only
into misdemeanor offenses involving environmental, consumer
protection, workplace safety, labor, fraud, hate crime or
discrimination violations.
b) Specifies that the additional grand jury has no
authority to return indictments.
c) Clarifies that the additional grand jury is not
authorized to inquire into any matters that the regular
grand jury is inquiring into at the time of its
impanelment.
d) Specifies that the additional grand jury may serve for a
period of one year from the date of impanelment.
2)Provides that the prosecuting city attorney of any city within
the County of Los Angeles having a population in excess of
three million people and the prosecuting city attorney's
investigator may also sign a subpoena for witnesses to appear
before a grand jury.
3)Provides that whenever the prosecuting city attorney of any
city within the County of Los Angeles having a population in
excess of three million people considers that the public
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interest requires, he or she may direct the grand jury
impaneled to convene for the investigation and consideration
of those matters involving misdemeanor offense that he or she
desires to submit to it. He or she may take full charge of
the presentation of matters to the grand jury, issue
subpoenas, and do all other things incident thereto to the
same extent as the Attorney General or district attorney may
do, except that the prosecuting attorney may not prepare
indictments.
4)Provides that the prosecuting attorney of any city within the
County of Los Angeles having a population in excess of three
million people may also require by subpoena the attendance of
any person before the grand jury as an interpreter and that
the prosecuting attorney shall be liable for the costs of the
interpreter in those cases.
5)Creates a sunset provision of January 1, 2014.
6)Requires that the city attorney requesting the impanelment of
the grand jury be responsible for the costs related to the
impanelment and activities of the grand jury.
7)Specifies that is at any time the court determines that a
grand jury impaneled pursuant to this section is not
conducting proper investigative activity, the court may order
that grand jury to be discharged. The order of discharge
shall not become effective until 10 days after the date on
which it is issued and actual notice is given to the
prosecuting city attorney and to the grand jury.
EXISTING LAW :
1)Provides that one or more grand juries shall be drawn and
summoned at least once a year in each county. [California
Constitution Article I, Section 23.]
2)Provides that every superior court, whenever in its opinion
the public interest so requires, shall draw a grand jury.
(Penal Code Section 904.)
3)Authorizes the presiding judge of the superior court, or the
judge appointed by the presiding judge to supervise the grand
jury to, upon the request of the Attorney General (AG) or the
district attorney or upon his or her own motion, order and
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direct the impanelment, of one additional grand jury, as
specified. (Penal Code Section 904.6.)
4)Provides that in Los Angeles County the presiding judge of the
superior court, or the judge appointed by the presiding judge
to supervise the grand jury may upon the request of the AG or
the district attorney or upon his or her own motion, order and
direct the impanelment of up to two additional grand juries.
(Penal Code Section 904.8.)
5)Provides that the grand jury may inquire into all public
offenses committed or triable within the county and present
them to the court by indictment. [Penal Code Section 917.]
6)Specifies that "a grand jury indictment charging only
misdemeanors cannot be returned." [People v. Lukenbill (1991)
234 Cal. App. 3d Supp. 1.]
7)Provides that the grand jury or district attorney may require
by subpoena the attendance of any person before the grand jury
as interpreter. (Penal Code Section 937.)
8)Provides that a subpoena requiring the attendance of a witness
before the grand jury may be signed and issued by the district
attorney, the district attorney's investigator, or upon
request of the grand jury, by any judge of the superior court,
for witnesses in the state, in support of the prosecution, for
those witnesses whose testimony, in the judge's opinion is
material in an investigation before the grand jury, and for
such other witnesses as the grand jury, upon an investigation
pending before them may direct. (Penal Code Section 939.2.)
9)Requires that in all counties there shall be at least one
grand jury drawn and impaneled in each year. (Penal Code
Section 905.)
10)Provides that any person summoned as a grand juror, who
willfully and without reasonable excuse fails to attend, may
be attached and compelled to attend and the court may also
impose a fine not exceeding $50. States that if the grand
juror was not personally served, the fine shall not be imposed
until an order to show cause has been offered to the grand
juror to be heard. (Penal Code Section 907.)
