BILL ANALYSIS �
SENATE JUDICIARY COMMITTEE
Senator Noreen Evans, Chair
2011-2012 Regular Session
AB 622 (Dickinson)
As Amended May 27, 2011
Hearing Date: July 5, 2011
Fiscal: Yes
Urgency: No
RD
SUBJECT
Civil Grand Juries
DESCRIPTION
This bill would require that a civil grand jury meet with the
chief executive or department head of an agency under
investigation to discuss the nature of the investigation and to
receive input on the report at least 45 days prior to the
issuance of its final report.
This bill would also permit any witness called to testify before
a civil grand jury to have counsel present on his or her behalf
while giving sworn testimony, except as provided. The ability to
have counsel present during sworn testimony would be subject to
specified limitations, including that the counsel shall not
object to questions asked or disclose anything heard in the
grand jury room.
This bill would also provide that any witness who is the subject
of the grand jury investigation has the right to disclose, in
writing, exculpatory evidence.
BACKGROUND
The California Constitution requires each county to draw and
summon at least one grand jury a year. (Cal. Const. art. I,
sec. 23.) Grand juries are bodies comprised of a certain number
of citizens of the county sworn to inquire of public offenses
committed or triable in the county, and may be both criminal and
civil. (Pen. Code Sec. 888.) The functions of a county grand
jury were broadly summarized in McClatchy Newspapers v. Superior
(more)
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Court (1988) 44 Cal.3d 1162, 1170 as follows: "The California
grand jury has three basic functions: to weigh criminal charges
and determine whether indictments should be returned; to weigh
allegations of misconduct against public officials and determine
whether to present formal accusations requesting their removal
from office; and to act as the public's 'watchdog' by
investigating and reporting upon the affairs of local
government. Of these functions, the watchdog role is by far the
one most often played by the modern grand jury in California."
In this latter role, grand juries have a duty to inquire into
"county matters of civil concern," and thereby have the
authority to inquire about unindicted prisoners, to investigate
county prisons, and the willful or corrupt misconduct in office
of public officers within the county; the authority to
investigate ownership, transfer, or sale of real property; the
authority to investigate the operations, accounts and records of
county officers, departments, or functions; and the authority to
investigate the books and records of cities or joint powers
agencies. (Pen. Code Secs. 919, 920, 925, 925(a).)
California law 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, and permits for a
final report to also be submitted to responsible officers,
agencies, or departments for comment after the presiding judge
has found to be in compliance with Title 4 of Part 2 of the
Penal Code (Grand Jury Proceedings). Under current law, for 45
days after the end of the term, the foreperson and his or her
designees must, upon reasonable notice, be available to clarify
the recommendations of the report. (Pen. Code Sec. 933(a).) In
addition, a grand jury is permitted, upon approval of the
presiding or supervising judge, as to any matter not subject to
privilege, to make available to the public evidentiary material,
findings, and other information relied upon by, or presented to,
a grand jury for its final report in any civil grand jury
investigation. (Pen. Code Sec. 929.)
This bill seeks to enhance the accountability and accuracy of
grand jury reports by requiring that a civil grand jury, at
least 45 days prior to the issuance of its final report, to meet
with the chief executive or department head of an agency under
investigation to discuss the nature of the investigation and
receive input.
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This bill would also provide for the ability of any witness
called to testify under oath before a civil grand jury to have
counsel present during his or her testimony, except as
specified. In addition, this bill would not grant witnesses any
constitutional right to counsel, nor would it grant the
subpoenaed witness any discovery rights, but it would provide a
witness who is the subject of the investigation the right to
disclose, in writing, exculpatory evidence, as specified.
CHANGES TO EXISTING LAW
Existing law provides that one or more grand juries shall be
drawn and summoned at least once a year in each county. (Cal.
Const. art. I, sec. 23; Pen. Code Sec. 905.)
Existing law 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. (Pen. Code Sec. 888.)
Existing law requires the grand jury to investigate and report
on the operations, accounts, and records of officers,
departments, or functions of the county or district, as
specified. (Pen. Code Sec. 925.)
