BILL ANALYSIS �
AB 622
Page 1
CONCURRENCE IN SENATE AMENDMENTS
AB 622 (Dickinson)
As Amended September 1, 2011
Majority vote
-----------------------------------------------------------------
|ASSEMBLY: |66-8 |(June 1, 2011) |SENATE: |21-15|(September 7, |
| | | | | |2011) |
-----------------------------------------------------------------
Original Committee Reference: JUD.
SUMMARY : Permits witnesses before a civil grand jury proceeding
to be accompanied by counsel. Specifically, this bill :
1)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. Any
counsel present before the grand jury shall comply with all of
the following:
a) Counsel 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 the examination;
b) Counsel shall not disclose or use anything heard in the
grand jury room other than in the representation of the
witness he or she represents; and,
2)Provides that a violation of this provision by counsel shall
be a violation of the Rules of Professional Conduct and may be
reported to the State Bar of California.
3) Remains in effect only until January 1, 2017.
The Senate amendments significantly narrow the bill by deleting
the provision requiring the civil grand jury to meet with the
chief executive or department head of an agency subject to its
investigation prior to issuance of its final report, further
clarify restrictions on counsel representing a witness, and add
a sunset date.
EXISTING LAW :
1)Requires a grand jury to submit to the presiding judge of the
AB 622
Page 2
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)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.
4)Requires that the deliberations of the grand jury and final
voting on an investigation to be done in private session.
5)Prohibits the attorney for a witness to be present during his
or her testimony before the grand jury.
AS PASSED BY THE ASSEMBLY , this bill was substantially similar
to the version approved by the Senate.
FISCAL EFFECT : According to the Senate Appropriations
Committee, costs associated with additional counsel provided to
witnesses at their request are unknown but could be substantial
if the witnesses interviewed by a grand jury are largely county
and other local government employees that would require county
and agency counsel resources. As the bill is permissive in the
right to counsel but does not require counsel, any costs to
local agencies would be non-reimbursable.
COMMENTS : 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 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.
AB 622
Page 3
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.
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
AB 622
Page 4
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: 0002751