11)Provides that when the grand jury is impaneled and sworn, it
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shall be charged by the court and the court shall give the
grand jurors such information as it deems proper, or as is
required by law, as to their duties, and as to any charges for
public offenses returned to the court or likely to come before
the grand jury. [Penal Code Section 914(a).]
12)States that, to assist the grand jury in the performance of
its statutory duties regarding civil matters, the court, in
consultation with the district attorney, the county counsel,
and at least one former grand juror, shall ensure that a grand
jury that considers or takes action on civil matters receives
training that at a minimum addresses, report writing,
interviews, and the scope of the grand jury's responsibility
and statutory authority. [Penal Code Section 914(b).]
Provides that any costs incurred by the court shall be
absorbed by the court or the county from existing resources.
13)States that the grand jury may inquire into the case of every
person imprisoned in the county jail on a criminal charge and
not indicted; that the grand jury shall inquire into the
condition and management of the public prisons within the
county; and, the grand jury shall inquire into the willful or
corrupt misconduct in office of public officers of every
description within the county. [Penal Code Section 919(a)(b)
and (c).]
14)Provides that whenever the AG considers that the public
interest requires, he or she may, with or without the
concurrence of the district attorney, direct the grand jury to
convene for the investigation and consideration of those
matters of a criminal nature that he or she desires to submit
to it. Provides that he or she may take full charge of the
presentation of the matters to the grand jury, issue
subpoenas, prepare indictments, and do all other things
incident thereto, to the same extent as the district attorney
may do. [Penal Code Section 923(a).]
15)States that whenever the AG considers that the public
interest requires, he or she may, with or without the
concurrence of the district attorney, petition the court to
impanel a special grand jury to investigate, consider, or
issue indictments for any activities subject to fine,
imprisonment, or asset forfeiture under a specified section of
the Welfare and Institutions Code. Provides that if the
evidence shows the commission of an offense for which
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jurisdiction would be in a county other than the county in
which the grand jury is impaneled, the AG, with or without the
concurrence of the district attorney in the county with
jurisdiction over the offense(s), may petition the court to
impanel a grand jury in that county. [Penal Code Section
923(b).]
16)Requires that each grand juror shall keep secret whatever he
or she or any other grand juror has said or in what manner any
grand juror has voted on a matter before them. [Penal Code
Section 924.2.]
17)Provides that the grand jury shall investigate and report on
the operations, accounts, and records of the officers,
departments or functions of the county or of any special
legislative district or other district in the county created
pursuant to state law, as specified. Allows the
investigations to be conducted on a selective basis each year,
but states that the grand jury may not duplicate any
examination of financial records that has been performed for
the board of supervisors, as specified. Allows the grand jury
to enter into a joint contract with the board of supervisors
to employ the services of an expert, as specified and approved
by the court. [Penal Code Section 925 and 926.]
18)Requires each 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
during the fiscal or calendar year. [Penal Code Section
933(a).]
19)States that all expenses of the grand jurors shall be paid by
the county treasurer out of the county's general fund. [Penal
Code Section 931.]
20)Requires each 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
during the fiscal or calendar year. Provides that for 45 days
after the end of the term, the foreperson and or her is or
designees shall, upon reasonable notice, be available to
clarify the recommendations of the report. [Penal Code
Section 933(a).]
21)States that as used in connection with the term grand jury,
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the "required number means 23 in a county having a population
exceeding four million; 11 in a county having a population of
20,000 or less, on approval of the board of supervisors; and
19 in all other counties." [Penal Code Section 888.2.]
22)Defines "grand jury" as a body of the required number of
persons returned from the citizens of the county before a
court of competent jurisdiction and sworn to inquire of public
offenses committed or triable in the county. [Penal Code
Section 888.]
23)Provides that each grand jury, or, if more than one has been
duly impaneled as specified, one grand jury in each county
shall be charged and sworn to investigate or inquire into
county matters of civil concern, such as the needs of county
officers or the performing of the duties of the agencies
subject to investigation. [Penal Code Section 888.]