Existing law requires the court to, in consultation with the
district attorney, the county counsel, and at least one former
grand juror, ensure that a grand jury which considers or takes
action on civil matters receives training that addresses, at a
minimum, report writing, interviews, and the scope of the grand
jury's responsibility and statutory authority. (Pen. Code Sec.
914(b).)
Existing law allows, as to any matter not subject to privilege,
with the approval of the presiding judge of the superior court
or supervising judge, a grand jury to make available to the
public part or all of the evidentiary material, findings, and
other information relied upon by, or presented to, a grand jury
for its final report in any civil grand jury investigation,
provided that the name of any person, or facts that lead to the
identity of any person who provided information to the grand
jury is not released. (Pen. Code Sec. 929.)
Existing law 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
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the fiscal or calendar year. Existing law also provides that a
final report may be submitted for comment to responsible
officers, agencies, or departments, including the county board
of supervisors, when applicable, upon the presiding judge's
approval of the report, as specified. For 45 days after the end
of the term, the foreperson and his or her designees, upon
reasonable notice, must be available to clarify the
recommendations of the report. (Pen. Code Sec. 933(a).)
Existing law requires that:
that the governing body of any public agency subject to the
reviewing authority of the grand jury comment to the presiding
judge on the findings and recommendations pertaining to
matters under its control, no later than 90 days after the
grand jury submits a final report on the operations of that
public agency; and
every elected county officer or agency head must comment to
the presiding judge on the findings and recommendations
pertaining to matters under the control of that county officer
or agency head and any agency and agencies which he or she
supervisors or controls within 60 days. (Pen. Code Sec.
933(c).)
Existing law requires that, during an investigation, the grand
jury meet with the subject of that investigation regarding the
investigation, unless the court, either on its own determination
or upon request of the foreperson of the grand jury, determines
that such a meeting would be detrimental. (Pen. Code Sec.
933.05(e).)
Existing law requires that, a grand jury shall provide to the
affected agency a copy of the portion of the grand jury report
relating to that person or entity two working days prior to its
public release and after the approval of the presiding judge.
Existing law also prohibits any officer, agency, department, or
governing body of a public agency from disclosing any contents
of the report prior to the public release of the final report.
(Pen. Code Sec. 933.05(f).)
This bill would require, at least 45 days prior to the issuance
of its final report, that a civil grand jury meet with the chief
executive or department head of an agency under investigation to
discuss the nature of the investigation and to receive input
from that chief executive or department.
This bill would permit any witness who is called to give
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testimony under oath before a civil grand jury to have counsel
present on his or her behalf while testifying. This bill would
provide, however, that the right to counsel would not apply if a
corporation is the subject of the investigation and the witness
is an employee or officer of the corporation and not the subject
of the grand jury investigation.
This bill would provide that counsel present before the grand
jury:
shall not object to any questions asked of the witness or
otherwise speak to the grand jury, but may advise the witness
during the course of examination;
shall not disclose anything heard in the grand jury room; and
shall not represent more than one witness in the same
proceeding (this would also apply to any law firm representing
a witness).
This bill would permit a prosecuting attorney to make a motion
to the presiding judge for sanctions against counsel who is
representing a witness and refer the violation to the State Bar
of California.
This bill would provide that any witness who is the subject of
the grand jury investigation has the right to disclose, in
writing, exculpatory evidence, including the names and address
of witnesses who possess exculpatory information, to the
prosecutor.
This bill would clarify that nothing in the section shall be
construed to grant a witness a constitutional right to counsel
under the U.S. or California Constitutions, nor grant any
discovery right for the subpoenaed witness.
COMMENT
1. Stated need for the bill
According to the author:
This bill would bring accountability and accuracy to written
grand jury reports by requiring the grand jury to meet with
the head of a targeted agency or department for review of a
report for accurate facts. This bill would also allow . . .
witnesses permission to have counsel present during their
testimony to a grand jury performing its civil investigative
function.
