BILL ANALYSIS �
AB 622
Page 1
ASSEMBLY THIRD READING
AB 622 (Dickinson)
As Amended May 27, 2011
Majority vote
JUDICIARY 6-4 APPROPRIATIONS 11-5
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|Ayes:|Feuer, Atkins, Dickinson, |Ayes:|Fuentes, Blumenfield, |
| |Huffman, Monning, | |Bradford, Campos, Davis, |
| |Wieckowski | |Gatto, Hall, Hill, Lara, |
| | | |Mitchell, Solorio |
| | | | |
|-----+--------------------------+-----+--------------------------|
|Nays:|Wagner, Silva, Huber, |Nays:|Harkey, Donnelly, |
| |Jones | |Nielsen, Norby, Wagner |
| | | | |
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SUMMARY : Seeks to reform California's civil grand jury system
by 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)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. 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.
3)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
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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.
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.
3)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.
4)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.
5)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.
6)Requires that the deliberations of the grand jury and final
voting on an investigation to be done in private session.
7)Prohibits the attorney for a witness to be present during his
or her testimony before the grand jury.
FISCAL EFFECT : According to the Assembly Appropriations
Committee, the time necessary for a county, city, school or
community college district, or special district agency executive
to attend the required meeting with the civil grand jury would
be state reimbursable. These costs would probably not be
significant.
COMMENTS : The civil grand jury has deep historical roots in
common law legal tradition. The grand jury system was
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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 Fifth 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 civil functions of the grand jury have been an integral part
of the 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." (California Constitution
Article I, Section 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. There are numerous documented instances
where grand juries performed effectively and successfully in
uncovering waste, fraud, and abuse in local government.
This bill, which was recently amended, 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. 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.
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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. 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. 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.
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.
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.
Analysis Prepared by : Drew Liebert / JUD. / (916) 319-2334
FN: 0000972