24)Defines "indictment" as an accusation in writing presented by
the grand jury to a competent court, charging a person with a
public offense. [Penal Code Section 889.]
25)States that all felonies shall be prosecuted by indictment or
information, except as otherwise specified. [Penal Code
Section 737.]
26)Provides that when a defendant has been examined and
committed, it is the duty of the district attorney to file,
within 15 days after the commitment, an information against
the defendant which may charge the defendant with either the
offense or offenses named in the order of commitment or any
offense or offenses shown by the evidence taken before the
magistrate to have been committed. Further states that the
Information shall be in the name of the People of the State of
California and subscribed by the district attorney. [Penal
Code Section 739.]
27)States that if it appears from the examination that a public
offense has been committed and there is sufficient cause to
believe the defendant is guilty, the magistrate shall order
that the defendant be held to answer on the charge(s). [Penal
Code Section 872(a).]
FISCAL EFFECT : Unknown
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COMMENTS :
1)Author's Statement : According to the author, "SB 1168 would
allow the Los Angeles City Attorney to request the presiding
judge of Los Angeles County to impanel a grand jury to
investigate misdemeanors offenses. This bill would provide
the Los Angeles City Attorney with an investigative tool that
would expedite cases, cut investigative costs, and better
protect Los Angeles and the state of California.
"Los Angeles is the largest city in the state. Los Angeles
County has a population of approximately 10.4 million people;
it makes up almost one-third of California's total population.
The Los Angeles District Attorney's Office is the second
largest prosecuting agency in the state.
"The Los Angeles City Attorney's Office handles significant
cases that are not handled elsewhere; but because the Los
Angeles City Attorney does not have the authority to compel
testimony or the production of records through a criminal
grand jury, the length of time and the amount of money needed
to properly conduct an investigation end up costing tens - if
not hundreds - of thousands of dollars and many years of
investigation to get to the point where charges can be filed.
In the interim, the violation of the law continues. The grand
jury created through this bill would only handle significant
cases and not routine misdemeanors, and the grand jury would
be prohibited from returning indictments."
2)Grand Juries Generally : California has two procedural methods
for determining if probable cause exists prior to filing of
felony charges that entitle a defendant to jury trial. The
vast majority of cases proceed by preliminary hearing.
Preliminary hearings afford the accused of a public hearing
before a neutral magistrate and defense counsel. Grand juries
are not adversarial in nature, meaning the defense attorney
nor the accused are present, and they are held in secret.
Additionally, when grand juries are utilized, witnesses are
not subject to cross-examination and evidence presented is not
subject to objection on issues of admissibility.
Unlike the current usage of grand juries, this bill authorizes
the use of a criminal grand jury to investigate misdemeanors.
Misdemeanors are relatively minor offenses involving conduct
the State has deemed less severe than felony conduct.
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Misdemeanors have a default punishment of six months in the
county jail and a maximum punishment of one year in the county
jail. The use of a criminal grand jury for the investigation
of a misdemeanor is certainly a novel idea. However, the
grand jury would have no authority to issue an indictment for
a misdemeanor [People v. Lukenbill (1991) 234 Cal. App. 3d
Supp. 1] and would presumably be used in lieu of the city
attorney's traditional investigation procedures.
a) Preliminary Hearings : The prosecution begins a felony
case either by filing a grand jury indictment in the trial
court or by filing a complaint with a magistrate. [Cal.
Const., art. I, section 14.] If a complaint is filed, a
preliminary hearing must be held before a magistrate to
endure that there is enough evidence to hold the defendant
to answer in the trial court. (Penal Code Section 872.)
When a grand jury indictment is filed, there is no right to
a preliminary hearing. [Bowens v. Superior Court (1991) 1
Cal 4th 36.]
At a preliminary hearing, the prosecution must present
sufficient evidence to convince the magistrate that
probable cause exists to believe that a crime has been
committed and that the defendant committed it. (Penal Code
Sections 872 and 995.) If the prosecution shows probable
cause, the magistrate will hold the defendant to answer to
the charge in the trial court. The prosecution must then
file an information in the court within 15 days. [Penal
Code Sections 739 and 1382(a)(1).]