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California has had grand juries since the state's inception,
stating that "grand juries shall be drawn and summoned at
least once a year in each county." �Footnote omitted.] There
are many examples of grand juries over the last 150 years
effectively uncovering waste, fraud and abuse in local
jurisdictions. However, there is also considerable criticism
of the grand jury system. Critics decry juror ineptitute,
politically motivated jurors and abuse of the considerable
power that grand juries possess. Additionally, the
recommendations of the grand jury are often ignored or not
implemented because they are impractical, infeasible,
unaffordable, or simply based on completely fabricated facts.
. . .
Historically, grand juries operate entirely in secret, with
all parties barred from any public discussion of the grand
jury's actions. The only information that the public may
glean from a grand jury investigation is a written report that
may be issued at the end of an investigation containing
recommendations.
Current law does not allow any witness, including the target
of an investigation, to have counsel present during their
testimony to the grand jury. 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.
2. Importance of confidentiality to grand jury investigations
and the "watchdog" role
This bill seeks to allow counsel to be present during the
testimony of a witness before a civil grand jury, except under a
limited circumstance. Grand jury proceedings historically do
not allow for third parties, including counsel, to enter the
room of a grand jury proceeding, though a witness could still
otherwise retain counsel in preparation for the investigation.
At several points, legislation has been introduced in California
to allow for counsel to be present during testimony of a
witness. Most of these bills have died short of the governor's
desk, with one getting vetoed in 2000. (See Prior Legislation
and Comment 2b below for further comment).
a. Previous legislation on counsel in grand jury proceedings
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This bill would allow a witness who is testifying before a
civil grand jury to bring his or her counsel into the grand
jury room, except where the witness is an employee or officer
of a corporation that is the subject of the investigation and
the witness is not himself or herself the subject of the grand
jury investigation. The bill would permit the counsel to
advise the witness during his or her testimony but would
prohibit counsel from making any objections to questions,
disclosing anything heard in the grand jury room, or
representing more than one witness in the same proceeding.
This bill would also allow a prosecutor to seek sanctions
against counsel if counsel violates any of those limiting-type
provisions, and would further permit that the prosecutor refer
the violation to the State Bar of California. Finally, the
bill explicitly clarifies that it should not in any way be
construed to grant a witness a right to counsel under the U.S.
or state constitutions.
The provisions of this bill are almost identical to the ones
contained in a bill vetoed by Governor Gray Davis, AB 527
(Baugh, 2000). (Unlike this bill, however, AB 527 applied to
all grand juries, including criminal, and applied only to
witnesses who were the subject matter of the investigation.)
In his veto message, Governor Gray Davis commented that:
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. . . .
AB 527 would place a new burden on what is now a reasonably
effective grand jury system. Additionally, the presence of
defense counsel in grand jury proceedings may lead to undue
delays and interference with the grand jury's "fact finding
process." The secrecy of grand jury proceedings is an
essential element of the grand jury process. AB 527 has
the potential for turning "a fact finding process" into a
quasi-adversarial proceeding.
Because this bill addresses only civil grand juries and not
criminal grand juries, any references to prosecutors would
arguably need to be removed. Such amendments, however, would
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not be sufficient to address the concerns that arise from
these provisions. As mentioned by then-Governor Davis's veto,
secrecy is vital to the grand jury process. In this way, the
operation of grand juries is unique from most any other part
of the American system of government that favors transparency
and openness and that generally adheres to the principle that
the public has a right to access all official documents and
proceedings, absent extraordinary circumstances. With respect
to grand jury proceedings, it is the rule-not the exception-to
maintain secrecy. At its core, a grand jury is a secret
tribunal and the disclosure of grand jury materials is
strictly limited. This is to allow a grand jury the ability
to perform its investigatory function without interference or
influence. As such, there are a number of concerns that arise
when the confidentiality of these proceedings is disrupted, as
discussed further below.