Due to the fact that the vast majority of felony cases settle
before trial, the preliminary hearing may be the sole
proceeding in the case at which evidence is taken. [San
Jose Mercury News v. Municipal Court (1982) 30 Cal 3d 498,
511.] The original purpose of the hearing was to eliminate
at an early stage changes that could be substantiated, thus
saving the accused the personal and financial hardship of
defending groundless charges, and the state the expense of
prosecuting.
Prior to preliminary hearings, defense counsel and
prosecution are entitled to all discovery materials. Both
sides have a clear picture of what the evidence in the case
is and can fairly evaluate the weight of that evidence and
often settle the matter prior to preliminary hearing.
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At a preliminary hearing, the prosecution may present live
witnesses, hearsay from qualified law enforcement
witnesses, or a combination of the two. [Penal Code
Section 872(b); Cal. Const., art. I, section 30(b); Whitman
v. Superior Court (1991) 54 Cal 3d 1063.] The preliminary
hearing transcript, like a civil deposition transcript, can
provide a basis for later impeaching a witness at trial if
the witness testifies inconsistently. [Evidence Code
Section 1235; California v. Green (1970) 399 US 149].
Furthermore, the preliminary hearing transcript, because it
is subject to cross-examination, may be used at trial when
a witness is later unavailable. [Evidence Code Sections
240(a)(4) and 1291; California v. Green, supra.]
At preliminary hearings, the defense may cross-examine
witnesses for purposes of raising affirmative defenses,
negating an element of the offense, or impeaching a
witness. [Jennings v. Superior Court (1967) 66 C2d 867;
Alford v. Superior Court (1972) 29 Cal App 3d 724.]
Cross-examination for the purpose of discovery is not
allowed. [Penal Code Section 866(b).] Similarly, the
presentation of defense evidence is limited to that which,
if believed, is reasonably likely to establish an
affirmative defense; negate an element of a crime charged;
or impeach a prosecution witness or declarant. [Penal Code
Section 866(a).]
At a preliminary hearing, defense counsel may move to
suppress illegally seized evidence introduced at the
hearing by making a written notice. A favorable ruling on
a motion to suppress evidence may result in the discharge
of part or all of the complaint. [People v. Belknap (1974)
41 Cal App 3d.]
b) Grand Juries : A grand jury investigates civil and
criminal matters in proceedings closed to the public. A
civil grand jury investigates the operation, management,
and fiscal affairs of the county and the cities in the
county. A criminal grand jury has constitutional authority
to indict a suspect after finding probable clause that he
or she committed an offense.
Prosecutors present a case before a grand jury in the form of
testimony and other evidence and may answer questions that
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members of the grand jury have concerning the law. A grand
jury is not supposed to receive evidence that would be
inadmissible over objection at trial. However, even if the
grand jury hears evidence that would be inadmissible at
trial, the indictment is not void if there is sufficient
competent evidence to support the indictment. [Penal Code
Section 939.6(b).] Furthermore, since the defense is not
involved in the proceedings in any manner, they are not
permitted to see the evidence against the accused. Unlike
preliminary hearings, since defense counsel is not present,
no motions to suppress illegal seized evidence are heard or
ever made and that evidence is submitted to the grand jury
with no knowledge on their part that the evidence was
illegally obtained.
Once the presentation of evidence is completed by the
prosecutor, the grand jury deliberates in secret. A
19-member grand jury brings an indictment when 12 or more
jurors conclude that the evidence presented established
probable cause to believe that the accused committed the
offense. A 23-member grand jury requires the concurrence
of at least 14 jurors; an 11-member grand jury requires the
concurrence of at least eight jurors.
Probable cause is the same standard used by a magistrate at a
preliminary hearing: "whether the evidence would lead a
person of ordinary caution or prudence to believe and
conscientiously entertain a strong suspicion of guilt of
the accused." [Cumminskey v. Superior Court (1992) 3 C4th
1018, 1027; Penal Code Section 939.8.]
Unlike a preliminary hearing, no notice is given to the
accused prior to the arrest of the now defendant once an
indictment is returned.
3)Grand Juries for Misdemeanors : This bill allows the City
Attorney of the City of Los Angeles to request that the
Presiding Judge of Los Angeles County impanel a grand jury for
the purpose of inquiring into matters involving specified
misdemeanor offenses. Under exiting law, grand juries cannot
return indictments when the only charges are misdemeanors and,
therefore, generally do not look into cases where the only
crimes in question are misdemeanors. [People v. Lukenbill,
234 Cal. App. 3d Supp. 1, 3 (Cal. App. Dep't Super. Ct.
1991).] This bill specifically provides that the grand jury
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created at the request of the prosecution has no jurisdiction
to return indictments.
According to the author, "[a]lthough current law allows for
the Attorney General and District Attorney's to empanel grand
juries for the purpose of conducting criminal investigations,
because the numbers of cases is steadily increasing and the
criminal grand jury has not been able to schedule enough
hearings, cases consequently fall through the cracks. The Los
Angeles City Attorney's Office in some instances has pursued
some of these cases, in particular high-profile cases. In
these high-profile cases, grand juries are preferable in order
to avoid potential media attention that may negatively impact
the case; however, the Los Angeles City Attorney does not have
the authority to impanel a criminal grand jury. Without the
authority to impanel a criminal grand jury to determine
whether the evidence is sufficient for the matter to be taken
to trial, these cases often end up costing hundreds of
thousands of dollars and many years of investigating to get to
the point where charges can be filed. In the interim, the
violation of the law continues."
A criminal grand jury in misdemeanor cases would permit city
attorneys to have pre-filing subpoena power. In the vast
majority of criminal matters, prosecutors or law enforcement
agencies investigate a case and obtain enough minimal evidence
to support a probable cause showing that an individual
committed a crime. The filing of charges requires probable
cause, which is a minimal standard of evidence. Once charges
are fined, the case is subject to the criminal discovery
process. Requests for information from either side may be
compelled by a judge if good cause is shown. This bill grants
city attorneys with the ability to issue subpoenas with the
authority of the grand jury, prior to a case ever being filed.
Individuals receiving these pre-filing criminal subpoenas
would be compelled to respond to them. Under this bill, a
person can be compelled to give testimony and produce records
to a prosecutor by a criminal subpoena prior to ever having
misdemeanor charges filed against him or her.
4)Los Angeles has Already Been Granted the Authority to Impanel
an Extra Criminal Grand Jury : In 2007, the District Attorney
of Los Angeles County was given the authority to request the
impanelment of an additional criminal grand jury. [SB 796
(Runner), Chapter 82, Statutes of 2007.]
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5)Grand Juries Were Always Intended to be Used Sparingly in
California : The California Constitution was adopted in 1879.
At that time, the Constitution stated in Article I, Section 8:
"Offenses heretofore required to be prosecuted by indictment
shall be prosecuted by information, after examination and
commitment by a Magistrate, or by indictment, with or without
such examination and commitment, as may be prescribed by law.
A Grand Jury shall be drawn and summoned at least one a year
in each county." The term "indictment" refers to a grand jury
indictment and the term "information" refers to a filing
before the court which proceeds by preliminary hearing.
According to a California AG Opinion (1989) Opinion No. 88-703,
"This provision was the subject of considerable debate in the
[constitutional] convention. Those who wanted to abolish the
grand jury and substitute the information system compromised
with those who wanted to retain the grand jury system by
agreeing to a provision which authorized both systems. The
requirement that a grand jury be drawn once a year in each
county was a part of that compromise." The purpose for
keeping the grand jury and requiring it to be drawn once per
year was to put a check on public officials.
6)The Operation of the Grand Jury : According to "Indictment by
Grand Jury" (),
"The prescribed constitutional function of grand juries in
federal courts is to return criminal indictments, but the
juries serve a considerably broader series of purposes as
well. Principal among these is the investigative function,
which is served through the fact that grand juries may summon
witnesses by process and compel testimony and the production
of evidence generally. Operating in secret, under the
direction but not control of a prosecutor, not bound by many
evidentiary and constitutional restrictions, such juries may
examine witnesses in the absence of their counsel and without
informing them of the object of the investigation or the place
of the witnesses in it.