b. Impact of permitting the presence of counsel during
testimony of a witness
As stated in the McClatchy Newspapers case, of the three basic
functions of a California grand jury, its function as the
public's "watchdog" by investigating and reporting on the
affairs of local government is the one most often played in
the modern grand jury. (McClatchy Newspapers v. Superior
Court (1988) 44 Cal.3d 1162, 1170.) It is arguably also one
of its most important in a system of government that relies on
various checks and balances. In performing this important
watchdog role over government, secrecy enables the grand jury
to operate independently and affords them the ability to be
free of any outside influence or pressure that can alter the
direction of an investigation's course and it enables them the
freedom to delve into all potentially relevant matters without
inhibition of the rules of procedure and evidence. This is
not to controvert any person's rights, but to create an
atmosphere that promotes the divulgence of any information
pertinent to the truth. This becomes increasingly important
when seeking to uncover any official misconduct.
Indeed, courts have held that openness of grand jury
proceedings is the exception and is permitted only where
expressly provided by statute. (20A Cal Jur Criminal Law:
Pretrial Proceedings Sec. 706 (citations omitted).) "Viewing
that statutory scheme as a whole, it appears that the
Legislature intended disclosure of grand jury materials to be
strictly limited." (Daily Journal Corp. v. Superior Court
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(1999) 20 Cal.4th 1117, 1124.)
The presence of counsel during testimony, as this bill would
allow, raises questions about potential unintended
consequences. While the author points to numerous states
having adopted similar provisions and the fact that a witness
may leave the grand jury room during testimony to consult his
or her attorney standing outside the room, allowing counsel
into the grand jury room would be a significant change in this
state's treatment of grand juries and their ability to carry
out their duties. "California's grand juries, from early
statehood, have examined conditions in jails, treatment of
indigent patients, accounting matters, taxation issues, public
works, and law enforcement. During the early twentieth
century, a number of states reformed their grand juries and
ceded power to the district attorneys. Similar reform efforts
failed in California because grand juries had gained the
reputation as 'enemies of municipal corruption.'" (Reform of
the California Grand Jury System, Michael Vitiello and Clark
Kelso (2002) 35 Loy. L.A. L. Rev. 513, 521 (citations
omitted).) Thus, such a change in the fundamental operations
of California grand juries raises the question of whether
public policy in California favors altering grand juries'
existing ability to conduct proceedings away from the eyes,
ears, and influence of third parties.
By allowing counsel into the room, the information flow to the
grand jury will necessarily be restricted as well. In turn,
the ability of the grand jury to obtain necessary information
relating to a needed change in local government policies or to
any local government misconduct that the public needs to be
made aware of, could be significantly impacted. Such a change
would deviate from the longstanding policy decision in
California to choose secrecy over transparency in grand jury
proceedings.
Moreover, as argued by the California District Attorneys
Association (CDAA), it is possible that such legislation could
be used to justify a similar change in the criminal grand jury
system as well. Criminal grand juries are often used to
determine if there is sufficient information to bring charges
against an individual(s). In fact, the primary duty of a
grand jury investigating criminal offenses is to clear the
innocent as much as bring to trial those who may be guilty,
and its opinion that a crime may have been committed by a
certain individual amounts to no more than a conclusion that
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the case should be tried by a jury of that person's peers.
(See U.S. v. Dionisio (1973) 410 U.S. 1, Berardi v. Superior
Court (2007) 149 Cal.App.4th 476, and People v. Brown (1927)
81 Cal.App. 226.) Making it a quasi-adversarial procedure can
significantly impact the ability of a criminal grand jury to
determine whether charges should or should not be brought,
potentially interfering with the carriage of justice and the
effectiveness of this state's criminal justice system could be
severely impacted.
Accordingly, the Committee should consider whether a five year
sunset should be added to this bill. That sunset would allow
the Legislature to review the impact that the proposed changes
have upon the ability of grand juries to carry out their
investigatory responsibilities and to review whether the
integrity of the confidential nature of civil grand jury
proceedings is effectively maintained by the provisions of
this bill prohibiting counsel from disclosing the information
learned during the proceedings. The bill should also be
amended to clarify the provisions relating to counsel, and
strike out unnecessary language relating to exculpatory
evidence.