"A witness called before a grand jury is not entitled to be
informed that he may be indicted for the offense under inquiry
and the commission of per jury by a witness before the grand
jury is punishable, irrespective of the nature of the warning
given him when he appears and regardless of the fact that he
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may already be a putative defendant when he is called." (Id.)
According to an article in Wikipedia, "Grand juries are today
virtually unknown outside the United States. The United
Kingdom abandoned grand juries in 1933 and instead uses a
committal procedure, as do all Australian jurisdictions. In
Australia, although the State of Victoria maintains provisions
for a grand jury in the Crimes Act 1958 under section 354
Indictments, it has been used on rare occasions by individuals
to bring other persons to court seeking them to be committed
for trial on indictable offences. New Zealand abolished the
grand jury in 1961. Canada abolished it in the 1970s.
"Today approximately half of the states in the U.S. employ
[grand juries], and only twenty-two require their use, to
varying extents. Most jurisdictions have abolished grand
juries, replacing them with the preliminary hearing at which a
judge hears evidence concerning the alleged offenses and makes
a decision on whether the prosecution can proceed.
"A grand jury is part of the system of checks and balances,
preventing a case from going to trial on a prosecutor's bare
word. The grand jury, as an impartial panel of ordinary
citizens, must first decide whether there exists reasonable
suspicion or probable cause to believe that a crime has been
committed. The grand jury can compel witnesses to testify
before them. Unlike the trial itself, the grand jury's
proceedings are secret; the defendant and his or her counsel
are generally not present for other witnesses' testimony. The
grand jury's decision is either a 'true bill' (meaning that
there is a case to answer) or 'no true bill'. Jurors
typically are drawn from the same pool of citizens as a petit
jury, and participate for a specific time period.
"Some argue that the grand jury is unjust as the defendant is
not represented by counsel and/or does not have the right to
call witnesses. Intended to serve as a check on prosecutors,
the opportunity it presents them to compel testimony can in
fact prove useful in building up the case they will present at
the final trial.
"In practice, a grand jury rarely acts in a manner contrary to
the wishes of the prosecutor. Judge Sol Wachtler, the
disbarred former Chief Judge of New York State, was quoted as
saying that a prosecutor could persuade a grand jury to
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'indict a ham sandwich.' As such, many jurisdictions in the
United States have replaced the formality of a grand jury with
procedure in which the prosecutor can issue charges by filing
an information (also known as an accusation) which is followed
by a preliminary hearing before a judge at which both the
defendant and his or her counsel are present. New York has
amended procedures governing the formation of grand juries
such that grand jurors are no longer required to have previous
jury experience.
"In some rare instances, the grand jury does break with the
prosecutor. It can even exclude the prosecutor from its
meetings and subpoena witnesses and issue indictments on its
own. This is called a 'runaway grand jury.' Runaway grand
juries sometimes happen in government corruption or organized
crime cases, if the grand jury comes to believe that the
prosecutor himself has been improperly influenced. Such cases
were common in the 19th century, but have become infrequent
since the 1930s.
"In all U.S. jurisdictions retaining the grand jury, the
defendant has the right under the Fifth Amendment not to give
self-incriminating testimony. However, the prosecutor can
call the defendant to testify and require the defendant to
assert the right on a question-by-question basis, which is
prohibited in jury trials unless the defendant has voluntarily
testified on his own behalf. Other evidentiary rules
applicable to trials (such as the hearsay rule) are generally
not applicable to grand jury proceedings."
(.) (Citations omitted.)
7)Argument in Support : According to the Los Angeles City
Attorney (the sponsor of this bill), "[h]istorically, a
criminal grand jury serves two functions. One is to review
evidence of criminal wrongdoing and to issue an indictment if
the evidence is sufficient. The other is to be an
investigative arm of the government, helping the prosecutor to
gather evidence in ongoing investigations. To be clear, this
bill is limited tot hat latter process.
"For years, the Office of the Los Angeles City Attorney has
acted as the state's 'little Attorney General's office.' It
is the largest municipal law office in the state representing
the largest city in the state. The prosecutors in this office
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protect Californians by handling significant cases that are
not handled elsewhere. Unlike district attorneys or the AG
General, however, the Los Angeles City Attorney does not have
the legal authority to compel testimony or the production of
records through a criminal grand jury. This increases both
the length of time and amount of money needed to properly
conduct an investigation. In the interim, the bad actors are
unable to continue to violate the law.
"At a time when enforcement budgets are being cut around the
state, we must utilize each and every tool at our disposal.
This includes giving our prosecutors the legal authority they
need to properly and efficiently investigate these significant
cases."
8)Argument in Opposition: According to the California District
Attorneys Association (CDAA), "[o]n behalf of CDAA, I regret
to inform you that we are opposed to your measure, SB 1168, as
amended on May 25, 2010. This bill would allow the Los
Angeles City Attorney to request the impanelment of a
misdemeanor grand jury.
"The first issue we note is that reluctant witnesses who are
subpoenaed to appear before the proposed grand jury may be
able to avoid testifying by invoking their privilege against
self-incrimination. There is no provision in the law to grant
them immunity from a misdemeanor prosecution and compel their
testimony.
"More concerning is that the measure proposes a potentially
unconstitutional arrangement because the misdemeanor grand
jury would exist simply as an investigative tool. Grand
jurors would only have the power to subpoena witnesses as well
as hear and record their testimony; there would be no power to
indict. This bill creates something that has never existed
before: a grand jury with no ability either to determine that
a crime has not occurred or to indict. Such a system would
likely face a charge that it is a sham and a violation of the
separation of powers. Specifically, the argument would be
that a judicial agency (the grand jury) is being used to carry
out an executive function (the investigation of crime) and
that this grand jury performs no judicial function because it
does not have the power to independently evaluate the evidence
and render an opinion whether there is probable cause to
believe a crime has been committed.
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"Although this bill might provide the Los Angeles City
Attorney's Office with a helpful tool, we must consider the
potential impact on other prosecutors. The grand jury
performs an important function and we do not want to risk
losing it. The past few decades have seen efforts to hamper
the use of grand juries including a bill, which was ultimately
vetoed, to allow defense attorneys inside sitting grand juries
for the first time ever. Additionally, we are concerned that
the bill's language requiring the Los Angeles City Attorney's
Office to pay for the costs of the grand jury could establish
a precedent going forward that could translate into district
attorneys having to pay for felony grand juries."
9)Related Legislation: AB 1906 Cook (2010) authorizes the
Presiding Judge of the Superior Court of the County of San
Bernardino, or the judge appointed by the presiding judge, to
supervise the grand jury and to impanel an additional civil
grand jury for a term to be determined by the presiding or
supervising judge, in accordance with specified procedures.
AB 1906 is currently pending hearing by Senate Judiciary
Committee.
10)Prior Legislation :
a) AB 1854 (Garrick), of the 2007-08 Legislative Session,
would have authorized the Presiding Judge of the San Diego
County Superior Court, or the judge appointed by the
presiding judge, to supervise the grand jury and to impanel
one additional grand jury in San Diego County. AB 1854
failed passage in the Senate Public Safety Committee.
b) SB 796 (Runner), Chapter 82, Statutes of 2007,
authorizes the Presiding Judge of the Superior Court of the
County of Los Angeles, or the judge appointed by the
presiding judge, to supervise the grand jury and to impanel
an additional grand jury in that county, as specified.
REGISTERED SUPPORT / OPPOSITION :
Support
Los Angeles City Attorney (Sponsor)
California Narcotic Officer's Association
California Police Chiefs Association
SB 1168
Page 17
Los Angeles County Sheriff
Opposition
California Civil Justice Association of California
California District Attorneys Association
California Attorneys for Criminal Justice
Analysis Prepared by : Gabriel Caswell / PUB. S. / (916)
319-3744