Suggested amendments:
1) On page 3, line 31, after "disclose" insert "or use"
2) On page 3, line 31, after "room" insert "other than in
the representation of the witness he or she represents."
3) On page 3, strike lines 36 through 39
4) On page 4, strike lines 1-8 and insert "(b) Any
violation of this section by any counsel shall be a
violation of the Rules of Professional Conduct and should
be reported to the State Bar of California.
(c) This section shall be repealed on January 1, 2017,
unless otherwise extended by statute."
5) On page 4, line 9, strike "(e)" and insert "(d)"
3. Reporting obligations of a grand jury
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Grand jury investigations, while incredibly secretive,
ultimately result in reports for public consumption. These
reports are first submitted to the presiding judge for review,
to ensure that the report is in compliance with California law
on grand jury proceedings. (Pen. Code Sec. 933.) Arguing that
additional accuracy and accountability is needed for grand jury
reports, this bill seeks to require that at least 45 days before
a final report is issued, the civil grand jury meet with the
chief executive or department head of an agency under
investigation to discuss the nature of the investigation and to
receive input on the report.
Existing law takes measures of accountability and accuracy for
grand jury reports, while balancing against the concern that
grand jury reports remain untainted. First, a grand jury is
required to meet with the subject of the investigation, unless
the court determines that such a meeting would be detrimental,
and it is also required to provide the affected agency with a
copy of the portion of the report relating to that person or
entity two days prior to its public release and after approval
of the presiding judge. (Pen. Code Secs. 933(e)-(f).) Also
upon the approval of the report by the presiding judge that the
report is in compliance with existing law sections on the powers
and duties of the grand jury, a final report may be submitted
for comment to responsible officers, agencies, or departments.
For 45 days after the end of their terms and the release of that
report, the foreman and his or her designees must be available,
with reasonable notice, in order to provide any clarification
necessary about the recommendations of its report. (Pen. Code
Sec. 933(a).)
In addition, existing law requires that no later than 90 days
after the grand jury submits a final report on the operations of
a public agency to its reviewing authority, the governing body
of that agency shall comment to the presiding judge on the
findings and recommendations pertaining to matters under the
control of that governing body. Similarly, every elected county
officer or agency head for which the grand jury has
responsibility shall comment within 60 days to the presiding
judge on the findings and recommendations pertaining to matters
under his or her control. (Pen. Code Sec. 933(c).) Among the
responses that are allowed, is the option to outline why a grand
jury's recommendations will not be implemented where those
recommendations are not warranted or not reasonable. (Pen. Code
Sec. 933.05(b)(4).)
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Also, if questions arise as to the basis for a grand jury
report's conclusions, Committee staff notes that the Penal Code
authorizes the disclosure of evidentiary material where the
identity of the person disclosing the information is removed,
upon approval of the presiding judge. (Penal Code Sec. 929.)
The author argues that grand jury reports often get facts
incorrect and cause great harm in doing so to the agencies and
officials under their investigation. While egregious errors
that rise to the level of defamation are not protected by
existing law, even with respect to grand jurors, as noted by the
author, it is beneficial for all parties involved if those
errors can be reduced ahead of the release of the report. This
bill would allow for an additional level of review by putting
the grand jury and the entity or person subject to investigation
in the same room to discuss the report, 45 days in advance. At
the same time however, it is important to protect grand juries
and their reports from any taint by public officials and
agencies that may not wish to see certain information released
to the public that the public arguably has a right to know.
This is particularly true in the case where a grand jury may be
accusing an official of severe misconduct. In such instances,
it may not be appropriate to require that the grand jury meet
with the official or agency. The following amendments would
address these concerns by providing the presiding judge, or the
judge supervising the grand jury in his or her place, to waive
the requirement where circumstances warrant such a waiver, while
still requiring that the meeting take place in the majority of
investigations. Further, by reducing the time limit to 21
days, the concern that a party under investigation could unduly
influence the grand jury into changing their report would be
mitigated.
On page 2, line 5, strike "45 days" and insert "21 days"
On page 2, line 6, strike "report." and insert "report, unless
the presiding judge or supervising judge, either on his or her
own determination or upon request of the foreperson of the
grand jury, determines that such a meeting would be
detrimental."
4. Opposition to the bill
The California District Attorneys Association (CDAA), in
opposition to this bill, states that, "�w]e acknowledge and
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appreciate that amendments have been taken to remove the
provision that required civil grand jury proceedings to be open
to the public. However, CDAA must remain opposed given the
retention of the language that permits a person to have counsel
present while testifying. We feel this change, though limited
to situations in which a person is giving testimony under oath
to a civil grand jury, deviates from the longstanding method in
which grand juries have operated and is unnecessary. Also, we
are concerned 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."
Also in opposition, the California Grand Juries Association
remarks that:
Other sections of existing law are inconsistent with allowing
presence of attorneys in grand jury proceedings. Section 934
prohibits the presence of even the judge or county counsel as
to civil matters at grand jury sessions unless the grand jury
asks for advice. Grand jurors take an oath not to disclose
any evidence brought before the grand jury (section 911).
Existing statutes also prohibit and criminalize such
disclosure of evidence (sections 924.1 and 924.2)�.] There
has been no attempt to reconcile these prohibits with
authorizing attorneys to be present grand jury sessions . . .
The overwhelming number of witnesses interviewed by a grand
jury will be county (and other local government) employees
concerning their official duties. Accordingly, section 939.22
would add a major burden to the offices of county counsel to
represent these employees at their interviews. The cost of
this additional burden would be substantial. County counsel
representation of witnesses before a grand jury would also
constitute a conflict of interest since county counsel also
represents the grand jury. . . .
Aside from the expense and potential disruption, attorneys'
presence t grand jury interviews will clearly compromise a
grand jury's ability to work confidentially and may transform
interviews into adversarial hearings. . . . �The author] says
he is trying to avoid having attorneys have to sit outside the
jury room to answer questions from a witness during the
interview. But in our experience with grand juries throughout
the State, this circumstance rarely exists in actuality.
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Support : California Association of Public Authorities for IHSS
(CAPA); California State Association of Counties (CSAC)
Opposition : Adam Hill, Supervisor, District Three of San Luis
Obispo County; Bill Dodd, Supervisor, Napa County Board of
Supervisors; California District Attorneys Association (CDAA);
California Grand Jurors Association (CGJA)
HISTORY
Source : Author
Related Pending Legislation : AB 1133 (Silva) would require a
grand juror who is an employee of, or who was employed within
the prior three years by, an agency within the civil grand
jury's investigative jurisdiction to inform the foreperson and
court of that fact and require the grand juror to recuse himself
or herself from participating in any grand jury civil
investigation of that agency. This bill is on the Senate Floor.
Prior Legislation :
AB 312 (Spitzer, 2004), among other things, would have permitted
a final report on the operations of any public agency subject to
the reviewing authority of the grand jury to be accompanied by
the evidentiary material, findings, and other information relied
upon by, or presented to, the grand jury for that final report.
This bill died after failing passage in the Assembly Committee
on Local Government.
AB 527 (Baugh, 2000), See Comment 2a.
AB 502 (Burton, 1997), would have required a subpoena to notify
any witness not subject of a grand jury investigation, among
other things, that he or she has a right to have an attorney
present during the grand jury examination. This bill was
referred to the Committee on the Public Safety but was never
heard in committee.
AB 503 (Burton, 1997), would have required a prosecutor to
notify any witness who is the subject of a grand jury
investigation, among other things, that he or she has a right to
have an attorney present during the grand jury investigation.
This bill was referred to the Committee on the Public Safety but
was never heard in committee.
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Prior Vote :
Assembly Floor (Ayes 66, Noes 8)
Assembly Appropriations Committee (Ayes 11, Noes 5)
Assembly Judiciary Committee (Ayes 6, Noes 4)
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